ONTARIO
SUPERIOR COURT OF JUSTICE
(DIVISIONAL COURT)
Lane, Lax and Panet JJ.
B E T W E E N:
THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO
Appellant
- and -
DR. DARREN PAYNE AND THE HEALTH PROFESSIONS APPEAL AND REVIEW BOARD
Respondents
Shaun Nakatsuru, for the Appellant
Robby Bernstein for Dr. Darren Payne
David Jacobs for the Health Professions Appeal and Review Board
HEARD: June 19 and 20, 2002
PANET J.
Introduction
1The College of Physicians and Surgeons of Ontario (the College) appeals from a decision of the Health Professions Appeal and Review Board (the Board) requiring the Registration Committee (the Registration Committee) of the College to make an order directing the Registrar of the College to issue a certificate of registration to practise medicine in Ontario to Dr. Darren Payne (the Respondent).
Background
2Applications for registration to practise medicine in Ontario are governed by the Health Professions Procedural Code (the Code) which is Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991 c.18 as amended (the Act). The practice of medicine is one of the regulated health professions enumerated in Schedule 1 of the Act. Where the practice of medicine is involved, the College referred to in the Code is the College of Physicians and Surgeons of Ontario.
3In 1998, the Respondent, a practicing ophthalmologist in Quebec, applied to the College for a certificate of registration authorizing independent practice in Ontario.
4The Registrar of the College decided not to register the Respondent, and, in accordance with the Code, his application was referred to the Registration Committee.
5In March, 2000, after consideration of the application, the Registration Committee directed the Registrar to refuse the Respondent's application. In its decision, the Registration Committee found that the Respondent had practised as an ophthalmologist in Quebec since 1989. It stated that by reason of his examinations and certification he would, in the usual circumstance, qualify for a certificate of registration authorizing independent practice. However, the Registration Committee found that the Respondent had been the subject of investigations or proceedings by the Collège du Médicins du Quebec (the Quebec College) and of its Discipline Committee. It referred to reports of the Quebec College in 1993, 1994 and 1996 relating to the Respondent's practice and a decision of its Discipline Committee in 1999 where the Respondent was found guilty of three charges relating to opinions and statements given by him. He was given a reprimand for each charge and a fine of $3,000 on one of the charges. The Registration Committee concluded that, by his actions over a long period of time, the Respondent had demonstrated that he was ungovernable. It concluded that the Respondent did not comply with clauses 2(1)(b) (c) and (d) of Ontario Regulation 865/93 under the Medicine Act, 1991, S.O. 1991 c.30 as amended (the Regulation), which states:
"It is a non-exemptible standard and qualification for a certificate of registration that the applicant's past and present conduct afford reasonable grounds for belief that the applicant,
(b) will practise medicine with decency, integrity and honesty and in accordance with the law;
(c) has sufficient knowledge, skill and judgment to engage in the kind of medical practice authorized by the certificate; and
(d) can communicate effectively and will display an appropriate professional attitude."
6The Respondent appealed that decision to the Board pursuant to s. 21 of the Code. The Respondent requested and the Board conducted a hearing on November 3, 2000.
7At the hearing, the Board received the documentary evidence which was before the Registration Committee, including the application by the Respondent, and the decision of the Registration Committee. The Board also considered additional information and reports submitted by the Respondent, including a report and opinion from Dr. W. Hodge, an Associate Professor of Ophthalmology of the University of Ottawa Eye Institute. The Board heard evidence from the Respondent and from Dr. Hodge.
8In its decision, the Board disagreed with a number of conclusions of the Registration Committee. It found that the College lacked reasonable grounds to exclude the Respondent from registration under clauses 2(1)(b), (c) and (d) of the Regulation. The Board concluded that the Respondent substantially qualified for registration and that the Registration Committee had exercised its powers improperly. Pursuant to its authority under s. 22(6)(3) of the Code, the Board required the Registration Committee to make an order directing the Registrar to issue a certificate of registration to the Respondent. The Board referred the matter back to the Registration Committee, pursuant to s. 22(6)(4) of the Code, so that the Registration Committee could formulate appropriate terms and conditions, having regard to the comments of the Board in that regard. The College appeals the decision of the Board.
