COURT FILE NO.: 720/2000

DATE: 20030121

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

CARNWATH, WHALEN & MacDOUGALL JJ.

B E T W E E N:

DR. MICHAEL HOWATT

Appellant

• and -

COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO

Respondent

Roy E. Stephenson, for the Appellant

Lisa Brownstone, for the Respondent

HEARD: December 6, 2002

CARNWATH J.:

1Dr. Michael Howatt ("the appellant") was found guilty by the Discipline Committee ("the Committee") of the College of Physicians and Surgeons of Ontario ("the College") of several counts of professional misconduct and an additional count of incompetency. Dr. Howatt appeals the Committee's order that his certificate of registration be revoked, that he be reprimanded and that he pay costs in the amount of $10,000.

2The issue on this appeal is whether the Committee's refusal to grant Dr. Howatt an adjournment of the hearing on October 23, 2000, was a denial of natural justice rendering the Committee's decision invalid.

BACKGROUND

3By an Amended Notice of Hearing dated August 5, 1999, the College alleged that Dr. Howatt was guilty of eight specific allegations of professional misconduct and one allegation of incompetency. The allegations arose from his care of three patients, J.C., O.C. and L.F. The allegations were the subject of a hearing before the Committee of the College, pursuant to the Health Professions Procedural Code.

4O.C. complained to the College on May 3, 1995, and Dr. Howatt was told of the complaint on August 4, 1995. Dr. Howatt responded to the complaint on October 12, 1995. On December 11, 1996, the College told Dr. Howatt that the Complaints Committee had decided to refer the matter to the College's legal office for further review. Dr. Howatt heard nothing further about the complaint for approximately two years and four months. On April 27, 1999, the College told Dr. Howatt that the Complaints Committee had decided to refer the complaint to the Discipline Committee. The total elapsed time from the date the College received the complaint until the referral to the Committee was one week short of four years.

5L.F. complained to the College on June 19, 1995. Dr. Howatt was told of the complaint on August 21, 1995, and responded on February 27 and March 7, 1996. On December 16, 1996, the College told Dr. Howatt that the Complaints Committee had decided to refer the complaint to the College's legal office for further review. Dr. Howatt heard nothing further about the complaint for approximately two years and four months. On April 27, 1999, the College told Dr. Howatt that the Complaints Committee had decided to refer the complaint to the Discipline Committee. The total elapsed time from the date the College received the complaint until the referral to the Discipline Committee was approximately three years and ten months.

6The College first received a complaint about Dr. Howatt having a sexual relationship with J.C. on April 9, 1997. The former boyfriend of J.C. made the complaint. In the months following April 9, 1997, J.C. continued to see Dr. Howatt and, indeed, accepted both an engagement ring and a proposal of marriage from him. During this period, Dr. Howatt advanced considerable sums of money to J.C.

7On November 17, 1997, J.C. gave a detailed statement about her relationship with Dr. Howatt to the College. The statement was reduced to writing and sent to J.C. the following day. J.C. told the College that she was not certain she wished to proceed with the complaint.

8In June of 1998, J.C. attempted to cash a cheque given to her by Dr. Howatt several months earlier, but the cheque did not clear the bank. Later in 1998, Dr. Howatt demanded the return of the engagement ring and their relationship ended.

9The College next contacted J.C. in October of 1998, eleven months after its previous contact. J.C. told the College she was ready to proceed with the complaint and on October 30, 1998, she filed a formal letter of complaint and signed a nine-page typed statement.

10Dr. Howatt was notified of this complaint on November 3, 1998, and gave his written response on December 3, 1998. The Complaints Committee met on July 5 and 6, 1999, and decided to refer the matter to the Discipline Committee. The approximate elapsed time from the boyfriend's complaint to the date of referral was two years and three months and the elapsed time from J.C.'s willingness to proceed with a complaint to the referral to Discipline was eight months and one week.

