On April 1, 2019, portions of Bill 21: An Act to Protect Patients came into force in Alberta and amended the treatment of sexually based regulatory offences by colleges and regulators under the Health Professions Act, RSA 2000, c H-7 (the “HPA”).

The amendments brought in by Bill 21 made it so that, amongst other changes, individuals whose registration was cancelled as a result of a decision of unprofessional conduct based in whole or in part on sexual abuse could not apply for reinstatement of registration: HPA at s. 45(3).

Some acts are clearly defined to apply “retrospectively”, or to operate backwards to attach a new consequence for the future to an event that took place before the statute was enacted. However, at the time it came into effect it was unclear how Bill 21 would impact or apply to conduct of regulated professionals that occurred prior to April 1, 2019.

Retrospective amendments to professional regulation has recently been considered in Ontario (College of Physicians and Surgeons of Ontario) v Kunynetz (“Kunynetz”), 2019 ONSC 4300. This case considered the retrospective application of a penalty which mandatorily revoked registration for sexual abuse and misconduct, and whether that penalty could be applied retrospectively to physicians in the course of their disciplinary proceedings.

Similarly to Bill 21, the Ontario Legislature had passed the Protecting Patients Act, 2017, which required mandatory revocation in instances of sexual touching, in addition to other instances of unprofessional conduct.

The Appellant, Dr. Kunynetz, was found to have acted unprofessionally by sexually touching a patient’s breasts, and the question before the Court was whether the appropriate penalty was the newly enacted mandatory revocation, or whether Dr. Kunynetz should be penalized under the old regime as his conduct occurred prior to the enactment of the Protecting Patients Act.

In statutory interpretation there is a general presumption against the retrospective application of legislation. However, this presumption can be rebutted and legislation can be applied retrospectively if:

1. The legislation is primarily intended to protect the public, rather than as a punishment for a prior event; and/or
2. The new consequences are purely procedural in character, even if the new law might be less beneficial to a litigant than the former law.

The Court held that because mandatory revocation was clearly a punishment for a prior event, and the punishment did not exist at the time of the conduct occurring, the amendments made by the Protecting Patients Act could not be applied retrospectively to Dr. Kunynetz.

While Kunynetz represents an important authority against the retrospective application of newly introduced penalties, it did not directly address the issue of changes to eligibility for reinstatement as brought in by Bill 21. However, the retrospective application of Bill 21 was put to the test in a Recent Reinstatement Review Committee decision of the College of Alberta Psychologists.

Unlike in Kunynetz, this case does not consider the amended penalty for engaging in unprofessional conduct of a sexual nature, but rather whether individuals who have been found guilty of such regulatory offences in the past are eligible to apply for reinstatement.

The Applicant in this case had previously been a Registered Psychologist in Alberta; however, his registration had been cancelled a number of years ago on the basis that he had acted unprofessionally by entering into a sexual relationship with a vulnerable client. The Applicant had admitted to the charges of unprofessional conduct against him, and in the subsequent years had sought and been denied reinstatement by the College on the basis of the substance of his conduct. The Applicant’s name is not identified in the decision in order to protect the privacy of innocent parties.

In the summer of 2019, the Applicant again applied for reinstatement – this time under the new Health Professions Act regime established by Bill 21. Counsel for the Registrar of the College of Alberta Psychologists raised a preliminary objection to the Applicant’s request for reinstatement on the basis that Bill 21 amended the HPA so that individuals previously found to have engaged in sexually based offences were not eligible for reinstatement.

This interpretation of the HPA required the Reinstatement Review Committee to hold that the new restriction on application applied to those professionals who had been disciplined prior to April 1, 2019, and retrospectively apply the amendments to those individuals.

Counsel for the Registrar argued that the legislative structure of the HPA and the relevant portions of Bill 21 were enacted with the intent of providing broader protections for members of the public from health care providers who committed instances of sexual abuse or misconduct, rather than as a penalty.

The Reinstatement Review Committee held that the amendments to the HPA were “clearly intended to apply retrospectively” and that the meaning of section 45(3) is clear:

Once a person has their registration cancelled as a result of sexual abuse or one of the Criminal Code convictions, they will never be eligible for reinstatement with a regulator.

An important factor in this analysis was the wording of the HPA and its associated schedules which held that any applications for registration with the College of Alberta Psychologists must be carried out in accordance with the HPA.

This finding was also justified on the basis that when Bill 21 was debated by the Alberta Legislature, the Deputy Premier at the time, Sarah Hoffman, made it clear that the legislation was introduced with the intention to protect patients from sexual abuse, misconduct, and assault, and that the Legislature’s intent was that medical professionals who had committed sexual assault could never apply for reinstatement in Alberta.

Ultimately, the Reinstatement Review Committee held that it could not consider the Applicant’s request for reinstatement on the basis that he was not eligible to apply for reinstatement in accordance with the newly amended HPA.

This case is significant for regulators in Alberta and across Canada, as it represents an important development for both regulators and regulated professionals and provides a valuable precedent considering the retrospective application of regulatory legislation. While new penalties may not be applied to past conduct in all cases, changes to regulatory legislation may create other barriers to practice that did not exist at the time of professional misconduct. Ultimately, the Registration Review Committee’s decision serves as a useful precedent to advance the public policy goal of ensuring that regulated members who have been found to have committed sexual abuse cannot be re-registered.

A copy of the College of Alberta Psychologists’ Reinstatement Review Committee decision is publically available here.

Jim Casey and Caitlyn Field of Field Law’s Professional Regulatory Group acted for the Registrar in this matter. Our group can assist colleges with all aspects of applying Bill 21 to registration and disciplinary decisions. Contact any member of our Professional Regulatory Group for information.