The Appeal
9The College appeals on five grounds. It submits that:
The Board erred in its application of the standard of review regarding a decision made by the Registration Committee.
The Board erred in its interpretation and application of s. 22(7) of the Act which states that the Board only has the jurisdiction to order the Registrar to issue a certificate of registration when the applicant "substantially qualifies for registration and that the panel has exercised its powers improperly."
The Board erred in concluding that the College lacked reasonable grounds to exclude the Respondent under the Regulations.
The Board misappreciated the evidence at the hearing.
Alternatively, the Board erred in failing to remit the case back to the Registration Committee under s. 22(6) paragraph 4 of Schedule 2 of the Act.
Decision
10We would allow the appeal. As provided in s. 22(6)(4) of the Code, we would refer the matter back to the Registration Committee for further consideration with the recommendation that it give consideration to all of the evidence which was received by the Board in the course of its hearing together with such additional evidence as it might consider appropriate.
Analysis
11Sections 15 to 19 of the Code establish the framework within which applications to the College for a certificate of registration to practise medicine in Ontario are considered. On receipt of an application, the Registrar is required either to register the applicant or refer the application to the Registration Committee (15)(1). The application is referred to the Registration Committee where there are doubts whether the applicant fulfills the registration requirements, where conditions may be imposed on the registration or where it is proposed to refuse the application (s. 15)(2). An application referred to the Registration Committee is to be reviewed by a panel selected by the Chair of the Registration Committee from among its members: (s. 17). The applicant may make written submissions to the panel (s. 18). The panel may direct the Registrar to issue the certificate, to issue the certificate subject to conditions or may direct the Registrar to refuse to issue the certificate of registration (s. 18(2)). The panel may not direct the Registrar to issue a certificate where the applicant does not meet a requirement which is prescribed as a non-exemptible requirement (s. 18(3)). For any order other than one directing the Registrar to issue a certificate of registration, the panel is to give the applicant notice of the order together with written reasons (s. 20(1)).
12After receiving the decision of the Registration Committee, the applicant has the right to require the Board to hold a review of the application or to hold a hearing with respect to the application.
13The relevant sections with respect to the Board are:
22(4) The findings of fact in a hearing shall be based exclusively on evidence admissible or matters that may be noticed under sections 15 and 16 of the Statutory Powers Procedure Act.
22(6) The Board shall, after the hearing or review, make an order doing any one or more of the following:
Confirming the order made by the panel.
Requiring the Registration Committee to make an order directing the Registrar to issue a certificate of registration to the applicant if the applicant successfully completes any examinations or training the Registration Committee may specify.
Requiring the Registration Committee to make an order directing the Registrar to issue a certificate of registration to the applicant and to impose any terms, conditions and limitations the Board considers appropriate.
Referring the matter back to the Registration Committee for further consideration by a panel, together with any recommendations the Board considers appropriate.
22(7) The Board may make an order under paragraph 3 of subsection (6) only if the Board finds that the applicant substantially qualifies for registration and that the panel has exercised its powers improperly.
22(8) The Board, in making an order under subsection (6), shall not require the Registration Committee to direct the Registrar to issue a certificate of registration to an applicant who does not meet a registration requirement that is prescribed as a non-exemptible requirement.
22(9) The College and the applicant are parties to a hearing or review. 1991, c. 18, Sched. 2, s. 22(4-9).
14In the present case, after conducting a hearing, and pursuant to s. 22(6)(3) of the Code, the Board required the Registration Committee to make an order requiring the Registrar to issue a certificate of registration to the Respondent. The College appeals that decision.
15In our view, there are two issues to consider:
Whether the Board erred in law in substituting its views for that of the Registration Committee and thereby failed to show deference to the expertise of the Registration Committee in matters relating to applications for registration to practice medicine.
Whether the Board erred in making an order, pursuant to s. 22(6)(3) of the Code, requiring the Registration Committee to make an order directing the Registrar to issue a certificate of registration to the Respondent.
