A recent family law decision, KK v. MM, 2022 ONCA 72, has opened the door for plaintiffs to introduce findings of health professionals’ regulatory proceedings in civil proceedings. In this decision, the ONCA upheld a previous judgment, in which the court permitted the plaintiff to admit a copy of the decision of the Inquiries, Complaints and Reports (“ICR”) Committee of the College of Physician and Surgeons (“CPSO”) in a civil proceeding.
Background
The parties in this matter married in 2003, separated in 2012, and have been involved in a prolonged litigious dispute over several issues, primarily pertaining to the custody of their two children, VK and JK.
In March 2014, a motion judge ruled that the mother had engaged in parental alienation and granted sole custody to the father. In making the interim finding of parental alienation, the judge relied on the expert evidence of a court-appointed assessor, Dr. Sol Goldstein, under s.30 of the Children’s Law Reform Act (“CLRA”). Dr. Goldstein believed that the mother’s influence seriously compromised VK’s mental health and recommended that the child be taken out of her care immediately.
In the years following the interim finding of parental alienation, the children resided with their father, and the mother had limited parenting time, including extended periods during which she had no contact with her children.
Superior Court
The mother contested this motion decision in November 2020. At the time of the trial, JK was living with his father and visiting his mother on weekends, whereas VK was now living primarily with her mother.
At trial, the father requested that Dr. Goldstein’s s.30 CLRA reports be admitted into evidence and that the trial judge give weight to his opinions and recommendations. On her part, the mother objected to the admissibility of Dr. Goldstein’s assessment reports and letters. Her objection was based on findings of the CPSO arising from complaints filed against him.
The father objected to admitting these findings, citing s.36(3) of the Regulated Health Professions Act (“RHPA”), which prohibits records of regulatory proceedings at the CPSO and decisions made therein from being used in civil proceedings.
The trial judge ruled that the prohibition did not apply, and Dr. Goldstein’s opinions and recommendations would not be considered. The judge reversed the living arrangements for JK and ordered that the mother would now be responsible for making all significant decisions related to JK.
Court of Appeal
On appeal, the father alleged that the trial judge failed to consider the recommendations of Dr. Goldstein meaningfully.
For a long time, s. 36(3) of the RHPA has shielded health professionals from virtually anything pertaining to complaints in civil proceedings.
In this matter, the mother sought to introduce a copy of a decision concerning one of her complaints from the ICR Committee of the CPSO, in which they concluded that Dr. Goldstein would benefit from remediation based on serious concerns regarding the approach he took to s.30 CLRA assessments. Moreover, under the public undertakings, Dr. Goldstein agreed not to conduct any new assessments of individuals whom he believes have been subjected to or have engaged in parental alienation.
The ONCA agreed that the fact that a complaint was launched, an investigation held, and a decision rendered by the IRC was not covered by s.36(3) of the RHPA and may be otherwise provable in court without reference to a prohibited document. It further agreed that Dr. Goldstein’s undertakings, while related to a decision or order covered by s.36(3), were not themselves either a decision or order captured by the section.
The Trial Judge was of the opinion that s.36(3) did not apply as a family law proceeding is not a civil proceeding as captured by the RHPA. The ONCA clarified this statement.
In paragraph 51, the ONCA stated that:
Family law disputes, while distinct from other civil litigation in many respects, are “civil” proceedings in the ordinary sense of the word: they concern private relations between members of the community in contrast to criminal or child protection proceedings, which both involve state action. If the legislature had intended to exempt family law litigation from the realm of s.36(3), it would have said so.
The ONCA further concluded that no evidentiary privilege is associated with the information or evidence used to prepare such orders, decisions, reports, documents, things or statements under s.36(3) of the RHPA. Thus, a trial judge is not deprived of highly probative evidence regarding the validity of relevant opinions and recommendations by the parties choosing and presenting such background evidence or information.
Key Takeaway
Accordingly, this decision provides some relief to plaintiffs as it opens up what was previously a very rigid process for them.
Essentially, s.36(3) of the RHPA encourages reporting complaints of professional misconduct against members of a health profession and guarantees that those complaints will be fully investigated and fairly resolved without the complainants actively participating in the process. Fearing that a document prepared for college proceedings can be used in a civil action is a reasonable concern for health professionals, patients, complainants, witnesses, or college employees to not fully participate in the process.
Unfortunately, and in practice, this section has been primarily used by poor practitioners to keep findings of complaints to their professional regulatory bodies confidential. Consequently, a judge or jury would never be informed that a health professional had previously been warned about concerns with their practice, which could directly impact the case. The judge or jury would also not be aware that the professional could be a repeat offender within the parameters of their respective regulatory discipline systems.
In light of this decision, it will be interesting to see how courts interpret these principles outside of family law and whether they will be more flexible in allowing evidence that otherwise would have been viewed as inadmissible.
