CITATION: Barbosa v. Health Professions Appeal and Review Board, 2012 ONSC 1761
DIVISIONAL COURT FILE NO.: 249/11
DATE: 20120514
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
then r.s.j., matlow and SWINTON JJ.
B E T W E E N:
RUBENS FERNANDO HENRIQUE CESPE BARBOSA
Appellant
- and -
HEALTH PROFESSIONS APPEAL AND REVIEW BOARD and COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO
Respondents
Nathalie Godbout and Matthew Letson, for the Appellant
David Jacobs and Amy Stein, for the Respondent Health Professions Appeal and Review Board
Carolyn Silver and Amy Block, for the Respondent College of Physicians and Surgeons of Ontario
HEARD at Toronto: January 23, 2012
Swinton J.:
Overview
[1] The appellant, Dr. Rubens Barbosa, appeals an order of the Health Professions Appeal and Review Board (“the Board”) dated March 25, 2011, which upheld a decision of the Registration Committee of the College of Physicians and Surgeons of Ontario (“the CPSO”) denying his application for a Certificate of Registration for Independent Practice in Ontario.
[2] At issue in this appeal is the application of the labour mobility regulations applicable to the health professions in Ontario. In particular, the issue is whether the Board reasonably held that the appellant’s New Brunswick licence is not equivalent to the certificate he seeks in Ontario.
[3] For the reasons that follow, I find the Board’s decision was reasonable, and I would dismiss this appeal.
The Statutory Framework
[4] The requirements for a Certificate of Registration authorizing independent practice of medicine in Ontario are set out in s. 3(1) of O. Reg. 865/93, issued under the Medicine Act, 1991, S.O. 1991, c. 30. They are:
• a degree in medicine
• successful completion of Parts 1 and 2 of the Medical Council of Canada Qualifying Examination
• completion of a clerkship at an accredited medical school in Canada, a year of postgraduate medical education at an accredited medical school in Canada, or a year of active medical practice in Canada with significant clinical experience pertinent to the applicant’s area of medical practice, and
• certification by examination by the Royal College of Physicians and Surgeons of Canada or the College of Family Physicians of Canada.
[5] Unless a registration requirement is prescribed as “non-exemptible” in the regulation, the Registration Committee of the CPSO has the discretion to exempt an applicant from the prescribed standards and qualifications.
[6] The Council of the CPSO has passed a number of registration policies governing the granting of exemptions. The four Registration Pathways set out alternative qualifications in circumstances where the standard qualifications are lacking. The qualifications for each Pathway vary depending on the source of the applicant’s medical degree, where the applicant is practising at the time of the application and where the applicant received post-graduate training. An applicant accepted under one of the Pathways is granted a restricted certificate of registration subject to terms, conditions and limitations on his or her practice. He or she is required to practise with a monitor/supervisor and be assessed after a minimum period of one year.
[7] Individuals with an out-of-province certificate may also apply to the College for a certificate of registration pursuant to the interprovincial mobility provisions of the Health Professions Procedural Code (“the Code”), being Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18. Sections 22.15 through 22.23 of the Code were enacted to fulfill Ontario’s obligations under the 1994 Agreement on Internal Trade (“AIT”). The purpose of the provisions is found in s. 22.16, which states:
The purposes of sections 22.15 to 22.23 are,
(a) to eliminate or reduce measures established or implemented by the College that restrict or impair the ability of an individual to obtain a certificate of registration when the individual holds an equivalent out-of-province certificate; and
(b) to support the Government of Ontario in fulfilling its obligations under Chapter Seven of the Agreement on Internal Trade.
[8] Section 22.17 prohibits an Ontario residency requirement. Section 22.18, which is key in this appeal, applies if the applicant “already holds an out-of-province certificate that is equivalent to the certificate of registration being applied for” (s. 22.18(1)). The term “equivalent” is not defined in the Code.
[9] Subsections 22.18(2) through (8) set out limits on the registration requirements that the CPSO can impose on an applicant with an equivalent certificate. For example, s. 22.18(2) prohibits any registration requirement that would require the applicant to undergo any material additional training, experience, examinations or assessments.
[10] Nevertheless, the College can impose registration requirements, such as an insurance requirement, if the conditions set out in subsection 22.18(6) are met. That subsection provides:
(6) The conditions referred to in subsections (4) and (5) are:
Subject to subsection (9), the requirement imposed by the College on applicants who hold an out-of-province certificate must be the same as, or substantially similar to but no more onerous than, the requirement imposed by the College on applicants who do not hold an out-of-province certificate.
