Bill 21: An Act To Protect Patients From Past Conduct Of Health Care Professionals

• Published date: 29 June 2020
• Subject Matter: Employment and HR, Food, Drugs, Healthcare, Life Sciences, Discrimination, Disability & Sexual Harassment, Health & Safety
• Law Firm: Field LLP
• Author: Mr James T. Casey QC and Caitlyn Field

On April 1, 2019, portions of Bill 21: An Act to Protect Patients came into force in Alberta and amended the treatment of sexually based regulatory offences by colleges and regulators under the Health Professions Act, RSA 2000, c H-7 (the 'HPA').

The amendments brought in by Bill 21 made it so that, amongst other changes, individuals whose registration was cancelled as a result of a decision of unprofessional conduct based in whole or in part on sexual abuse could not apply for reinstatement of registration: HPA at s. 45(3).

Some acts are clearly defined to apply 'retrospectively', or to operate backwards to attach a new consequence for the future to an event that took place before the statute was enacted. However, at the time it came into effect it was unclear how Bill 21 would impact or apply to conduct of regulated professionals that occurred prior to April 1, 2019.

Retrospective amendments to professional regulation has recently been considered in Ontario (College of Physicians and Surgeons of Ontario) v Kunynetz ('Kunynetz'), 2019 ONSC 4300. This case considered the retrospective application of a penalty which mandatorily revoked registration for sexual abuse and misconduct, and whether that penalty could be applied retrospectively to physicians in the course of their disciplinary proceedings.

Similarly to Bill 21, the Ontario Legislature had passed the Protecting Patients Act, 2017, which required mandatory revocation in instances of sexual touching, in addition to other instances of unprofessional conduct.

The Appellant, Dr. Kunynetz, was found to have acted unprofessionally by sexually touching a patient's breasts, and the question before the Court was whether the appropriate penalty was the newly enacted mandatory revocation, or whether Dr. Kunynetz should be penalized under the old regime as his conduct occurred prior to the enactment of the Protecting Patients Act.

In statutory interpretation there is a general presumption against the retrospective application of legislation. However, this presumption can be rebutted and legislation can be applied retrospectively if:

1. The legislation is primarily intended to protect the public rather than as a punishment for a prior event; and/or
2. The new consequences are purely procedural in character, even if the new law might be less beneficial to a litigant than the former law.

The Court held that because mandatory revocation was clearly a punishment for a prior event, and the punishment did not exist at...