16As to the first issue, the College submits that because the Registration Committee was comprised of members of the medical profession and was a tribunal with special expertise, by virtue of the special knowledge, training and skill of its members, it was in the best position to judge the professional qualifications of an applicant for registration. Accordingly, even though the Board held a hearing, it should have shown deference to the expertise of the Registration Committee in those areas and not simply have substituted its own views for that of the Registration Committee.
17The Respondent takes the position that the Board has the statutory authority to hold hearings and to make findings of fact and thus hear the matter de novo. He submits that because the Board presided over the matter in the first instance and, in particular, where it heard new evidence which was not available to the Registration Committee, the Board was not required to show deference to the decision of the Registration Committee.
18In considering the jurisdiction of tribunals, the Supreme Court of Canada has adopted a functional and structural approach by looking to the function which the legislature has asked the tribunal to perform and to the powers and processes it has furnished to it. (see R. v. 974649 Ontario Inc. 2001 SCC 81, [2001] S.C.J. No. 79).
19In the present case, the legislation establishes two tribunals. Under the Code, a registration committee is established, the majority of which must be physicians. It is authorized to deal with applications for registration to practice medicine. This is the focus of its activities. On the other hand, the Act, which applies to all of the self-governing health professions, establishes the Board. It is comprised of members of the public and no member can be a member of the health professions. Its authority and focus extends to the review of the actions of the self-governing professions and, in this case, the review of the decision of the Registration Committee. In effect, it is a civilian overlay on the operation of the self-governing health professions.
20In our view, the deference to be shown by the Board to decisions of the Registration Committee is established in the scheme of the legislation itself. Whether and to what extent deference should be shown to the Registration Committee by the Board is resolved by a consideration of the special qualifications and expertise of the Registration Committee in terms of its composition and the focus of its activities, together with the particular issue which is being considered by the Registration Committee. In that context, the simple categorization of a hearing as "de novo" is not of assistance. Where the Board holds a hearing and receives new evidence, the issue may be a straightforward question of fact, such as whether the applicant holds a medical degree. In this example, the Board may well be in as good a position as the Registration Committee to determine that question, particularly where the evidence of the medical degree was not before the Registration Committee. However, where the issue relates to the competence to practise medicine, given the special expertise of the Registration Committee, deference should be shown to the Registration Committee by the Board. In such case, given the composition of the Registration Committee and its special expertise, it would be inappropriate for the Board to simply substitute its own views for those of the Registration Committee.
21This approach was put succinctly by the Supreme Court of Canada in Canada (Director of Investigation and Research, Competition Act) v. Southam Inc. (1996) 1997 385 (SCC), S.C.J. No. 116 at p. 18:
"In the final result, the standard of reasonableness simply instructs
reviewing courts to accord considerable weight to the views of tribunals about matters with respect to which they have significant expertise. While a policy of deference to expertise may take the form of a particular standard of review, at bottom is the issue of weight that should be accorded to expert opinions. In other words, deference in terms of a "standard of reasonableness" and deference in terms of "weight" are two sides of the same coin."
22In Re Bakht and The College of Physicians and Surgeons (1979), 1979 1708 (ON SC), 25 O.R. (2d) 239 at p. 244, the Divisional Court, when considering a question as to whether a person had successfully completed the internship or residency program, referred the matter back to the then Health Disciplines Board and stated:
"The Board must address itself to the question of whether the program in question was successfully completed by the Appellant. The Board, because of the training and experience of its members, is much more qualified than we are to interpret and assess the relevant evidence on the subject and decide, in the first instance at least, whether the Appellant successfully completed the program in question."
23R. Steinecke in his text "A Complete Guide to the Regulated Health Profession Act" (Canada Law Book Inc. 1995) states at 3-18.1:
"The role of the Board, however, even at a hearing, is not to substitute its view for that of the registration committee. It ought rather to show deference to the expertise of the committee in registration matters."