11Dr. Howatt's hearing was originally scheduled for the periods July 4-7 and August 14-22, 2000. On June 29, 2000, Dr. Howatt's [then] counsel brought a motion for an adjournment on the basis that Dr. Howatt had been admitted to the Hamilton Psychiatric Hospital and was too ill to proceed with the hearing. The Chair of the Discipline Committee found that the medical evidence was adequate to support an adjournment. He adjourned the hearing to August 14, 2000. As a condition of the adjournment, he ordered a suspension of Dr. Howatt's Certificate of Registration until the hearing in August or until a further order of the tribunal. This meant Dr. Howatt could not practice medicine.

12Dr. Howatt recovered and the hearing started on Monday, August 14. The College was scheduled to close its case on the following Monday morning and Dr. Howatt was to start his defence that afternoon.

On the morning of Monday, August 21, 2000, the College, without prior notice, requested an adjournment to October 23, 2000. The ground for the request was that new information had come to the attention of the College and time was needed to conduct an further investigation.

13Dr. Howatt was prepared to agree to the request for an adjournment to October 23, but he asked the Committee to make it a term of the adjournment that if, for some reason, he was not ready to deal with the new information by October 23, he would not be forced on.

Counsel for the College opposed terms being imposed but did say the following: "I don't think I can reasonably go that far. As I say, I'm going to take every step possible to accommodate my friends and not see that Dr. Howatt is prejudiced, and that he has the opportunity to respond". and; "I will agree that if it appears reasonably necessary for my friends to have an adjournment, in those circumstances I will agree and not necessitate inconveniencing the Panel, and giving you as much notice as possible of that contingency. But I can't go so far as to say in any circumstances, whatsoever". The Discipline Committee granted the College's motion for an adjournment without terms. On October 11, 2000, the Executive Committee of the College issued an order again suspending Dr. Howatt's Certificate of Registration. The suspension was for an indefinite period of time. Dr. Howatt has not been able to practice medicine since that date.

14On October 17, 2000, Dr. Howatt's counsel told the College that he would need an adjournment of the October 23 date because Dr. Howatt was, once again, ill. Counsel for the College requested a report from his treating psychiatrist, Dr. Patelis-Siotis. On October 19, a copy of Dr. Siotis' report was faxed to the College, but counsel for the College refused to consent to an adjournment.

15In two reports, dated October 17 and 19, which were provided to the College, Dr. Siotis confirmed her DSM IV diagnosis of Dr. Howatt as a major depressive episode, recurrent, of mild to moderate intensity. She confirmed that his mood fluctuated in response to stress. This was worsened by his avoidant and dependent personality characteristics. She stated that his illness "interferes significantly with his ability to cope with his current difficulties". She concluded that "Dr. Howatt is currently unfit to stand trial and to instruct his lawyers".

16On the morning of October 23, counsel for Dr. Howatt asked for an adjournment, based on Dr. Siotis' two reports. The College objected to the filing of Dr. Siotis' reports unless she was present to be cross-examined. Counsel told the Committee the earliest Dr. Siotis could be available was the afternoon of the following day – Tuesday. The Committee ruled it would not accept her reports unless she was present for cross-examination.

17Counsel for Dr. Howatt requested that the hearing be adjourned to the following afternoon so Dr. Siotis could attend. He also told the Committee:

a) the College had made disclosure in connection with the new complaints as late as October 17;

b) counsel had been unable to meet with Dr. Howatt to review the new allegations and that Dr. Howatt’s behaviour was consistent with Dr. Siotis' observations, i.e., Dr. Howatt was not able to deal with the matter or instruct counsel;

c) Dr. Howatt's licence to practice medicine was under suspension and he was not practicing medicine; and,

d) The two new incidents the College was bringing forward involved conduct that allegedly occurred in 1997 and the complaints had not come forward until August, 2001.

e) In proceeding to hear evidence in the absence of Dr. Howatt, before hearing Dr. Siotis’ testimony, the Committee created the possibility of procedural unfairness. Even if the Committee had granted the adjournment, the question of how to treat the evidence taken in Dr. Howatt's absence would have to be answered.

18The Discipline Committee refused to adjourn the hearing until 2:30 p.m. on August 24 to allow Dr. Siotis to be present. The Committee said:

The panel has considered the submissions of counsel and has concluded that on the basis of the record before us there will be no unfairness to Dr .Howatt for the hearing to proceed as scheduled. We are prepared to interrupt the hearing tomorrow afternoon to hear evidence as to Dr. Howatt's fitness…

19The College then proceeded to call the similar fact evidence of one of the new witnesses and the evidence of a College investigator. The College then told the Committee "that concludes the witnesses that the College has available today". The hearing was adjourned to the next morning at which point the College called the evidence of the second new similar fact witness. The College then closed its case.

20At 2:30 p.m., on Tuesday, October 24, Dr. Siotis appeared and testified. She is a psychiatrist who is an Assistant Professor in the Department of Psychiatry at McMaster University and Head of the Psychosocial Rehabilitation Program for the Mood Disorder Program at the Hamilton Psychiatric Hospital. Her areas of expertise include mood disorders and cognitive therapy of depressive disorders.

21Dr. Siotis first saw Dr. Howatt as a patient in February, 1999 to provide psychotherapy for his depressive illness. From June 27, 2000 to July 17, she admitted him as an in-patient at Hamilton Psychiatric Hospital. This admission required the first adjournment. At that time, Dr. Howatt had anxiety, lack of concentration, decreased memory, difficulty making decisions and suicidal thought. He was unable to work. Upon his discharge, he was sufficiently improved to return to work.

22When Dr. Siotis saw Dr. Howatt on September 12, 2000, he had suffered a relapse of his depressive illness. She did not admit him at that time because she was satisfied that his family could look after him at home. However, later on September 19, 2000, Dr. Howatt was depressed and crying and reporting symptoms of depression, including hopelessness, helplessness and loss of memory. At that point, Dr. Siotis assessed him as too ill to practice medicine and completed a form to that affect for his disability insurer. She was of the opinion that he was not capable of instructing legal counsel or dealing with legal affairs. Dr. Siotis saw Dr. Howatt on October 10, 2000, when she found him more depressed, despondent and withdrawn. She persuaded him to admit himself to Homewood, a semi-private psychiatric facility in Guelph, with a program for the management of mood disorders. Dr. Howatt admitted himself on October 10, stayed two or three days, then left against medical advice.

23On October 19, 2000, it was Dr. Siotis' opinion that Dr. Howatt was unable to digest the disclosure material provided by the College. It was her opinion that he was incapable of processing the information necessary to proceed with his hearing. She found him incapable of testifying or providing accurate answers on cross-examination. It was her opinion that an adjournment for a reasonable length of time was needed to allow her to try to stabilize his condition, following which he would be able to deal with the College issues.

24The Committee rejected Dr. Howatt's request for an adjournment. Dr. Howatt’s counsel then withdrew from the hearing.

25Counsel for the College made closing argument on October 27, 2000. The Committee adjourned for ten minutes and then found Dr. Howatt guilty as described above. After submissions on penalty, the Committee took a five-minute recess and then imposed the penalty described above. The Committee's reasons issued eight months later on July 5, 2001.

THE STANDARD OF REVIEW

26The statutory right of appeal is open to questions of law or fact or both. The Regulated Health Professions Act does not contain a privative clause to shield the College from the court's scrutiny. Initially, therefore, it may appear that the appropriate standard of review is "correctness".

27However, the Supreme Court of Canada has determined that disciplinary bodies of self-governing professions should be awarded a large degree of autonomy and their decisions should not be interfered with "unless judicial intervention is clearly warranted". Pearlman v. Manitoba Law Society Judicial Committee (1991), 1991 26 (SCC), 84 D.L.R. (4th) 105 at 119 (S.C.C.).

28Furthermore, the Supreme Court has held that even where there is a statutory right to appeal and no privative clause, a reviewing court should defer to an administrative body, rendering decisions within the scope of its expertise. In Pezim v. British Columbia (Supt. of Brokers) (1994), 1994 103 (SCC), 114 D.L.R. 385 at 406, the court states:

Consequently, even where there is no privative clause and where there is a statutory right to appeal, the concept of the specialization of duties requires that deference be shown to decisions of specialized tribunals on matters which fall squarely within the tribunal's expertise.

