COURT FILE NO.: 746/2000

DATE: 20021021

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

CARNWATH, FLINN, CHARBONNEAU JJ.

B E T W E E N:

DR. JAROSLAV RAFAJ

Appellant

• and -

THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO

Respondent

Charles E. Beall, for the Appellant

Carolyn Silver, for the Respondent

HEARD: October 21, 2002

CARNWATH J.: (Orally)

1The Appeal Book on the back is endorsed; the appeal is dismissed. It contains the order continuing the prohibition of publication and it notes that the reasons are dictated.

2The standard of review is reasonableness. Disciplinary bodies of self-governing professions should be awarded a large degree of autonomy and their decision should not be interfered with "unless judicial intervention is clearly warranted". See Pearlman v. Manitoba Law Society, Judicial Committee (1991), 84 D.L.R. (4th) 105 p. 119 (S.C.C.).

3Deference must be shown to decisions of specialized tribunals on matters which fall squarely within the tribunal's expertise. See Pezim v. B.C. (Superintendent of Brokers) (1994), 114 D.L.R. (4th) 385 at 406. This Court should not interfere with findings of credibility made by the Discipline Committee where its reasons disclose no manifest error; we find no manifest error. See College of Nurses v. Quiogue (1993), 13 O.R. (3d) 325 (Div. Ct.).

4The Committee found the complainant to be a forthright and credible witness, there were no inconsistencies or discrepancies in her evidence except one, the letter subsequently referred to in these reasons. Dr. Rafaj did not impress the Committee as a credible witness and the Committee gave several reasons why it so found.

5The appellant's counsel makes three points, that in his submission require us to reverse the Committee's findings of credibility:

THE LETTER

6The Committee found the letter to be "most disturbing" and made two subsequent findings. Firstly, Dr. Rafaj kept it act as a "insurance policy" and secondly, that the most plausible explanation for the letter was the complainant's fear of rejection. These are findings the Committee was entitled to make on the evidence.

THE EVIDENCE OF THE BODY MARKINGS

7The Committee had the benefit of a physical examination of Dr. Rafaj; we did not. The Committee concluded it was unable to use the testimony about the body markings and the physical examination of Dr. Rafaj in any constructive way. This was a conclusion the Committee was entitled to come to on the evidence.

THE EVIDENCE OF DR. FREEBURY

8The Committee heard evidence from Dr. Freebury that certain characteristics of borderline personality disorder such as manipulation, deception, dishonesty and vengefulness are permanent and unlikely to change over time. The Committee, armed with this opinion, found there was no evidence the complainant suffered from borderline personality disorder and saw no indication in her testimony to suggest emotional or psychiatric disorder, nor that she was angry or vengeful. The Committee was entitled to so find.

9On the question of penalty, the penalty imposed by a Discipline Committee of a professional body is not to be likely interfered with. Re Takahashi and College of Physicians and Surgeons of Ontario (1979), 26 O.R. (2d) 353 at p. 363 (Div. Ct.). The College found the appellant to have entered into an exploitive and devastating sexual relationship with his patient. His behaviour was found to be perhaps the most profound breach of trust which can occur between a physician and his patient. The penalty must stand.

10Cost to the respondent fixed at $7500 inclusive of fees, disbursements and GST.

CARNWATH J.

FLINN J.

CHARBONNEAU J.

Date of Reasons for Judgment: October 21, 2002

Date of Release: October 22, 2002

COURT FILE NO.: 746/2000

DATE: 20021021

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT