CITATION: Tanase v. The College of Dental Hygienists of Ontario, 2019 ONSC 5153

DIVISIONAL COURT FILE NO.: DC-18-495 DATE: 20190909

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

THORBURN, EDWARDS and FAVREAU JJ.

BETWEEN:

ALEXANDRU TANASE Appellant

– and –

THE COLLEGE OF DENTAL HYGIENISTS OF ONTARIO Respondent

Seth Weinstein and Michelle Biddulph, for the Appellant, Alexandru Tanase

Robin McKechney, for the Respondent Collegee of Dental Hygienists of Ontario

HEARD: May 21, 2019

BY THE COURT

REASONS FOR DECISION

OVERVIEW

[1] This is an appeal from a decision of the Discipline Committee of the College of Dental Hygienists of Ontario (“the Committee”).

[2] The Appellant’s dental hygiene licence was revoked for providing dental hygiene treatment to his spouse, later wife. The Committee found that in so doing, the Appellant committed professional misconduct pursuant to section s. 51(b.1) of the Health Professions Procedural Code (the “Code”), being Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991 c.18 (“RHPA”).

[3] Section 51(1)(b.1) of the Code provides that a member of the College commits an act of professional misconduct if the "member has sexually abused a patient". Section 1(3) of the Code defines "sexual abuse" to include any sexual intercourse or other sexual relations between a hygienist and a patient. The courts have held that a finding that there was a hygienist-patient relationship at the time of the sexual encounter is sufficient; the patient's consent is irrelevant.

[4] If a panel of the Committee concludes that a member hygienist had sexual intercourse with a patient, revocation of the member's registration is mandatory.

[5] In this case, the Appellant hygienist’s spouse had a fear of dental treatment and had not had dental treatment for several years when he met her.

[6] The Appellant provided dental hygiene treatment to his spouse after being advised by one of his fellow dental hygienists that the College of Dental Hygienists of Ontario had approved a spousal exemption for dental hygienists.

[7] While a regulation had been made by the College, the government of Ontario did not pass the regulation. There was therefore no spousal exemption in force. (A regulation was passed to allow dentists to treat their spouses.) The Appellant did not verify the information from his colleague.

[8] The Committee upheld the constitutionality of the provision and invoked the mandatory revocation of his licence to practice as a dental hygienist. In addition, his discipline history will be included on the College’s public registry.

[9] The Appellant seeks a declaration pursuant to s. 52 of the Constitution Act, 1982 that s. 51(1)(b.1) and s. 51(5) of the Code are unconstitutional and of no force and effect as they breach the Appellant and/or his spouse’s ss. 7 and 12 Charter rights. The Appellant also seeks to set aside the Order of the Disciplinary Committee and the Committee’s decision to dismiss his claim for constitutional relief, revoking his license, putting a reprimand on the registry including his name, address and a synopsis of the reprimand on the public registry, and ordering him to pay costs of his appeal in the amount of $35,000.

[10] The Respondent asserts that the constitutionality of the sexual abuse provisions pertaining to health professionals has been upheld by the Court of Appeal and those provisions have been held not to contravene a spouse’s s. 7 Charter rights. The Respondent acknowledges that the Committee did not deal with the s. 12 Charter challenge but submits that there is no breach of s. 12 of the Charter as the Court of Appeal in Mussani v. College of Physicians and Surgeons of Ontario, (2004), 2004 48653 (ON CA), 74 O.R. (3d) 1 (C.A.) held that the mandatory revocation for breach of the sexual abuse provisions does not constitute an infringement of the s. 12 right to be free from cruel and unusual punishment or treatment.

THE EVIDENCE

[11] The Committee was provided with an Agreed Statement of Facts which contains the following information:

The Relationship Between the Parties

[12] The Appellant was a registered member of the College of Dental Hygienists of Ontario practicing in Toronto.

[13] S.M. met the Appellant in late 2012 and they became friends. She told him that she had a fear of dental treatment and therefore had not sought dental care for several years. Over time, S.M. developed a trusting relationship with the Appellant and on January 22 and September 13, 2013 he performed dental hygiene treatment on her at no charge.

[14] Their relationship was platonic.

[15] In mid-2014, the Appellant and S.M. became involved in a sexual relationship and the Appellant stopped treating S.M. as he understood that he was not permitted to treat a person with whom he was in a sexual relationship.

