Pouget v. Saint Elizabeth Health Care et al., 2012 ONCA 461

• Judge: Feldman, MacPherson and Sharpe, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: March 05, 2012
• Jurisdiction: Ontario
• Citations: 2012 ONCA 461;(2012), 294 O.A.C. 293 (CA)

Pouget v. Saint Elizabeth Health (2012), 294 O.A.C. 293 (CA)

MLB headnote and full text

Temp. Cite: [2012] O.A.C. TBEd. JL.014

Julie Pouget (appellant) v. Saint Elizabeth Health Care and Judy Davidson (respondents)

(C53714; 2012 ONCA 461)

Indexed As: Pouget v. Saint Elizabeth Health Care et al.

Ontario Court of Appeal

Feldman, MacPherson and Sharpe, JJ.A.

June 29, 2012.

Summary:

A nurse was fired by her employer. Her former manager submitted a report to the Ontario College of Nurses as it was obliged to do by the Regulated Health Professions Act (RHPA). Professional misconduct proceedings were commenced but ultimately withdrawn. The nurse sued the manager and the employer, asserting wrongful dismissal and a number of claims based on bad faith. The manager and employer moved to strike the "bad faith" claims, arguing that those claims could not be advanced because all the information needed to prove them was privileged and inadmissible (RHPA, s. 36(3)). That section prohibited any "report, document or thing prepared for or statement given" in a discipline proceeding under the Act from being used in a civil proceeding. The motion judge agreed and struck all of the claims except the claim for wrongful dismissal against the employer. He granted summary judgment dismissing the action in its entirety against the manager on the ground that her involvement in preparing the report and related involvement with the College was inadmissible pursuant to s. 36(3). The motions judge also dismissed the nurse's motion to add certain parties because the limitation period had expired. The nurse appealed.

The Ontario Court of Appeal held that the nurse was not precluded from asserting claims against the employer based on bad faith, which had been pleaded, as long as those claims could be proved without using any document referred to in s. 36(3). The fact of a complaint and of an investigation could be proved at trial. The court therefore allowed the appeal to the extent that the nurse was granted leave to amend her claim. Since the nurse had abandoned the portion of her appeal dealing with the addition of parties, the court dismissed that portion of the appeal. The court allowed the appeal and reinstated the action against the manager because the motions judge erred in ruling that documents predating the employer's report to the College were protected under s. 36(3). Those documents might relate not only to the wrongful dismissal claim, but also to the bad faith claims against the manager.

Medicine - Topic 2118.2

Discipline for professional misconduct - Evidence - Use in civil proceedings - Section 36(3) of the Regulated Health Professions Act provided that documents prepared or statements given in discipline proceedings under the Act were inadmissible in a civil proceeding - The Ontario Court of Appeal discussed the jurisprudence respecting this document immunity provision - See paragraphs 23 to 38.

Medicine - Topic 2118.2

Discipline for professional misconduct - Evidence - Use in civil proceedings - An employer, who fired a nurse, submitted a report to the Ontario College of Nurses as required by the Regulated Health Professions Act (RHPA) - Professional misconduct proceedings were commenced but ultimately withdrawn - The nurse sued the employer and her manager, asserting wrongful dismissal and bad faith claims - A motions judge struck the bad faith claims and the action against the manager in its entirety because of the document immunity provision (RHPA, s. 36(3)) - The nurse appealed - The Ontario Court of Appeal allowed the appeal - The nurse was not precluded from asserting claims against the employer based on bad faith, which had been pleaded, as long as those claims could be proved without using any document referred to in s. 36(3) - As to the manager, the motions judge erred in ruling that documents predating the employer's report to the College were protected under s. 36(3) - Those documents might relate not only to the wrongful dismissal claim, but also to the bad faith claims against the manager.

Practice - Topic 2233

Pleadings - Striking out pleadings - Grounds - Privilege or immunity - [See second Medicine - Topic 2118.2 ].

Cases Noticed:

Forget v. Sutherland (2000), 134 O.A.C. 117; 188 D.L.R.(4th) 296 (C.A.), refd to. [para. 23].

Task Specific Rehabilitation Inc. v. Steinecke (2004), 188 O.A.C. 318; 244 D.L.R.(4th) 414 (C.A.), refd to. [para. 23].

Lipsitz et al. v. Ontario et al. (2011), 281 O.A.C. 67; 2011 ONCA 466, refd to. [para. 23].

McCullock-Finney v. Barreau du Québec, [2004] 2 S.C.R. 17; 321 N.R. 361; 2004 SCC 36, refd to. [para. 23].

Finney v. Barreau du Québec - see McCullock-Finney v. Barreau du Québec.

Statutes Noticed:

Regulated Health Professions Act, S.O. 1991, c. 18, sect. 36(3) [para. 12].

Counsel:

Paul J. Pape, for the appellant;

Christopher M. Andree, for the respondents.

This appeal was heard on March 5, 2012, before Feldman, MacPherson and Sharpe, JJ.A., of the Ontario Court of Appeal. The following decision was delivered for the court, by Feldman, J.A., on June 29, 2012.