COURT FILE NO.: 766/02

DATE: 20030219

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

COLLEGE of PHYSICIANS and SURGEONS of ONTARIO

Respondent

• and -

DR. PAUL MICHAEL PORTER

Applicant

Donald Posluns & Kim M. Beatty, for the Respondent

J. Thomas Curry & Nina Bombier, for the Applicant

HEARD: February 14, 2003

LEDERMAN J.

Nature of Motion

1The applicant (“Dr. Porter”) seeks a stay of the order of the Discipline Committee of the College of Physicians and Surgeons of Ontario dated November 29, 2002, pending the hearing of the appeal of this matter which is presently scheduled to take place on April 28 - 30, 2003.

2Dr. Porter was before the Discipline Committee on a number of allegations of professional misconduct. The majority of the Committee was of the view that the evidence was insufficient to support a finding that Dr. Porter had sexually abused two psychiatric patients and that allegation was dismissed. However, the Discipline Committee unanimously found Dr. Porter guilty of professional misconduct in that he engaged in conduct unbecoming a physician; contravened the record keeping sections of the governing regulation; engaged in an act relevant to the practice of medicine that would reasonably be regarded by members as disgraceful, dishonourable or unprofessional. The Discipline Committee also unanimously concluded that Dr. Porter was incompetent as defined in subsection 52(1) of the Health Professions Procedural Code in that his care of a patient displayed a lack of knowledge, skill or judgment or disregard for the welfare of a patient, of a nature or to an extent that demonstrated that he was unfit to continue in practice or that his practice should be restricted.

3These conclusions were based on findings that Dr. Porter failed to keep up to date, complete and accurate records for the two complainants, and assumed the care of two complex psychiatric patients for which he displayed a lack of skill and experience to treat.

4The Discipline Committee imposed a penalty of a reprimand. In addition, it suspended Dr. Porter’s certificate of registration for a period of 30 months. The Committee took into account the fact that Dr. Porter had been suspended on an interim basis since December 13, 2000 and gave credit to him for that period of time. Accordingly, his suspension was to run from December 29, 2002 until June 13, 2003, a period of six months, at which date Dr. Porter will have completed the 30-month suspension. Further, the Discipline Committee imposed certain restrictions and conditions on Dr. Porter’s return to practice after the completion of the suspension including: a restriction on practising medicine either in a solo practice or a group setting; a restriction upon treating patients with certain disorders for five years; and that he be supervised by two physician supervisors in an institutional setting for his practice for five years.

5Dr. Porter has appealed the decision and penalty of the Discipline Committee on the grounds that there was no evidence, especially expert evidence, to support the findings and that the penalty imposed is disproportionate with the nature of the findings and is manifestly unjust.

The Test for on Interim Stay

6The granting of a stay is based on the same principles as those which govern the granting of an interlocutory injunction in that the applicant must demonstrate that the appeal raises a serious issue; that he will suffer irreparable harm if the relief is not granted; and that the balance of convenience favours it.

Serious Issue

7The threshold is a low one and it can be safely concluded in the circumstances of this case that, at the least, the question of whether the nature of the penalty meted out by the Discipline Committee in relation to the offences for which the applicant was found guilty is disproportionate, raises a serious question on the appeal.

Irreparable Harm

8Counsel for Dr. Porter has submitted that if he is required to serve the penalty ordered by the Discipline Committee and a stay is not granted pending his appeal, then the appeal will be rendered moot. He submits that Dr. Porter will also suffer professional, financial and social harm which is irreparable in nature.

9Counsel for the College of Physicians and Surgeons of Ontario has submitted that Dr. Porter has not provided any evidence that he faces a real risk of disastrous consequences if the stay is not granted. She submits that a suspension is only one part of an extensive penalty ordered by the Discipline Committee and the fact that some portion of the suspension will be completed before the appeal is heard does not render the appeal moot.

10There can be little doubt that the publication of the finding of incompetence together with the imposition of a 30 month suspension causes serious damage to Dr. Porter’s professional reputation. In addition, by reason of the effect of the interim order of suspension which commenced on December 13, 2000, further delay in the reintegration of Dr. Porter’s practice constitutes continuing harm which by its cumulative nature is irreparable, should he be successful on his appeal.

11The parties have been cooperative in obtaining an expedited date for the appeal which is to be heard in little more than two months time. However, of course, there is never any assurance that a decision on the merits will be made then, as opposed to being reserved and a decision rendered at some later time. Accordingly, there is a real risk that the period of suspension imposed by the Discipline Committee, which is in effect for six months, will have been served or largely served by Dr. Porter before the appeal is decided.

12In the circumstances, to continue the existing penalty pending appeal will cause the applicant significant harm which is irreparable in nature.

Balance of Convenience

13Under this branch of the test, the rights of the applicant must be balanced against the risk to the public of granting a stay. The College’s position is that the factors of the protection of the public interest, public confidence in the disciplinary processes of the College, and public confidence in the regulated health care system, must be considered. The Discipline Committee emphasized in its reasons that the protection of the public was of paramount importance in setting the penalty. Moreover, counsel submitted that public confidence in the disciplinary process of the College would be eroded if a physician found by his professional peers to be unfit to practise medicine is permitted to practise pending an appeal of the finding. She added that the granting of a stay of penalty to a member who has been found to be incompetent would adversely affect the public’s perception of the safety and reliability of the health care system, and the mechanisms in place to protect the public from incompetent practitioners.

14There is no question that the public interest is an essential factor to be considered by the court in the balance of convenience portion of the stay test as measured against any harm that may be done to the applicant pending appeal. (See Kooner v. College of Physicians and Surgeons of Ontario, [2002] O.J. No. 1594 (Div. Ct.).)

15In terms of penalty, the Discipline Committee did not revoke Dr. Porter’s licence. The penalty order allows Dr. Porter to return to the practice of psychiatry after the completion of his period of suspension. The Discipline Committee thought that this would not pose any jeopardy to the public interest so long as strict restrictions and conditions were applied to Dr. Porter’s practice of medicine. I see no reason why a stay of the Discipline Committee’s order would endanger the public interest or erode public confidence if the stay was based on the same terms. In this way, a conditional stay would accommodate both the public interest and provide some ability to Dr. Porter to reintegrate his practice, pending the disposition of the appeal. There will be no loss of public confidence or risk to the public and Dr. Porter will at least be able to practise on a limited basis if he is able to satisfy the stringent conditions.

16Accordingly, a stay is granted, but on the same terms, conditions and limitations that the Discipline Committee ordered be imposed on Dr. Porter’s certificate of registration and on his practice of medicine.

17Costs of the motion are reserved to the panel of the Divisional Court hearing the appeal.