The Appellant’s Knowledge of the Regulation

[16] The Appellant began employment at Dawson Dental Centre in Guelph in June 2014. In April 2015, he was informed by a colleague at Dawson Dental Centre that dental hygienists were permitted to treat their spouses. The Appellant and S.M. were engaged to be married in April 2015.

[17] The Appellant did not independently verify the information provided to him by his colleague.

[18] The College website contained a “Proposed Spousal Exception Regulation” which was passed by College in September 2015 but has yet to be passed by the Ontario government. (The government has passed a regulation allowing dentists to treat their spouses.)

[19] The Appellant told S.M. the “good news”: he was now permitted to provide her with dental hygiene treatment as she had not sought dental hygiene treatment since her last appointment with him in September 2013.

[20] The Appellant admits that if he had read the proposed regulation, he would have understood that he was not permitted to treat S.M.

The Appellant’s Hygiene Treatment of S.M.

[21] The Appellant provided dental hygiene treatment to S.M. at Dawson Dental Centre on April 30, June 20, September 25 and December 2, 2015 and March 24, June 2 and August 26, 2016.

[22] All the while, they were in a consensual sexual relationship. The Appellant and S.M. got married in January of 2016.

The Discipline Committee Hearing

[23] In August of 2016, another member of the College of Dental Hygienists saw a Facebook post of S.M.’s dated June 2, 2016 expressing her gratitude to her husband for treating her. The member submitted a complaint that the Appellant had provided dental hygiene treatment to his wife.

[24] In the Hearing before the College, the Appellant challenged the constitutionality of s. 51 of the Code, arguing that it infringed the s. 7 rights of health professionals and their spouses and their s. 12 right to be free of cruel and unusual punishment. On June 19, 2018, the Committee dismissed the Appellant’s claim for constitutional relief and ordered revocation of his licence to practice as a dental hygienist. The Committee also ordered the specific terms of the reprimand to be made against the Appellant and that it be placed on the College’s public record.

[25] On September 21, 2018, Horkins J. stayed the decision pending determination of this appeal.

THE LEGISLATION

[26] The Health Professions Procedural Code, Schedule 2 of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 provides as follows:

(1) Section 51 (1)(b.1) of the Code provides that, “A panel shall find that a member has committed an act of professional misconduct if the … member has sexually abused a patient”.

(2) Section 1(3) of the Code defines “sexual abuse” as “sexual intercourse or other forms of physical sexual relations between the member and the patient”.

(3) Section 51(5) provides that if a panel finds a member has committed an act of professional misconduct by sexually abusing a patient, “the panel shall…revoke the member’s certificate of registration if the sexual abuse consisted of…sexual intercourse.”

[27] In addition, s. 23(1) of the Code provides that the Registrar shall maintain a register that contains “each member’s name, business address and business telephone number … and a synopsis of the decision, of every disciplinary and incapacity proceeding … and a notation of every finding of professional … malpractice.”

[28] In 2013, a spousal exception provision was added. Section 95(1) provides that “Subject to the approval of the Lieutenant Governor in Council and with prior review of the Minister, the Council may make regulations … providing that the spousal exception in s. 1(5) applies in respect of the College.” Section 1(5) provides that “If Council has made a regulation under clause 95 (1) (0.a), conduct, behaviour or remarks that would otherwise constitute sexual abuse of a patient by a member under the definition of “sexual abuse” in subsection (3) do not constitute sexual abuse if the patient is the member’s spouse .…”

THE ISSUES

[29] The issues to be determined are:

a. Is there an infringement of the Appellant or his spouse’s right to liberty and or security of the person pursuant to section 7 of the Charter?

b. Does the provision infringe his section 12 Charter right to be free of cruel and unusual punishment? and

c. Has there been a significant change in circumstances to warrant revisiting the case law?

JURISDICTION

[30] The Court has jurisdiction to hear this proceeding pursuant to s. 70(1) of the RHPA which provides that:

Appeals from decisions

70 (1) A party to proceedings before the Board concerning a registration hearing or review or to proceedings before a panel of the Discipline or Fitness to Practise Committee, other than a hearing of an application under subsection 72 (1), may appeal from the decision of the Board or panel to the Divisional Court.

Basis of appeal

(2) An appeal under subsection (1) may be made on questions of law or fact or both.

