Executive Summary: Key Legal and Evidentiary Issues

• The reasonableness of the Occupational Therapy Board’s decision to issue three caution/counsels to Susan Sparkes was challenged.

• The CAC’s decision lacked specificity and failed to identify the facts or standards relied upon.

• The CAC did not engage with or respond to Ms. Sparkes’ detailed submissions on the allegations.

• Evidence listed by the CAC was not analyzed or explained in the decision.

• The court applied the reasonableness standard from Vavilov to assess the administrative decision.

• The decision was quashed, remitted for reconsideration, and costs were awarded to Ms. Sparkes according to Column 3 of the Scale of Costs.

Facts and outcome of the case

Background and parties

Susan Sparkes, an occupational therapist employed by Eastern Health at the Janeway Children’s Hospital, received three caution/counsels from the Complaints Authorization Committee (CAC) of the Newfoundland and Labrador Occupational Therapy Board. The disciplinary process arose from workplace conflict between Ms. Sparkes and her supervisor, Jan Young Guerra, involving differing approaches to occupational therapy. Ms. Sparkes supported a neurodiverse-affirming approach and advocated for the use of the term Pathological Demand Avoidance (PDA), which was opposed by her supervisor. This conflict led to a toxic professional relationship, a workplace harassment complaint, and ultimately disciplinary action.

On December 2, 2022, Ms. Sparkes was suspended without pay for five days following concerns about insubordination related to her use of the term PDA, working outside the scope of practice, lack of professionalism, and delays in client care. After her suspension, a formal complaint was filed with the Board, and the CAC summarized the allegations as repeated use of unsupported diagnostic terms, discontinuation of OT services without proper documentation, and unprofessional behavior at a school.

The regulatory decision and judicial review

The CAC investigated the complaint and issued three caution/counsels to Ms. Sparkes. For the first concern, the CAC found that Ms. Sparkes’ communication of signs, symptoms, and treatment strategies related to PDA was unprofessional and outside the scope of practice. For the second concern, the CAC found that the allegation of discontinuing OT services without arrangement was not proven but still cautioned Ms. Sparkes for failing to meet standards for communication and collaboration. For the third concern, the CAC found that Ms. Sparkes’ conduct at a school was unprofessional and resulted in a delay in intervention.

Ms. Sparkes sought judicial review, arguing that the CAC’s decision was not reasonable and that the reasons were inadequate. The court found that the CAC’s decision lacked specificity, did not identify the facts relied upon, and failed to engage with Ms. Sparkes’ submissions. The court concluded that the CAC’s reasons did not meet the standard of reasonableness as required by law.

Outcome and costs

The court quashed the CAC’s October 9, 2023 decision and remitted the matter back to the CAC for reconsideration. Costs were awarded to Ms. Sparkes in accordance with Column 3 of the Scale of Costs in the Appendix of Rule 55 of the Rules of the Supreme Court, 1986. No damages were awarded.