Court Of Appeal - Mandatory Revocation Of Health Professional Certificate In Sexual Abuse Case

• Published date: 15 July 2021
• Subject Matter: Employment and HR, Government, Public Sector, Litigation, Mediation & Arbitration, Criminal Law, Discrimination, Disability & Sexual Harassment, Constitutional & Administrative Law, Trials & Appeals & Compensation, Crime
• Law Firm: Blaney McMurtry LLP
• Author: Dr. Gary Srebrolow and Joshua Jackson

BACKGROUND

On July 5, 2021, a five-justice panel of the Ontario Court of Appeal ("ONCA") released its decision in Tanase v. College of Dental Hygienists of Ontario, 2021 ONCA 482 ("Tanase"), where the court considered whether the Ontario Legislature's decision to impose mandatory revocation of a registered health professional's certificate of registration in sexual abuse cases, regardless of the nature of the relationship, was constitutional under s. 7 or s. 12 of the Canadian Charter of Rights and Freedoms (the "Charter").

Members of Ontario's regulated health professions are deemed guilty of professional misconduct under s. 51(1) of the Health Professions Procedural Code (the "Code"), being Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, if they commit "sexual abuse" against a patient. Sexual abuse is defined broadly under section 1(3) of the Code as including sexual intercourse or other forms of physical sexual relations between the member and the patient, as well as touching of a sexual nature, or even behaviour or remarks of a sexual nature. In terms of available defences, the definition of "sexual nature" does not include touching, behaviour or remarks of a clinical nature which may be appropriate to the service provided. Notably, sexual abuse as defined under the Code, includes the sexual acts noted above, between a patient and a regulated health professional, even if they are consensual.

In Tanase, the ONCA held that while revocation is an extremely serious penalty, the Ontario Legislature's decision to impose a bright-line rule prohibiting sexual relationships with patients in the regulated health professions, regardless of the nature of the relationship, is constitutional as it does not violate section 7 or 12 of the Charter.

FACTS

In Tanase, the facts proceeded by way of an agreed statement of facts ("ASF") noting that the Member (the "Appellant") was a duly registered member of the College of Dental Hygienists of Ontario ("CDHO"). In 2012, the Appellant met S.M. and they became friends. S.M. confided in the Appellant that she was afraid of dental treatment and had not sought dental care for several years. The Appellant subsequently provided dental hygiene services to S.M. on two occasions in 2013 while their relationship was still platonic.

In late 2013, the Appellant became roommates with S.M. and in mid-2014 they began a sexual relationship. Once the relationship began, the Appellant stopped treating S.M. because he understood he was not permitted to do so under the Code. However, in April 2015, a colleague told the...