Collingwood Lawyers Discuss: Confidential Allegations in Healthcare Disciplinary Proceedings
One may imagine a scenario where a patient, healthcare provider, administrator, or third party initiates a disciplinary proceeding against a healthcare provider. However, legal practitioners may be surprised to discover that any documentation or records created for a proceeding in a healthcare regulation body cannot be used in a subsequent civil proceeding.
Therefore, if anyone who initiates a proceeding in the College of Physicians and Surgeons, or the College of Nurses, or other such bodies, then the documentation or records from this proceeding cannot afterward be used in court. We shall discuss these rules of disclosure below. As we shall demonstrate, these rules apply broadly, and admit few exceptions.
The disclosure of documentation in healthcare regulation proceedings is governed by section 36(3) of the Regulated Health Professions Act, 1991 (RHPA). (1) No record of a healthcare regulation proceeding, no document or statement produced for such a proceeding, and no order or decision in such a proceeding is admissible in court. The statute applies broadly to any body under the RHPA, any other health profession statute, and the Drug and Pharmacies Regulation Act.
36(3) Evidence in civil proceedings:
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.
Thus, documents, records, reports, statements, decisions, and orders from a proceeding in the College of Physicians and Surgeons, or the College of Nurses, or other such bodies cannot be used in court.
The Ontario Court of Appeal applied a strict and rigid interpretation of this provision in F(M) v S(N). (2) A patient initiated a disciplinary proceeding against a doctor for sexual harassment, and she allegedly did so in bad faith to ruin the doctor’s reputation. The proceeding settled, and the patient withdrew her allegations and admitted that they were false. When the patient later sued the doctor for reneging on his regular payments of the settlement money, the doctor countersued the patient for damages because the original allegations had been made maliciously and in bad faith. The patient subsequently argued under section 36(3) of the RHPA that all mentions of the previous disciplinary proceedings were inadmissible, and should be removed from the statement of claim entirely. She furthermore argued that, because the doctor had no reasonable claim without the admission of these records, his claim should be stricken altogether under Rule 21.01(1)(b) of the Rules of Civil Procedure. (3)
The majority in Ontario Court of Appeal ultimately agreed that section 36(3) of the RHPA clearly stated that the records in the disciplinary proceedings could not be admissible in court. The purpose of the provision, the court decided, was to separate proceedings under healthcare regulators and civil proceedings in court. The intent of the legislature was to encourage complaints against doctors, especially on sensitive matters like sexual harassment. Since the inclusion of the disciplinary records in the statement of claim would violate section 36(3) of the RHPA, and would therefore delay or prejudice the fair action in a trial, they were struck out of the statement of claim under Rule 25.11 of the Rules of Civil Procedure. (4)
This decision by the Ontario Court of Appeal was controversial. First, one could argue section 36(3) of the RHPA only renders records and documents under a healthcare proceeding inadmissible as evidence. As Justice Borin stated in his dissent in S(N), the provision could not also permit a motions judge to exclude these documents outright from being mentioned in a pleading. (5) The majority in the Court of Appeal, however, stated that wording of the statute makes it clear that the legislature intended to separate civil proceedings in court from proceedings under healthcare regulators, and that no documents or records from a healthcare proceeding could be included in a pleading. (6) The Ontario Court of Appeal in Lipsitz v. Ontario upheld the ruling in S(N) that a motions judge had the authority to strike out all or part of a pleading under Rule 25.11 of the Rules of Civil Procedure if its contents violated section 36(3) of the RHPA. (7)
Second, since the patient in S(N) made her allegations to the College of Physicians and Surgeons in bad faith, section 36(3) would operate to prevent the doctor from defending himself, and would shield the patient from having to answer for making malicious allegations. As Justice Borin stated in his dissent in S(N), the majority’s interpretation of section 36(3) of the RHPA “would produce a result that protects fraud, rather than preventing it.” (8) The Court of Appeal, however, was clear that the statute makes no exception for records or documents made for proceedings initiated in bad faith or for malicious purposes. Even if someone made her allegations to a healthcare regulator for bad reasons, documents from that proceeding could still not be used in court. (9) The subsequent decision by the Ontario Superior Court in Task Specific Rehabilitation Inc v Steinecke upholds that there are no exceptions for allegations made in bad faith. (10)
Other court decisions have also upheld the strict reading and broad application of section 36(3) of the RHPA. The Ontario Court of Appeal in Lipsitz held that section 36(3) applied to all proceedings under a health regulation body, not simply to proceedings where a hearing was held, and not simply to proceedings that were initiated by an external complaint. (11) The Ontario Superior Court in Middleton v. Sun Media Corp furthermore ruled that documents prepared in a healthcare regulation proceeding cannot even he disclosed in an affidavit of documents. (12) The consensus among judicial decision therefore demonstrates that such records cannot be disclosed in court.
In spite of strict interpretation of section 38(6) of the RHPA in S(N), the courts have allowed for some limited degree of disclosure. First, although S(N) did not allow for a pleading to include documents or reports that were inadmissible under section 36(3), this prohibition did not disallow litigants from including in a pleading the fact that a complaint was made, or the fact that an investigation was initiated. (13) Second, the Ontario Court of Appeal in Pouget ruled that documents that were not initially prepared for a proceeding in a healthcare regulation body, but were only subsequently provided to them, can still be included in a pleading. (14) The statute, after all, only excludes records or documents prepared for or given at a proceeding, and not documents prepared in the ordinary course of business that only subsequently come into contact with the healthcare regulator. (15) The court have therefore allowed for some limited circumstances in which disclosure or production is permitted.
With a few exceptions, the courts have not allowed for records and documents prepared for proceedings in healthcare regulation bodies to be disclosed in court. Legal practitioners should keep this fact in mind when they prepare their cases.
- Regulated Health Professions Act, 1991, SO 1991, c. 18, s 36(3) RHPH">undefined.
- F. (M.) v. S. (N.),  OJ No 2522, 188 DLR (4th) 296 at paras 5-16 (ONCA) S(N)">undefined.
- Ibid at paras 5-16. See Rules of Civil Procedure, RRO 1990, Reg 194 at Rule 21.01(1)(b) Rules">undefined.
- S(N), supra note 2 at paras 26-47. See also Rules, supra note 3 at 25.11.
- S(N), supra note 2 at paras 67-82.
- Ibid at paras 40-47.
- Lipsitz v Ontario, 2011 ONCA 466, 334 D.L.R. (4th) 606 Lipsitz">undefined.
- S(N), supra note 2 at para 88.
- Ibid at paras 26-39.
- Task Specific Rehabilitation Inc. v. Steinecke,  OJ No 2077, OTC 423 at paras 29-43.
- Lipsitz, supra note 7 at paras 97-118.
- Middleton v. Sun Media Corp,  OJ No 1640, 268 DLR (4th) 347 at paras 10-20.
- S(N) supra note 2 at para 45. See also Pouget v. Saint Elizabeth Health Care, 2012 ONCA 461 at para 25, OJ No 3157 Pouget">undefined.
- Pouget, supra note 13 at para 34.