A registrant midwife, Ms. B, who had filed a mandatory report to the College of Midwives of Ontario (the “College”) outlining the circumstances in which an associate and fellow College registrant midwife, Ms. CH, had left Ms. B’s midwifery practice, was not entitled to a copy of the College’s Inquiries, Complaints and Reports Committee (“ICRC”) decision in respect of Ms. CH or a complete record of the investigatory records, even though Ms. B intended to apply for judicial review of the ICRC’s decision in respect of Ms. CH

Administrative law – Decisions of administrative tribunals – College of Midwives – Investigations – Midwives – Professional governance – Reporting requirements – Judicial review – Parties – Disclosure of third party records – Compliance with legislation

Batacharya v. College of Midwives of Ontario, [2012] O.J. No. 697, 2012 ONCA 1072, Ontario Superior Court of Justice, February 17, 2012, S.E. Pepall J.

The applicant, a registrant midwife of the Respondent College of Midwives of Ontario, (the “College”) requested an order requiring the College to disclose the complete record of proceedings relating to a decision of the College’s Inquiries, Complaints and Reports Committee (“ICRC”) in respect of her associate and fellow College registrant, Ms. CH.

Ms. B is a midwife. Pursuant to s. 85.5 of the Health Professions Procedural Code, she made a mandatory report to the College outlining the circumstances in which an associate midwife and fellow College registrant, Ms. CH, had left Ms. B’s midwifery practice. Following an investigation, the College’s ICRC issued a decision noting it had no concerns about Ms. CH’s clinical care or concerns for public safety. The ICRC did have concerns with the mandatory report itself and was of the view the report was not made with regards to the highest principles of integrity and professionalism. The Committee noted the clinical issues described in the report occurred some three years prior to the making of the report and the report was made by Ms. B two months after Ms. CH filed a human rights complaint against her former practice and Ms. B. Other concerns about Ms. B had been raised with the College, including issues relating to the departure of at least 7 midwives leaving her practice in the last few years.

The College subsequently advised Ms. B that an investigator had been appointed to ascertain whether she had engaged in professional misconduct.

Ms. B brought an application for judicial review of the decision in the matter of Ms. CH and applied for an order pursuant to the Judicial Review Procedural Act (“JRPA”) that the College was required to produce its record of proceedings in order for the judicial review proceeding to be properly argued.

The Application was denied. The ICRC did not exercise or purport to exercise any statutory power of decision with respect to Ms. B. She was not the subject of the report nor did the ICRC have the ability to take any action against her. The comments made in the ICRC report did not have any legal force or effect as against Ms. B. Rather, it was a decision relating to Ms. CH. The purpose of the JRPA is not to afford rights to one person because a decision decided or prescribed the rights of another person.

Someone who makes a mandatory report is not entitled, as of right, to a copy of the ICRC report. Moreover, not only was Ms. B not entitled to a copy of the report, the College was prohibited from giving her a copy by virtue of s. 36(3) of the Regulated Health Professions Act as the decision related to another registrant and was confidential to her. By logical extension, Ms. B would not be entitled to a copy of the investigatory records which contained personal information relating to Ms. CH. Section 36(3) precludes use of the record in civil proceedings other than a proceeding under the RHPA and the application for judicial review was a civil proceeding. The production order sought by Ms. B would have destroyed the objective of confidentiality which is reflected in s. 36(3) of the RHPA.

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