Oct 15, 2020

Some regulators have the ability to impose mandatory remediation (e.g., attend for a caution, complete a course) when disposing of a complaint or investigation without first conducting a hearing or making a finding of wrongdoing. In Cartier v College of Nurses of Ontario, 2019 ONSC 2289 (CanLII), <http://canlii.ca/t/hzmhl> the practitioner refused to complete mandatory remediation because she believed that the allegations in the investigation were unfounded. When the regulator disciplined her for not complying with the remedial order, her defence was that there was no basis for the order to have been made in the first place. The tribunal concluded she was obliged to comply with the order.

The Divisional Court agreed. It said that neither the discipline tribunal nor the Court had the jurisdiction to assess whether the screening committee’s mandatory remediation order was well founded. That would be a collateral attack on the decision of the screening committee. If the practitioner disagreed with the mandatory remediation order, she should have sought a review or appeal through the proper channels.

Interestingly, the regulator cross-appealed the discipline decision on the basis that the tribunal did not find that the refusal to comply was dishonourable (it was only unprofessional). The tribunal found that to be dishonourable the conduct had to include “deceit, dishonesty or moral failing”. The regulator argued that conduct could be dishonourable if it “brings shame upon the profession and the Member”. The regulator argued conduct that was “deliberate, knowing or reckless disregard for professional obligations” was also dishonourable. The Divisional Court declined to formulate a definition of the words “dishonourable, disgraceful and unprofessional” and simply found that it was open to the tribunal (having heard the practitioner explain why she did not comply with the order) to conclude that her misguided views were only unprofessional and were not also dishonourable.