Court Dismisses Bad Faith Claims Made Against CPSO Following Disciplinary Proceedings That Led to Revocation of Physician’s License
Professionals involved in regulatory proceedings often express concerns that they don’t feel their regulator is acting in “good faith” or that they wish to take action against their regulatory body. A recent decision confirms how challenging it is to take action against one’s regulatory body. In a 2022 judgement, Savic v. College of Physicians and Surgeons of Ontario, the Ontario Superior Court affirmed that to find a regulatory body liable for malice or bad faith, the claimant must meet “a stringent standard” of detail and evidence. A mere “plea” of malice does not suffice. Actions performed in good faith and in compliance with applicable statutes will receive statutory immunity.
The College of Physicians and Surgeons of Ontario (the “College”) is responsible for regulating the practice of medicine in the province and for investigating complaints made against its members. The College retains broad abilities to investigate allegations against physicians and surgeons and generally cannot face legal repercussions for performing its duties unless it has acted in bad faith.
Additionally, evidence gathered during investigations and any documents produced during a proceeding by the College cannot be disclosed in a civil action, with some exceptions. Evidence heard in tribunal proceedings is also subject to absolute privilege and judicial immunity.
The Allegation
The Plaintiff was a physician who lost his license to practice medicine in Ontario in 2019 following years of complaints and investigations by the College. The Plaintiff speculated that a competitor in the medical field had convinced the College’s Registrar to close the Plaintiff’s practice. During a meeting, the College’s Registrar told the Plaintiff that he would be under “microscopic scrutiny” and that the College was going to make sure they ‘got him.’ According to the Plaintiff, after this encounter, more investigations were conducted. The proceedings eventually led to the revocation of his certificate of registration with the College, which the Plaintiff asserted caused him hardship and mental anguish. The Plaintiff’s legal claim relied heavily on these concerns.
The Plaintiff alleged that the current and former staff members of the College intentionally pursued him out of spite and acted in bad faith. The Plaintiff made two claims of action against the College: abuse of process and intentional infliction of mental distress.
The College, the Defendant in this case, sought to dismiss the action on the basis that the Plaintiff had no practical cause of action. Even if the cause of action were hypothetically possible, it could not be substantiated due to various immunities and admissibility rules.
The Decision
The Court held that there was “scant evidence” to support a claim of bad faith, and because of various statutory “roadblocks,” it would have been impossible for the Plaintiff to provide sufficient evidence.
First, under section 36(3) of the Regulated Health Professions Act, 1991[i] (the “Act”), no reports, documents, or anything else prepared in relation to proceedings under the Act are admissible in external civil proceedings, unless specified by the Act. In this case, documents produced during the course of the Plaintiff’s disciplinary proceedings could not be cited. The reason for this provision is to ensure proceedings by regulatory bodies remain separate from civil proceedings.
Second, the Court reaffirmed that the doctrine of absolute privilege and judicial immunity applies in quasi-judicial contexts, including legal procedures by the College. The evidence presented by witnesses or parties, whether written or oral, during court or tribunal proceedings is privileged and cannot be disclosed elsewhere.
Third, any action performed in good faith with the purpose of exercising a statutory duty or power is protected by statutory immunity, unless bad faith or malice can be made out. The Plaintiff did not have adequate evidence to support his claim as required by Rule 25.06(8) of the Rules of Civil Procedure. Moreover, the Health Professions Procedural Code (the “Code”) specifies multiple checks and balances on the authority of the College to conduct investigations and proceedings. The College instigated the investigations involving the Plaintiff only after they had received complaints from patients and/or members of the public, in accordance with the Code.
Furthermore, there was evidence that:
The Plaintiff had consented to at least one prior adjudicative decision made by the College.
The College’s Registrar had retired in mid 2018, so he was not a part of the disciplinary processes that led to the revocation of the Plaintiff’s license in late 2018.
There were various independent and impartial decisions made by the College that were unconnected to the identified College staff members.
The Plaintiff lost his right to appeal the disciplinary proceedings against him due to his own failure to file on time, and not because of any individual at the College.
For these reasons, the Court concluded that the Plaintiff was “reaching outside the chain of causation” and his claim was dismissed.
The College, and many other regulatory bodies, have the discretion to conduct inquiries into complaints made against their members. They may perform their prescribed duties free from legal liability, so long as they act in good faith. This case demonstrates the stringent requirements that must be met in order to make a successful claim of bad faith against the College. There must be clear evidence to demonstrate an intent to act in ill faith. One should also be aware of the limitations on the admissibility of evidence, as there are numerous statutory restrictions on the types of documentation that can be submitted in certain proceedings.
If you have questions about proceedings before a regulatory body, including about admissibility of evidence, a professional's rights, a regulator's obligations, or anything else, contact us for guidance on how to proceed.
[i] SO 1991, c. 18