[1]           Kathleen Lickers: – Ms. Simone (the applicant) has applied for a paralegal licence under s. 27(1) the Law Society Act, RSO 1990, c. L.8 (the Act). In this motion, she seeks an order that certain documents and information be excluded from the evidence in the hearing of her application. Ms. Simone relies on s. 36(3) of the Regulated Health Professions Act (RHPA).

[2]           For the reasons that follow, I allow the motion in part.

[3]           After submitting her licensing application, Ms. Simone self-reported and provided particulars regarding three questions on the good character amendment form:

[4]           The applicant responded “no” but provided explanations. During the good character investigation subsequently initiated by the Law Society, Ms. Simone provided further information in writing and orally, and authorized production of documents from a third party, the College of Dental Hygienists of Ontario (CDHO), to the Law Society.

[5]           The third party documents obtained by the Law Society from the CDHO include Ms. Simone’s membership renewal, her communications with the Quality Assurance Committee, her communications with the Inquiries, Complaints and Reports Committee, the report of an investigator, and the CDHO’s discipline file, which included communication between Ms. Simone and CDHO counsel, the CDHO’s notice of hearing, disclosure brief, pre-hearing conference memorandum, report of the pre-hearing conference and a signed undertaking.

[6]           To be clear, none of the third-party documents relate to an external complaint made to the CDHO, but rather to regulatory issues arising from Ms. Simone’s conduct during the membership renewal and quality assurance processes of her previous regulatory college.

[7]           The Law Society investigator assigned to Ms. Simone’s good character investigation relied on these documents in forming recommendations and in writing the investigation report for the Law Society, which ultimately recommended a referral to the Tribunal for a licensing hearing. A notice of referral for hearing was issued on June 16, 2020.

[8]           Ms. Simone brings this motion to:

[9]           Ms. Simone submits that these records, documents or other information (and related content) are statutorily inadmissible in her licensing hearing, pursuant to s. 36(3) of the RHPA.

[10]        Section 36(3) of the RHPA states:

[11]        It is accepted by all parties that the RHPA applies to CDHO proceedings. Ms. Simone submits that a plain reading of s. 36(3) indicates a clear intention to prohibit the documents from being used beyond the scope of the CDHO’s own proceedings. Furthermore, if there was an intention to include or read in exceptions, these exceptions would be explicitly stated, and none have been listed.

[12]        Ms. Simone submits that the scope of the inadmissibility extends to any of the documents, records and statements made before or after “a proceeding under this Act” (the RHPA) and would include the related records, documents, or other information that the Law Society seeks to admit as evidence at her licensing hearing.

[13]        Finally, Ms. Simone argues that the licensing hearing is a “civil proceeding” contemplated by the plain wording of s. 36(3) and as such, none of the records, documents or other information prepared by the CDHO is admissible.

[14]        The primary basis upon which the Law Society opposes Ms. Simone’s motion to exclude is its argument that the licensing hearing is not a “civil proceeding” within the meaning of s. 36(3) of the RHPA. As such, the admissibility restrictions do not apply.

[15]        Further, such a strict reading of the evidentiary bar created by s. 36(3) would obstruct the Law Society’s statutory mandate to regulate the legal professions in the public interest under s. 4.2 of the Act.

[16]        In the Law Society’s view, such an interpretation would lead to an absurd result, in that individuals who had lost their licences (or were otherwise disciplined) in their former profession would be immunized from scrutiny in applying to the Law Society for a licence because the Tribunal would be unable to consider these materials at a licensing hearing.

[17]        Alternatively, the Law Society submits that most of the materials in question were not prepared for use in a CDHO proceeding and/or exist independently and are therefore not captured by the subject provision.

[18]        There is one Tribunal authority that has considered the application of s. 36(3) of the RHPA to matters coming before it: Law Society of Ontario v. Fuhgeh, 2020 ONLSTH 75. Ms. Simone seeks to rely entirely upon this case as being dispositive of the issue, while the Law Society argues Fuhgeh was wrongly decided and should be reconsidered.

[19]        In Fuhgeh, the three-member hearing panel ultimately decided that a Tribunal proceeding was a “civil proceeding” within the meaning of s. 36(3) of the RHPA and excluded documents prepared for a College of Nurses proceeding: paras. 260 and 269-281.

[20]        The Law Society asks the Tribunal to reconsider Fuhgeh in this motion, stating there are many public policy reasons for not characterizing Tribunal proceedings as civil proceedings within the meaning of s. 36(3). Specifically, Tribunal proceedings do not involve the determination of liability resulting from the breach of common law or rights-granting legislation, and the Tribunal does not award remedies for said breaches. Rather, Tribunal proceedings regulate conduct to protect the public and the public interest in the administration of justice. This makes the Tribunal unique from other adjudicative fora that may more closely resemble civil proceedings.

[21]        In Fuhgeh, the hearing panel summarized the purpose of s. 36(3) as protecting the complainant (in disciplinary proceedings) as well as members of regulated health professions. The panel observed that “it would take legislative change to make a complaint filed under the RHPA admissible in the Law Society Tribunal proceedings”: paras. 264 and 280.

[22]        I agree and see no basis upon which to depart from Fuhgeh in this motion. Specifically, no report, document or thing prepared for or statement given at such a proceeding (of the CDHO) is admissible in the applicant’s good character hearing.

[23]        This does not, however, end the matter. Ms. Simone’s motion is broadly worded and reaches beyond the plain wording of s. 36(3). Specifically, she seeks to exclude materials and any content that “relates to a proceeding.”

[24]        I conclude that materials not prepared for use in a CDHO proceeding and/or that exist independently of such a proceeding are admissible. My reasons follow.

[25]        As the Fuhgeh panel noted, the Ontario Court of Appeal in Pouget v. Saint Elizabeth Health Care, 2012 ONCA 461 drew a key distinction between documents that were prepared for an RHPA proceeding and documents that were prepared independent of such a proceeding but rather were produced in the ordinary course of business: paras. 25 and 34-35.

[26]        Holding (at para. 24) that the purpose of s. 36(3) was “to prevent … all participants in College proceedings from using documents generated for those proceedings in civil proceedings, in short to keep the two proceedings separate [emphasis added],” the Court concluded (at para. 34) that documents created in the normal course of business did not become inadmissible by virtue of later being referenced in a report to the College. Moreover, since s. 36(3) of the RHPA “refers only to a ‘report, document, or thing’, it does not prevent a party from pleading and proving the fact that a complaint was made in the first place”: paras. 20, 25.

[27]        Applying Pouget to this motion, I conclude that, although the Law Society may not rely upon a report, document or thing prepared for, or a statement given at, a CDHO proceeding, it is not precluded from addressing Ms. Simone’s licence status with the CDHO in her licensing hearing before the Tribunal. Thus, Ms. Simone’s prior conduct is not immunized from scrutiny.

[28]        On this basis, the licensing hearing can proceed with materials that were not “prepared for” use in the CDHO proceeding. The parties seemed willing to work on reaching an agreement on this category of documents.

[29]        The motion is therefore allowed in part but dismissed insofar as it seeks to exclude materials beyond the plain wording of s. 36(3) and the holding in Pouget.

[30]        The costs of this motion are reserved to the panel hearing the licensing application. I note I was advised by Mr. Alfano that this motion could have been brought by the Law Society but was undertaken by previous counsel to Ms. Simone.

[31]        I order as follows: