Deference for Inquiries, Complaints and Reports Committee’s Decision to Issue a “Caution”

The Supreme Court of Canada recently denied leave to appeal two judgements arising from the judicial review of a decision by the Inquiries, Complaints and Reports Committee (“ICRC”) of the College of Physiotherapists of Ontario (the “College”) to issue a caution to two physiotherapists.

The cases, which were heard and decided together (Lum, Konjarski v. Inquiries, Complaints and Reports Committee of the College of Physiotherapists of Ontario, 2015 ONSC 7227, leave to appeal denied 2016 CanLII 60506 (SCC)) stem from the physiotherapists’ allegedly unprofessional communications to the public about certain individuals and organizations through social media and the placement of flyers in residential mailboxes. The Registrar of the College sent a letter to the physiotherapists providing them with “advice” concerning their public communications. Despite this communication from the Registrar, the physiotherapists continued with their behaviour.Subsequently, the ICRC concluded that there were “concerns” with respect to the physiotherapists’ behaviour, but decided not to refer the matter to the Discipline Committee. Instead the ICRC required the physiotherapists to appear before a panel of the ICRC in order to receive a “caution”. A caution will be ordered when the ICRC has a significant concern about certain conduct or practice that can have a direct impact on patient care, safety or the public interest if it is not addressed.

Judicial Review

The applicants brought a judicial review application before the Divisional Court of the Ontario Superior Court of Justice. While usually the Health Professions Appeal and Review Board (“HPARB”) would review a decision made by the ICRC, a judicial review application made directly to the Divisional Court is available in certain situations, such as this one where the matter is commenced by the Registrar and not by a complaint. HPARB does not have jurisdiction to review a decision of the ICRC in a proceeding initiated by a report of the Registrar. (For more information on the distinction between the two review routes please see our blog post on Ren v. College of Massage Therapists of Ontario 2014 ONSC 2758 (Div. Ct).)

In the judicial review application, the applicants argued that the ICRC exceeded its jurisdiction by making findings of fact and findings of professional misconduct.In reviewing an ICRC decision, the standard of review applied by the Court is one of “reasonableness”. Reasonableness is a deferential standard. In other words, the Court will not interfere with the ICRC’s decision if the decision demonstrates justification, transparency and intelligibility within the decision-making process, and falls within a range of possible, acceptable outcomes defensible in respect of the facts and law.

The Court concluded that while it is correct that the ICRC cannot make findings of fact or professional misconduct, the ICRC did neither of these things. While the ICRC found that there were “concerns”, it did not make findings of professional misconduct. Further, the Court noted that the ICRC “performed its screening duty by considering the materials before it” which included information describing the alleged unprofessional communications and the applicants’ responses. The ICRC decision stated:

The information you distributed included messaging that targeted specific individuals and was hand delivered to public and private locations. Not only does this have the potential to damage your reputation it also reflects poorly on the profession as a whole. The panel acknowledges that both you and your former colleague feel as though you have been treated badly by a number of individuals and organizations including the College.

The Court found that this did not amount to the ICRC making findings as to what specific communications were made by the applicants, to whom the communications were made, or what the substance was of those communications.

The applicants also argued that the ICRC was biased in fact and/or there was a reasonable apprehension of bias on the part of the ICRC, and that their Charter rights had been infringed, but these arguments also failed, as there was no evidence to support such positions.

The Ontario Court of Appeal denied leave to appeal and the Supreme Court of Canada also dismissed the applications for leave to appeal.

Conclusion

This case provides a helpful overview of what a Court on a judicial review application will consider when determining if the ICRC acted outside of its jurisdiction. For more information on the role of the ICRC or judicial review applications please contact us.