ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BLAIR R.S.J., KURISKO & LALONDE JJ.
IN THE MATTER of the Decision and Reasons of Marvin M. Cohen, Designated Vice-Chair of the Health Professions Appeal and Review Board, in the matter between John Robert Keller, M.D. as Complainant and Charles Nicholas Rathé, M.D., Member Complained Against
APPLICATION UNDER the Judicial Review Procedure Act, R.S.O. 1990, c. J. 1, as amended
B E T W E E N:
CHARLES NICHOLAS RATHÉ, M.D.
Applicant
- and -
THE HEALTH PROFESSIONS APPEAL AND REVIEW BOARD AND JOHN ROBERT KELLER, M.D.
Respondents
Eric Murray Q.C., for the Applicant
David Jacobs, for the Respondent, The Health Professions Appeal and Review Board
HEARD: October 29 and 30, 2002
JUDGMENT
LALONDE J.
1This is an application by Charles Nicholas Rathé, M.D. ("Dr. Rathé") for judicial review to quash and set aside the March 9, 2000 decision of Marvin M. Cohen ("Mr. Cohen"), designated Vice-Chair of the Health Professions Appeal and Review Board (the "Board"). In addition, the applicant seeks an order that this matter not be remitted back to the Board for reconsideration.
2Counsel for John Robert Keller, M.D. ("Dr. Keller") advised the court by letter addressed to the Registrar of this Divisional Court, dated October 28, 2002, that Dr. Keller, even though joined in this application as a statutory party, would not take part in the hearing before this Court as no relief was being sought against his client. The Court proceeded with the hearing in the absence of Dr. Keller.
THE PROCEDURAL STEPS TO DATE
3On October 31, 1996, Dr. Keller filed a complaint against Dr. Rathé with the College of Physicians and Surgeons of Ontario ("the College"). The Complaints Committee of the College ("the Complaints Committee) heard Dr. Keller's complaints and decided not to take action on the complaints. Dr. Keller then requested that the Board review the decision of the Complaints Committee. The complaints, among other matters, dealt with alleged misconduct on the part of Dr. Rathé for events that took place in 1990 and 1991, such as abuse of drugs, falsifying records to obtain drugs, and making false claims to an insurance company.
4On September 9, 1999, Mr. Cohen made findings of criminal conduct against Dr. Rathé, based on evidence that was not disclosed to Dr. Rathé or his counsel. The Board then referred the matter back to the Complaints Committee directing that Dr. Rathé appear before a panel of the Committee to be cautioned and to have his "irresponsible conduct" recorded. In addition, Mr. Cohen recommended that the College take further steps to monitor Dr. Rathé and his practice, notwithstanding that nine years had elapsed since the subject matters of the complaints had arisen.
5Originally, in his application for judicial review, the applicant was seeking to quash the Board's decision. The Board, he noted, had excised 73 pages from the record received from the College, had not disclosed to Dr. Rathé the nature of the material excised, had not disclosed the reason or reasons for excising the material, had make factual findings of misconduct and criminal conduct, as it turned out, based on the material not disclosed, and had directed punishment based on those factual findings.
6The record in possession of the Board is referred to as the Private Record and the record given to Dr. Rathé and filed with this Honourable Court is referred to as the Public Record, which has the 73 pages deleted.
7On motion by the Board, Cameron J. ordered, on December 12, 2001, that the Private Record be sealed and filed with this Court. Neither Dr. Rathé nor his counsel is aware of what was contained in the 73 pages excised.
THE FACTS
8In 1990 and 1991, Dr. Rathé and Dr. Keller practiced medicine in the same clinic in Brampton and lived in a house, which they purchased together in 1989.
9Dr. Rathé was introduced to the intravenous use of the drug Demerol by Dr. Keller and became addicted to that drug from December 1990 to February 6, 1992, a period of approximately thirteen and one-half months.
