College member obtains a stay of a decision of the College Registrar revoking her certificate of registration

22. November 2017 0

Administrative law – Decisions reviewed – College of Psychotherapists – Judicial review – Procedural requirements and fairness – Natural justice – Permits and licences – Revocation – Psychotherapists – Professional misconduct or conduct unbecoming – Notice of complaint

Haramic v. College of Registered Psychotherapists and Registered Mental Health Therapists of Ontario (Registrar), [2017] O.J. No. 4915, 2017 ONSC 5668, Ontario Superior Court of Justice, Divisional Court, September 25, 2017, N.J. Spies J.

Elisabeth Haramic (“Haramic”) became a member of the College on April 8, 2015. On September 6, 2016 she became the  subject of a College complaint. Haramic was not made aware of the complaint until March 2, 2017. The complaint letter made 12 allegations about her conduct. The Registrar submitted a report of the College’s Inquiries, Complaints and Reports Committee (“ICRC”) to conduct an investigation, the outcome of which could include a referral to a disciplinary hearing. Haramic was warned that the Registrar could revoke her certificate if she provided false or misleading information on her application for registration.

The report was provided to Haramic and she was given 30 days to respond. Haramic responded without legal advice. No further follow up was requested nor was any hearing conducted. Haramic was not provided with an opportunity to cross examine or test the College’s evidence, and the matter was not referred to a panel or committee.

On April 20, 2017, the Registrar issued a decision and a detailed set of reasons revoking Haramic’s certificate “effective immediately” and finding that she had failed to make certain disclosures on her registration application. There was no internal appeal available of the decision. Haramic sought judicial review.

In May 2017, Haramic was served with a notice of hearing with respect to referral of the allegations against her to the College’s Discipline Committee. Four of the allegations related to the same alleged nondisclosure of information on her registration application as had grounded revocation of her certificate of registration.  There were also two additional complaints.  The court noted that there was a possibility that the Discipline Committee might dismiss certain of the allegations or even decide to impose a lesser penalty than revocation, leading to inconsistency. When counsel for Haramic asked the Registrar about this inconsistency, the Registrar took the position that even if the Discipline Committee decided differently after a full hearing, the revocation would still stand. The Registrar took the position that Haramic would have to apply anew if she wished to become a member of the College again.

The court found that the Registrar made factual findings against Haramic which remained disputed. The issue was whether Haramic had properly disclosed her complaint history with the Canadian Council and Psychotherapy Association, when she applied for registration with the College. Haramic framed this as an inadvertent mistake. The Registrar rejected her explanation. The Registrar also found that Haramic should have disclosed details of four other prior relationships at the time of her application. Haramic disputed that finding, and the court said “there is a serious question as to whether or not there was a positive duty to disclosure [sic] these other relationships given the position of Haramic as to the nature of those relationships and the fact that they had never been the subject of a criminal or administrative finding of misconduct.”

The Registrar revoked Haramic’s certificate relying on a test of reasonable grounds for the belief that the applicant would not practice psychotherapy in a safe and professional manner. The court called this a “basket clause”. The Registrar’s revocation of Haramic’s certificate was based on a finding that she failed to disclose that she had been the subject of a complaint by her professional association in 2011 and that a significant finding had been made against her, and that she had also failed to disclose sexual and/or dual relationships with current and former psychotherapy clients.

Haramic applied for judicial review attacking the process by which the Registrar’s decision was reached and the merits of the decision itself, arguing that it was contrary to natural justice and procedural fairness and was based on errors in fact and law, leading to a manifestly unreasonable outcome.

Haramic also applied for a stay of the Registrar’s decision, which the court granted. The court relied on the test in RJR MacDonald v. Canada (Attorney General), 1994 1 SCR 311, to find that there was a serious question to be tried with respect to whether or not the Registrar followed an appropriate procedure, and in particular, whether the Registrar could make a decision without giving Haramic a full hearing, as might be required by the principles of natural justice and fairness. There is also a serious issue to be tried as to the threshold applied by the Registrar on revoking the certificate which may be an error of law.  Haramic’s defenses were not frivolous or vexatious.

Although there is no process set out in the Psychotherapy Act or regulations as to the procedure that the Registrar must use in these circumstances, that “…does not mean that the Registrar can adopt a procedure that does not accord with basic principles of procedural fairness and natural justice. Revocation of a member’s certificate is the most serious penalty that can be imposed by the Discipline Committee… such a drastic remedy ought not to be imposed on a member without a full hearing.”

While the College is statutorily mandated to protect and serve the public interest, it seems perverse that a Registrar would have the power to revoke a certificate without a full hearing given the context.

There was irreparable harm to Haramic which could not be quantified in monetary terms or could not be cured. Revocation of Haramic’s certificate had a serious adverse impact on her professional reputation and would continue to do so until she had an opportunity to have the decision set aside. The Registrar’s decision caused financial harm to Haramic as it impacted two of her sources of income. The court held that the damage to Haramic’s reputation would not be possible to quantify and that causation would be a difficult issue. Given that any action for damages against the College would be virtually impossible to win, Haramic was found to be suffering irreparable harm as long as she was without her certificate.

The court considered the College’s public interest protection mandate in assessing the balance of convenience. There was no evidence of any immediate harm to the public if Haramic’s certificate were restored pending the judicial review application. In the circumstances, the balance of convenience favoured granting the stay.

The decision of the Registrar was stayed until the disposition of the judicial review application, with costs on a partial indemnity basis to Haramic.

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