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December 2021Number 295
RecentDevelopments . . . . . . . . 3
Legislation Update . . . . 6
Recent Cases
Physician’s PrivilegesHad BeenConstructively Revokedby Hospital’s Failure toAllocate Him Cases . . . . 8
Mandatory Revocationof Dental Hygienists’Certificate ofRegistration for SexualAbuse of Patient wasConstitutional . . . . . . . . . 9
Negligence ActionAgainst Plastic SurgeonSummarily Dismissed . . . 10
Physicians Do Not Owea Duty of Care toFuture Child for AllegedNegligence ThatOccurred Pre-Conception . . . . . . . . . . . . 11
Court of AppealUpholds DecisionFinding PhysicianNegligent for Failing toPerform Biopsy onPatient with RiskFactors . . . . . . . . . . . . . . . . 12
EXEMPTIONS FROM MANDATORY COVID-19VACCINATION POLICIES: KEY CONSIDERATIONS
FOR HOSPITALS AND HEALTHCAREORGANIZATIONS
— Paula Trattner, Aislinn E. Reid, Amanda Arella, and Emilie Dillon
Osler, Hoskin & Harcourt LLP
© Osler, Hoskin & Harcourt LLP. Reproduced with permission.
The Chief Medical Officer of Health’s August 17, 2021 directive (Directive #6 under
section 77.7 of the Health Protection and Promotion Act (the “Vaccine Directive”) required
hospitals and other healthcare organizations (“Covered Organizations”) to implement
COVID-19 vaccination policies for their employees, staff, contractors, students and
volunteers by September 7, 2021.1 An earlier Osler Update provides an overview of the
Vaccine Directive.
Although the Vaccine Directive does not require mandatory vaccination, many Covered
Organizations have implemented mandatory vaccination policies requiring all employees
and professional staff to be vaccinated. Given the unique risks and obligations of Covered
Organizations generally and during the COVID-19 pandemic in particular, these Covered
Organizations have determined that mandatory vaccination is necessary to protect
patients, staff and visitors, as well as to enable continued delivery of healthcare.
Exemptions from mandatory vaccination policies may be available based either on a
protected ground under the Ontario Human Rights Code (the “Code”) or a documented
medical reason. For the reasons outlined below, these exemptions — both human rights
and medical exemptions — are likely to be limited, and certain steps should be taken by
Covered Organizations when assessing exemption requests.
Medical Exemptions
Medical exemptions from COVID-19 vaccination will be rare. An individual must have a
documented legitimate medical condition that warrants an exemption from receiving a
COVID-19 vaccine. The College of Physicians and Surgeons of Ontario (“CPSO”) has
published guidance stating that there are very few and rare medical reasons not to get
vaccinated against COVID-19, including:
� allergist- or immunologist-confirmed severe allergy or anaphylactic reaction to a
previous dose of a COVID-19 vaccine or to any of its components; or
� a diagnosis of myocarditis (inflammation of the heart muscle) and pericarditis
(inflammation of the sac around the heart) after receiving an mRNA vaccine.
1 Chief Medical Officer of Health, Directive #6 for COVID-19 Vaccination Policy in Health Settings (August 17, 2021),Ontario Ministry of Health. See also the accompanying Resource Guide.
The CPSO has also stated that the circumstances of the pandemic support physicians declining to provide documentation
for an exemption where a patient requesting the exemption does not have a medical reason for an exemption2.
Covered Organizations should carefully assess all medical exemption requests and require supporting documentation for any
exemption request. Given the rarity of medical conditions warranting exemption from COVID-19 vaccination, Covered
Organizations may require that medical exemption requests be supported with documentation from a specialist physician.
Additionally, when granting medical exemptions, Covered Organizations should consider whether those exemptions are
time-limited or permanent.
Human Rights Exemptions
An exemption from receiving a COVID-19 vaccine may be available where an individual cannot be vaccinated based on a
ground protected under the Code3.
Most requests for human rights-based exemptions from mandatory vaccination will be based on creed. Under the Code, creed
can include religious beliefs and non-religious belief systems that resemble religion. Among other things, an individual’s claimed
creed must have a connection to an organization or community that professes a shared system of belief. To support an
exemption based on creed, an individual must provide objective evidence that their claimed creed/religion prohibits vaccination
against COVID-19. Many religious leaders and authorities have publicly and repeatedly urged vaccination against COVID-19.
Additionally, personal preference or philosophical objection to vaccination will not support an exemption. In its September 22,
2021 Policy Statement, the Ontario Human Rights Commission stated that “while the Code prohibits discrimination based on
creed, personal preferences or singular beliefs do not amount to a creed for the purposes of the Code.”
The Duty To Accommodate
Even if an individual establishes a Code-based reason for an exemption from mandatory vaccination, a Covered
Organization may not able to accommodate the individual’s request for an exemption without undue hardship. In
general, Covered Organizations are higher-risk settings and provide care to vulnerable populations, and vaccination is a
critical measure to mitigate transmission of COVID-19 and enable continued delivery of healthcare services.
The duty to accommodate in the context of mandatory vaccination policies has yet to be considered by the Ontario
Human Rights Tribunal and courts. However, the Ontario Human Rights Commission has stated that the duty to
accommodate can be limited if it would significantly compromise health and safety amounting to undue hardship, such
as during a pandemic. The unprecedented nature of the COVID-19 pandemic and the singular importance of healthcare
organizations to the public health response will certainly be key to any assessment of Covered Organizations’ duty to
accommodate exemptions from mandatory vaccination.
Hospitals and healthcare organizations should also find comfort in a recent Ontario decision related to visitor access
during the ongoing COVID-19 pandemic, which we discussed in a previous Update. The Court recognized that hospitals
have “enormous expertise and specialized knowledge” in exercising their discretion during a pandemic4.