10By March 1992, Dr. Rathé had not only ceased using any mood-enhancing drugs, but had also ceased using alcohol, and he has never used either drugs or alcohol since. In February 1992, Dr. Rathé joined Narcotics Anonymous and in November 1993, he joined Dr. Joseph MacMillan's Health Professions Group where he continues his therapy to cure his addiction. The College is still receiving excellent reports on Dr. Rathé's continued efforts at rehabilitating himself, from Dr. Joseph MacMillan's health group.
11Dr. Rathé and Dr. Keller had a falling-out in 1990, and in 1992, Dr. Rathé purchased Dr. Keller's interest in their jointly held residence.
12Dr. Rathé made a complete recovery from his addiction in early 1992, and since 1992, went on to develop a thriving family medical practice serving mainly ethnic communities in Toronto, recently in Belle River, Ontario and in Ohio, U.S.A. Although born in Toronto, he is fluent in English, French, and German and has a passable knowledge of Portuguese and Spanish. He is a concert pianist.
13The College made a full investigation of Dr. Rathé's medical practice in 1993/1994 as a result of information the College received from Dr. Keller. The College decided to take no action against Dr. Rathé (other than to continue to monitor Dr. Rathé's medical practice) based on his full recovery from mood-enhancing drugs and the conclusion that his medical practice was operating effectively and properly.
14As stated earlier, Dr. Keller re-activated his complaints against Dr. Rathé on October 31, 1996, and again on March 31, 1997, by filing formal complaints to the College alleging Dr. Rathé was guilty of professional misconduct. The misconduct alleged against Dr. Rathé was related to the same events specified in paragraph 3, supra.
15When the Board rendered its decision (see paragraph 4, supra), the College refused to disclose particulars of the allegations by Dr. Keller to Mr. Murray, counsel for Dr. Rathé, on the grounds that they were evidentiary in nature and would not be disclosed.
16Further, on September 9, 1999, the Board asked the Complaints Committee to consider a referral of this matter with a recommendation that the Executive Committee continue its involvement with Dr. Rathé. The Board wanted the Complaints Committee to devise a scheme to monitor Dr. Rathé's practice and his substance abuse. The Committee was also told to ensure Dr. Rathé was not placed in a position where he could prescribe narcotics.
17Mr. Cohen, in reaching a decision, relied to a large extent on matters and material which were included in the 73 pages excised from the Private Record and never disclosed to Dr. Rathé or his counsel.
18Upon reading the decision of the Board, the undisclosed matters came to light for Dr. Rathé. Some of those undisclosed matters and materials are set out in the Supplementary Affidavit of Dr. Rathé and include the following paragraphs:
(a) Allegations regarding Robert Keller, brother of Dr. Keller: Dr. Rathé is alleged to have invented Robert Keller as a patient to hide his trafficking of illegal drugs;
(b) Allegations regarding an insurance fraud;
(c) Allegation in a statement by Dr. Chan (Dr. Keller's wife) regarding Ms. L.J., which has never been produced or the contents disclosed;
(d) Allegation regarding use of Robert Keller's OHIP number and false medical history;
(e) Allegations regarding false records for Robert Keller, brother of Dr. Keller;
(f) Allegations regarding an insurance fraud based on an undisclosed insurance company report that stated Dr. Rathé received insurance proceeds he was not entitled to receive;
(g) Allegations regarding three or four outstanding complaints against Dr. Rathé related to the conduct of his medical practice.
19To justify his Reasons and, more particularly, the 73 pages of non-disclosure, Mr. Cohen wrote:
In conducting this review, the Board recognizes that large portions of the Record were not disclosed to the parties by virtue of the Board exercising its discretion not to disclose under section 32(3)(b) and (c) of the code. The Board, however, has access to this information and does utilize it in its review. To the extent it has done so in this instance, the Board considers that the undisclosed information would already be known by Dr. Rathé, and involved details of information the general nature of which the parties had already known and upon which they have had the opportunity to make submissions.
20Counsel for the Board agreed that the Board exceeded its jurisdiction by making findings of misconduct. The Board does not contest the plea that its decision should be quashed.
