Recent Cases of Interest to Regulators

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Investigative Powers

Sazant v. College of Physicians and Surgeons of Ontario, 2013 CanLII 22324 (S.C.C.), dismissing leave to appeal of a decision in 2012 ONCA 727

In Sazant, a physician faced both criminal charges and disciplinary proceedings stemming from sexual allegations involving minors. In the course of investigation, the investigator of the Ontario College of Physicians exercised the statutory power to issue a “summons” on any person to order production of documents from the Toronto police of their police files and Crown briefs related to the criminal charges.

The physician challenged the constitutional validity of this power, arguing this was an unreasonable search and seizure pursuant to s. 8 of the Charter. The Court of Appeal rejected this argument and dismissed the appeal. It noted, among other things, that a member of a self-governing profession whose regulator had reasonable and probable grounds to believe the member has committed an act of professional misconduct “has a limited expectation of privacy in relation to an authorized investigation.”

Comment: The Courts draw a distinction between investigative powers that arise in the professional regulatory context and those that arise in the criminal context. Investigative powers set out in a professional regulatory body’s governing legislation will be construed broadly.

Equivalency of registration requirements

Barbosa v. Health Professions Appeal and Review Board, 2012 ONSC 1761

The professional, an immigrant from Brazil, had worked as a clinical fellow in anesthesiology under an Ontario academic license from the College of Physicians and Surgeons of Ontario. He then moved to New Brunswick and practised as a general anesthesiologist under a license called a “full license,” but which on its face was “issued on the basis of a demonstrated need, and conditional on ongoing clinical activity in the province.”

The professional sought to practise in Ontario and applied to the Ontario College for a certificate of registration authorizing independent practise. He claimed a statutory exemption to the standard requirements on the basis that he already had an “equivalent” out-of-province certificate – i.e., his New Brunswick license.

The Registration Committee of the College of Physicians and Surgeons of Ontario denied the application. This was upheld by the Health Professions Appeal and Review Board, which found that a New Brunswick medical license issued at least in part on the basis of physician shortfall was not the same as Ontario credentials issued strictly on the basis of meeting certain standards. On appeal to the Ontario Divisional Court, the Court held that the Board’s findings were entitled to deference and fell within a range of reasonable outcomes. Accordingly, it dismissed the appeal.

Comment: Courts recognize that important qualitative differences may exist between superficially similar credentials and will defer to the regulator’s assessment of what constitutes equivalency.