When considering whether a legitimate human rights exemption request can be accommodated, Covered Organizations should:
� Carefully consider whether the applicant could be accommodated short of undue hardship. Requests need to be
addressed and any supporting documentation should be evaluated. This process should be documented to protect
against future scrutiny5.
2 On September 27, 2021, the CPSO Inquiries, Complaints and Reports Committee imposed practice restrictions on a physician which, among other things, prohibithim from providing medical exemptions in relation to COVID-19 vaccines and face masks. The doctor has also been referred to discipline for, among other things,allegedly engaging in unprofessional conduct and failing to maintain the standard of practice in relation to his communications, including on social media and otherdigital platforms, regarding the COVID-19 pandemic and related issues. Our earlier Osler Update outlines risks and considerations of public commentary byphysicians during the COVID-19 pandemic.
3 Protected grounds under the Code include race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, genderexpression, age, marital status, family status or disability.
4 Sprague v. Her Majesty the Queen in right of Ontario, 2020 ONSC 2335.
5 Kittmer v. Shepherd Gourmet Dairy (Ontario) Inc., 2019 HRTO 1445 at paras. 67, 84.
HEALTH LAW MATTERS 2
� Be prepared to show that accommodating an exemption request would cause undue hardship. Both the magnitude
of the risk and the identity of those who bear it (e.g., for vulnerable patients) are relevant to determining undue
hardship.
Osler’s Health Advocacy Team is available to advise on mandatory vaccination policies, assess and respond to exemption
requests, and manage any related disputes. For further information, please contact Paula Trattner or Aislinn Reid.
RECENT DEVELOPMENTS
Mandatory COVID-19 Vaccinations for Alberta Health Care WorkersAlberta Health Services (“AHS”) requires all employees, medical and midwifery staff, students, volunteers, and contracted
healthcare providers to be fully immunized against COVID-19 by November 30, 2021.
Any AHS employee who is unable to be immunized due to a medical reason or for another protected ground under the
Alberta Human Rights Act will be reasonably accommodated.
Note: On October 22, 2021, the AHS extended the mandatory COVID-19 immunization deadline by one month, to
November 30, 2021. The original deadline was October 31, 2021.
The government news release is available here: https://www.albertahealthservices.ca/news/releases/2021/Page16253.aspx.
Mandatory COVID-19 Vaccinations for British Columbia Health CareWorkersAs of October 26, 2021, by way of an Order of the Provincial Health Officer, COVID-19 vaccinations are mandatory for
employees at all British Columbia healthcare facilities as a “condition of employment”.
All health care providers, including administrators, volunteers, and personal support workers must be fully vaccinated
against COVID-19. Those who do not comply with the measure may be put on a leave. Exemptions will be available to
those who cannot medically receive the COVID-19 vaccines. Previously, only those working in long-term care and
assisted living facilities need to be fully vaccinated against COVID-19.
See https://www2.gov.bc.ca/assets/gov/health/about-bc-s-health-care-system/office-of-the-provincial-health-officer/covid-
19/covid-19-hospital-and-community-vaccination-status-information-preventive-measures.pdf to view the Order.
Note: As of October 12, 2021, visitors to long-term care homes and assisted living facilities are required to show proof of
full vaccination to access the facilities. As of October 26, 2021, all visitors to acute and community care facilities are
required to show proof of vaccination. Exemptions may be available for compassionate reasons.
Mandatory COVID-19 Vaccination Policy for New Brunswick Health CareWorkersAs of November 19, 2021, all government employees in the health-care system and those who work in long-term care
facilities must be fully vaccinated against COVID-19.
Any employee who is not fully vaccinated by November 19, 2021 (without a valid medical exemption) will be put on
unpaid leave.
See https://www2.gnb.ca/content/gnb/en/news/news_release.2021.10.0698.html?fbclid=IwAR0vRgdT43UKYCchIc6LdnH-
ZIpfgHCC5HmOA7HfmJgTj-Ukt-Thj2jF70Q to view the government news release.
Vaccine Requirement for Northwest Territories Health Care WorkersEffective November 30, 2021, all government employees who interact with vulnerable members of the public must be
fully vaccinated against COVID-19.
HEALTH LAW MATTERS 3
The vaccination policy applies to those who provide service to vulnerable members of the public in the healthcare sector.
According to the government news release, accommodations “will be considered on a case-by-case basis for medical
reasons or based on protected grounds under the Human Rights Act.”
See https://www.gov.nt.ca/en/newsroom/vaccination-requirements-gnwt-employees to view the government news release.
Proof of COVID-19 Vaccination Required for Visitors to Nova ScotiaHospitalsAs of October 13, 2021, support people/visitors are required to show proof of vaccination against COVID-19 when
entering health facilities. The requirement applies to designate family/support people, as well as people accompanying
patients who are coming to a hospital or clinic for a scheduled test, appointment, or procedure. Exemptions may be
available for compassionate reasons. Proof of vaccination is not required for those seeking or receiving care or treatment.
See http://www.nshealth.ca/news/nova-scotia-health-require-proof-vaccination-support-peoplefamily-caregivers?fbclid=Iw
AR0Hef4Qq_A7neftcpAGp_JQgftcTLBbm7Xay5gFJjkWXvVKK3I9DdvJKVQ to view the Nova Scotia Health news release.
Mandatory COVID-19 Vaccination Policy for Nova Scotia Health CareWorkersEffective November 30, 2021, health care workers must be fully vaccinated against COVID-19.
Workers who are not fully vaccinated by November 30, will be placed on unpaid administrative leave. All new hires must
have proof of full vaccination.
According to the government news release, the vaccine mandate applies to:
� workers at Nova Scotia Health Authority and IWK Health Centre;
� workers in long-term care facilities and home-care agencies;
� paramedics, LifeFlight nurses, and other staff at Emergency Health Services; and
� physicians and other service providers to the above organizations; (e.g., hairdressers and contractors).
