CITATION: Schuur v. Sas, 2023 ONSC 2852

DIVISIONAL COURT FILE NO.: DC-22-228

DATE: 20230511

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Lococo, Trimble and O’Brien JJ.

BETWEEN:

Ann Schuur

Applicant

– and –

Dr. Louise Sas and Health Professions Appeal and Review Board

Respondents

John A. Nicholson, for the Applicant

Danielle A. Douek, for the Respondent, Dr. Sas

Steven G. Bosnick, for the Respondent, HPARB

HEARD in Toronto: on February 28, 2023, by video conference

trimble j

REASONS FOR DECISION

NATURE OF PROCEEDING:

[1] The Applicant seeks judicial review of the decision dated 24 February 2022 of the Health Professions Appeal and Review Board (HPARB) upholding the decision of the Inquiries, Complaints, and Reports Committee (ICRC) to take no further action on the complaint she filed against Dr. Louise Sas. She also seeks review of the disclosure Order of the HPARB dated 15 June 2021, providing a heavily redacted Record of Investigation. She argues that the disclosure of a Record of Investigation in which 96% of the information is redacted is a denial of procedural fairness such that the HPARB decision of 24 February 2022 cannot stand. She asks that the decision and disclosure order be quashed, the unredacted Record of Investigation be provided to her, and the matter remitted to the HPARB before a differently constituted panel.

BACKGROUND:

[2] The Applicant and her former spouse are involved in contentious family law litigation concerning decision making, parenting and child support for the couple’s two daughters.

[3] By order dated 23 May 2018, McArthur J. appointed Dr. Sas to do an assessment under s. 30 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, and report to the court on the needs of the children and the willingness and ability of each parent to satisfy their needs.

[4] Dr. Sas, a registered psychologist, conducted interviews and testing, and made observations of the children and the parents. She completed her report on 22 April 2019. She concluded that the children’s relationship and attachment to their father had been severely damaged by the Applicant’s actions. She noted that the Applicant had systematically demeaned, unfairly criticized, and undermined the father’s position with the children. She did not believe that the estrangement from the father was in the children’s best interests. She recommended that full custody be given to the father as there was no possibility that the Applicant would participate in a cooperative working relationship required for joint custody. She also recommended reintegration therapy and individual therapy for the children and both parents.

[5] After receiving Dr. Sas’s Report, the Applicant made the following complaints about Dr. Sas to the College:

a) Dr. Sas made a racist statement to one of the Applicant’s daughters regarding the daughter’s friend;

b) Some of Dr. Sas’s statements expressed to the Applicant’s daughter had been “sexist”; and

c) One of the Applicant’s daughters, with known anxiety issues, returned from her session with Dr. Sas and was in distress, telling the Applicant that Dr. Sas thought she [the Applicant] was “the bad guy.”

[6] The Applicant enclosed an email chain with her complaint in which she identified further concerns with Dr. Sas’s conduct and actions.

[7] When Dr. Sas provided her response to the College on October 9, 2021, she requested that it be withheld from the Applicant due to her involvement as an expert in the ongoing family law proceedings. She was concerned that disclosure of her response, which contained references to material that was not accessible to the parties in the family law proceeding, could undermine the integrity of that process. Most significantly, she was concerned that the disclosure of certain information gathered and used in the preparation of her assessment could cause harm to the Applicant’s children if the information was disclosed to them. Dr. Sas’s request was granted.

[8] While the complaints process was proceeding, the family litigation between the parents continued. The Applicant rejected Dr. Sas’s findings and opposed her report.

[9] In his endorsement of 12 Jun 2019, Mitrow J., the Judge in the family court proceeding, expressed concern that Dr. Sas was being drawn into the litigation, and asked counsel to take all reasonable measures to limit Dr. Sas’s exposure in the litigation process. Mitrow J. ordered that the Respondent father provide to the Applicant’s lawyer an electronic copy of all video and audio surveillance he made, including any audio and video surveillance he gave to Dr. Sas. The Applicant’s lawyer was not to release this electronic disclosure to the Applicant or permit her to take copies of it. She was only permitted to view it in her lawyer’s office. Further, Applicant’s counsel was permitted to allow either or both of the children’s therapists to watch or listen to the electronic disclosure in his office only, together with the Applicant.

[10] As permitted in the 12 June 2019 endorsement, the Applicant challenged Mitrow J.’s restrictions on her viewing the electronic disclosure. She argued there should be no restrictions. The parties were already bound by an order not to disclose or share information about this case with the children including audio and video recordings.

