2024 ONSC 4137
DIVISIONAL COURT FILE NO.: 23-238
DATE: 20240731
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Backhouse, Lococo and Leiper JJ.
BETWEEN:
RS
Applicant
– and –
HEALTH PROFESSIONS APPEAL AND REVIEW BOARD and EF
Respondents
Graham Ragan and Wudassi Tamrat, for the Applicant
David P. Jacobs and John Eglinski-Brown, for the Respondent Health Professions Appeal and Review Board
HEARD at Toronto: July 24, 2024
RESTRICTION ON PUBLICATION
REASONS FOR DECISION
Backhouse J.
[1] This is a judicial review of a decision of the Health Professions Appeal and Review Board (“HPARB”), confirming a decision of the Inquiries, Complaints and Reports Committee (“ICRC” or the “Committee”) of the College of Psychologists of Ontario (the “College”), which required the Applicant to undergo remedial education and training.
[2] The underlying complaint made in May 2018 related to the Applicant’s role in conducting a court-ordered custody and access assessment, his involvement in a subsequent court proceeding to vary the terms of a custody arrangement, and his clinic’s role in providing counselling services to the complainant’s child.
[3] Following an investigation, in the ICRC’s decision dated June 21, 2021 (the “ICRC Decision”), the ICRC ordered the Applicant to complete a specified continuing education and remediation program (“SCERP”) to address the separation of roles within his clinic, billing issues, the appearance of bias, and the use of appropriate language. The HPARB upheld the ICRC Decision on February 7, 2023 (the “HPARB Decision”). The HPARB denied the Applicant’s Request for Reconsideration on March 21, 2023.
[4] The Applicant submits that having raised the issue of delay before the ICRC and in the absence of any reasons in the ICRC Decision on the delay issue, it was unreasonable for the HPARB to confirm the ICRC’s Decision. The Applicant challenges the reasonableness of the HPARB Decision based on the extended length of time that the ICRC investigation took and its failure to consider the delay to be a denial of procedural fairness. The Applicant also submits that notwithstanding that the HPARB addressed the issue of delay in its Decision, it was nevertheless unreasonable for it to uphold the ICRC Decision, given the ICRC’s failure to address the issue of delay and failure to consider why, given the passage of time, the remedial measures remained appropriate.
[5] For the reasons that follow, the application is dismissed.
Background
[6] The Applicant, RS, is a psychologist. He shares a practice with his wife, Ms. S, who is a registered psychotherapist.
[7] The Applicant conducted a court-ordered custody and access assessment in relation to Ms. F, her ex-husband, Mr. F, and their children. The Applicant recommended that Mr. F have sole custody of the children, with Ms. F having access to the child, A, subject to supervision.
[8] Despite the Applicant’s assessment, Mr. F and Ms. F resolved their case via an agreement for joint custody of the children, which was set out in a court order dated December 14, 2009.
[9] In October 2014, Mr. F sought to vary the terms of the court order, including seeking full custody of the children. The Applicant testified at the trial. Mr. F was granted full custody of the child A, with Ms. F having no access to A except “as recommended by the professionals treating [A] for the purpose of treatment”. Mr. F was directed to “engage [RS] and/or other suitable competent professionals to engage in the assessment, treatment and counselling of [A] … to deal with the parental alienation.”
[10] Following the trial, Ms. S provided therapy to A in relation to parental alienation issues. As part of the ongoing therapy, Ms. S arranged a face-time session with A and Ms. F, which occurred on April 10, 2018. On April 12, 2018, Ms. S informed Ms. F. that no further sessions would be held.
Complaint to the College of Psychologists
[11] Ms. F submitted a complaint to the College of Psychologists on May 1, 2018, in which she alleged that:
(1) RS was biased in favour of Mr. F and wrote a very one-sided and damaging report about her, and
(2) The services of RS and Ms. S were being dictated by Mr. F, who was paying their fees, rather than the best interests of A, and A was not permitted to talk about Ms. F during therapy sessions.
ICRC Investigation
[12] The ICRC received the Applicant’s response to the complaint in June 2018. It sought clarification and additional information from the Applicant in October 2018. The ICRC again sought additional information in November 2018. In October 2019, the ICRC issued a summons requiring Ms. S to submit additional records to the College, which she did.