Workers must show proof of vaccination. If not fully vaccinated, they must participate in an education program. They
have until November 30 to be fully vaccinated.
The vaccine mandate allows for a medical exception for employees who are unable to be vaccinated. An exception letter
can only be issued by a nurse practitioner or physician.
See https://novascotia.ca/news/release/?id=20210929007 to view the government news release.
Mandatory COVID-19 Vaccinations for Ontario Long-term Care HomesAs of November 15, 2021, COVID-19 vaccinations are “mandatory for all in-home staff, support workers, students, and
volunteers” of long-term care homes.
According to the Ontario government news release, long-term-care-homes are required to meet the following
requirements:
� “Staff, support workers, students, and volunteers will have until November 15, 2021 to show proof that they have
received all required doses of a COVID-19 vaccine, or to show proof of a valid medical exemption.
� Staff who do not have all required doses or a valid medical exemption by the deadline will not be able to enter a
long-term care home to work.
� Newly hired staff will be required to be fully vaccinated before they begin working in a home unless they have a
valid medical exemption.
HEALTH LAW MATTERS 4
� Homes will begin randomly testing fully vaccinated individuals, including staff, caregivers and visitors, to help
detect possible breakthrough cases of COVID-19 as early as possible.”
The government news release is available here: https://news.ontario.ca/en/release/1000917/ontario-taking-additional-
steps-to-protect-long-term-care-home-residents.
Ontario Ministry of Health Releases Guidance on Medical Exemptions toCOVID-19 VaccinationOn September 14, 2021, the Ontario Ministry of Health released a guidance document on medical exemptions to
COVID-19 vaccination. The document is intended “to assist physicians/specialists and nurse practitioners in evaluating
contraindications or precautions to COVID-19 vaccination that may warrant a medical exemption”.
The document is available here: https://health.gov.on.ca/en/pro/programs/publichealth/coronavirus/docs/vaccine/
medical_exemptions_to_vaccination.pdf.
Prince Edward Island Electronic Medical Record UpdateMore than 170 community-based health-care providers have signed up to adopt the provincial Electronic Medical Record
(“EMR”). An EMR is an electronic version of an individual’s medical chart.
As of September 2021, eight clinics and 25 service providers had adopted the EMR. By the end of March 2022, the EMR
will be in use across most medical practices in Prince Edward Island.
See https://www.princeedwardisland.ca/en/news/health-care-providers-moving-to-electronic-medical-record to view the
government news release.
Unvaccinated Quebec Nurses Face SuspensionOn October 11, 2021, the Ordre des infirmières et infirmiers du Québec (the Quebec order of nurses) announced that
members who are not vaccinated against COVID-19 will be suspended as of October 15, 2021. The suspension applies to
members working in health institutions, social services, private seniors’ homes, private practice, medical imaging labs and
“intermediate resources.”
On October 13, 2021, it was announced that mandatory vaccination for health and social services workers is postponed
to November 15, 2021.
See https://www.quebec.ca/en/health/health-issues/a-z/2019-coronavirus/progress-of-the-covid-19-vaccination/
mandatory-vaccination-covid-19 for details.
Note: On September 30, 2021, the Quebec Collège des Médecins (the Quebec College of Physicians) announced that it
will suspend unvaccinated members as of October 15, 2021. Suspensions have been postponed until November 15,
2021.
See http://www.cmq.org/nouvelle/fr/vaccination-obligatoire-15-octobre.aspx for details.
Proof of COVID-19 Vaccination for Saskatchewan Health AuthorityEmployeesAs of October 1, 2021, all Saskatchewan Health Authority employees must provide proof of COVID-19 vaccination.
Health care workers who do not provide proof of vaccination are required to participate in a monitored testing program
at their cost, unless they have received an approved accommodation based on The Saskatchewan Human Rights Code,
2018.
See https://www.saskatchewan.ca/government/news-and-media/2021/september/28/proof-of-vaccination-or-negative-
tests--required-broadly-october-1-2021 to view the government news release.
HEALTH LAW MATTERS 5
LEGISLATION UPDATE
Alberta
Bill 46 — Health Statutes Amendment Act, 2020 (No. 2)
The Health Statutes Amendment Act, 2020 (No. 2), SA 2020, c. 35, (formerly Bill 46), received Royal Assent on
December 9, 2020.
The Act amends various health statutes, including the Health Professions Act, RSA 2000, c. H-7 (“HPA”), the Health
Information Act, RSA 2000, c. H-5, and the Health Facilities Act, RSA 2000, c. H-2.7. It also repeals the Hospitals Act, RSA
2000, c. H-12.
The majority of the provisions will come into force on Proclamation. However, certain provisions (sections 70, 74, 78, 79,
and 93), amending the HPA, came into force on October 1, 2021. Additional provisions (sections 73, 75, 76, and 80)
amending the HPA, will come into force on April 1, 2023.
The most notable amendments to the HPA are set out below.
� Effective October 1, 2021, the amendments require the separation of regulatory colleges and their functions from
professional associations. The separation must occur by April 1, 2023.
� Effective October 1, 2021, the amendments enable the amalgamation of regulatory colleges. If two or more
colleges propose to amalgamate, an application, containing prescribed information, must be made to the Minister.
� Effective April 1, 2023, the amendments will prohibit officers or senior employees of professional associations and
unions from being appointed or elected to prescribed positions within a college.
For more details about Bill 46, see Health Law Matters no. 290, dated January 2021.
Critical Infrastructure Defence Regulation Enacted
The Critical Infrastructure Defence Act, SA 2020, c. C-32.7 (“Act”), aims to protect “essential infrastructure” from damage
or interference caused by blockades, protests or similar activities, which endanger the public safety or cause social,
economic, and environmental consequences.
Essential infrastructure, as defined by the Act, includes both publicly and privately-owned infrastructure such as utilities,
mines, oil and gas sites, pipelines, telecommunication lines, waterworks systems, highways, and railways.