STANDARD OF REVIEW

[31] Section 70(3) of the RHPA provides that,

(3) In an appeal under subsection (1), the Court has all the powers of the panel that dealt with the matter and, in an appeal from the Board, the Court also has all the powers of the Board.

[32] As this question is whether the mandatory revocation provisions infringe s. 7 or 12 of the Charter, it is agreed that the standard of review is correctness.

ANALYSIS

The Reason for Enacting the Legislation

[33] In 1993 the Ontario legislature enacted a zero-tolerance scheme for regulated health professionals who were found to be having sexual relations with their patients. Sharpe J.A. in Rosenberg v. College of Physicians and Surgeons of Ontario, 2006 37118 ONCA at para. 25, summarized the provision as follows:

The legislation, like the Task Force recommendations, is clear and unambiguous: when it comes to sexual relations between a doctor and a patient, there is a black letter, bright line prohibition with a drastic sanction and no exceptions or exemptions. The zero-tolerance policy precludes inquiry into any explanation or excuse for the sexual activity. A patient’s consent is irrelevant.

[34] This was done in order to address the problem of health professionals exploiting their positions to sexually abuse patients. The legislation included a provision which requires the revocation of the health professional’s licence if the sexual abuse of a patient includes intercourse and other specified acts (s. 51(5)).

[35] In 2013, s. 1(5) of the Code was amended to provide for a spousal exception if agreed to by the College and passed by the government. Section 95 (1)(0.a) provides that, in order for the spousal exception to come into force, the council of a college must pass a regulation, which is then reviewed by the Minister of Health and must be approved by the Lieutenant Governor in Council.

[36] In September 2015, the College voted in favour of a spousal exception, however it has yet to be approved by the Lieutenant Governor. As such, there is as yet, no spousal exception.

THE FIRST ISSUE: Does the mandatory revocation provision in the Code breach the section 7 Charter right to security of the person and/or liberty of the Appellant or his spouse?

[37] Section 7 of the Charter provides that, “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

[38] It is agreed that:

a. The Appellant was in a health-care patient relationship with his spouse while he was treating her;

b. He performed dental hygiene treatment while in a consensual sexual relationship with his spouse;

c. The College voted in favour of a spousal exception but it has not been passed by the government and there is therefore no spousal exception in force for dental hygienists;

d. The Appellant was advised by a colleague that he could treat his spouse but conducted no due diligence to confirm that information with the College and that information was incorrect; and

e. The Appellant treated S.M. because she had a fear of dental hygiene treatment and had not been treated for years before agreeing to allow the Appellant to treat her.

[39] The purpose of the law is to separate personal sexual relations and professional relationships in order to protect patients from health professionals who seek to abuse their positions of power.

Does the Charter Apply to this Appellant?

[40] The Court of Appeal held in Mussani at paras 41-43 that, “the weight of authority is that there is no constitutional right to practice a profession unfettered by the applicable rules and standards which regulate that profession. … I am satisfied therefore, that the mandatory revocation of a health professional’s certificate of registration in substance infringes an economic interest of the sort that is not protected by the Charter.”

[41] The Appellant has no constitutionally protected right to engage in sexual relations with any patient nor does he have a right to practice as a dental hygienist. The fact that there are professional consequences resulting from his decision to combine a sexual and health care relationship does not engage a liberty or security interest on the part of the Appellant. Moreover, s. 7 of the Charter does not protect economic interests: See R. v. Schmidt 2014 ONCA 188 at paras 37-38.

[42] As such, there is no s. 7 Charter right at issue in the case of the Appellant.

Is the Legislation Overbroad?

[43] Assuming there is a s. 7 Charter right, the Appellant argues that the provision meant to protect patients from health practitioners’ abusing their power is overly broad, forcing some healthcare workers and their spouses to choose between two aspects of their liberty interest.

[44] The Appellant also argues that the s. 7 Charter right to security of the person is engaged because the law prevents access to health care that would otherwise be available. The Discipline Committee’s decision may force spouses to choose between who can treat them and who they want to marry. A person in a rural area for example, where health care services are sparse, would be forced to move to a more populous area to receive treatment from a health care provider other than his/her spouse, or be barred from romantically engaging with the health care provider. The Appellant argues that these choices go to the core of one’s autonomy and therefore the impugned provisions’ interference with these choices, infringes s. 7 Charter rights.