[11] Mitrow J. rejected the Applicant’s argument that the restrictions on her reviewing the video and audio surveillance were unfair and that they limited her ability to prepare for trial. He held that it was in the children’s best interest to maintain the restrictions so that the surveillance would not be shared with the children. Removing the restrictions would expose the children to the unnecessary risk that the contents of the audio and video surveillance would be shared with them. Further, Mitrow J. did not think that the restrictions impaired the Applicant’s ability to conduct her case.

PROCEEDINGS BEFORE THE HEALTH PROFESSIONS APPEAL AND REVIEW BOARD, AND THE INQUIRIES, COMPLAINTS, AND REPORTS COMMITTEE:

i. The Complaint

[12] As indicated, after Dr. Sas released her s. 30 Assessment Report, the Applicant filed a complaint with the College of Psychologists alleging that Dr. Sas made a racist statement to one of her children, made sexist statements, and caused distress by telling one of the Applicant’s children that the Applicant is the “bad guy.”

ii. The ICRC Decision

[13] The ICRC conducted its review and determined that no further action was warranted. It determined that Dr. Sas formed no premature opinions about the Applicant or extended preferential treatment to the Applicant’s former spouse. The ICRC also confirmed that the limitations of its role precluded it from making findings of credibility in situations where there were conflicting versions of events. It noted that remarks allegedly made by Dr. Sas were communicated to the Applicant by her daughter, and there was no documentation or other evidence to support the allegation that Dr. Sas made them. The ICRC found that Dr. Sas met professional standards in her assessment of the Applicant and the children.

[14] The ICRC’s Report concluded that Dr. Sas handled the information before her in a manner that was clear, fair and unbiased. The evaluation seemed thorough and neutral, and her opinions appeared to be reasonable and appropriately based on the information that she had gathered. The Report itself presented the information in an even-handed manner and the Panel did not have any concerns with respect to Dr. Sas’s assessment process or conclusions in this regard.

[15] The ICRC did not provide the Applicant with Dr. Sas’s response to the complaint following a request to withhold it from the Applicant by Dr. Sas.

iii. The Disclosure Order and Motion to Vary

[16] On 9 March 2020, the Applicant requested a review of the ICRC decision by the HPARB. In her request, the Applicant alleged deficiencies in the ICRC’s information gathering process and complained that she had never received a copy of Dr. Sas’s response to the complaint.

[17] On 24 February 2021, the HPARB made a disclosure order with respect to the ICRC’s Record of Investigation and any other documents the ICRC utilized in making its decision to the parties to the review. However, the HPARB ordered that pursuant to s. 32(3) of the Health Professions Procedural Code (being Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18) (the “Code”), the Applicant was only entitled to a redacted version of the record containing approximately 92 unredacted pages of a total of 2,464 pages. The HPARB’s Disclosure Order noted that the redacted pages contained the personal health information of people not party of the complaint review process, and no consent was received to release the information. The relevant personal health information included that of the Applicant’s two children.

[18] Section 32(3)(c) of the Code provides:

Exceptions

(3) The Board may refuse to disclose anything that may, in its opinion,

(c) disclose financial or personal or other matters of such a nature that the desirability of avoiding their disclosure in the interest of any person affected or in the public interest outweighs the desirability of adhering to the principle that disclosure be made;

[19] The HPARB found that the confidentiality interests of the persons affected by disclosing their personal health information outweighed the desirability of adhering to the principle that full disclosure be made.

[20] On 5 April 2021, the Applicant provided the HPARB with signed consents for the release of the personal health information of her minor children. The HPARB did not change its position.

[21] On 5 May 2021, the Applicant filed a motion to vary the Disclosure Order and asked that the Record of Investigation be reproduced to her without the redactions, including the three USB keys that had documents/media the ICRC used in its determinations. Dr. Sas opposed the motion. The HPARB declined to vary or set aside the Disclosure Order because of the privacy interests of the children, and because the Record of Investigation contains court materials. Mitrow J. had issued endorsements restricting the Applicant’s access to litigation materials, as well as limiting Dr. Sas’s involvement in the family law litigation. The HPARB found the motion to vary was an attempt to obtain the documents which were specifically restricted by the court. Dr. Sas will be called to testify in the Applicant and her ex-partner’s four-year family litigation, and the HPARB found the proper forum to contest the findings of Dr. Sas was in court.

iv. The HPARB Review Decision

[22] On 12 January 2022, a teleconference was held for the review hearing before the HPARB. The decision was issued on 14 February 2022 in which the HPARB held that the ICRC’s investigation was adequate, and the decision was reasonable.

