Clarification from the Court of Appeal on Using Evidence Prepared in Regulatory Proceedings in Civil Proceedings

A recent family law decision from the Ontario Court of Appeal (K.K. v. M.M., 2022 ONCA 72 (CanLII), considered the correct interpretation of section 36(3) of the Regulated Health Professions Act, 1991 (“RHPA”) which provides that documents prepared in relation to proceedings under the RHPA are inadmissible in civil proceedings. 

The case involved highly contested divorce proceedings. The couple was married in 2003 and had two children, a daughter and a son. The couple filed for divorce in 2013.

Pre-Trial Custody Order

A pre-trial order granted sole custody of both children to the father after a motion judge made an interim finding of parental alienation by the mother. Prior to this order, the daughter resided primarily with her mother, and the son resided primarily with his father.

In making the finding of parental alienation, the motion judge relied on expert evidence from Dr. Sol Goldstein, a court-appointed assessor under section 30 of the Children’s Law Reform Act (“CLRA”).

Dr. Goldstein’s opinion was the daughter had been alienated against her father by her mother, and that the mother and daughter were conspiring to alienate the son against his father as well. Dr. Goldstein expressed the view that the daughter’s mental health was being seriously compromised by the mother’s influence, and recommended that the daughter be removed from the mother’s care.

Trial Decision

At trial, Dr. Goldstein was summonsed by the father to give evidence, but he failed to attend. The father sought to admit Dr. Goldstein’s section 30 CLRA reports and asked the trial judge to give weight to the opinions and recommendations contained in them.

The mother objected to the reports being admitted as evidence. Her objection was based on findings  the College of Physicians and Surgeons of Ontario (the “CPSO”) made as a result of complaints the mother filed against Dr. Goldstein. To support her objection, she sought to admit several items: a copy of the decision of the Inquiries, Complaints and Reports Committee (“ICRC”) of the CPSO, copies of documents put before the ICRC, and a print-out of the CPSO’s online Public Register, indicating Dr. Goldstein’s member status and his undertakings to the Discipline Committee of the CPSO.

The ICRC decision expressed serious concerns about Dr. Goldstein’s approach to the section 30 assessment in the family law matter and concluded that he would benefit from remediation. The public undertakings restricted Dr. Goldstein’s practice such that he could not conduct any new assessments of individuals he believes have been subject to or have engaged in parental alienation and to terminate any ongoing practice related to parental alienation. Dr. Goldstein also undertook not to provide opinion evidence about parental alienation to any third party, whether orally or in writing, with respect to individuals he had assessed or treated, except as required by law, in which case he was to advise the relevant parties in advance of providing such opinion evidence to consult the CPSO’s Public Register for information about his practice.

The father objected to the admissibility of the CPSO documents, in part because of section 36(3) of the RHPA. Section 36(3) of the RHPA provides 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

The trial judge noted that section 36(3) did not render inadmissible the fact that a complaint was made and did not capture the website information referring to the undertaking given by Dr. Goldstein.

The trial judge then went on to consider whether the family law proceeding fell within the meaning of “civil proceeding” under section 36(3). The trial judge drew several distinctions between “traditional” civil proceedings and family law litigation, the interests at play and remedies available in each. She concluded that family law proceedings involving the best interests of the child were not “civil proceedings” within the meaning of section 36(3), in part because applying section 36(3) would lead to an absurd result, since it would require her to ignore the CPSO Committee’s findings, which were clearly relevant to the validity of Dr. Goldstein’s opinion evidence. She noted that excluding this evidence would force the mother to admit expert evidence and prove the deficiencies in Dr. Goldstein’s reports from “square one,” which would cause more delay and expense in the litigation.

Accordingly, the trial judge admitted the evidence from the CPSO proceeding into the family law proceeding, which in turn resulted in her concluding that Dr. Goldstein’s report was not entitled to any weight.

Appeal Decision

The Court of Appeal noted a plain reading of section 36(3)creates a blanket non-discretionary prohibition against the admissibility of the documents specifically listed: a record of a proceeding, a report, a document or thing prepared for or statement given at such a proceeding, or an order or decision made in such a proceeding.

However, the Court of Appeal noted that anything not specifically listed is admissible. Accordingly, the Court of Appeal agreed with the trial judge’s analysis that section 36(3) did not preclude admissibility of the fact that a complaint was made or of the CPSO’s website referring to an undertaking given by Dr. Goldstein. The fact that a complaint was launched, an investigation held, and a decision rendered by the ICRC are not listed as inadmissible in section 36(3) of the RHPA and may be otherwise provable in court, without reference to a prohibited document. Regarding the undertaking entered into by Dr. Goldstein, the Court noted that public undertakings are not meant to be confidential. They provide the public with notice, and their admission in civil proceedings where a trial judge deems them relevant does not undermine the purpose of section 36(3) (which is discussed below).

However, the Court disagreed with the trial judge’s conclusion that family law proceedings involving the best interests of a child were not civil proceedings falling within the ambit of section 36(3), for two reasons.

First, private 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.

Second, a global exemption from s. 36(3) for all family law cases would significantly erode the reach and purpose of section 36(3). The Court cited a previous decision of the Court, F. (M.) v. Dr. Sutherland, 2000 CanLII 5761 (ON CA), which found that the purpose of section 36(3) is:

to encourage the reporting of complaints of professional misconduct against members of a health profession, and to ensure that those complaints are fully investigated and fairly decided without any participant in the proceedings – a health professional, a patient, a complainant, a witness or a College employee – fearing that a document prepared for College proceedings can be used in a civil action.

The Court noted that, unfortunately, cases involving the best interests of the child are fairly common. Accordingly, it would not be unusual for one of the many participants in an RHPA proceeding to at some point become involved in a family law proceeding involving the best interests of children.

The Court noted that the trial judge was appropriately concerned that absurdity should be avoided and that relevant evidence should not be ignored. However, the Court found that absurdity could be avoided and the ordinary meaning of section 36(3) preserved in two ways.

First, although the documents listed in section 36(3) (a record of a proceeding; a report, a document or thing prepared for a proceeding; a statement given at a proceeding; or an order or decision made in a proceeding) are inadmissible, there is no evidentiary privilege over the information or evidence used to prepare such orders, decisions, reports, documents, things or statements. There is nothing to prevent the parties from selecting and presenting such background evidence or information so that a trial judge is not deprived of highly probative evidence regarding the validity of relevant opinions and recommendations.

Second, section 36(3) does not apply to the fact that the complaint was made, the fact that an investigation was conducted, and the fact that a board decision was rendered and undertakings given.

Conclusion

As parallel civil proceedings based on the same or similar facts underlying a College matter (under the RHPA) are common, this is an evidentiary issue that will inevitably arise, not just in family law cases but in any civil proceedings, including medical malpractice, civil sexual assault, and/or  employment disputes. This case provides helpful guidance and clarification that will be of use in managing evidentiary issues in these parallel proceedings.

The Court also reiterated the purpose and usefulness of section 36(3), which is to ensure that members of the public are encouraged to report complaints of professional misconduct against members of a health profession without fear that the information that is admitted in College proceedings will be used in civil actions. However, the College’s public protection mandate (which includes listing important information on the public register) remains a priority.