[45] The Appellant argues that in a case like this, S.M. is more vulnerable than others as there are fewer health care providers to choose from, given her grave fear of dental hygiene treatment. The Appellant claims that the impugned provision is therefore overbroad, infringing his right and that of his spouse to liberty and security of the person. The Appellant cites the case of R. v. Morgentaler, 1988 90 (SCC), [1988] 1 S.C.R. 30.

[46] The Morgentaler case is, however, distinguishable from this case as the Morgentaler case involved direct state intrusion into the bodily integrity of a woman seeking an abortion. The provision in the Criminal Code in Morgentaler created significant delays in obtaining an abortion or made it impossible to obtain an abortion at all. There is no such evidence in this case.

[47] In Mussani, the court held that a consensual sexual relationship concurrent with a doctor-patient relationship (between two individuals who were not spouses) is subject to mandatory revocation of the health care provider’s licence and that mandatory revocation is not overly broad even where the sexual relationship is consensual. The court recognized that there are admitted problems with a zero-tolerance penalty regime:

They are rigid. They can lead to results in individual cases that are harsh, extreme, and even arguably unjust…However, the Mandatory Revocation Provisions were enacted in response to a recognized and growing problem of sexual abuse in the medical profession. Indeed, they were enacted specifically to rectify a situation where discretionary sanctioning on the part of professional disciplinary committees and the courts had been found to be wanting. They must be considered in the context of a general power imbalance between a doctor and patient that can lead to easy exploitation of the relationship by the doctor at the risk of considerable harm to a vulnerable patient.

[48] However, the court concluded that:

[79] The fact that an intimate sexual relationship which began during treatment may blossom into a truly loving one but still lead to revocation of a health professional's certificate of registration, does not necessarily make the Mandatory Revocation Provisions unconstitutionally broad, in the sense that they overshoot the legislative objectives. The health professional need only terminate the treatment relationship to avoid the problem. The issue is whether the means chosen by the legislature -- mandatory revocation of the certificate of registration -- are overly broad in relation to the purpose of the legislation [See Note 15 at the end of the document]. If they are not, the legislature has the right to make difficult policy decisions that may, in rare cases, override what might otherwise be considered permissible conduct. I do not read R. v.Heywood as mandating a contrary decision. The Supreme Court merely decided that the impugned legislation in that case went too far.

[80] Here, the means chosen to meet the legislative objectives -- i.e., the revocation of the health professional's certificate of registration in the case of the frank sexual acts listed in s. 51(5) para. 2 of the Code -- do not go too far, in my opinion. They are not overly broad. Mandatory revocation in such circumstances (a) signals the seriousness with which the sexual abuse of patients is to be taken, (b) underscores the gravity of the breach of trust involved, (c) emphasizes the considerable impact of the practitioner's failure to meet his or her responsibility towards maintaining the integrity of the profession, and (d) responds to the need to protect the public from the risk of recidivism by removing the practitioner from the practice for a minimum period of time. The importance of responding to these objectives is not contested. [Emphasis added.]

[49] In so doing, the court in Mussani held that even in cases where there is no exploitation and where the sexual encounters are consensual, mandatory revocation is warranted to meet the broader policy objectives of the legislation. There is therefore no violation of a Charter s. 7 liberty or security interest: See Mussani at paras. 58-60. The Court of Appeal has determined that, “[T]he importance of upholding the zero-tolerance policy outweighs its pitfalls because the legislation is there to address a growing problem of sexual abuse of patients by some health care professionals.” See Leering v. College of Chiropractors of Ontario (2010), 2010 ONCA 87, 98 O.R. (3d) 561 ONCA.

Conclusion

[50] It is up to the legislature to make policy choices: See R. v. Heywood, 1994 34 (SCC), [1994] 3 SCR 761 at 793 (para. 51).

[51] There is no constitutionally protected right to practice a profession: See Mussani.

[52] Even if there were, the s. 7 liberty interest does not extend to protecting a practitioner’s right to have a sexual relationship with a person he chooses to see as a patient or a patient’s right to be treated by one health practitioner specifically. The courts have held that marrying a health care professional and seeking to be treated only by that health care professional is a choice; prejudice is confined to personal hardship, and the choice is not one of the “basic choices going to the core of what it means to enjoy individual dignity and independence protected by s. 7.” See Blencoe v. B.C. (Human Rights Commission), 2000 SCC 44 at para 49.

