“Know when to fold ‘em”: Court Refuses Multiple Attempts to Relitigate Discipline Committee Decision
Berge v College of Audiologists, 2021 ONSC 4403
A 2021 ruling by the Ontario Divisional Court brought a long-awaited sense of finality to a legal saga involving numerous attempts by a health care professional to relitigate her case. In its 2021 decision, found here, the Court held that it would not reopen or revisit a College Discipline Committee’s finding in order to consider a new argument that ought to have been raised at the time of the initial finding. Further, repeated attempts to do so can result in an order that a party is a vexatious litigant. Before delving into the recent decision, it will be helpful to briefly review the prior decision history that puts the Court’s ruling into context.
Background
The original Discipline Committee decision and the initial appeal raised legal headlines due to the relevant commentary on professional regulation and the freedom of expression. The individual in this case, (“B”), is an audiologist and a registered member of the College of Audiologists and Speech-Language Pathologists of Ontario (the “College”). She was found guilty of professional misconduct by the College Discipline Committee in 2015 after having admitted to using the title “Doctor” in the course of providing health care to individuals. Under Section 33 of the Regulated Health Professions Act, 1991[1] (“RHPA”), no person shall use the title “doctor” or any variation, abbreviation or equivalent in the course of providing health care unless the person is a member of one of the following health care Colleges:
College of Chiropractors of Ontario;
College of Optometrists of Ontario;
College of Physicians and Surgeons of Ontario;
College of Psychologists of Ontario; or
Royal College of Dental Surgeons of Ontario.
As such, B violated S. 33 of the RHPA as the privilege of using the restricted title of “doctor” was not extended to audiologists. The Discipline Committee reprimanded B, suspended her for three months, and required that she complete a course in professional ethics and pay nearly $100,000 to the College for the costs of its investigation and the proceedings. B challenged the Discipline Committee’s decision before the Ontario Divisional Court in 2016, alleging that S. 33 of the RHPA violated her fundamental freedom of expression as guaranteed by Section 2(b) of the Charter of Rights and Freedoms. In short, B’s appeal was premised on the argument that she had a constitutional right to use the restricted title of “doctor” because she had completed ostensibly parallel training to some of the aforementioned professions (among other arguments). In other words, B argued that in order for her to become a registered member of the College and develop an expertise in treating the ears, she had to obtain a four-year degree, the same as an optometrist treating the eyes or a dentist treating the mouth. Therefore, the inability of audiologists to call themselves “doctor” was a distinction in name only and thus unreasonable. However, whether or not a health professional will be deemed to have inappropriately used a restricted title will be determined by the relevant College, who can take appropriate action pursuant to their mandate under the RHPA to protect the public. One of the concerns Colleges have in regulating the use of restricted titles, including “doctor,” is the fact that despite some of the similarities in extent of training, there is a lack of consistent requirements in the manner in which various health care professionals develop their respective expertise. Preventing any kind of confusion in the public regarding a professional’s qualifications is an essential component of a College’s public protection mandate.
In adjudicating the appeal, the Divisional Court reviewed the reasonableness of the Discipline Committee decision, finding that the decision was entitled to deference and upholding it as reasonable.
Attempts to Appeal
Following the initial denial of her appeal by the Divisional Court in 2016, B subsequently appealed to the Ontario Court of Appeal and Supreme Court of Canada in 2017 and 2018, respectively, with leave refused in both cases. B then brought a motion before the Divisional Court in 2019 to vary or set aside its 2016 appeal denial, pursuant to Rule 59.06 of the Rules of Civil Procedure (the “Rules”)[2], which allows a party to bring a motion seeking to vary or set aside an order on the ground of fraud or due to facts arising or discovered after the order was made. This motion was dismissed in 2019 with a costs decision released later that year. B then moved to vary or set aside the cost disposition, and this motion was dismissed in 2020.
Motion to Vary or Set Aside
Finally, in 2021 B brought a second motion before the Divisional Court, again seeking to reopen the 2016 decision pursuant to Rule 59.06. B sought to adduce fresh evidence regarding 2 mandatory statutory provisions relevant to the investigatory process in her discipline matter, including the statutory deadline of 150 for the adjudication of a complaint by the ICRC, which she believed were not addressed in the earlier decisions. The Divisional Court promptly denied the relief sought in the motion, and in its dismissal referred to its ruling on B’s earlier Rule 59.06 motion:
“As stated by this Court in [B’s] previous attempt to reopen this case ‘Rule 59.06 is not an invitation to reargue cases endlessly or an invitation to raise new issues after a decision has been rendered. The rule provides a mechanism for re-opening a hearing under very strict conditions. It is not a do-over.’”
The issues raised by B in this subsequent motion had existed prior to any of the earlier proceedings, including the Discipline Committee hearing and the first Rule 59.06 motion. When the Court notified B that it was considering dismissing her motion pursuant to Rule 2.1 of the Rules as frivolous, vexatious, and an abuse of process, B doubled down and responded that she had discovered new evidence, but did not say what that new evidence was, nor did she explain why the issues she was now raising were not apparent to her earlier. The Court thus dismissed the motion pursuant to Rule 2.1, stating “enough is enough” and in doing so, prohibited B from bringing any further motions or taking any further steps in this proceeding, or from commencing or pursuing any further proceedings against the College. The Court stated:
“[B] was obliged to raise all her issues in the proceedings before the College. Then, at each stage of the further litigation, she was obliged to raise all issues with the court, so that the matter could be adjudicated fully and brought to a conclusion. It is far too late for her to be raising “new” issues now. A bald assertion that there is “fresh evidence” – in respect to issues that had to be apparent at the time of the hearing before the College – is a frivolous response to the R.2.1 notice. The motion to reopen this court’s decision from 2016 is dismissed as frivolous, vexatious and an abuse of process pursuant to R.2.1.”
Conclusion
This case provides helpful guidance for both regulated health care professionals and legal counsel as to when it may be appropriate to “lay down your sword.” The principle of finality is a critical component of our legal system that assures both fairness and efficacy; one cannot exercise every possible avenue of appeal merely in an attempt to reopen a case without reason. If a party is moving to vary or set aside a previous order, they must both demonstrate the new evidence underpinning their argument, and explain why this evidence was not previously available to them. Many clients – often very reasonably – continue to look for any possible option for redress after receiving an adverse decision. However, in situations where several attempts at appeal have been unsuccessful, it will be important to think twice before continuing these efforts. Sometimes, enough is enough!
Of course, should any regulated health professionals be facing any kind of potentially adverse decision, or are interested in appealing a previous decision, we would be pleased to discuss with you.
[1] S.O. 1991, c 18.
[2] RRO 1990, Reg. 194.