The requirement imposed by the College must not be a disguised restriction on labour mobility.
(7) This section does not prohibit the College from carrying out the following measures in respect of the applicant if the conditions set out in subsection (8) are met:
Refusing to issue a certificate of registration to the applicant or imposing terms, conditions or limitations on the applicant’s certificate of registration if, in the opinion of the Registration Committee, such action is necessary to protect the public interest as a result of complaints, or criminal, disciplinary or other proceedings, against the applicant in any jurisdiction whether in or outside Canada, relating to the applicant’s competency, conduct or character.
If the out-of-province certificate held by the applicant is subject to a term, condition or limitation,
i. imposing an equivalent term, condition or limitation on the certificate of registration to be issued to the applicant, or
ii. refusing to register the applicant, if the College does not impose an equivalent term, condition or limitation on the certificate of registration being applied for.
(8) The conditions referred to in subsection (7) are:
Subject to subsection (9), the measure carried out by the College with respect to applicants who hold an out-of-province certificate must be the same as, or substantially similar to but no more onerous than, the measure carried out by the College with respect to applicants who do not hold an out-of-province certificate.
The measure carried out by the College must not be a disguised restriction on labour mobility.
[11] Section 22.22 of the Code provides that where there is a conflict between a regulation made under a health profession Act, such as the Medicine Act¸ and the interprovincial mobility provisions of the Code, the interprovincial mobility provisions prevail.
Background Facts
[12] The appellant obtained his medical degree in Brazil in 1991, completed a residency, and obtained specialist certification in anaesthesiology there. He immigrated to Canada in 2005.
[13] From January to March 2006, he completed a Pre-entry Assessment Program in Anaesthesia in Ontario and then served as a Clinical Fellow in Anaesthesia at the Toronto General Hospital/University of Toronto until December 2006. During this period, he held an academic licence from the CPSO.
[14] The appellant has never passed the Qualifying Examinations of the Medical Council of Canada or been certified by the Royal College of Physicians and Surgeons of Canada. Accordingly, he does not qualify for an independent practice certificate under s. 3 of the Registration Regulation in Ontario.
[15] Since January 2007, the appellant has been practising as a General Anaesthesiologist in New Brunswick. He first held a “public service licence” under s. 26 of the Medical Act of New Brunswick. On June 25, 2007, he was issued a Full Licence from the College of Physicians and Surgeons of New Brunswick (“CPSNB”) following a peer review conducted by an anaesthesiologist on behalf of the College. He holds privileges at several hospitals in New Brunswick and is an assistant professor of clinical training in anaesthesia at the Université de Sherbrooke in Quebec.
[16] On June 7, 2010, the appellant applied to the CPSO for an “Equivalent Certificate of Registration for Out of Province Certificate Holders” pursuant to s. 22.18 of the Code. A Certificate of Standing was provided by the CPSNB showing that the appellant held a full licence from June 25, 2007. The Certificate also stated, “This license was issued on the basis of a demonstrated need, and conditional on ongoing clinical activity in the province.”
[17] Subsequently, in August 2010, the Registration Regulation of the CPSNB was changed. Those physicians, like the appellant, who had licences subject to a requirement that the licence terminates when their practice ceases in New Brunswick, would now have a “Defined Licence”.
[18] The CPSNB sent the CPSO a new Certificate of Standing for the appellant dated September 9, 2010. It showed him as having a Defined Licence from June 25, 2007 and again stated, “This licence was issued on the basis of a demonstrated need, and conditional on ongoing clinical activity in the province.”
[19] The Registration Committee of the CPSO made a decision dated December 16, 2010, that the appellant was not eligible for registration in Ontario, nor did he qualify for a restricted certificate of registration under any existing registration policies. In its reasons, the Committee noted that the appellant did not meet the ordinary requirements for a certificate of registration authorizing independent practice, which include certification by an examination of the Royal College of Physicians and Surgeons of Canada and successful completion of Parts 1 and 2 of the Medical Council of Canada Qualifying Examination.
[20] The Committee then turned to s. 22.18 of the Code, which applies when an individual applying for registration already holds “an out-of-province certificate that is equivalent to the certificate of registration being applied for.” The Registration Committee concluded that Ontario did not have a registration certificate equivalent to the Defined Licence of the appellant and, therefore, the interprovincial mobility provisions of the Code did not apply.
[21] In addition, the Committee denied the application under s. 22.18(7)2 of the Code. Even if the appellant held an equivalent certificate, the CPSO does not impose terms in Ontario that are equivalent to those in the New Brunswick licence – namely, the requirement for ongoing clinical activity in the province as a condition of a certificate.
