Divisional Court Confirms that Protecting Patients Act Cannot be Applied Retrospectively

November 1, 2019 | Lauren Parrish, Lisa Spiegel

The Protecting Patients Act, 2017 (PPA) sets out amendments to a number of different pieces of legislation. On May 30, 2017, various sections of the PPA, which amend the Regulated Health Professions Act, 1991 (RHPA), came into force. The RHPA is an act governing the 26 regulated health professions in Ontario.

One significant change made to the RHPA is an expansion of the list of frank sexual acts that result in the mandatory revocation of a regulated health professional’s certificate of registration.

Prior to these amendments, while some frank sexual acts deemed “sexual abuse” resulted in the automatic revocation of a College member’s certificate of registration, breast touching (for non-clinical reasons) did not. One of the changes to the RHPA, as a result of the PPA, was to add breast touching for a non-clinical reason to the list of sexual acts that would trigger an automatic revocation of a member’s certificate of registration. This change was at the heart of an issue in the recent Divisional Court case, Ontario (College of Physicians and Surgeons of Ontario) v Kunynetz[1].

College Discipline Decision

The Divisional Court decision followed a College of Physicians and Surgeons (CPSO) disciplinary hearing regarding Dr. Kunynetz. On March 21, 2017, after a 37 day hearing on a variety of allegations, the CPSO Discipline Committee found that Dr. Kunynetz had engaged in the sexual abuse of a patient in 2008 by touching the patient’s breasts. The penalty hearing with respect to that finding was held in the summer of 2017. By the time of the penalty hearing, the law had changed, such that sexual abuse of a patient by way of breast touching triggered an automatic revocation of a member’s license of registration. In 2008, when the conduct at issue occurred, the discipline committee penalty for breast touching was discretionary, as it was during the hearing into the allegations.

At the penalty hearing, the College took the position that the above-mentioned change to the provisions of the RHPA regarding mandatory revocation for breast touching applied to Dr. Kunynetz. The College argued that the legislative amendments applied retrospectively, where the amendments came into effect after a finding was made by the Discipline Committee but before the penalty hearing commenced. Dr. Kunynetz disagreed.

The Discipline Committee accepted the College’s position and, on February 20, 2018, ordered that Dr. Kunynetz’s certificate of registration to engage in the practice of medicine be automatically revoked. In doing so, the Discipline Committee determined that the amendments to the RHPA applied retrospectively to Dr. Kunynetz’s conduct.

The Divisional Court’s Analysis of Retrospectivity

Dr. Kunynetz appealed the penalty decision to the Divisional Court, arguing in part that the Committee erred in law by applying the mandatory revocation provision retrospectively.  On July 29, 2019, the Divisional Court quashed the Discipline Committee’s finding of sexual abuse and reversed the decision to revoke Dr. Kunynetz’s certificate of registration. Because the Divisional Court dismissed the finding of sexual abuse against Dr. Kunynetz, it was not necessary for the Court to address the issue of retrospectivity. However, the Court chose to do so, noting that it was a “live issue for all concerned.”

In considering the issue of retrospectivity, the Divisional Court noted that, in the normal course, legislation operates from the day it comes into force. There is a general presumption that legislation will not apply retrospectively to conduct that pre-dates the legislative change. This presumption can be rebutted where the overarching purpose of the legislation is public protection. The Court noted that the question of retrospectivity is a legal issue “of central importance to the legal system” and is outside of the specialized area of expertise of the Discipline Committee. As such, the Court determined the standard of review in this case was one of correctness.

The Court began its analysis by citing Tran v. Canada (Public Safety and Emergency Preparedness). In that case, Mr. Tran was a permanent resident in Canada and was charged and convicted with a federal offence under the Controlled Drugs and Substances Act (CDSA). An amendment to the CDSA after Mr. Tran’s conviction and before sentencing exposed him to consequences of inadmissibility to Canada under the Immigration and Refugee Protection Act (IRPA). In Mr. Tran’s case, the Supreme Court of Canada ultimately held that the amendment could not be retrospectively applied.

In so holding, the Supreme Court stated:

[47]…the fact that s. 36(1)(a) of the IRPA reflects “an intent to prioritize security” is not, in itself, sufficient to bring it within the “public protection” exception … To interpret the public protection exception as inclusive of all legislation that can be said to be broadly aimed at public protection would ignore the purpose underlying the presumption against retrospectivity.

[50] Ordinarily, express language or necessary implication provides this necessary indication that Parliament has turned its mind to the issue of retrospectivity. The “public protection” exception permits protective legislation to operate retrospectively absent express language or necessary implication, provided that legislative intent otherwise supports doing so. But, in accordance with the underlying purpose of the presumption, the exception is only triggered where the design of the penalty itself signals that Parliament has weighed the benefits of retrospectivity against its potential for unfairness. This will be the case where there is a clear nexus between the protective measure and the risks to the public associated with the prior conduct to which it attaches.  In such cases, as in Brosseau, the scope of protection is aligned with the specific risks posed by persons who have engaged in specific harmful conduct and is tailored to preventing those risks prospectively.

Applying the Supreme Court’s analysis, the Court in Kunynetz held that the short title of the Protecting Patients Act is not indicative of its contents and that the PPA does not explicitly discuss retrospectivity. The Court stated:

[140]…while it is clear that the purpose of the provisions is to protect the public, there is no indication in the statute that the Legislature turned its mind to whether the amendments to the six pieces of legislation were retrospective or not. Nor is there any indication that the Legislature weighed the benefits of retrospective effect with its potential unfairness.

The Divisional Court concluded that “[i]n a matter that is not within its normal purview and that has broad impact affecting many health professions, the Committee erred in its analysis and in its decision that the amendments brought by the PPA had respective effect.”

In the companion case, Ontario (College of Physicians and Surgeons of Ontario) v. Lee, the Divisional Court found that the decision of the Discipline Committee incorrectly held that the PPA had retrospective application and referred to Kunynetz for the analysis.

Going Forward

The recent changes to the RHPA as a result of the PPA include changing the information that is required to be on a College register, increasing the penalties for failing to report sexual abuse of patients, and, as above, expanding the list of frank sexual acts that result in the mandatory revocation of a regulated health professional’s certificate of registration.

Miller Thomson’s health industry lawyers regularly defend regulated health professionals from a variety of health disciplines and have expertise with respect to the various statutes governing health professionals and their regulatory Colleges.

[1] Ontario (College of Physicians and Surgeons of Ontario) v. Kunynetz, 2019 ONSC 4300


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