Trespassing on, damaging and destroying essential infrastructure, as well as obstructing its use, construction, maintenance
or operation, are offences under the Act, for which there are penalties such as imprisonment and fines ranging from
$1,000 to $25,000 for individuals and fines ranging from $10,000 to $200,000 for corporations. Offenders may be
arrested without warrant.
Effective September 29, 2021, the Critical Infrastructure Defence Regulation, Alta. Reg. 169/2021 under the Act, adds
prescribed health care facilities, including hospitals, to the list of “essential infrastructure” covered by the Act, which
consequently applies the prohibitions in the Act to those facilities.
The Regulation was published in The Alberta Gazette on September 29, 2021. It expires on October 31, 2022, but it can
be renewed.
Note: On September 28, 2021, the Alberta government announced the Regulation would be enacted in response to anti-
vaccine protests held at health care facilities. The government news release is available here: https://www.alberta.ca/
release.cfm?xID=79892CEF95EA7-A98C-AD12-C072E58A85A291D7.
HEALTH LAW MATTERS 6
Manitoba
Bill 74 — The Budget Implementation and Tax Statutes Amendment Act, 2021
The Budget Implementation and Tax Statutes Amendment Act, 2021, SM 2021, c. 61 (formerly Bill 74) received Royal
Assent on October 14, 2021.
The Act amends various statutes, including The Health and Post Secondary Education Tax Levy Act, CCSM c. H24 (“Act”).
Effective January 1, 2022, under the Act, the exemption threshold for the Health and Post Secondary Education Tax will
increase from $1.5 million to $1.75 million of annual remuneration and the threshold below which employers pay a
reduced rate will increase from $3.0 million to $3.5 million.
Bill 74 was introduced on October 6, 2021. It received second and third reading on October 14, 2021.
Ontario
Bill 37 — Providing More Care, Protecting Seniors, and Building More Beds Act, 2021
Bill 37, the Providing More Care, Protecting Seniors, and Building More Beds Act, 2021, was introduced on October 28,
2021. If passed, it would repeal the Long-Term Care Homes Act, 2007, SO 2007, c. 8, and create the Fixing Long-Term
Care Act, 2021. (“Act”)
The proposed Act would, among other things:
� update the Residents’ Bill of Rights by adding a right to the “ongoing and safe support” by caregivers and a right to
be provided with care and services based on a “palliative care philosophy”;
� increase average hours of care per resident per day to four hours by March 31, 2025, and increase care provided by
allied health care professionals to an average of 36 minutes per resident per day by March 31, 2023;
� double the fines on the conviction of an offence for individuals ($200,000 for first offence and $400,00 for second
offence) and corporations ($500,000 for first offence and $1,000,000 for second offence);
� require all homes to implement a standardized resident and family/caregiver experience survey; and
� give the Minister the authority to review a Director’s decision on the issuance of a licence.
See https://news.ontario.ca/en/release/1001060/ontario-introducing-new-legislation-to-fix-long-term-care to read the
Ontario government news release.
Quebec
Bill 105 — An Act to establish a perimeter around certain places in order to regulatedemonstrations in relation to the COVID-19 pandemic
An Act to establish a perimeter around certain places in order to regulate demonstrations in relation to the COVID-19
pandemic, SQ 2021, c. 26 (the “Act”, formerly Bill 105) was introduced on September 23, 2021, and passed on the same day.
The Act came into force on September 23, 2021. It prohibits demonstrations within 50 metres of certain facilities, including
hospitals, medical clinics, mobile clinics, COVID-19 vaccination sites, and testing centres. In addition, no one can “organize or
incite anyone to organize” a demonstration at those places. Failure to comply can result in fines of $1,000 to $6,000. The
fines double for anyone who “threatens or intimidates a person who is going to, trying to access or leaving” those facilities.
The Act also allows a Superior Court judge to grant an injunction to either prevent a demonstration from taking place or
stop someone from organizing one.
The Act ceases to have effect on October 23, 2021, but it can be renewed.
HEALTH LAW MATTERS 7
RECENT CASES
Physician’s Privileges Had Been Constructively Revoked by Hospital’sFailure to Allocate Him CasesBritish Columbia Supreme Court, April 30, 2021
Dr. Campbell, a pediatric cardiothoracic surgeon, joined the BC Children’s Hospital (“Hospital”) medical staff in 2004.
The Hospital was the only hospital in British Columbia that performed pediatric cardiac surgeries and Dr. Campbell
was one of two surgeons in the Cardiac Sciences Program. Since 2004, the Hospital had granted privileges entitling
Dr. Campbell to attend and treat patients in the Hospital and to use the Hospital’s facilities for his practice.
Dr. Campbell had also entered into several multi-year contracts with the Hospital in which he agreed to provide clinical
services primarily for pediatric patients and the Hospital agreed to ensure there was sufficient clinical work to occupy
Dr. Campbell. The contracts permitted either party to terminate without cause on 12 months’ written notice. In March
2017, the Hospital gave Dr. Campbell written notice. Following the termination notice, Dr. Campbell continued to
perform surgeries at the Hospital but the number of cases allocated to him declined. He was no longer allocated any
new patients or operating room time, was required to vacate his office at the Hospital, and no longer actively
participated in the on-call rotation, rounds, or any other functions, meetings, or conferences in the Cardiac Sciences
Program. Dr. Campbell sought hearings before the Medical Advisory Committee and the Hospital’s Board of
Management. The hearings were declined on the basis that the termination of his contract was an “operational
management decision” that did not affect his privileges. Dr. Campbell appealed that decision to the Hospital Appeal
Board (“HAB”). The HAB concluded that “the content of any physician’s privileges, and consequently, any consideration
of whether they have been modified or revoked will be highly contextual”. The following must be considered: the
privileging documents; the hospital bylaws and the effect of any contractual provisions; the resources typically
employed in the specific type of practice under consideration; and the historical practice of the physician in the
hospital under consideration. The HAB considered those facts in Dr. Campbell’s circumstances and found that
Dr. Campbell could not practice his privileges for pediatric cardiac surgery in the Hospital without the Hospital
allocating patients to him. It found that a fair and equitable allocation of patients was part of the privileges of a
pediatric cardiac surgeon at the Hospital. It also found that the reduction of cases to Dr. Campbell amounted to a
constructive revocation of Dr. Campbell’s privileges. The HAB ordered the Hospital to “restore meaningful access” to
Dr. Campbell’s privileges by providing him “fair and equitable case allocation”. The Provincial Health Authority (“PHSA”)
sought to set aside the HAB’s decision by way of a petition for judicial review.