[13] In June 2020, the College received a letter from the College of Registered Psychotherapists of Ontario (“CRPO”) regarding a decision that it made regarding a related complaint against Ms. S. The ICRC sought additional information from the CRPO.
[14] In November 2020, the College conducted an interview with Mr. F.
[15] The College again sought clarification from the Applicant in November 2020.
Procedural History
ICRC Decision
[16] Following its investigation, the ICRC released the ICRC Decision, finding that the Applicant demonstrated an appearance of bias, that there were issues with billing and the separation of roles within the clinic of the Applicant and Ms. S, and that the Applicant used language that could be considered inappropriate or threatening. The ICRC’s findings on each of these issues are discussed below.
i. Appearance of Bias
[17] The ICRC found that it could be perceived that the Applicant’s involvement in legal proceedings involving Ms. F, Mr. F, and A could impact his and Ms. S’s objectivity in subsequent therapy. The ICRC felt that it may have been more appropriate to refer A to a different service provider, rather than agreeing to provide services through the clinic of the Applicant and Ms. S. If this was not possible because there were no other providers within the geographic area, this should have been discussed with the family and clearly documented.
[18] The ICRC directed the Applicant to engage in discussions with a peer coach regarding how to appropriately manage and document situations where there could be an appearance of bias or an impression of compromised objectivity.
ii. Separation of Roles within Practice
[19] The Applicant submitted that, while he completed the court-ordered custody assessment and testified at trial when Mr. F sought to vary the custody order, the Applicant had no involvement in subsequent therapy provided to A by Ms. S.
[20] The Committee found that there was a blurring of lines between the Applicant and Ms. S, and that the evidence suggested that the Applicant had some level of involvement in A’s treatment.
[21] All invoices were issued in the Applicant’s name. The Applicant’s responses to questions from the Committee also suggested that he was involved in the therapy services provided to A and had ownership of clinical decisions. He described his own specific knowledge of A’s circumstances and treatment provided to her. The Applicant also admitted to participating in a direct one-on-one session with A. The Applicant also co-signed A’s psychotherapy progress report, dated November 16, 2016.
[22] The Committee found that the Applicant had improperly blurred the boundaries between his own practice and that of Ms. S, and ordered him to engage in a coaching program, including a practice review and file review, designed to establish policies to distinguish between his own practice and Ms. S’s.
iii. Use of Appropriate Language
[23] The Committee found language used by the Applicant to be concerning when he wrote about A and directed the Applicant to engage in discussions about appropriate language with a peer coach.
The HPARB Decision
[24] In a letter dated July 5, 2021, the Applicant requested that the HPARB review the ICRC Decision. The HPARB released the HPARB Decision on February 7, 2023, in which it upheld the ICRC Decision. The HPARB made the following findings:
i. Adequacy of the investigation
[25] The Applicant’s counsel submitted that the investigation was inadequate because the ICRC failed to comply with its own statutory obligations, the ICRC conducted its investigation in a disorganized manner, requiring the Applicant to provide multiple responses, and the ICRC was influenced by information it should not have received.
[26] The Applicant submitted that the ICRC failed to comply with requirements under the Health Professions Procedural Code[^1] (the “Code”), which state that a complaint shall be disposed of within 150 days, or that the Registrar shall provide written notice of the expected date of disposition. If the complaint is not disposed of by the expected date, the Registrar shall provide the member with written notice and reasons for the delay. While the ICRC sent appropriate notice on some occasions, it failed to do so on others.
[27] The HPARB found that the delay in the present case did not result in an inadequate investigation of the complaint. The investigation was active and extensive. Section 28(5) of the Code allows a party to request that the HPARB inquire into the ICRC’s delay. The Applicant never made such an application.
[28] With respect to the disorganized manner in which the Committee allegedly carried out its investigation, the HPARB found that the Committee provided the Applicant with opportunities to respond to concerns it identified. While there were multiple requests for information, these did not render the investigation inadequate, but instead increased the procedural fairness to the Applicant.
[29] Finally, the Applicant submitted that the ICRC was influenced by information it obtained from the College of Registered Psychotherapists of Ontario, which it should not have received. The HPARB found that the Applicant previously noted that the complaint was against both himself and his wife. It was therefore appropriate for the ICRC to consider any information it obtained pertaining to Ms. S.