The Board Decision
[22] An appeal from the decision of the Registration Committee lies to the Board pursuant to s. 21 of the Code.
[23] The Board dismissed the appeal, holding that “a license issued and sustained on physician shortfall conditions of another province, and which can be independent of standard qualifications for licensure, is not equivalent to any certificate of registration in Ontario” (Reasons, para. 46). In Ontario, registration is based on standards, independent of considerations of physician shortfall.
[24] The Board also accepted the conclusion of the Registration Committee with respect to s. 22.18(7)2(ii) of the Code: the CPSO cannot impose a term or condition equivalent to that in the appellant’s New Brunswick licence requiring continuing practice in the province. Therefore, the Board concluded, the CPSO correctly refused to register the appellant.
The Standard of Review
[25] The Board has three separate functions. First, pursuant to the Code, it reviews or holds hearings concerning decisions about registration made by the registration committee of a college of a regulated health profession. Second, it reviews decision of complaints committees of those colleges. Third, it deals with hospital appointments pursuant to the Public Hospitals Act, R.S.O. 1990, c. P.40.
[26] The appellant argues that the standard of review applicable to the Board’s decision in this appeal is correctness because the Board has no special expertise in interpreting the labour mobility provisions of the Code or the AIT, and the case raises novel issues of law that are of general importance (Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 60).
[27] I disagree. A number of cases have held that deference should be given to decisions of the Board, given its specialized knowledge and experience in dealing with the matters before it, such as review of decisions of Complaints Committees of the various colleges, as well as registration decisions (see, for example, Ahmed v. Ontario (Health Professions Appeal and Review Board), 2011 ONSC 4217 (Div.Ct.) at para. 4; McKee v. Health Professions Appeal and Review Board, 2009 55293 (ON SCDC), [2009] O.J. No. 4112 (Div. Ct.) at para. 4).
[28] In the present case, the Board was reviewing a decision of the Registration Committee determining whether an out-of-province certificate was “equivalent” to a certificate issued by the CPSO. That is a question of mixed fact and law.
[29] The Board was not interpreting the AIT, as the appellant suggests. Rather, the Board and the Registration Committee were required to interpret the Code provisions relating to labour mobility and regulations respecting registration requirements. Thus, in carrying out their task, they were not determining a question of law of central importance to the legal system as a whole or a matter of general importance, but were applying legislation with which they have familiarity. Recently, the Supreme Court of Canada has stated that there is a presumption that the standard of review is reasonableness where a tribunal is administering its home statute (Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Federation, 2011 SCC 61 at para. 39).
[30] Issues of medical licensing, including the classification of licences and their scope, are matters within the expertise of the College’s Registration Committee, and they are also matters with which members of the Board have familiarity. Therefore, the standard of review is reasonableness.
The Issues
[31] The following issues arise on this appeal:
Did the Board give an unreasonable interpretation to the term “equivalent” in s. 22.18 of the Code?
Did the Board unreasonably find that the appellant’s licence was issued because of physician shortfall?
Did the Board unreasonably conclude that the condition on the appellant’s licence in New Brunswick was a bar to registration in Ontario?
Did the Board unreasonably refuse to consider past practice by the CPSO?
Analysis
Did the Board give an unreasonable interpretation to the term “equivalent” in s. 22.18 of the Code?
[32] The appellant argues that the Board gave an incorrect interpretation to s. 22.18(1) of the Code because it equated an “equivalent” certificate with an identical licence with identical qualifications. Instead, the Board should have found that the appellant had an equivalent certificate because he has an unrestricted licence to practise medicine anywhere in the province of New Brunswick without clinical restrictions.
[33] The College disagrees and argues that the interpretation given to the term “equivalent” was reasonable, given the differences between the Ontario and New Brunswick registration regimes.
[34] In determining the appropriate interpretation of “equivalent”, the Board was required to apply the proper approach to statutory interpretation, which requires that “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (Ruth Sullivan, Sullivan on the Construction of Statutes, Fifth Edition (Markham: LexisNexis Canada Inc., 2008) at p. 274).
[35] The fact that the Legislature used the term “equivalent” in the Code is telling. Had a certificate from another province been sufficient for registration in Ontario, the Legislature could have said so. Instead, the legislation requires registration of those holding an “equivalent” licence from another province or territory.
[36] “Equivalent” has been defined in Black’s Law Dictionary, 8th ed., as “1. equal in value, force, amount, effect or significance. 2. corresponding in effect of function; nearly equal; virtually identical.” To decide if the Defined Licence corresponded to the Ontario certificate, the Board was required to examine the registration schemes in both Ontario and New Brunswick.
