Divisional Court Rules College Can Revoke License of Nurse Who Has Resigned

This week, the Divisional Court overturned a decision of the Discipline Committee of the College of Nurses of Ontario (“College”) in which it concluded that it lacked the authority to revoke a nurse’s certificate of registration because the nurse had resigned in advance of the discipline hearing. In this blog post, we will review this important decision, which has significance for all of Ontario’s health regulatory Colleges who operate under the Regulated Health Professions Act, 1991 (“RHPA”).

Facts

The decision involved a nurse, D, who resigned his certificate of registration with the College while under investigation for professional misconduct in 2013. In March 2015, he was found to have engaged in professional misconduct in that he was convicted criminally of possession of child pornography and making available child pornography. The College sought revocation of D’s certificate of registration, with such revocation to take effect if and when he applied for and obtained an active certificate in the future. The panel of the Discipline Committee hearing the matter believed that the revocation of his certificate of registration would be the appropriate penalty; however, it concluded that it did not have the statutory authority to impose such a penalty on the basis that D had resigned and did not have a certificate that could be revoked. As a result, the panel imposed only a reprimand.

The College appealed the penalty to the Divisional Court, arguing that the panel’s interpretation of its statutory powers was unreasonable and that D’s certificate of registration should have been revoked. D took the position before the Divisional Court that the penalty was reasonable and should be upheld. The Federation of Health Regulatory Colleges of Ontario (“FHRCO”) was granted intervener status to explain the legislative regulatory regime and the significant consequences to the activities and mandate of the colleges operating under the RHPA if the appeal was unsuccessful.

Applicable Law

Under the RHPA, the province’s 26 health regulatory colleges are mandated to regulate their respective professions in the public interest by enforcing standards of practice and conduct through investigations and disciplinary proceedings. The Health Professions Procedural Code (“Code”), which is Schedule 2 to the RHPA, gives the colleges’ discipline committees permission to hold adjudicative hearings, make findings of professional misconduct and incompetence, and impose a wide range of penalties, including suspensions and revocations of a member’s certificate of registration. The Code also permits the Discipline Committee to hold a hearing where a member whose certificate has been revoked later requests re-entry into the profession.

The particular provision of the Code at issue in this case was section 14, which provides the Discipline Committee with the authority to make findings of professional misconduct regarding both current and former members:

14. (1) A person whose certificate of registration is revoked or expires or who resigns as a member continues to be subject to the jurisdiction of the College for professional misconduct or incompetence referable to the time when the person was a member and may be investigated under section 75.

(2) A person whose certificate of registration is suspended continues to be subject to the jurisdiction of the College for incapacity and for professional misconduct or incompetence referable to the time when the person was a member or to the period of the suspension and may be investigated under section 75.

The specific issue to be considered by the Divisional Court on appeal was whether the College’s continuing jurisdiction under s. 14 applies to all of the possible sanctions that a panel of the Discipline Committee can order under the Code, including revocation.

Decision

The Divisional Court held that the RHPA and the Code must be given a broad and purposive interpretation in keeping with the College’s obligation to protect the public. In this case, the Divisional Court found that the panel’s interpretation of its statutory authority under section 14 of the RHPA was unreasonable, formalistic and inconsistent with the text, context and purpose of the legislation. Furthermore, the Divisional Court held that the panel’s interpretation would lead to “absurd results,” such as the ability of a member to circumvent the statutory requirement that applications for reinstatement by members whose certificates have been revoked are dealt with by the Discipline Committee.

The Divisional Court agreed with the College and FHRCO that section 14 of the RHPA makes a former college member subject to all stages of the investigation and disciplinary process, including investigation, hearing, findings and penalties. Consequently, the Divisional Court set aside the panel’s interpretation and reprimand respecting D, and replaced it with an order revoking his certificate of registration.

Conclusion

This decision confirms that health regulatory colleges have continuing jurisdiction over their members, including the authority to impose the entire range of penalties (even revocation) on a no longer existent certificate of registration. Regulated health professionals cannot avoid the disciplinary consequences of professional misconduct by unilaterally resigning. Colleges maintain the authority to investigate, refer to the Discipline Committee and prosecute alleged misconduct that occurred while a person was a member.

For more information about this decision, or the College complaints, investigation or discipline process, please contact us.