Supreme Court Of Canada Refuses To Hear Appeal Challenging Zero Tolerance Rule For Health Care Practitioners

• Published date: 22 April 2022
• Subject Matter: Litigation, Mediation & Arbitration, Food, Drugs, Healthcare, Life Sciences, Family and Matrimonial, Family Law, Trials & Appeals & Compensation
• Law Firm: Dentons
• Author: Ms Dina I. Awad, Kate Millar and Justin Okerman

The Supreme Court of Canada recently dismissed a dental hygienist's request for leave to appeal from a decision revoking his license for treating his spouse. In the underlying Ontario Court of Appeal decision Tanase v College of Dental Hygienists of Ontario, 2021 ONCA 482 (Tanase), the court affirmed its stance on a 'bright-line' rule for 'zero-tolerance' with respect to sexual relationships between health care practitioners and patients. Such relationships are considered 'sexual abuse' against a patient, with a very narrow exception carved out for spouses. The Court upheld the revocation of the Appellant's licence to practice, and did not find that this revocation infringed sections 7 or 12 of the Charter of Rights and Freedoms (the Charter). By dismissing the request for leave to appeal, with costs, the Supreme Court of Canada has confirmed this holding.

Background

In Tanase, a dental hygienist (the Appellant) appealed a finding of professional misconduct by a Discipline Committee convened by the Council of the College of Dental Hygienists of Ontario (the College).¹ The Appellant and the patient had met in 2012. By mid-2014, the Appellant and patient commenced their sexual relationship, at which point, the Appellant ceased treating the patient due to the prohibition on sexual relationships between dental hygienists and patients.² The Appellant provided four treatments to the patient in 2015, and three treatments to the patient in 2016.³ Though the Appellant and patient married in January 2016, the College's spousal exception did not come into force until October 8, 2020.⁴ A complaint was made to the College in August 2016, which prompted the convention of a Discipline Committee, which found the Appellant had engaged in professional misconduct, and ordered a reprimand and revocation of his certificate of registration.⁵

The Appellant appealed this finding to Divisional Court, but the appeal was dismissed in September 2019.⁶ The Appellant then made an appeal to the Ontario Court of Appeal.

Relevant legislation and regulatory framework

Ontario legislation imposes a 'zero-tolerance' policy for 'sexual abuse' by members of the regulated health professions in Ontario, which is defined as 'sexual intercourse or other forms of physical sexual relations between the member and the patient.'⁷ Members are guilty of professional misconduct under s. 51(1) of the Health Professions Procedural Code (the Code),⁸ if they commit said 'sexual abuse' against a patient, and...