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Recently, in Tanase v. College of Dental Hygienists of Ontario, 2021 ONCA 482, the Court of Appeal sat as a panel of 5 in order to reconsider its prior case law regarding Ontario’s “zero tolerance” policy for sexual abuse by members of regulated health professions in Ontario.
Under the Ontario legislation, sexual abuse was defined to include “sexual relations between the member and the patient”. In essence the sexual abuse could be established through the relationship in and of itself; there need not be actual abuse or exploitation. Accordingly, in this case, a “sexual abuse” was made out where a dental hygienist treated his girlfriend. As a result, he was found guilty of professional misconduct and received the mandatory penalty of having his license revoked.
The Court rejected the argument that the result was absurd. In its view, Ontario’s bright line, categorical rule that did not require consideration of the nature of the relationship better served the ends of justice. Moreover, the Court found that the rule did not offend the Charter of Rights and Freedoms. Notably, it reiterated that there is no constitutional right to practice a profession nor are economic interests protected by the Charter.
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Ensuring that your organization’s rules regarding prohibited relationships is clear and easy to understand and follow gives members the best opportunity to govern themselves accordingly.
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