[30] The HPARB found that there was no indication of any additional material that might have affected the Committee’s decision if it had been obtained. The investigation was therefore not inadequate.
ii. Reasonableness of the ICRC Decision and SCERP
[31] The HPARB found that the ICRC’s decision about the complaint was reasonable and that the disposition of a SCERP was also reasonable. The HPARB found that the Committee reached reasonable conclusions on the merits of the complaint based on information provided by the Applicant and other information in the record. A SCERP is a reasonable outcome, given the moderate risk to the public posed by the Applicant’s practices and the need for remediation of clinical issues.
Reconsideration Decision
[32] On March 21, 2023, the HPARB issued a decision concluding that the HPARB review did not breach procedural fairness, and that it did not fail to consider an issue it was mandated to determine. It therefore determined that it would not reconsider the HPARB Decision.
Issues
[33] Was the HPARB’s decision to confirm the ICRC decision unreasonable?
Relevant Statutory Provisions
[34] The Code contains the following provisions with respect to timely disposal of complaints:
Timely disposal
28 (1) A panel shall dispose of a complaint within 150 days after the filing of the complaint.
Impact of ADR on timelines
(2) Time spent by a complainant and member in an alternative dispute resolution process pursuant to a referral under section 25.1 shall not be included in the calculation of time under this section.
If complaint not disposed of
(3) If a panel has not disposed of a complaint within 150 days after the complaint was filed, the Registrar shall provide the complainant with written notice of that fact and an expected date of disposition which shall be no more than 60 days from the date of the written notice.
If further delay
(4) If a panel has not disposed of the complaint by the expected date of disposition described in subsection (3), the Registrar shall,
(a) provide the member and complainant with written notice and reasons for the delay and the new expected date of disposition which shall be no more than 30 days from the date of the revised notice or from the expected date of disposition described in subsection (3), whichever is sooner; and
(b) provide the Board with written notice of and reasons for the delay as were provided to the member and complainant.
Powers of the Board
(5) The Board, on application of the member or the complainant, shall consider the written reasons for the delay and shall do any one of the following:
Direct the Inquiries, Complaints and Reports Committee to continue the investigation.
Make recommendations the Board considers appropriate to the Inquiries, Complaints and Reports Committee.
Investigate the complaint and make an order under subsection (9) within 120 days of the decision to investigate the complaint.
Board’s investigatory powers
(6) In investigating a complaint under paragraph 3 of subsection (5), the Board has all the powers of a panel of the Inquiries, Complaints and Reports Committee and of the Registrar with respect to the investigation of the matter and may appoint an investigator under clause 75(1)(c).
Continuing power of Inquiries, Complaints and Reports Committee
(7) The Inquiries, Complaints and Reports Committee may take action under section 26 at any time before the Board completes its investigation.
Same
(8) For greater certainty, if the Inquiries, Complaints and Reports Committee takes action as provided for in subsection (7), the Board no longer has jurisdiction to take action under section 26.
Powers of Board re an investigation
(9) After an investigation, the Board may do any one or more of the following:
Refer the matter to the Inquiries, Complaints and Reports Committee.
Make recommendations the Board considers appropriate to the Inquiries, Complaints and Reports Committee.
Require the Inquiries, Complaints and Reports Committee or a panel to do anything the Committee or a panel may do under the health profession Act and this Code except to request the Registrar to conduct an investigation.
Powers of Board re time limits
28.1 If the Board is satisfied that no person will be unduly prejudiced, it may, on reasonable grounds, extend any time limit with respect to,
(a) a requirement, under subsection 21(1), for a review or hearing by the Board;
(b) a request, under subsection 29(2), for a review by the Board; or
(c) the Registrar’s obligation to give to the Board, under subsection 32(1), a record of an investigation of a complaint against a member and all relevant documents and things.
Court’s Jurisdiction
[35] The court has jurisdiction to hear this judicial review 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
[36] The standard of review for the merits of the HPARB decision is reasonableness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653. The court may consider the reasonableness of the underlying ICRC Decision to determine the reasonableness of the HPARB Decision subject to judicial review: Hamilton v. Ontario (Health Professions Appeal and Review Board), 2022 ONSC 3221 (Div. Ct.), at para. 24.