The petition was dismissed. Issues relating to the HAB’s jurisdiction ought to be treated like any other question of law
and are subject to the standard of patent unreasonableness prescribed by paragraph 58(2)(a) of the Administrative
Tribunals Act (“ATA”). In the instant case, there was nothing patently unreasonable about the HAB’s interpretation of
Dr. Campbell’s privileges or its finding that the HAB had jurisdiction to grant a remedy regarding case allocation.
Further, there was nothing patently unreasonable about the way the HAB exercised its remedial discretion. With respect
to the remedy granted by the HAB, the PHSA acknowledged that the standard of review was patent unreasonableness,
as specified in paragraph 58(2)(a) of the ATA. It argued, however, that the remedy granted “does not provide for any
allowance for the advice or recommendation of others, including the Division Head”, resulting in the “absence of
required clinical input in the allocation decision making”. The PHSA argued that the absence of required clinical input in
the allocation decision making was “unreasonable and potentially dangerous”. The Court rejected that argument. The
remedy granted by the HAB did not expressly exclude the Division Head from having input into case allocation
decision-making. It expressly contemplated positive and supportive conduct by the Division Head in that regard. While
the HAB’s optimism that the Division Head and Dr. Campbell would cooperate constructively and professionally might
be “misplaced”, that possibility was not “bound to materialize” and the “mere risk” did not render the HAB’s decision
unreasonable.
Provincial Health Services Authority v. Campbell, 2021 CHFL ¶15,923
HEALTH LAW MATTERS 8
Mandatory Revocation of Dental Hygienist’s Certificate of Registration forSexual Abuse of Patient was ConstitutionalOntario Court of Appeal, July 5, 2021
Tanase, a dental hygienist, provided dental hygiene treatment to his friend, SM, on two occasions in 2013. In 2014,
Tanase and SM commenced a sexual relationship. Tanase stopped treating SM because he understood he was not
permitted to do so. However, in April 2015, a colleague told Tanase that the rules had changed and dental hygienists
were permitted to treat their spouses. That advice was in error, but Tanase did not attempt to confirm that he was
permitted to treat SM. In 2016, Tanase and SM married. Tanase continued to treat SM following their marriage. In 2016,
a member of the College of Dental Hygienists of Ontario (“College”) submitted a complaint to the College about their
relationship. A Discipline Committee was convened. The Discipline Committee found that Tanase had engaged in
professional misconduct by committing sexual abuse against a patient and ordered a reprimand and revocation of his
certificate of registration. The Divisional Court dismissed Tanase’s appeal of the Discipline Committee’s decision. Tanase
appealed to the Court of Appeal. He argued that the mandatory revocation provisions violated section 7 and/or section
12 of the Canadian Charter of Rights and Freedoms (“Charter”). Among other things, Tanase argued that the Court of
Appeal should revisit its decision in Leering v. College of Chiropractors of Ontario, 2010 ONCA 87, 2010 CHFL ¶ 15,602
(“Leering”), to give effect to what he submitted was the Legislature’s intent: “to prohibit sexual abuse of patients while
permitting regulated health professionals to treat their spouses in circumstances where sexual abuse is not present”. In
Leering, the Court of Appeal held that sexual abuse is established by the concurrence of a health care professional-patient
relationship and a sexual relationship. Under subsection 51(1) of the Health Professions Procedural Code (“Code”),
members of regulated health professions are guilty of professional misconduct, if they commit sexual abuse against a
patient. “Sexual abuse” is defined by subsection 1(3) of the Code as “(a) sexual intercourse or other forms of physical
sexual relations between the member and the patient, (b) touching, of a sexual nature, of the patient by the member, or
(c) behaviour or remarks of a sexual nature by a member towards the patient”. The Code provides an exception for
spouses, if the College governing a regulated health profession makes a regulation permitting members to provide
treatment to their spouses. The term “spouse” is defined as including only someone to whom the member is married or
with whom the member has been cohabiting in a conjugal relationship for a minimum of three years. At the time when
Tanase provided dental hygiene treatment to SM, the College had proposed a regulation adopting the spousal exception
for dental hygienists, but the regulation did not come into force until October 2020.
The appeal was dismissed. Revocation of Tanese’s certificate of registration for violating the Code engaged neither the
right to liberty nor the right to security of the person. Tanase maintained that the Legislature “overruled” Leering by
amending the Code in 2013 to authorize individual colleges to enact regulations permitting practitioners to treat their
spouses. He argued that although the regulation adopting the spousal exception for dental hygienists was not in force
when he treated SM, the Legislature’s “clear rebuke” of Leering meant that the decision ought to be revisited in order to
give the Discipline Committee the discretionary authority to determine whether treatment of a spouse involves actual
sexual abuse. The Court of Appeal rejected that argument, stating the argument, “…invites the court to convert the
bright-line rule prohibiting sexual relationships into a standard requiring the nature and quality of sexual relationships
between practitioners and patients to be evaluated to determine whether discipline is warranted in particular
circumstances. It finds no support in the language of the Code and would frustrate its clear purpose. Moreover, it begs
the question by assuming that no concerns arise in the context of pre-existing sexual relationships, regardless of the
nature or duration of those relationships”. The Court of Appeal held that “[t]reatment cannot be given to sexual partners
outside the context of a spousal relationship, as defined by the Code, regardless of whether marriage occurs
subsequently”. “The Code is clear when it comes to sexual relationships. It is neither ambiguous nor vague. Professional
misconduct is established once sex occurs between a member of a regulated health profession and a patient. That the
misconduct is termed “sexual abuse” neither mandates nor permits an inquiry as to the nature of a sexual relationship.”
