Highlights of Noteworthy Decisions

Decision 1875 19 I
K. Jepson
  • Evidence (confidential information) (health profession proceedings)

The worker appealed a decision of the Appeals Resolution Officer denying ongoing entitlement for a low back injury suffered in August 2013, beyond January 2017.

In finding that the worker's condition resolved by January 2017, the ARO placed weight on the opinion of a doctor from a Board clinic who examined the worker. In the hearing leading to the ARO decision, the worker submitted a decision of the College of Physicians and Surgeons of Ontario (CPSO), which apparently resulted from a complaint the worker made about the doctor. The ARO considered the CPSO decision without discussing its admissibility. The ARO decision quotes from the CPSO decision and also briefly summarizes portions of it.
In this decision, the Vice-Chair considered the admissibility of the decision of the CPSO.
Section 36(3) of the Registered Health Professions Act, 1991 (RHPA), states that no record of a proceeding under the RHPA is admissible in a civil proceeding.
Tribunal decisions have consistently found that section 36(3) of the RHPA takes precedence over general provisions of the WSIA that give the Tribunal its procedural powers. The weight of Tribunal authorities provides that the CPSO decision at issue is not admissible in a Tribunal proceeding. Thus, s. 36(3) of the RHPA makes the CPSO decision prima facie inadmissible in this appeal.
Decision No. 1748/13I raised questions about whether there could be exceptions to that line of authority. The worker relied on Decision No. 1748/13I to argue the CPSO decision should be admissible in this appeal.
Arguments concerning fairness and integrity of proceedings revolve around the potential importance of health discipline information to the reliability of medical reports considered in the Tribunal decision. The Vice-Chair stated that the discipline information can potentially be highly relevant when weighing a medical opinion, or when determining if the doctor in question even qualifies as an expert. However, the distinction between admissibility and relevance must be borne squarely in mind. Admissibility is a threshold question of whether the evidence can be considered at all; it is separate from relevance. Where evidence is wholly inadmissible based on an exclusionary rule, the question of relevance does not arise.
The integrity of the Tribunal's hearing process is not compromised by applying, according to its plain meaning, a provision enacted by the legislature. The Tribunal is a creature of statute; it can determine its process within the statutory powers it has been granted, and it can and should consider fairness and integrity when doing so. But such common law concepts are not tools to override a statutory provision that prima facie applies to the Tribunal.
The wording of section 36(3) of the RHPA contains no wording qualifying the bar to admissibility based on either the nature of the issues (in either the regulatory or civil proceeding) or the purpose for which the evidence is sought to be introduced.
The Vice-Chair found that the obiter comments in Decision No. 1748/13I suggesting a different approach from prior case law, or possible exceptions to the bar on admissibility in certain circumstances, were ultimately not persuasive in displacing the prior Tribunal line of authority.
However, the Court and Tribunal authorities indicate that the fact a complaint has been made is admissible. In the current appeal, the worker himself was the one who filed the CPSO complaint. The Vice-Chair saw nothing in the wording of s. 36(3) of the RHPA that would prevent him from testifying to the fact that he made a complaint to the CPSO.
The Vice-Chair concluded that the CPSO decision was not admissible. Further, the references to CPSO decision in the ARO decision should be redacted.