[37] On questions of procedural fairness, the court inquires into whether the appropriate degree of procedural fairness has been provided. The degree of procedural fairness required is determined by reference to all the circumstances of the case, including those set out in Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, at paras. 21-28.
Analysis
1. Was the HPARB’s decision to confirm the ICRC decision unreasonable?
[38] The Applicant submits that the HPARB’s decision was unreasonable for the following reasons:
a. The HPARB did not address the ICRC’s failure to provide reasons for rejecting the Applicant’s concerns about delay: When ordering a SCERP, the ICRC is required to consider the submissions of the member and provide reasons for making the order. The ICRC must take into consideration the submissions of the member and demonstrate some degree of analysis of their concerns. The Applicant raised concerns about significant delays in the investigation, but these were not mentioned in the ICRC Decision. The HPARB did not address whether the delay in the investigation rendered the ICRC investigation inadequate.
The Applicant relied on the decision in Young v. College of Nurses of Ontario, 2022 ONSC 6996 (Div. Ct.), at para. 24, in support of his argument that the reasons of the ICRC must show that the submissions of the member were taken into consideration.
The HPARB’s own reasons as to why it did not have a concern about delays did not address the ICRC’s failure to provide reasons.
b. The HPARB erred in failing to conclude that the ICRC’s actions during the investigation denied the Applicant procedural fairness. The Applicant made submissions about the ICRC’s failure to abide by its statutory obligations to provide notice and updates during the investigation. In particular, the Applicant alleges that the ICRC provided inaccurate or misleading information about the status of the investigation. The HPARB did not address the Applicant’s submissions regarding the ICRC’s failure to comply with statutory obligations.
The Code required the ICRC to send out notices on 38 occasions. It complied with its obligations on only three of those occasions. The Applicant also alleges that the ICRC provided inaccurate information about the timing of investigative steps.
The Applicant submits that he was denied procedural fairness and that the HPARB’s conclusion that the investigation was adequate was unreasonable.
[39] The Applicant’s position is that the ICRC Decision, having failed to address the Applicant’s submissions regarding delay, was unreasonable. Similarly, the HPARB Decision was unreasonable notwithstanding the fact that it addressed the issue of delay, because it failed to address ICRC’s failure to address the issue of delay and failed to address why, given the passage of time, the remedial measures which included a SCERP, remained appropriate.
[40] I agree that the ICRC Decision should have addressed the Applicant’s submissions with respect to delay. As noted by the Supreme Court in Vavilov, an administrative decision-maker cannot be expected to respond to every argument or line of possible analysis. “However, a decision maker’s failure to meaningfully grapple with key issues or central arguments raised by the parties may call into question whether the decision maker was actually alert and sensitive to the matter before it.” Vavilov, at para. 128.
[41] In this case, however, the allegations of significant delay (1,147 days) to complete the investigation were raised before the HPARB and were reasonably addressed in its decision. The HPARB acknowledged that a Committee should not delay dealing with a complaint and that any unnecessary delays should not be taken lightly. It noted that the Code sets out clear timelines in which the investigation is expected to occur and the receipt of a delayed decision can negatively affect both parties and can negatively impact the public interest.
[42] The HPARB noted that the timelines set out in the Code are directory and not mandatory. A member may request that the HPARB inquire into a Committee’s delay pursuant to s. 28(5) of the Code. The HPARB may take over the investigation itself. The College brought this provision to the attention of the Applicant’s lawyer in response to his concerns about delay. No request was made on behalf of the Applicant pursuant to s. 28(5).
[43] The level of procedural fairness the College was required to provide to the Applicant is to be considered with reference to the Baker factors. The ICRC plays a role as a screening committee, and the stakes are not as high as they are before a discipline panel.