21The powers of the Board in respect of Complaint reviews are set forth in s. 35 of the Health Professions Procedural Code, which forms Schedule 2 of the Regulated Health Professions Act, 1991:
s. 35(1) After conducting a review of a decision, the Board may do any one or more of the following:
Confirm all or part of the decision.
Make recommendations the Board considers appropriate to the Complaints Committee.
Require the Complaints Committee to do anything the Committee or panel may do under the Health Profession Act and this code except to request the Registrar to conduct an investigation.
22The Complaints Committee cannot make factual findings of misconduct against a member, its powers being delineated by s. 26(2) of the Code, which reads as follows:
s. 26(2) A panel, after investigating a complaint regarding the conduct or actions of a member, considering the submissions of the member and considering or making reasonable efforts to consider all records and documents it considers relevant to the complaint, may do any one or more of the following:
Refer a specified allegation of the member's professional misconduct or incompetence to the Discipline Committee if the allegation is related to the complaint.
Refer the member to the Executive Committee for incapacity proceedings.
Require the member to appear before the panel or another panel of the Complaints Committee to be cautioned.
Take action it considers appropriate that is not inconsistent with The Health Professions Act, this Code, the regulations or by-laws, 1991, c. 18, Sched. 2, s. 26.
23Notwithstanding the limited role of the Board as restricted by the Act, Mr. Cohen made findings of gross criminal misconduct, including:
(a) Dr. Rathé created a false medical history using Robert Keller as a means of obtaining drugs for himself, notwithstanding the fact that Dr. Rathé had nothing to do with Robert Keller;
(b) Dr. Keller alleged that Dr. Rathé had used his credit card to pay for an Acapulco trip for Dr. H.J. When the defence proved that it was not Dr. Rathé's credit card that was used, Dr. Keller alleged that Dr. Rathé used another subterfuge to pay for Dr. H.J.'s trip to Acapulco that constituted fraud, by forgery or by some other means, without giving any particulars;
(c) As it turned out, Mr. Cohen had used a report of Voyageur Insurance Company contained in the undisclosed Private Record to conclude that "there is an overwhelming preponderance of information to support the credit card fraud allegation". The allegation was also concerned with Dr. Rathé submitting a false medical claim. The evidence relied on by the Board was the evidence of one Dr. H.J. However, Dr. H.J. denied that Dr. Rathé had ever received any insurance money.
24As stated above, the Board conceded and expressed regrets that it exceeded its jurisdiction inasmuch as it can reasonably be said to have made findings of professional misconduct in respect of insurance fraud against the applicant. The Board, therefore, concedes that its decision should be quashed by this Honourable Court and this Court hereby quashes the Board's decision of March 9th, 2000. The factual details set out in the previous pages are necessary to arrive at a decision on the next question.
THE REMAINING ISSUE: TO REMIT OR NOT REMIT THE MATTER TO THE BOARD
POSITION OF THE BOARD
25The Board submits that the matter should be remitted back for a new review before a panel of the Board differently constituted. The Board submits that this Court does not have the jurisdiction to refuse to remit the matter to the Board for reconsideration.
26Counsel for the Board argues that should the remedy requested by the applicant be granted, it would result in a cloud of doubt and uncertainty hanging over the status of the Complaints Committee decision. Pursuant to subsection 33(1) of the Code, the function of the Board on a review is to consider a) the reasonableness of the Complaints Committee decision and b) the adequacy of the investigation undertaken by the Complaints Committee. If this Court refuses to remit the matter back to the Board, then there will be no administrative body to make that assessment. The complainant's request for a review would effectively be nullified and would be unresolved. The decision of the Complaints Committee would stand, immunized from review. According to this argument, such an outcome would not adequately preserve the rights and interests of the complainant, or the public.
27Moreover, the Board respectfully submits that in determining whether to refuse to remit, this Court should consider that this matter is distinguishable from other matters referred to in the case law relating to determinations of reviews of decisions of tribunals of first instance. The Human Rights Commission or Labour Relations Board where the parties have adjudicated a matter (had their "day in court") afresh are examples of "tribunals of first instance". In the instant matter, a refusal to remit would extinguish a statutory right of the parties; namely, the right to have the decision of the Complaint Committee reviewed by a public body – the Board.
