Court File and Parties

COURT FILE NO.: 07-CV-9402CM DATE: 20180628 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Julie Pouget, Plaintiff – and – Dr. Adrian Hynes, Defendant

Counsel: Myron W. Shulgan, Q.C., for the Plaintiff Jaan E. Lilles, for the Defendant

HEARD: June 21, 2018

Reasons on Motion

Carey J.:

[1] The defendant, Dr. Hynes, initially brought a motion for directions on two issues before this court. Following argument, counsel indicated that he was content that the issue of whether allegations of negligence in the amended statement of claim are prohibited by s. 38(1) of the Regulated Health Professions Act, 1991 S.O. 1991, c. 18 (“the RHPA”) could be dealt with in the absence of the jury at the commencement of the trial.

[2] The motion before me, then, as set out by the defendant, is to determine whether documents created during the course of fitness to practice proceedings by the College of Nurses of Ontario (the “College”) with respect to the plaintiff are inadmissible in this action pursuant to s. 36(3) of the RHPA. The defendant’s position is s. 36(3) of the RHPA renders all documents created during the College proceeding inadmissible. The defendant says a case law interpreting the provisions are clear and unequivocal and the policy reasons for the legislation and its regulations are sound.

[3] The plaintiff argues that the defendant’s motion is a re-litigation of an argument made and rejected on a motion to strike brought by the defendant over ten years ago and decided by Cusinato J. [1] The plaintiff further argues that the actions of the defendant that are the subject of this litigation were not taken as part of a “proceeding” as used in s. 36(3) of the RHPA and that the procedures involved in investigating a capacity issue with the College is different than that in a disciplined process.

[4] For the reasons set out below, I have concluded that the direction sought by the defendant is appropriate and s. 36(3) of the RHPA applies to the work done by Dr. Hynes in relation to his assessment of the plaintiff, Julie Pouget, for the purpose of his assessing her capacity and fitness as a nurse and subject to the regulations of the College.

Background

[5] In 2003, the College received information about Ms. Pouget, a nurse, that caused them to commence a capacity investigation under the provisions of the Health Professions Procedural Code, being Schedule II to the RHPA. As part of that investigation, Dr. Hynes, a psychiatrist with expertise in addiction medicine, was retained by the College to conduct the capacity assessment of Ms. Pouget. He saw her on one occasion, on March 25, 2004, and subsequently delivered a report to the College with some further e-mail follow-ups. Dr. Hynes’ only dealings with the plaintiff, Ms. Pouget, was in his capacity as an expert hired by the College.

[6] The College imposed an interim suspension of Ms. Pouget’s certificate of registration in November 2004. This was rescinded in June 2005, after the delivery of additional expert reports and a resolution of the Fitness to Practice Hearing.

[7] The plaintiff commenced an action in 2007, alleging numerous causes of action including malfeasance and abuse of public office, interference with economic relations and negligence. All of the claims arise out of the assessment Dr. Hynes conducted when retained by the College. Dr. Hynes says he has no documents other than those created for the College’s capacity proceeding. The plaintiff is also attempting to rely on additional documents disclosed to her in the College’s “Disclosure Brief” and the additional expert reports created for the capacity proceedings.

[8] After the statement of claim was delivered, Dr. Hynes brought a motion to strike the statement of claim on various grounds. The motion was allowed, in part, with respect to certain causes of actions only by Cusinato J. in reasons dated February 14, 2008. That decision did not deal with the admissibility of documents pursuant to s. 36(3) of the RHPA.

[9] Leave to appeal Cusinato J.’s decision was sought and denied, as was a further motion for leave. When discovered, Dr. Hynes objected to all questions in respect of the documents produced in the course of the College’s proceedings in connection to Ms. Pouget’s capacity as a nurse.

[10] The plaintiff has taken no steps in relation to those refusals.

Law and Analysis

[11] Section 36(3) of the RHPA reads as follows:

No record of a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act, no report, document or thing prepared for or statement given at such a proceeding and no order or decision made in such a proceeding is admissible in a civil proceeding other than a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act or a proceeding relating to an order under section 11.1 or 11.2 of the Ontario Drug Benefit Act. 1991, c. 18, s. 36(3); 1996, c. 1, Sched. G, s. 27 (2).

[12] The section has been the subject of review by the Ontario Court of Appeal in three thorough decisions since 2000. [2]

[13] It is clear from these three cases that our courts have accepted that the broad objective of s. 36(3) is to keep college proceedings and civil proceedings separate. The court recognized the reluctance of experts to participate in these types of proceedings if they will be exposed to civil actions for their opinions. Such exposure would have a chilling effect on the ability of self-governed professions to fulfil their mandate to govern in the public interest.

[14] I have no hesitation in concluding that the steps taken by the College in respect to investigating the plaintiff, Ms. Pouget’s, fitness to practice created documents that are inadmissible pursuant to s. 36(3) of the RHPA. My opinion is affirmed by the decision of Horkins J. in Conroy v. College of Physicians and Surgeons of Ontario, 2011 ONSC 324, which also involved a fitness investigation. The plaintiff has not provided any case law that would support their argument that the principles should be applied differently to the fitness stream than to the discipline stream of the College’s work.

[15] In my view, the same principles that support the interpretations given to s. 36(3) in relation to discipline proceedings by colleges regulated under the RHPA are applicable to capacity and fitness proceedings. If anything, expert opinions are more likely to be sought and relied upon in fitness and capacity hearings than in hearings related to professional misconduct. Health regulators would be hobbled in their efforts to monitor the fitness of their members to perform their duties if the protection of this section was removed and experts were open to law suits for their opinions.

[16] In respect to Cusinato J.’s decision from 2008 in this matter, I agree with the defendant that it dealt with the plausibility of the plaintiff’s claims and not with the admissibility of evidence as this motion does.

[17] There will be an order in this trial that all documents created for the purpose of the College’s proceedings in relation to the plaintiff, Julie Pouget, are inadmissible.

[18] Given that this is a proceeding in a trial that I will be conducting, costs of this motion will be reserved to the completion of the trial.

Thomas J. Carey Justice

Released: June 28, 2018

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Julie Pouget, Plaintiff – and – Dr. Adrian Hynes, Defendant REASONS on motion Carey J.

Released: June 28, 2018

Footnotes:

[1] Reasons of Cusinato J. dated February 14, 2008, Exhibit “C” to the Hunter Affidavit, Motion Record, Tab 2C, p. 60.

[2] (M.)F. v. Sutherland at paras 30-32, Book of Authorities of Dr. Hynes, Tab 1. Task Rehabilitation v. Steinecke, at paras. 15-22, Book of Authorities of Dr. Hynes, Tab 2. Lipsitz v. Ontario, 2011 ONCA 466 at paras. 110-11, Book of Authorities of Dr. Hynes, Tab 3.