[23] The HPARB found that the investigation need not be exhaustive to be adequate. The Applicant argued that she should have been provided with Dr. Sas’s response and that she should have been able to respond to it. The HPARB rejected this and noted that the procedural fairness owed to a complainant is more limited than that owed to the regulated health professional under investigation. The ICRC is required to provide a certain minimum disclosure to a complainant. Beyond that, the ICRC has discretion in ordering disclosure as circumscribed by s. 32. The HPARB was not persuaded that the ICRC would have come to a different conclusion had it received the Applicant’s comments about Dr. Sas’s response. The HPARB determined the decision was reasonable as the ICRC considered the materials before it, applied its own knowledge relating to the standards of the profession and applied its own expertise to interpret the Record.

ISSUE BEFORE THIS COURT:

[24] Did the Disclosure Order deny the complainant procedural fairness by preventing her from participating meaningfully in the Review Hearing before the HPARB?

COURT’S JURISDICTION:

[25] The Divisional Court has jurisdiction to hear this application pursuant to ss. 2(1) and 6(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.

STANDARD OF REVIEW:

[26] On a judicial review involving alleged lack of procedural fairness, the court must determine whether the tribunal afforded the required level of procedural fairness in light of all the circumstances, applying criteria set out in Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, at paras. 22-28: see also Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 77. As explained below, the content of that duty is limited in this case.

[27] The standard of review in a case alleging a lack of procedural fairness was addressed in Silverthorne v. Ontario College of Social Workers (2006), 2006 10142 (ON SCDC), 264 D.L.R. (4th) 175 (Ont. Div. Ct.). In that case, the court dealt with judicial review of the decision of the Complaints Committee of the College of Social Workers, which decided that the applicant member should be cautioned. The applicant alleged a breach of the duty of procedural fairness. Swinton J., at para. 13, for the majority, referred to Baker, where the Supreme Court,

…emphasized that the duty of fairness is variable and depends on a number of factors, including the following:

the nature of the decision being made;

the nature of the statutory scheme;

the importance of the decision to the individual or individuals affected;

the legitimate expectations of the person challenging the decision; and

the choices of procedure made by the agency itself.

Taking these factors into account, I am satisfied that the Committee owed the Applicant [the member being investigated] a duty of procedural fairness, because the decision whether to refer a complaint and whether to caution a member affects that individual’s interests as a professional social worker. However, the content of the duty is limited, given the nature of the decision being made and the statutory context.

POSITIONS OF THE PARTIES:

i. Applicant’s Position

[28] The Applicant submits that under the statutory scheme, a complainant’s participation in the College’s professional regulation scheme is one factor that holds the scheme accountable. Meaningful participation requires disclosure. The Applicant submits redacting 96% of the Record of Investigation prevented her from having a meaningful basis to determine whether the investigation was adequate or reasonable. The Applicant acknowledges the HPARB’s power to limit disclosure under s. 32 but submits that the HPARB should use its power to limit disclosure sparingly to ensure the duty of procedural fairness is not infringed. In this case, the extent of the non-disclosure was unreasonable.

ii. The HPARB

[29] The HPARB submits that its statutory disclosure obligations in a complaint investigation are limited and depend on whether the disclosure request is from a complainant or the member of the College that is subject to the complaint. In its 24 February 2022 decision, at para. 35, the HPARB said that “the procedural fairness owed to a complainant is more limited, given that a complainant faces a lesser consequence as a result of the decision, unlike a regulated health professional who faces significant professional consequences” (citing Walker v. Health Professions Appeal and Review Board (2008), 2008 7755 (ON SCDC), 234 O.A.C. 127 (Div. Ct.), at paras. 14-16).