28Counsel for the Board submits that should this Court find that it has the authority to refuse to remit, the case at bar is not an appropriate case for such refusal. He further submits that for this Court to grant such relief, it must be satisfied that the applicant has proven that it meets the extraordinary criteria set out in the case law.
29The traditional common law rule with respect to the power of a superior court to review the legality of administrative action is that while a court may quash a decision of a tribunal, based on an error of law or breach of procedural fairness, it cannot encroach on the tribunal's jurisdiction, and prohibit it from rehearing the same matter again, unless there are exceptional circumstances. Re Labour Relations Board (Nova Scotia) and Little Narrows Gypsum Co. Ltd. et al., (1977), 82 D.L.R. (3d) 693, R. v. Northumberland Compensation Appeal Tribunal, [1952] 1 All E.R. 122 at 127.
30In the last mentioned Decision, Lord Denning is quoted as saying that the Court of King's Bench had to exercise a supervisory role towards inferior tribunals and not substitute its views for those of the tribunal. The Court usually lets the tribunal hear the case again.
31The Board maintains that the general principles stated above were varied slightly by the Ontario Court of Appeal in Brett v. Ontario (Board of Directors of Physiotherapy) (1993), 104 D.L.R. (4th) 421 (Ont. C.A.). The Court held that while, technically, a court judicially reviewing a decision of a Board or tribunal does not have the discretion to deny a rehearing, the practical reality is that a court may make such an order and refuse to remit the matter back to a Board in particular circumstances. The Court of Appeal held that while a tribunal might theoretically be entitled to rehear the matter, despite an order from a court refusing to remit the case back, any such reassertion of jurisdiction would be to beg for an application for subsequent judicial review, and severe penalties by way of costs.
32According to counsel for the Board, various tests have been applied as to when a court should exercise discretion to refuse to remit, some of which include: whether there was an inordinate delay causing significant prejudice such as where a key witness dies (Re Commercial Union Assurance and Ontario Human Rights Commission), (1988), 47 D.L.R. (4th) 477; where the breaches of statutory requirements and procedural fairness have been so numerous and significant, and there is good reason to fear that a fair decision cannot be reached (Ontario (Ministry of Health) v. Ontario Human Rights Commission), [1993] O.J. No. 528, paras. 16 & 25; where all the findings of the tribunal which had heard all of the facts in a proceeding were patently unreasonable (Brett v. Ontario) (supra); whether the statutory requirements that were breached were done so with impunity, as opposed to being committed in good faith (Ontario (Ministry of Health) v. Ontario Human Rights Commission) (supra); or where there was an intention to act "unjudicially", for instance, with clear bias or contrary to the principles of natural justice (Little Narrows Gypsum), (supra).
33Counsel for the Board claims that none of the above reasons is present in this case. He cites the failure of Dr. Rathé to meet the high onus of showing that he is legally entitled to such an extraordinary remedy. There is a significant threshold to meet before a court will make an order refusing to remit a matter back to a tribunal or Board for reconsideration. He pleads the threshold is even higher since the Supreme Court of Canada's ruling in Blencoe v. British Columbia (Human Rights Commission) (2000), 2000 SCC 44, 2 S.C.R. 307 ("Blencoe").
34In Blencoe, the trial judge found that only the 24-month period between the filing of the complaints and the end of the investigation process should be considered for the delay, stating the Human Rights Tribunal could not be criticized for not setting the hearing dates earlier, as the respondent did not press for earlier dates. Mr. Justice Bastarache, at paragraphs 101 and 102 of the Judgment, stated: "there must be proof of significant prejudice, which results from an unacceptable delay" before a court should intervene. The delay should be the type that impairs a party's ability to answer the complaint against him or her because, for example, memories have faded, witnesses can no longer be found, and evidence has been lost. At paragraph 132 of the Decision, it is stated that the delay must be of the sort that offends the Community's sense of decency and fairness. In Blencoe, the majority held that the delay was not sufficient to make out a denial of natural justice or abuse of process.