24In the present case, the Board did not agree with certain statements by the Registration Committee and did not agree with its conclusion that the Respondent was ungovernable. It found that the College lacked reasonable grounds to exclude the Respondent from registration under Clause 2(1)(b) (c) and (d) of the Regulation. These sections relate generally to ethical qualifications for the practice of medicine and to the knowledge, skill and judgment to practise medicine which, in our view, are within the specialized expertise of the Registration Committee. Accordingly, on these questions, deference should have been shown by the Board to the decisions by the Registration Committee with respect to matters referred to in Clause 1(b)(c) and (d) of the Regulation. Given the new evidence which it heard, the Board should have referred the matter back to the Registration Committee for its consideration in light of the new evidence.
25We conclude that the Board erred in law in substituting its view for that of the Registration Committee and thereby failed to show deference to the expertise of the Registration Committee in matters relating to applications for registration to practise medicine.
26The second issue is whether the Board erred in making an order, pursuant to s. 22(6)(3) of the Code, requiring the Registration Committee to make an order directing the Registrar to issue a certificate of registration to the Respondent.
27The authority of the Board to make an order under s. 22(6)(3) is subject to two express conditions:
(a) S. 22(7) provides that the order under s. 22(6)(3) can only be made if the Board finds that the applicant substantially qualifies for registration and that the Committee has exercised its powers improperly.
(b) S. 22(8) provides that in making an order under any of the subsections of 22(6) the Board is not to require the issuance of a certificate of registration to an applicant who does not meet a registration requirement which is prescribed as a "non-exemptible requirement".
28Section 22(7) establishes two conditions to the making of an order under s. 22(6)(3). The order can only be made where the Board finds that the applicant substantially qualifies for registration and also finds that the Registration Committee has exercised its powers improperly. As to the first condition, whether the applicant substantially qualifies for registration, depending on the particular requirement for registration under consideration, it may be that the Board is required to give deference to the views of the Registration Committee. In the present case, the Board heard new evidence from the Respondent and from Dr. Hodge regarding the very issues referred to in the non-exemptible requirements. Where that new evidence might give cause to question the prior decision of the Registration Committee, the proper course of action, in our view, was to refer the application back to the Registration Committee for its consideration in light of the new evidence received by the Board. Further, in our view, the requirement that the order only be made where the panel "has exercised its powers improperly" establishes a standard different from and higher than a simple determination that the Board disagrees with the decision of the Registration Committee. It must be shown that the Registration Committee acted improperly, in the sense that, in arriving at its decision, it did so illegally, unfairly or arbitrarily. There was no evidence in the present case on which the Board could find that the Registration Committee acted in such a manner.
29In s. 22(8), the non-eligible requirements referred to relate to basic considerations as to eligibility to practise medicine because they refer to the mental competence to practise medicine, the knowledge, skill and judgment to engage in practice, effective communication and appropriate professional attitude. The Registration Committee is more qualified to consider these issues as they have the expertise in these areas, they are given responsibility for these areas in the legislation and deference to it respects the principles of self-governance in the health professions. Given this special expertise, the Board should give deference to the views of the Registration Committee as to whether an applicant meets these requirements.
30In the present case, new evidence was heard by the Board on matters relating to the qualifications for registration. In our view, deference should have been shown to the Registration Committee. We therefore conclude that the Board erred in making the order, pursuant to s. 22(6)(3) of the Code, requiring the Registration Committee to make an order directing the Registrar to issue a certificate of registration to the Respondent.
31We would therefore allow the appeal.
32In this appeal, the Court has all the powers of the Board (s. 70(3)). The matter is referred back to the Registration Committee for further consideration with the recommendation that it give consideration to all of the evidence reviewed by the Board in the course of its hearing, together with such additional evidence as it might consider appropriate.
Costs
33Costs may be addressed in written submissions within 30 days.
PANET J.
I agree ___________________________
LANE J.
I agree __________________________
LAX J.
Released: September 17, 2002
COURT FILE NO.: 160/01
DATE: 20020919
ONTARIO
SUPERIOR COURT OF JUSTICE
(DIVISIONAL COURT)
LANE, LAX, PANET J.J.
B E T W E E N:
THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO
Appellant
- and –
DR. DARREN PAYNE AND THE HEALTH PROFESSIONS APPEAL AND REVIEW BOARD
Respondents
REASONS FOR JUDGMENT
Panet J.
Released: September 19, 2002.