[53] While we recognize that this situation has created hardship for the Appellant and his spouse and may seem unfair, there is an important societal objective for the enactment of the mandatory revocation provision in the Code. State action often imposes restrictions and a degree of hardship on individuals outside the strict purview of the purpose of the legislation. The courts have held that this provision is not overly broad.

[54] For these reasons, while we recognize that this decision is harsh for a person in the Appellant’s circumstances, we conclude that the mandatory revocation of licence provision of the Code does not breach s. 7 of the Charter.

THE SECOND ISSUE: Does the mandatory revocation provision in the Code and/or the public notation of a healthcare’s discipline history on the registry constitute cruel and unusual treatment within the meaning of s. 12 of the Charter?

[55] Section 12 of the Charter provides that, “Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.”

[56] The Discipline Committee failed to address whether the impugned provision constitutes cruel and unusual treatment contrary to the Appellant’s s. 12 Charter rights. It is conceded that the provision does not constitute cruel and unusual punishment as it did not create penal consequences. As such, the only issue is whether mandatory revocation of the licence and or the registry constitute cruel and unusual treatment.

What is the Treatment at Issue?

[57] The “treatment” in this case includes the mandatory revocation of the Appellant’s licence, “imposed by the State in the context of enforcing a State administrative structure”, and the public registry that contains “each member’s name, business address and business telephone number …and a synopsis of the decision, of every disciplinary and incapacity proceeding … and a notation of every finding of professional … malpractice.”

[58] The Appellant submits that the mandatory revocation of his licence and the requirement to have his name and address, his revocation, and a synopsis of the reasons for the reprimand listed on a public website is grossly disproportionate because a dental hygienist who provides treatment to his spouse should not be subject to any discipline, the legislation was never intended to capture spouses, the College itself has voted to create a spousal exception, dentists who treat their spouses are not subject to any discipline, and there is no ability for the College to exercise discretion in imposing this treatment. He therefore submits that it constitutes cruel and unusual treatment.

Have the Courts Dealt with this Issue?

[59] The court in Mussani at para 94 held that, “the Mandatory Revocation Provisions do not constitute ‘punishment’ or ‘treatment’ as those words have been interpreted and applied in the context of section 12.” The Court went on to say that,

Further, if they do, the punishment or treatment is not cruel and unusual; it is neither so excessive as to outrage the standards of decency, nor grossly disproportionate to what is appropriate in the circumstances.

[60] The Court in Sliwin v. College of Physicians and Surgeons of Ontario, 2017 ONSC 1947, para. 135, further held that “once it is accepted that there is no obligation to inquire into whether the sex and relationship pre-existed the doctor patient relationship, there is no reasonable basis to contend that the penalty of mandatory revocation is unfit much less grossly disproportionate.”

[61] As such, the mandatory revocation per se does not constitute cruel or unusual punishment or treatment. The courts in Mussani and Sliwin did not however, address the requirement that a health college’s registry must set out the names and addresses and a synopsis of the reprimand, which would include any findings that the practitioner “sexually abused” a patient.

How to Determine whether Treatment is Cruel and Unusual within the meaning of the Charter

[62] The issue of whether the combined effect of the mandatory revocation of a licence to practice and the content of the public registry contravenes s. 12 of the Charter must therefore be addressed.

[63] The Code provides that the information on the registry “shall be posted on the College’s website in a manner that is accessible to the public or in any other manner and form specified by the Minister.” It is not restricted to members of the College but is available to any member of the public who chooses to look at the site.

[64] Treatment is defined in the Oxford English Dictionary as “the manner in which someone behaves towards or deals with someone or something.” The Court of Appeal in Ogamien v. Ontario (Community Safety and Correctional Services), 2017 ONCA 667 at para. 10, articulated a two-step process in determining whether treatment is cruel and unusual: first, what treatment would have been appropriate i.e. what is the benchmark, and second, how this treatment measures up against the benchmark.