35Counsel for the Board claims an order from this Court quashing the decision of the Board and remitting it back for reconsideration before a panel of the Board differently constituted, which can deal afresh with all aspects of the matter, including any issues arising as to disclosure, in an expedited fashion is necessary, will ensure that the parties' rights are respected, and still consider the public's interest in ensuring that the case be heard. The Board has a significant mandate to protect the public interest and prays that this Court will permit it to exercise its public interest jurisdiction in this case by remitting the matter back to a panel of the Board, differently constituted, for reconsideration.
THE APPLICANT'S POSITION
36Counsel for the applicant maintains that it is all very well for the Board to admit its mistake in making a finding of misconduct, but Dr. Rathé, through this process, has been seriously prejudiced.
37The prejudice suffered by Dr. Rathé has extended over a period of ten years and the application to this Court is the fifth proceeding involving the same facts first raised in 1991 and 1992. By repeating allegations of misconduct on the part of Dr. Rathé in two letters, dated June 13 and 18, 1997, and a new letter on August 30th, 1999, distributed by the College to the Board, Dr. Keller has hurt the reputation of Dr. Rathé.
38The proven facts advanced by Dr. Rathé expose the false allegations made by Dr. Keller. Dr. Rathé advances that:
(a) He was addicted to intravenous Demerol use from December 1990 to February 1992;
(b) He was never under the influence of drugs or alcohol during working hours;
(c) In February 1992, he went "cold turkey" and has never touched any mood-enhancing drug or alcohol since;
(d) He entered Dr. MacMillan's clinic voluntarily in 1992 and has received nothing but good reports;
(e) He continues to have a very large successful medical practice both in Ontario and Ohio;
(f) He is happily married with two small children;
(g) He has no outstanding complaints against him at the College, nor did he when the Board considered this matter;
(h) He considers Dr. Keller a compulsive liar who has set out on a 10-year course to destroy him;
(i) The suggestions by Mr. Cohen that the College take over the drug monitoring of Dr. Rathé is fatuous almost beyond belief. Dr. McMillan and his clinic are recognized as the leaders in treating professionals with drug or alcohol problems.
39Counsel for Dr. Rathé says that on the opposing side of the scale, Dr. Keller has offered no clear and cogent evidence, as he is required to do, in order to air the complaints before the Board and the Complaints Committee. Counsel for Dr. Rathé refuted Dr. Keller's allegations by showing that there was no corroboration for the gratuitous statements made by Dr. Keller concerning the doctor/patient relationship with Dr. Keller's brother, Robert Keller, the allegation of a forged OHIP number, and the creation of false records. Dr. Rathé received evidentiary help from Dr. Keller's own brother who told the Board Dr. Rathé simply did not traffic in drugs. Another doctor, Dr. H.J., flatly denied he told the Board Dr. Rathé had received money from the alleged insurance fraud – another instance of Dr. Rathé's alleged misconduct raised by Dr. Keller.
40Dr. Rathé claims the Board is guilty of bias against him because:
(a) he was denied, for unstated reasons, the chance to know what information the Board had;
(b) he was found guilty of fraud, forgery and other wrongdoing based on gratuitous information;
(c) instead of declaring the complaint frivolous and vexatious, pursuant to s. 30(3) of the Code, the Board entertained allegations after allowing a gross delay of ten years to elapse from the date when the complaint was first made; and,
(d) not only did the Board not focus on the time elapsed, it did not follow its own procedures on disclosure.
41Counsel for Dr. Rathé argues that his client meets all of the criteria advanced by his opponent to meet the test developed in the case law regarding the exceptional circumstances needed when a court would be entitled not to remit the matter, namely that
a) Dr. Rathé has cause to fear a fair decision cannot be reached;
b) That, as in Brett, the Board's decision was patently unreasonable because it was not made on clear and cogent evidence; and
c) The statutory requirements were breached with so much impunity it is akin to having an intention to act unjudicially.
DECISION
42This Court refuses to remit this matter to the Board.