[44] In Young, relied upon by the Applicant, more than four years passed from the time the applicants’ employment came to an end and their receipt of the investigation documents and request for submissions from the ICRC. The applicants submitted that their ability to respond to the allegations was compromised because of the delay and gave specific examples of witnesses who could not be interviewed or documents that were no longer available. Both applicants had moved onto new employment and different positions. They argued that they were prejudiced by the ICRC contacting their current employers, which caused them distress, anxiety and was stigmatizing to them. In the case of Ms. Young, by the time the ICRC issued its order that she be cautioned in relation to her former work in a gynecological unit in the period from January to March 2016, she had been in a new nursing role in long term care without incident for almost five years. This court found that the ICRC’s reasons did not address how or why, given the passage of time, the remedial measures which included a caution, remained appropriate. It was in these circumstances that this court found that the ICRC’s decisions were unreasonable because they failed to adequately address the applicants’ submissions relating to the delay.[^2]
[45] The Applicant submitted to the ICRC that the College failed to send out notices required by ss. 28(3) and (4) of the Code and that although the College advised that it was collecting further information, many months went by where no steps were taken. The Applicant’s counsel wrote to the College on his behalf on three occasions regarding the delay. On one of those occasions, on June 3, 2020, over two years after the receipt of the complaint, the Applicant’s counsel advised the College that a complaint investigation can be a very stressful experience for a health care professional and that the Applicant had endured some health issues during the course of the investigation which had been aggravated, in part, as a result of the ongoing investigation.
[46] However it must be said that the Applicant knew from the outset what the College’s concerns were and his consistent denials that he engaged in therapy sessions with the child contrary to the ICRC’s findings undoubtedly lengthened the investigation.
[47] The delay in this case, while concerning, is not as significant as the delay in Young. There is nothing on the record in the instant case to show significant prejudice to the Applicant from the delay. There is no supporting documentation to verify his claim that his health issues had been aggravated by the delay. There is also no changed circumstances of new employment and changed work positions for an extended period after the time of the allegations that existed in Young. It was these factors in Young that this court found made it unreasonable for the ICRC not to address the applicants’ submissions relating to the delay and not to consider whether the remedial measures, including a caution, remained appropriate.
[48] The test for abuse of process due to delay comes from Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, 470 D.L.R. (4th) 328: delay must be inordinate and must have caused significant prejudice. If these two requirements are met, a delay will be abusive if it is manifestly unfair to the party, or would bring the administration of justice into disrepute. In the present case, the delay was not inordinate and did not cause significant prejudice. The investigation took a little over three years and did not end in a referral to discipline. In the circumstances of this case, the Applicant does not meet the test for showing an abuse of process due to delay.
[49] In considering the Applicant’s submissions with respect to delay, the HPARB stated:
In this case, the Committee may have taken a long time to investigate the complaint, however the Board cannot find that the delay in this specific case resulted in an inadequate investigation of the Respondent’s complaint. The information in the Record demonstrates that the investigation was active and extensive. The Board observes that, as the information was being gathered, the Committee required additional information including responses from the Applicant to concerns the Committee identified.
The Board finds that, had the Committee not provided the Applicant with an opportunity to respond to the concerns it identified, the Committee’s investigation could have been found to be inadequate. Here, although the additional requests for information may have contributed to delays in the investigation process, they do not render the investigation inadequate but rather, adhere to the concept of procedural fairness owed to the Applicant.
[50] The Applicant was not denied procedural fairness, and there is nothing unreasonable in HPARB’s conclusion to that effect.
[51] The finding in Young is distinguishable from the facts of this case as set out above. The HPARB Decision reasonably addressed the Applicant’s submissions regarding ICRC’s failure to comply with the statutory timeline obligations. There was nothing unreasonable about the HPARB’s consideration of the delay.
[52] The HPARB’s Decision was reasonable. Accordingly, the application is dismissed.
Costs
[53] The parties agree that there shall be no costs. Therefore, there will be no costs order.
Backhouse J.
I agree _______________________________
Lococo J.
I agree _______________________________
Leiper J.
Date: July 31, 2024
2024 ONSC 4137
DIVISIONAL COURT FILE NO.:23-238
DATE: 20240731
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Backhouse, Lococo and Leiper JJ.
BETWEEN:
RS
Applicant
– and –
HEALTH PROFESSIONS APPEAL AND REVIEW
BOARD and EF
Respondents
REASONS FOR DECISION
BACKHOUSE J.
Released: July 31, 2024
[^1]: Health Professions Procedural Code, Sched.2 of the Regulated Health Professions Act, 1991, S.O.1991, c. 18.
[^2]: Young, at paras. 4, 8, 19, 20, 25, 28.