Law Times

Law Times • November 5, 2012 FOCUS ON Family Law Colleges slow to apply protection for assessors Lawyers unhappy with reluctance to use defence against vexatious complaints C BY JUDY VAN RHIJN For Law Times ustody assessors and lawyers are dis- appointed with what they say is the failure by regulators of Ontario' tory defence against vexatious complaints. In 2007, the government enacted s. 26(4) of professions to make full use of a statu- s health the health professions procedural code for the express purpose of protecting people from com- plaints unrelated to the doctor/patient relation- ship. It provides that regulatory colleges can take no action when they consider a complaint to be frivolous, vexatious, made in bad faith, moot or otherwise an abuse of process. But regulators have been slow to make use of the provision with the result that few health pro- fessionals are now willing to expose themselves to the risk of complaints that are sometimes a thinly veiled litigation tactic. Lisa Hamilton, a partner at Bell Temple in To- more about the scrutiny they receive from the board. "If the college doesn't do an adequate inves- tigation, if it does not at least ask the member for their version and the complainant then asks for a review, the board will throw it back to the college to do the very same process," she says. "It may seem like a shortcut to use the section but ultimately it may not be. Hamilton suggests the colleges are worrying available to it for refusing to hear vexatious applica- tions under the same wording. Hamilton has never seen it used. "Typically they do not. It' In fact, the board has the same mechanism " Fay Brunning, who represents Arthur Leonoff, is considering an application for judicial review of his case to the Divisional Court. ronto, says regulators have tended to use the provision only when it' of events, that there has been no breach of standards. "It is rare that someone will only write, 'I don't like the opinion given.' Oſten, complaints go for page aſter page. Buried with- in them is the fact that they disagree with the opinion but it is coupled with all other kinds of allegations." In many cases, the colleges eventually find there' s absolutely clear, even on the complainant's version for the complaint. But the process can take more than a year and cause a lot of distress and expense for the practitioner. Arthur Leonoff, a psychologist and psychoanalyst prac- s no basis tising in Ottawa, has become a public face for the issue aſter suffering a particularly glaring example of abuse of the com- plaint and legal processes. In the case that he says "pushed him over the edge, sessor and arbitrator with a waiver of liability under the ar- bitration agreement. "I did a thorough assessment," he says. "It was a complicated case and I made a big report. Sev- " he was acting in the dual capacity of as- eral years later, when the wife applied to turn it into a court order, I received a never-submitted, half-baked appeal doc- ument. It was sent to me by the college as a complaint." The College of Psychologists of Ontario continued with peutic alliance. Those who end up needing an assessment are those most likely to make a complaint, but the college makes no distinction. It treats a litigant' "There is no doctor/patient relationship and no thera- obviously designed to influence the litigation the same as a patient without any filter. s complaint that is Ottawa still willing to do custody assessments and suggests that' costs are increasing. "It's almost like danger pay," he says. A multidisciplinary group including psychologists, so- Leonoff says there are only a handful of practitioners in s the case across the province. The waits are long and the " cial workers, health law lawyers, family practitioners, and academics has been studying the issue and pressing for po- litical change for several years. In its 2009 report, the group pointed out that assessors are open to full scrutiny. "The as- sessor' tested through cross-examination before the judge prior to final determination of the issue. In the end, the court' the assessor's report and evidence is discretionary." s findings, expertise, and testimony may be vigorously s use of the complaint even aſter the father withdrew it and also res- urrected five old matters from disgruntled litigants. In two cases, Leonoff had never met the complainants and had pro- vided them with no services. In another, a Superior Court judge had made a specific finding that the complaint was a litigious tactic to stop him from making a reassessment. "These are litigants, not patients," says Leonoff. their duty to protect the public and quote the guidelines from the Health Professions Appeal and Review Board that say that for a matter to be considered frivolous, it must be "devoid of all merit or possibility of prevailing. This is a very high standard, and cases which are just highly improbable do not meet such a standard. In justifying their position, the regulatory colleges cite tutes abuse of process, the board contemplates only those complaints "which do not touch on professional miscon- duct or standards of care" and doesn't specifically mention litigation tactics as an abuse of process. " In considering what consti- rare. If they did, they could be modelling behav- iour for the colleges." Leonoff attempted to get the board to consider the matter by appealing the college's process aſter s extremely PAGE 9 and/or applied s. 26 (4) or s. 26(5) HPPC since 2007." He fur- ther suggested interpreting abuse of process and bad faith to include abuse of legal process. "The appeal board spoke about the litigation context and said I'd made a compelling argument that the college it finally concluded that the complaint had no merit. With the assistance of Fay Brunning, a civil litigation lawyer with Sack Goldblatt Mitchell LLP, he pleaded: "There have been no reported cases wherein the ICRC of the CPO have interpreted should develop some sort of test that allows them to imple- ment the legislation," says Leonoff. The college is organizing a task force to address the matter but so far has presented its agenda as educating members rather than formulating clear legal criteria to apply before it launches an investigation. While Brunning believes the review board had the juris- diction to make specific recommendations about the pro- cess and is considering an application for judicial review to the Divisional Court, Hamilton isn't sure it has the power to do more. "The board can only consider whether the investi- gation was adequate and the decision reasonable, The expert panel, for example, has made representations to the attorney general recommending three possible cours- es of action: requiring the signed consent of both parents before proceeding with a complaint arising from custody litigation; having the colleges apply a gatekeeping legal test that includes a right of appeal to the Superior Court; or endorsing a judicial gatekeeping function that stops the professional colleges from handling these complaints See Support, page 10 s the case, there may be calls for legislative change. "There is no jurisdiction to say the review was overly vigor- ous. It is unlikely that there could be a decision that could say the college should have thrown it out." If that' " she says. Untitled-1 1 www.lawtimesnews.com 12-10-31 10:18 AM

• Cover