43On the question that Dr. Keller's complaint will lack finalization should this matter not be remitted to the Board, the Court is of the view that Dr. Keller has demonstrated a lack of interest in the proceedings. Dr. Keller did not attend the Complaints Committee assessment, or the Board's review. He opposed the motion adding him as a party to this litigation. He did not appear at this hearing.
44The interest of the public in this matter is lessened by the fact that this case involves a dispute between two doctors who were good friends in the past. The Court cannot condone the fact that Dr. Keller is using the College procedures to undermine Dr. Rathé's reputation by allegations contradicted by Dr. Rathé and unsupported by clear, cogent and compelling evidence.
45This Court accepts the principles found in the Little Narrows Gypsum case (supra) in refusing to remit this matter to the Board, because there are similar exceptional circumstances: the interest of the public in the matter is remote and the delay is serious. After ten years, no solid evidence is forthcoming against Dr. Rathé by way of witnesses to support statements made by Dr. Keller and repeated, very recently, by him. On many serious issues, the evidence supplied by Dr. Keller ended up not implicating Dr. Rathé at all.
46Too much time has elapsed since the original complaints were made to warrant a fresh assessment.
47Dr. Rathé has been unfairly prejudiced by the delay and the revival of old allegations of misconduct. Unlike Dr. Keller, Dr. Rathé has incurred very onerous legal expenses, which will be increased by a further hearing.
48The public interest, in this case, would not be protected by yet another assessment. A fresh assessment would offend the community's sense of decency and fairness.
49On the matter of sealing the Private Record, we are all in agreement that the order of Mr. Justice Cameron be continued. No costs are awarded for the resealing motion even though Mr. Justice Cameron had ordered costs in the cause. Counsel for Dr. Rathé and the Board were in agreement that the Record remains sealed. The Court is of the view that such costs are subsumed in the Court's award of costs on this application.
50We are in agreement that costs be awarded on a partial indemnity scale. The Board admitted, at the outset of this hearing, that it was wrong in its findings. This is a factor in not granting costs on a substantial indemnity scale, as claimed by counsel for the applicant. Counsel for the Board made a presentation that was helpful to the Court and his conduct in the proceedings was in the best standards of the legal profession. Substantial indemnity costs are often granted when there is a punitive element involved due to the egregious conduct of the losing party or by its counsel. These factors are not present in this case.
51Costs are fixed on a partial indemnity scale at $45,000 including disbursements and GST.
52Dr. Rathé requested costs for appearing before the Complaints Committee and the Board. This Court does not have authority to award such costs. Both of those appearances are not proceedings as referred to in s. 131(1) of the Courts of Justice Act:
s. 131(1) Costs – Subject to the provisions of an Act or rules of court, the costs of an incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.
The hearing before the Health Professions Appeal and Review Board is not a 'proceeding' as defined in the Rules of Civil Procedure:
s. 1.03 "proceeding" means an action or application.
53Mr. Justice Brooke, in the Court of Appeal decision of Poulton v. Ontario (Racing Commission) (1999), O.J. No. 3152, refused to give Mr. Poulton his costs of the proceedings before the Commission and the Track Judges. At paragraph 22, he stated:
I would allow the appeal with respect to the award of costs before the Track Judges and the Commission. The Divisional Court had no jurisdiction to make that order.
54For the foregoing reasons, therefore, the decision of the Board is quashed. This Court does not order the matter remitted to the Board. The applicant is entitled to his costs on a partial indemnity scale, and fixed in the amount of $45,000.00, inclusive of disbursements and GST.
LALONDE J.
I agree ___________________________
BLAIR R.S.J.
I agree ___________________________
KURISKO J.
Released: December 6, 2002
COURT FILE NO.:467/2000
DATE: 20021206
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BLAIR R.S.J., KURISKO & LALONDE JJ.
B E T W E E N:
CHARLES NICHOLAS RATHÉ, M.D.
Applicant
- and -
THE HEALTH PROFESSIONS APPEAL AND REVIEW BOARD AND JOHN ROBERT KELLER, M.D.
Respondents
JUDGMENT
LALONDE J.
Released: December 6, 2002