[30] The HPARB argues that it is granted wide discretion regarding disclosure pursuant to s. 32(3) of the Code. It is only required to give a complainant a) notice of receipt of his or her complaint, and b) a general explanation of the processes of the College, including the jurisdiction and role of the ICRC, together with a copy of the provisions of ss. 28 to 29 of the Code. The HPARB’s disclosure obligation to the member who is the subject of the complaint are much broader. It is required to give the member the notice of the complaint along with ss. 28 and 29 of the Code, a copy of s. 25.2 of the Code, and (c) a copy of all available prior decisions involving the member unless the decision was to take no further action under subsection 26(5) of the Code. In this case, the HPARB determined not to disclose parts of the record due to the contentious family law litigation, the orders made by Mitrow J., the privacy interests of the children involved (which the HPARB found to be a “public interest”), and because Dr. Sas was likely to be a witness in the civil proceedings.

iii. Dr. Sas

[31] Dr. Sas submits there was no violation of the Applicant’s right to procedural fairness. Both parties were permitted to make submissions and the Applicant was able to participate meaningfully before the HPARB. That the rights of non-parties (the children) prevailed over the Applicant’s right to review the unredacted record did not impact her ability to fully participate and to challenge the decision. The Applicant’s ability to read Dr. Sas’s response and the complete Record of Investigation would not have altered the outcome of the review because the HPARB had access to an unredacted Record of Investigation.

RESULT:

[32] The Application for Judicial Review is dismissed.

DISCUSSION:

[33] There was no lack of procedural fairness. The Applicant was provided with ample procedural fairness. Further, the redactions from the disclosure were reasonable in the circumstances.

[34] It is well recognized that under s. 32(3) of the Code, the HPARB has differing disclosure obligations as between complainants and members being investigated. The disclosure obligation to a complainant is lower than that to the member complained about. The complainant is not at risk of the loss of any profession or occupation, nor is his right to bring an action for malpractice affected in any way. Because the stakes for the complainant are very low, the disclosure duty to him or her is commensurately low, subject to the other factors in Baker (see Walker, at paras. 14-16; Silverthorne, at para. 13).

[35] The complaint, in this case, went to the ICRC, which investigates complaints and disposes of them either by referring them to the Discipline Committee, taking remedial action, or taking no action. The ICRC does not make findings of fact nor impose any penalty. It weighs the evidence to determine whether there is sufficient evidence to refer the matter on for discipline. It is the Discipline Committee that will make findings of fact.

[36] While the ICRC was considering the complaint, it declined to provide to the Applicant Dr. Sas’s response to the complaint because of the ongoing family litigation in which she would testify. On the basis of the record review, the ICRC determined that Dr. Sas did not fall below professional standards with respect to the investigation of Ms. Schuur.

[37] The Applicant requested that the HPARB conduct a complaint review and requested a fully copy of the file placed before the ICRC. The HPARB decided to release to the Applicant only the redacted version. The complaint review was held, and the HPARB found that the ICR’s investigation was adequate.

[38] The HPARB used the statutory discretion afforded to it by the Code in deciding which portions of the Record ought to be disclosed to the Applicant. The Applicant had an opportunity to challenge this Order by way of a motion. Her motion was denied with full reasons provided. The Applicant was then able to make submissions at the HPARB hearing.

[39] In Walker, the court said that the scope of the disclosure to the complainant was limited by reasons provided in the statute, including the protection of the interests of persons not parties. The court also said that the screening committee (here, the ICRC) and the Board are entitled to considerable deference in their deliberations, not only with respect to their determination of the facts, but also as to their dispositions.

[40] Applying the Baker factors, the HPARB’s decision on disclosure was a reasonable use of its discretion under s. 32(3) of the Code and justified in the circumstances. Putting it bluntly, the HPARB was concerned that:

a) The Applicant would use the disclosure sought to undermine the integrity of the complaint investigation and review process contrary to s. 32(3(b);

b) The disclosure would include personal information that should not be disclosed; and

c) It would prejudice the family proceedings.

[41] I agree with the HPARB’s concerns. The Applicant already had access to the full electronic file that the father had provided to Dr. Sas, albeit under restricted terms imposed in the family litigation. Beyond what the Applicant already had access to in the family litigation, Dr. Sas’s file and the Record of Investigation included the assessors’ notes and work product, and information from and assessments of the father. Disclosing this information through the HPARB’s file (as opposed to in the family litigation) was a reasonable concern for the HPARB under s. 32(3)(c).

[42] Further, Dr. Sas was to be a witness in the family proceedings. The HPARB was acutely aware that the court in the family proceedings restricted the Applicant’s access to information as Mitrow J. was concerned that the Applicant might give the children access to the information. Giving her the disclosure, she sought from the HPARB was a collateral attack on the court’s order, or at least an attempt to circumvent the order.

COSTS:

[43] The Applicant shall pay costs to Dr. Sas of $10,000, all inclusive, which is the amount she sought had she been successful.

Trimble J.

I agree: ___________________________________

Lococo J.

I agree:

O’Brien J.

Released: May 11, 2023