29Where a matter engages the expertise of the Discipline Committee, we find the standard of review to be that "reasonableness".

ANALYSIS

30The request to the Discipline Committee for an adjournment was made under the following circumstances:

a) The only medical evidence before the Committee was that of Dr. Siotis, Dr. Howatt's treating physician. She was unequivocal in saying that Dr. Howatt was incapable of processing the information necessary to proceed with his hearing, that he was incapable of testifying or providing accurate answers on cross-examination and, indeed, that he was incapable of instructing counsel;

b) Had the adjournment been granted, there was no danger to the public for Dr. Howatt was forbidden to practice;

c) The Discipline Committee could hardly say that granting the adjournment would prejudice a timely conclusion of the hearing, given the delay in bringing the complaints before the Discipline Committee;

d) The Discipline Committee had experienced a prior example of Dr. Howatt's ability to recover sufficiently to attend the hearing, instruct counsel and give evidence. After a previous request for an adjournment, he was present for the hearing on Monday, August 21, 2000, and ready to proceed, having experienced a bout of depression which led to the previous adjournment;

e) The decision of the Committee to proceed with the hearing of witnesses on October 23 and 24 in the absence of Dr. Howatt before hearing from Dr. Siotis on the question of the adjournment leaves the impression that the Committee had no intention of granting the adjournment, regardless of the testimony of Dr. Siotis. While this may not have been the case, the appearance left by this procedure is that of unfairness.

31There is no doubt that the right to an adjournment before an administrative tribunal, including a disciplinary body, is not an absolute right. In each case, whether or not the adjournment should be granted must be considered in the light of the circumstances, having regard to the right of the applicant to a fair hearing weighed against the obvious desirability of a speedy and expeditious hearing into charges of professional misconduct. When balancing these two factors, the right of the applicant to a fair hearing must be the paramount consideration. Re Morgan and Association of Ontario Land Surveyors (1980), 1980 1661 (ON SC), 28 O.R. (2d) 19 (Div. Ct.) at p. 3

32A court must grant an adjournment when it is requested by a party who is prevented by illness from attending a hearing when the court is satisfied of the medical fact of the illness and that the party's evidence is directly and seriously material. The only exception to this rule is if there is evidence that an injustice would be done to the other side that cannot be reduced by costs or the imposition of conditions. Dick v. Piller, [1943] 1 All E.R. 627 (C.A.) at 629, cited with approval in Webber v. Canada Permanent Trust Company and Long (1976), 18 N.S.R. (2d) 633 (C.A.) at p. 634

33The law is clear that an adjournment should be granted when a party is prevented by illness from attending a hearing. In the context of a professional disciplinary hearing in particular, it is fundamental that the member who seeks an adjournment because of illness be afforded the opportunity to be present at a hearing and to make his defence. A tribunal should only deny the member that opportunity in the clearest of cases. Kampman v. Canada (1993), F.C.J. No. 66 (C.A.); Olech v. Royal College of Dental Surgeons of Ontario, [1994] O.J. No. 520 (Div. Ct.), at para. 6; and, P.I.S. v. M.S., [1993] B.C.J. No. 2220 (B.C.S.C.)

34The refusal of the adjournment was a denial of natural justice to Dr. Howatt. Regrettably, the Discipline Committee did not act in accordance with proper principles and, therefore, the application must be allowed and the decision quashed.

DECISION

35a) the decision of the Discipline Committee is quashed;

b) the matter is remitted to the College for a new hearing before

a different panel of the Discipline Committee;

c) if the parties are unable to agree upon costs by January 20, 2003,

they have until February 1, 2003, to make written submissions.

CARNWATH J.

WHALEN J.

MacDOUGALL J.

Released: 20030121

COURT FILE NO.: 720/2000

DATE: 20030121

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

carnwath, whalen &

Macdougall jj