[65] The Appellant submits that his treatment exceeds the benchmark for similarly situated professionals for the following reasons:

a. The registry is public and can be seen by any member of the public whether or not they are familiar with the definition of “sexual abuser” used by the College;

b. The definition of a “sexual abuser” as set out in the Code and as interpreted in the above case law differs significantly from the general understanding in common parlance and the legal definition in the criminal law of what constitutes sexual abuse. The difference is that sexual abuse is generally considered to be sexual behaviour that is engaged in without the consent of the other party;

c. The College’s registry will contain a public record that he lost his licence to practice due to his contravention of the “sexual abuse” provision within the meaning of the legislation, when it is agreed there was no sexual abuse of his spouse. On the contrary, she expressed her gratitude to her husband for helping her to overcome her fear of dental hygiene treatment;

d. There is no other case of any dental hygienist anywhere in Canada who has been found guilty of sexual abuse for treating his wife;

e. Dentists in Ontario are expressly permitted to treat their spouses and would therefore not have any discipline history on their College’s registry for the very same behaviour;

f. In F.J.D. v. T.E., 2015 16031 at paras 34-44, the only other case before the Ontario College of Dental Hygienists, a female dental hygienist provided treatment to her husband. A complaint was submitted to the ICRC. In that case, unlike the case before us, the ICRC decided not even to refer the matter to discipline because there was a pre-existing spousal relationship and that,

[T]reating spouses was an established and accepted practice in the dental hygiene profession and the power imbalance and vulnerability that accompanies other health relationships is less pronounced than in the dental hygiene and client relationship, at least where there is a well-established spousal relationship that pre-exists the professional relationship.

g. The HPARB has recognized that the power imbalance and vulnerability that accompanies other health relationships like the dentist-patient, doctor-patient relationships, is less pronounced in the dental hygiene group; and

h. The Appellant’s motivation for treating his wife was her fear of dental hygiene treatment. She had not been treated for several years before allowing the Appellant to treat her. Far from exploiting her vulnerability his wife’s Facebook post expressed her gratitude to her husband. This matter was only discovered after a fellow hygienist saw his wife’s grateful Facebook post and decided to report him to the College.

[66] The Code defines “sexual abuse” as “sexual intercourse … touching … or … behaviour or remarks towards the patient”. While the courts in Mussani, Rosenberg and Leering have concluded that a patient’s consent to such sexual behaviour is irrelevant, consent is not specifically discussed in the legislation. The stated purpose of the provisions is to “encourage the reporting of such abuse, to provide funding for therapy and counselling for patients who have been sexually abused by member and ultimately, to eradicate the sexual abuse of patients by members”.

[67] The Respondent cites the Ontario the Court of Appeal in Hanif v. Ontario College of Pharmacists, 2015 ONCA 640, in support of its position that the mandatory revocation and or mandatory public notation on the registry does not constitute cruel and unusual treatment. In Hanif the Court of Appeal held that:

[13] First, the impugned Code provisions do not have the effect of regulating morality. The intended, and in fact overwhelming, effect of the provisions is to protect the public. Legislation that declares that any sexual activity, even consensual, between a health professional and a patient is inconsistent with the professional-patient relationship does not make a statement about morality; rather it speaks to the maintenance of the integrity of the professional-patient relationship.

[14] Second, the Code provisions do not have the effect of criminalizing activities that fall outside the delivery of health services. They do not have the effect of importing notions of sexual morality on consenting adults. Rather, they require a health professional to make a simple choice: treat the patient or sever the professional-patient relationship and engage in a sexual relationship. Treating a patient while involved in a sexual relationship undermines the integrity of the professional-patient relationship.

[15] Third, all offences – federal, provincial, criminal, regulatory – involve a degree of stigma. If you break the law, you may lose respect in the public eye. When the appellant says that a contravention of the Code in the domain of sexual activity between health professionals and patients can lead to both loss of livelihood and social stigma, he is right. But to say that this combination removes the law from regulation of the health professions and places it in criminal law is a bridge too far. Breach of a provincial law can in some cases bring with it a potential social stigma in the public eye.

[68] There is no specific reference in that case to the disciplinary history being made public through the registry.

[69] The court in Nova Scotia (Minister of Community Services) v. D.J.M., 2002 NSSC 75, has addressed the effect of sex abuse registration. The court held that the child abuse registry in that case that was less readily accessible to the public than the Discipline Committee’s decision constituted a stigma which infringed upon the security of the person:

[25] It is clear to me that the right to security of the person is affected by having one’s name placed on the Child Abuse Register. That being the case, the deprivation of a person’s right to security of the person can only occur when it is done in accordance with the principles of fundamental justice.

[70] However, in the case before us, unlike the Nova Scotia case, while there is a requirement that the Appellant’s name and address be placed on the College registry which records the names and addresses of those whose licence has been revoked and the reasons therefore, the Discipline Committee in this case set out the terms of the permanent reprimand that are to appear on the registry at paragraph 34 of its decision as follows:

One of the rules that the Ontario legislature has enacted for health professionals is that they cannot have a concurrent sexual relationship with a patient they are treating. This policy of zero tolerance is backed up by mandatory revocation of the certificate of registration of the health professional. It is not discretionary. In your circumstances, where you were involved in a consensual relationship, it appears a harsh penalty. In the societal interest of preventing sexual abuse, this penalty can be avoided by dental hygienists, like other health professionals, by ensuring that they comply with the rule of not engaging in a sexual relationship with a client/patient. While we are sympathetic to your personal situation, our hands are tied by a strong legal rule designed to protect patients. You have paid a heavy price for breaking the rule. We sincerely hope to see you again as an active member of the dental hygiene profession.

[71] The Committee was alive to the stigma attached to the words “sexual abuse” and the fact that this case is an anomaly as it involves a preexisting loving relationship between spouses, and not a case of a healthcare worker abusing his spouse. On the contrary, the Appellant was seeking to help her overcome a vulnerability.

[72] As such, the words “sexual abuse” will not appear on the description of the appellant’s discipline history and the above provision will be included as part of the information available to the public. Readers will only know that the Appellant’s status is revoked, and they will have access to the full decision and the terms of the reprimand, which make clear that the sexual relations were with his spouse and were consensual.

[73] In sum, Mussani establishes that in order to constitute cruel and unusual punishment within the meaning of section 12 of the Charter, the facts of the case must warrant a finding of gross disproportionality. Given the manner in which the Appellant’s disciplinary history will be presented on the Registry, we do not find a gross disproportionality in this case.

[74] It is clear that the Appellant poses no danger to the public. On the contrary: it was the Appellant’s wife’s very vulnerability and fear of dental hygiene treatment and his desire to help her, that lead him to treat her.

[75] We appreciate that the requirement that the Appellant’s name and address be included on the public registry and that he contravened the “sexual abuser” provision creates stigma.

[76] However, there is no Charter right to practice a profession, and the mandatory revocation provision alone does not constitute cruel and unusual punishment or treatment within the meaning of s. 12 of the Charter. Requiring the Appellant’s name address and the above particulars to appear on the public registry does not create an infringement of s. 12 of the Charter given the information provided on the registry and the terms of the reprimand to be provided as set out above.

THE THIRD ISSUE: Are there circumstances in this case that warrant revisiting the decisions in Mussani and Sliwin?

[77] The Appellant argues that the Discipline Committee failed to recognize that there has been a significant change in circumstances since the decisions in Mussani and Sliwin were rendered.

[78] The change is the enactment in 2013 of a legislative provision to enable Colleges to provide for a spousal exception from the sexual abuse provisions. If the option is exercised by a particular healthcare College, it must then be approved by the government. When that is done, as it was in the case of dentists in Ontario, the health practitioner is permitted to treat his or her spouse.

[79] The decisions in Mussani and Sliwin were decided before the 2013 legislative provision in respect of a spousal exception was enacted. Moreover, neither case involved a situation where the healthcare professional had a pre-existing spousal relationship. The court in Mussani specifically noted at para. 101 that,

While the spousal hypotheticals appear troubling at first blush, I agree with the conclusion of Then J.: “It is far-fetched to characterize the intimate relationship between spouses as ‘sexual abuse’ merely because a physician may have treated his or her spouse. … The fact that during the course of a marriage a physician may provide incidental medical care to his or her spouse is unlikely, in my view, to establish a physician/patient relationship which would attract the discipline procedures of the Code.

[80] Similarly, in Rosenberg (supra) at paragraph 48, Sharpe J.A. for the Court held that,

This court recognized that it is “unlikely” that a physician could be guilty of sexual abuse of a spouse. …

[81] Moreover, the Appellant correctly notes that the enactment of the legislative option is evidence of the awareness of legislators of the issue and the potential problems that it raises for healthcare providers and their spouses.

[82] However, although the courts recognized that for obvious reasons it was unlikely that a healthcare provider would be found to have contravened the provisions, the legislature left open the possibility of an exception for spouses, and the College recommended such an exception for spouses, there is as yet no spousal exception for dental hygienists. The government, for reasons unknown to us, chose to pass a regulation enabling dentists to treat their spouses but not dental hygienists. As such, while the legislators have left open the possibility to create an exemption for spouses and the College has endorsed such a change, there is as yet no change in circumstances as the government has not yet passed the regulation.

[83] In this case, the Appellant concedes that he and his spouse had a concurrent professional-patient relationship and a sexual relationship. The disciplinary offense of sexual abuse is therefore made out as defined in the Code. There has been no passage of a regulation by the government allowing a spousal exemption nor was there only “incidental medical care”. As such, the mandatory revocation provision must be upheld.

[84] In Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 SCR 1101 at para. 44, the Supreme Court held that while there may be circumstances in which trial judges may review the law, the threshold for so doing is "not an easy one to reach". In our view, given the summary to be included on the registry and the fact that the law was not changed, this is not such a case.

CONCLUSION

[85] There is no constitutional right to practice a profession unfettered by the rules applicable to that profession. The rules in question are set out in the Code.

[86] In 1993, the Ontario legislature enacted a zero-tolerance provision to prevent any concurrent sexual and patient-healthcare relationships. Legislators were seeking to recognize and address serious concerns about sexual abuse of patients.

[87] In 2013, the legislature passed a provision allowing each College to pass a regulation to create a spousal exemption, but such exemption only becomes effective upon approval by the Lieutenant Governor in Council. The College of Dental Hygienists passed such a regulation, but to date it has not been approved by the Lieutenant Governor in Council and passed

[88] After the College voted to pass a regulation to create a spousal exemption but in the absence of the regulation being passed by the government, the Appellant provided professional dental hygienist services on his wife at his office. There was a patient-hygienist relationship concurrent with the Appellant’s spousal relationship.

[89] The Appellant acted in the honest but mistaken belief that he was allowed to treat his wife who had a phobia of dental hygiene treatment. She was vulnerable. He acted out of a desire to help her and she expressed her gratitude to him.

[90] We note that although there is also a requirement that the Appellant’s name and address be placed on the College registry, at paragraph 34 of its decision, the Committee has set out the terms of the notation that is to appear on the registry:

[91] The words “sexual abuse/abuser” do not appear on the registry page and the synopsis of the terms of the reprimand only include the above text. As such, readers will only know that the Appellant’s status is revoked, the detail set out in the above synopsis, and the decisions.

[92] We recognize that this case has created serious hardship for the Appellant and his wife. He has:

a. lost his livelihood and income for five years; and

b. The College’s registry will contain a public record that he lost his licence to practice due to his contravention of the “sexual abuse” provision within the meaning of the legislation, when it is agreed there was no sexual abuse of his spouse. On the contrary, she expressed her gratitude to her husband for helping her to overcome her fear of dental hygiene treatment.

[93] We also recognize that it seems unfair that dentists may treat their spouses while dental hygienists lose their licence and are branded sexual abusers for so doing.

[94] Finally, we recognize that it may seem an artificial difference to claim that treatment was “incidental” if it was done at home rather than the office. This Appellant, had he not honestly believed that he was allowed to treat his spouse, could easily have treated her at home without pay so as not to incur these repercussions.

[95] It is indeed unfortunate that the Inquiries, Complaints and Reports Committee (ICRC) of the College elected to proceed with the complaint, notwithstanding the statement by Sharpe J.A. in Rosenberg that,

[I]t is unlikely that a physician-patient relationship will be established between a physician and his or her spouse,

and Blair J.A.’s statement in Mussani at para. 101 that,

[96] In fact, in its own decision, as reflected in F.J.D. v. T.E., 2015 16031 at paras 34-44, where a female dental hygienist provided treatment to her husband, the ICRC decided not even to refer the matter to discipline because there was a pre-existing spousal relationship and that,

[97] However, unless and until the Ontario government approves the regulation put forward by the College of Dental Hygienists to enact a spousal exemption, the mandatory revocation and ancillary relief imposed by the Discipline Committee as they pertain to spouses must be upheld.

[98] For these reasons, the mandatory revocation provision per se does not breach either ss. 7 or 12 of the Charter.

[99] For these reasons, the Appeal is dismissed.

[100] Under the circumstances, there is no order as to costs.

THORBURN J.

D. EDWARDS J.

FAVREAU J.

RELEASED: September 9, 2019

CITATION: Alexander Tanase v. College of Dental Hygienists, 2019 ONSC 5153

COURT FILE NO.: DC-18-495 DATE: 20190909

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

Thorburn, D. Edwards and Favreau JJ.

B E T W E E N :

ALEXANDRER TANASE Appellant