[37] Earlier in these reasons, I described the Ontario registration scheme. I now turn to the scheme in New Brunswick.
[38] New Brunswick’s Regulation #2, as amended in August 2010, sets out two types of licences for physicians. Section 1 permits individuals to be licensed to practise on a Full or Locum basis if they are a graduate of a Canadian medical or osteopathic medical school approved by the Council of the CPSNB and are certified in Family Practice by the College of Family Physicians of Canada or le Collège des médecins du Québec or certified in a specialty by the Royal College of Physicians and Surgeons of Canada or le Collège des médecins du Québec.
[39] Sections 2 and 3 of the New Brunswick regulation deal with licensing on a Defined or Defined Locum basis “in cases of demonstrated need as judged by Council.” Section 2 states:
2(1) In cases of demonstrated need as judged by Council, an applicant may be eligible for entry on the Medical Register and licensed to practice on a Defined or Defined Locum basis if they are a graduate of a medical or osteopathic medical school approved by Council, are a Licentiate of the Medical Council of Canada, and have successfully completed a period of acceptable pre-registration training of not less than two years, which will have adequately prepared the applicant for practice in the setting and circumstances intended, and which requirement may be abridged at the discretion of Council.
2(2) For purposes of paragraph 2(1), except in exceptional circumstances as judged by the Council, satisfactory pre-registration training as required under this Regulation shall be undertaken in an accredited program in Canada or the United States.
[40] Section 3 provides that a physician may be eligible for entry on the Medical Register and licensed to practise on a Defined or Defined-Locum basis in cases of demonstrated need as judged by the Council if they are a graduate of a medical school approved by Council and
• are licensed or eligible for licensure without significant restriction with a medical regulatory authority in another Canadian province or territory;
• are licensed or eligible for licensure without significant restriction with a medical regulatory authority in the United States;
• have been registered and licensed on the Regulated Licenses Register under the previous regulation or are otherwise at the sole discretion of Council deemed eligible for registration; or
• have completed a program of satisfactory pre-registration training, have successfully completed Part One of the Qualifying Examination of the Medical Council of Canada and are eligible for Part II ..., but such registration shall terminate one year from the date of eligibility...
[41] The amendment to the New Brunswick regulation occurred after the Federation of Medical Regulatory Authorities of Canada (“FRMAC”) sent a letter dated July 23, 2010 to all the premiers in Canada giving notice of an intent to apply for an exception to labour mobility to meet a legitimate objective under Chapter 7 of the AIT because of concerns with the medical regulatory standards in New Brunswick.
[42] Earlier in 2010, FMRAC had agreed on a national standard for a Full Licence in Canada – that is, one without terms, limitations, conditions or restrictions. The “Canadian Standard” requires a medical degree from a recognized school, a licentiate from the Medical Council of Canada, completion of appropriate post-graduate training and certification from the College of Family Physicians of Canada or the Royal College of Physicians and Surgeons of Canada or le Collège des médecins du Québec.
[43] With the regulatory changes in New Brunswick in August 2010, there are now two classes of licence. The Full Licence is obtained when the individual meets the certification requirements from one of the three specified professional Colleges. In contrast, the Defined Licence is discretionary and given where there is demonstrated need in the province, as determined by the Council of the CPSNB. As well, the Defined Licence is conditional on ongoing clinical activity in the province of New Brunswick.
[44] Is the New Brunswick Defined Licence “equivalent” to the Ontario certificate that the appellant seeks? The Board did not interpret the term “equivalent” in the Code to mean “identical”, as the appellant suggests. Rather, the Board looked at the Ontario and New Brunswick registration schemes and concluded that the Defined Licence did not correspond to the Ontario certificate that the appellant sought, given its nature and purpose.
[45] The CPSO does not issue a certificate on the basis of a demonstrated need for physicians, nor does it place conditions on certificates requiring ongoing clinical activity in the province. Rather, in Ontario, registration is founded on a standards-based approach, without regard for provincial need for physicians. As the Board pointed out in its reasons (at para. 45):
It is clearly within the purview of a province to decide that conditions in that province relating to physician shortfall, may form a basis for permitting individuals to practice medicine who would otherwise not meet standard registration requirements. That is a decision for each province to make. However, Ontario does not have a current class of license or certificate of registration based on demonstrated need /physician shortfall.
[46] The appellant emphasizes that in the process of obtaining his New Brunswick licence, he was required to demonstrate his abilities as a physician, he was peer-evaluated, and the Council of the CPSNB was satisfied that he should be licensed. He was then allowed to practise throughout the province of New Brunswick without restrictions.