The Court of Appeal noted that “the purpose of the rule-based approach established by the Code is to avoid any doubt
or uncertainty by establishing a clear prohibition that is easy to understand and easy to follow. Sexual relationships with
patients are forbidden and members of the regulated health professions must govern themselves accordingly, regardless
of whether the rule seems harsh or unfair in their personal circumstances.” The decision of the Court of Appeal in Leering
remained good law. The Discipline Committee’s decision that Tanase’s actions violated the Code was correct. Even if the
regulation adopting the spousal exception had had been in force at the relevant time, it would not have operated to
excuse Tanase’s pre-marital treatment of SM after they began their sexual relationship. Since it was not in force, the
spousal exception did not excuse Tanase’s post-marital conduct either. Furthermore, in Mussani v College of Physicians
HEALTH LAW MATTERS 9
and Surgeons of Ontario (2004), 248 D.L.R. (4th) 632 (Ont. C.A.) (“Mussani”), the Court of Appeal held that the penalty
of mandatory revocation of a health professional’s certificate of registration for sexual abuse did not infringe section 7 or
section 12 of the Charter. Mussani remained good law. Section 7 of the Charter does not protect the right to practice a
profession or occupation. Additionally, there is no common law right to practice a profession free of regulation. With
respect to section 12 of the Charter, Tanase maintained that the “combined effect of mandatory revocation of
registration and the permanent notation on the public register” constituted cruel and unusual treatment. The Court of
Appeal rejected that argument, stating, “[a]lthough “treatment” may extend the protection of s. 12 beyond instances of
punishment and other state action associated with the criminal law that affects individuals, there is no authority
supporting the premise that professional regulation constitutes “treatment” within the meaning of s. 12.” The mandatory
revocation provisions were not contrary to the principles of fundamental justice.
Tanase v. College of Dental Hygienists of Ontario, 2021 CHFL ¶15,924
Negligence Action Against Plastic Surgeon Summarily DismissedOntario Superior Court of Justice, June 23, 2021
Dr. Drakos, a plastic surgeon, performed an abdominoplasty, commonly known as a “tummy-tuck” surgery, on Piatkowski
in November 2013. Piatkowski experienced complications postoperatively which left her with some unsightly scarring on
her abdomen. She commenced an action in November 2015, alleging that Dr. Drakos was negligent in his preoperative,
operative, and postoperative treatment of her relating to his performance of the abdominoplasty. She further alleged that
Dr. Drakos failed to properly obtain her informed consent to that surgery and treatment by failing to disclose the risks of
wound complications, skin necrosis, and scarring prior to her agreeing to the surgery. She alleged that had she known of
those risks, she would not have proceeded with the surgery. Dr. Drakos brought a motion for summary judgment to
dismiss the negligence action against him on the basis that there was no genuine issue requiring a trial. Dr. Drakos’
contemporaneously charted clinical notes indicated that he disclosed the risks of wound complications and skin necrosis
to Piatkowski during the initial meeting with Piatkowski and on his second preoperative appointment before the surgery.
His consultation notes also indicated that he explained to Piatkowski the risks of the surgery, including scarring and
increased risk of improper healing including bleeding and/or infection due to her history of smoking. Dr. Drakos provided
expert evidence that opined that Dr. Drakos met the standard of care expected in all respects of his treatment of
Piatkowski including properly disclosing the material risks of the procedure to her, the technical performance of the
surgery, and the postoperative care that he provided. The expert confirmed that the skin necrosis and scarring that
Piatkowski experienced postoperatively were known complications of the surgery that could occur absent any surgical
factors or negligence by Dr. Drakos.
The motion was allowed. The action was dismissed. Piatkowski’s claim for summary judgment in her favour against
Dr. Drakos was also dismissed. Piatkowski failed to establish a genuine issue requiring a trial by failing to provide an
expert’s opinion that confirmed that Dr. Drakos breached the standard of care and that the breach caused the scarring of
her abdomen after the surgery. The evidence of Dr. Drakos’s expert plastic surgeon confirmed that Dr. Drakos met the
standard of care in all respects of his surgery and treatment of Piatkowski, including Dr. Drakos’ preoperative planning,
technical performance of the procedure, and postoperative management of the wound complications. Furthermore,
Piatkowski’s two expert plastic surgeons did not provide an opinion that Dr. Drakos fell below the required standard of
care. With respect to the issue of causation, the medical experts agreed that skin necrosis due to Piatkowski’s diminished
blood flow was a known complication of the surgery, which could occur absent any surgical factors and without a
discernible cause. It was not appropriate for the Court to infer and make a finding that the cause of Piatkowski’s skin
necrosis was due to excess pressure on her abdomen during or after the surgery by Dr. Drakos, without any expert
evidence to support that conclusion. With respect to the issue of whether there was a lack of informed consent,
Dr. Drakos’ evidence that he had advised Piatkowski of the risks of wound healing issues and necrosis before she agreed
to undergo the operation, was supported by his contemporaneous records and by his usual practice. No evidence was
provided by Piatkowski’s spouse (who was with her during the consultations), to either support her version of what was
discussed or dispute Dr. Drakos’ version. Furthermore, Piatkowski had signed a consent form prior to her surgery. The
form clearly indicated that she was consenting to the surgery, understood the nature of the procedure and the risks of
the procedure, and that all her questions were answered. Additionally, Piatkowski admitted that she understood that
there was a potential that there was a risk that the wound on her abdomen would not heal in the way she hoped it
HEALTH LAW MATTERS 10
would. It was more likely than not that the risks of skin necrosis and wound complications were disclosed to Piatkowski
before the surgery. A reasonable person in Piatkowski’s position would have proceeded with the surgery when advised of
the risks.
Piatkowski v. Drakos, 2021 CHFL ¶15,925
Physicians Do Not Owe Duty of Care To Future Child for AllegedNegligence That Occurred Pre-ConceptionOntario Court of Appeal, July 22, 2021
Ms. Florence began taking Serophene, a fertility drug, in early July 2007. At the time, she was 25 years of age and had
been attempting to conceive for only a few weeks. She became pregnant in late July 2007. She gave birth to triplets,
prematurely, at 26 weeks. Consequently, the three children had serious disabilities. Ms. Florence, her husband, and the
three children (collectively, the “Appellants”) commenced an action in negligence against Dr. Benzaquen. Dr. Benzaquen
was Ms. Florence’s gynecologist from 2004 to 2007, and had prescribed the Serophene. The Appellants maintained that
Ms. Florence was not given all the information necessary to make an informed decision about the use of Serophene.
Specifically, they alleged that she was not advised of the significant risk of conceiving multiple fetuses, the associated
risks which include premature birth of the babies, and the resulting potential for significant neurological and
developmental injuries to them. They further alleged that Dr. Benzaquen’s prescription of Serophene was contraindicated
and failed to take into account Ms. Florence’s age, the very short time that she and her husband had been trying to
conceive, and other clinical indicators which suggested that the use of Serophene was unreasonable in the circumstances.
They maintained that if Ms. Florence had been aware of the significant risks associated with multiple births, she would
not have taken Serophene. The Appellants argued that Dr. Benzaquen owed a concurrent duty of care to Ms. Florence
and to the unconceived children to not prescribe to Ms. Florence a contraindicated and potentially dangerous medication
that Dr. Benzaquen knew, or ought to have known, could cause harm not only to Ms. Florence but also to the
unconceived children. Dr. Benzaquen brought a motion to strike the Appellants’ claim under Rule 21.01(1)(b) of the Rules
of Civil Procedure on the basis that it disclosed no reasonable cause of action. The motion judge struck the Appellants’
claim on the basis that their claim was not recognized at law. In particular, on the basis that physicians do not owe a
duty of care to a future child for negligence that occurred pre-conception. The Appellants appealed to the Ontario Court
of Appeal. At issue was (1) whether the motion judge failed to apply the Anns test to the facts of the case; (2) whether
the motion judge failed in her application of Bovingdon (Litigation Guardian of) v. Hergott, 2008 ONCA 2 (“Bovingdon”)
and Paxton v. Ramji, 2008 ONCA 697 (“Paxton”); (3) whether the motion judge failed to characterize the claim as ones
for wrongful life and categorically denying them; and (4) whether the Appellants should be afforded the opportunity to
present a full factual and evidentiary record at trial before the court decides whether their claim should be recognized
at law.
The appeal was dismissed. The motion judge correctly decided the motion. With respect to the first issue, the Appellants
argued that the motion judge mischaracterized their claim and that the correct characterization of the proposed duty of
care was that Dr. Benzaquen owed the unconceived children a duty of care to not prescribe a clinically contraindicated
fertility drug to Ms. Florence. The Court rejected that argument. The Appellants conflated the standard of care owed by
Dr. Benzaquen to Ms. Florence with a “novel duty of care” owed to the unconceived children prior to conception. The
two-part Anns test undertaken by the motion judge demonstrated that an alleged breach of the standard of care that
Dr. Benzaquen owed Ms. Florence was not relevant to whether she owed a duty of care to the unconceived children.
With respect to the second issue, the Appellants argued that there was a factual distinction between their claim (that
prescribing Serophene to Ms. Florence was contraindicated) and those in Bovingdon and Paxton where the prescribed
medication was appropriate. In Bovingdon, a doctor prescribed a fertility drug to Ms. Bovingdon. She became pregnant
with twins and gave birth to them prematurely. The twins were disabled as a result of their premature birth. The Court
held the doctor did not owe a duty of care to the twins. In Paxton, a doctor prescribed an acne medication on the
understanding that the mother of the appellant child could not get pregnant while taking the medication because her
partner had a vasectomy. The Court held that the doctor did not owe duty of care to the future child. In the instant
case, the motion judge did not err in concluding that the Appellants’ claim raised similar considerations in the duty of
care analysis to those in Bovingdon and Paxton. As such, the motion judge did not err in relying on the reasoning in
those cases because she was required by the principle of stare decisis to adhere to those cases and apply the legal
principles they established. In any event, the motion judge conducted a meaningful Anns analysis. She found that doctors
HEALTH LAW MATTERS 11
who prescribe fertility medication should “reasonably have the mother’s unconceived children in their contemplation”.