[47] However, that does not change the fact that the Defined Licence is a discretionary class of licence, issued on the basis of need as assessed by the New Brunswick Council and conditional on ongoing clinical activity in the province. There is no certificate in Ontario conferred because of need for physicians, rather than satisfaction of the standard registration requirements.
[48] The Board also pointed out that Ontario’s standards-based approach to registration is consistent with the Code’s provisions on interprovincial mobility (Reasons, at para. 47). Section 22.20(1)(b) of the Code requires the CPSO, “to the extent possible and where practicable” to take steps to reconcile differences between the occupational standards it has established for certificates of registration and those in effect in other provinces and territories that are signatories of the AIT. The adoption of the Canadian Standard by FRMAC is an effort to carry out these objectives of the Code and the AIT.
[49] In my view, the Board gave clear and intelligible reasons for its decision. Its interpretation of the term “equivalent” by the Board was reasonable. Given the different basis for granting the Defined Licence and the condition of ongoing practice in New Brunswick, it was reasonable for the Board to conclude that the Defined Licence was not equivalent to the certificate sought by the appellant in Ontario.
Did the Board unreasonably find that the appellant’s licence was issued because of physician shortfall?
[50] The Board stated that “Ontario does not have a current class of license or certificate of registration based on demonstrated need/physician shortfall...”
[51] The appellant argues that the Board erred and made a finding without a basis in the evidence when it said that the appellant’s licence was issued because of physician shortfall in the province.
[52] I see nothing unreasonable in the Board’s conclusion. Clearly, the Defined Licence is issued on the basis of a demonstrated need for physicians, as judged by the Council of the CPSNB. It is subject to the condition that the licensee carry on clinical activity in the province. It is a reasonable inference that Defined Licences are issued because of a lack of physicians or physicians with certain specialties in some parts of New Brunswick.
[53] While the appellant argues that the need might be that of the physician seeking the licence, that is a strained reading of the regulation.
Did the Board unreasonably conclude that the condition on the appellant’s licence in New Brunswick was a bar to registration in Ontario?
[54] The Board and the Registration Committee concluded that even if the appellant held an equivalent out-of-province certificate, his application should be refused under s. 22.18(7) and (8). Those provisions permit the CPSO to refuse to register an applicant if his or her out-of-province certificate is subject to a term, condition or limitation, and the CPSO does not impose an equivalent term, condition or limitation on registration, provided this is not a disguised restriction on mobility.
[55] The CPSO does not impose a condition of ongoing clinical activity in the province when it grants an independent practice certificate. Therefore, The Board reasonably concluded that the Registration Committee had the power to refuse to grant the appellant a certificate in the present circumstances.
Did the Board unreasonably refuse to consider past practice by the CPSO?
[56] The appellant also argues that the decision of the Board was unreasonable, because another physician from New Brunswick, Dr. Mansour, had been granted an Ontario Certificate of Registration for Independent Practice by the CPSO in 2010 even though he held a licence identical to that held by the appellant.
[57] It appears that at the time of the CPSO decision, Dr. Mansour’s certificate of standing indicated he had a Full Licence, albeit with the information that the licence had been granted on the basis of demonstrated need and on the condition of ongoing clinical practice in New Brunswick. The CPSO decision was made before the change in the New Brunswick regulation in August 2010 that created the Defined Licence.
[58] The Board reasonably held that the circumstances related to Dr. Mansour should not determine the appeal before it, which had to be decided on the basis of the materials before the Board, including the Certificate of Standing showing that the appellant had a Defined Licence, as well as the current regulations operative in New Brunswick. In any event, the Board was not bound by stare decisis.
Conclusion
[59] Accordingly, the appeal is dismissed. The Board does not seek costs.
[60] If the CPSO and the appellant cannot agree on costs of the appeal, they may make brief submissions in writing through the Divisional Court Office within 30 days of the release of this decision.
Swinton J.
Then R.S.J.
Matlow J.
Released: May 14, 2012
CITATION: Barbosa v. Health Professions Appeal and Review Board, 2012 ONSC 1761
DIVISIONAL COURT FILE NO.: 249/11
DATE: 20120514
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
then R.S.J., matlow and swinton JJ.
B E T W E E N:
RUBENS FERNANDO HENRIQUE CESPE BARBOSA
Appellant
- and -
HEALTH PROFESSIONS APPEAL AND REVIEW BOARD and COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO
Respondents
REASONS FOR JUDGMENT
Swinton J.
Released: May 14, 2012