However, to raise a prima facie duty of care, the relationship between the physician and the unconceived children must
also be “sufficiently proximate”. Following the reasoning of Paxton, the motion judge found that the relationship between
Dr. Benzaquen and the Appellants, as unconceived children, was not sufficiently close because a doctor “cannot take
instructions from nor advise an unconceived child”. The motion judge also noted that there were policy considerations,
identified in Paxton, at stage one of the Anns test. In particular, finding that a doctor owes a duty of care to an
unconceived child “could create a conflict of interest in terms of the treatment offered to the woman and could place
the doctor in an impossible position because of the competing duties owed”. With respect to the third issue, the
Appellants argued that the motion judge struck their claim simply because it was a claim for “wrongful life”. The Court
rejected that argument. The motion judge expressly acknowledged that it is “undecided” whether the courts would
necessarily dismiss every claim for wrongful life. The motion judge did not strike the Appellants’ claim because she
labelled it a wrongful life claim but because, after conducting the Anns analysis, she found it was “plain and obvious” that
the claim was not “viable in law”. With respect to the fourth issue, the Appellants argued that they should be afforded
the opportunity to present a full factual and evidentiary record at trial before the court decides whether their claim
should be recognized at law. The Court disagreed. The motion judge did not err in striking the Appellants’ claim before
trial, without an evidentiary record. “[S]triking claims with no reasonable prospect of success is essential to effective and
fair litigation.” The Appellants argued that a trial was required to “address the policy issue” of whether a physician owes
a duty of care to future children. However, the Court in Liebig v. Guelph General Hospital, 2010 ONCA 450, stated that
“there is no duty of care to a future child if the alleged negligence by a healthcare provider took place prior to
conception”. The Anns analysis conducted by the motion judge in the instant case confirmed that. In Ontario, it is settled
law that a physician does not owe a duty of care to a future child for alleged negligence that occurred preconception. A
dissenting opinion would have allowed the appeal and ordered that the matter proceed to trial.
Florence v. Benzaquen, 2021 CHFL ¶15,926
Court of Appeal Upholds Decision Finding Physician Negligent for Failing toPerform Biopsy on Patient With Risk FactorsOntario Court of Appeal, July 29, 2021
Ms. Hacopian-Armen was diagnosed with fibroids in 1999. Fibroids are benign, non-cancerous growths. In 2004,
Ms. Hacopian-Armen began to experience heavy bleeding, with clots, during her menstrual periods. Her family physician
referred her to a gynecologist in 2009. During the first appointment with the gynecologist, Ms. Hacopian-Armen
presented with several risk factors for diseases of the uterus (i.e., she was 47 years of age, she was experiencing abnormal
uterine bleeding, and she had never given birth to a child), but he did not perform an endometrial biopsy, a simple in-
office procedure. He referred her to another physician to discuss the possibility of treating her fibroids with uterine artery
embolization. A few months after her initial appointment with the gynecologist, Ms. Hacopian-Armen began to
experience several health problems, including deep vein thrombosis and pulmonary nodules. In April 2011, the
gynecologist performed an endometrial biopsy, which indicated that Ms. Hacopian-Armen had a high-grade cancerous
tumour in her uterus. She underwent chemotherapy but died in August, 2011, of Stage IV uterine leiomyosarcoma
(“uLMS”), which had metastasized to her lungs. Her family members commenced an action in negligence against the
gynecologist. They alleged that the gynecologist was negligent by failing to conduct an endometrial biopsy in 2009. They
claimed that an endometrial biopsy in 2009 might have detected the cancer at an early stage, when treatment would
likely have been effective. The trial judge accepted the evidence of the family’s two expert witnesses that the
gynecologist breached the standard of care that he owed to Ms. Hacopian-Armen by failing to perform an endometrial
biopsy in 2009; a biopsy performed at the first appointment in 2009 would have detected the uLMS and thus
significantly improved her prognosis; and the harm that occurred was foreseeable and related to the gynecologist’s failure
to perform the biopsy. The family was awarded $300,000 in damages. The gynecologist appealed. The gynecologist did
not dispute the trial judge’s finding that he breached the standard of care by failing to perform an endometrial biopsy.
He alleged that the trial judge erred in concluding that his breach of duty caused Ms. Hacopian-Armen’s death. He
argued there were several errors in the trial judge’s analysis and conclusions on legal and factual causation.
The appeal was dismissed. On legal causation, the Court of Appeal found that, while the trial judge inappropriately
blended into her foreseeability analysis her finding of fact that an endometrial biopsy performed in 2009 would have
detected the presence of uLMS, it did not matter that the gynecologist was not aware that Ms. Hacopian-Armen had
HEALTH LAW MATTERS 12
uLMS. What mattered was that the combination of her risk factors for diseases of the uterus not only required an
endometrial biopsy, but also made it reasonably foreseeable that the failure to conduct one would preclude detection of
a uterine pathology that would cause her serious harm if left untreated. “In failing to conduct a test that would have
detected the presence of cancers of the “same class” or character as uLMS, including uLMS, it was foreseeable that uLMS
or other malignancies would go undetected, with consequent injury to Ms. Hacopian-Armen.” On factual causation, the
gynecologist argued that the trial judge erred by finding that uLMS was likely present in 2009, and that an endometrial
biopsy would have detected uLMS, had it been present. With respect to the trial judge finding that uLMS was likely
present in 2009, the gynecologist argued that family’s expert’s report was deficient and should not have been allowed
because it did not explain the basis for the expert’s opinion that uLMS was present in 2009. The Court of Appeal found
that the basis of the expert’s opinion was set out in the report. The expert “reasoned backward from the fact that
Ms. Hacopian-Armen died in August 2011 from a metastatic cancer discovered in 2011, and that she had symptoms of
malignancy in August 2010, it was likely that she had the disease in May 2009.” When the expert testified, he was clear
that, in his opinion, it would take a considerable time for the cancer to reach the point of metastasizing. Extrapolating
back from its condition in 2011, it was likely present in 2009. The trial judge did not err by accepting the evidence of the
family’s experts that an endometrial biopsy would have detected uLMS, had it been present, even though it was still
undetectable by diagnostic imaging. The trial judge simply accepted the expert’s evidence that the tumour was not
visible on imaging because it was very small or because it was only detectable by a pelvic transvaginal ultrasound and
that did not take place until April 2011, when Ms. Hacopian-Armen’s cancer was well advanced. The trial judge did not
misapprehend the expert evidence.
Hacopian-Armen Estate v. Mahmoud, 2021 CHFL ¶15,927
HEALTH LAW MATTERS 13
HEALTH LAW MATTERS
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