Stanley v. Health Professions Appeal and Review Board, 2003 CanLII 41663 (ON SCDC)

Divisional Court File No. 597/01

Date: May 26, 2003

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BENOTTO S.J., SOMERS J. and BEAULIEU J.

B E T W E E N:

DR. BARRY STANLEY

APPLICANT

• and -

THE HEALTH PROFESSIONS APPEAL AND REVIEW BOARD AND JOAN CLODD

RESPONDENTS

Appearances:

Andrew J. Reddon and Marcus Klee for the Applicant

David Jacobs for the Respondents

Heard: May 8, 2003

1Dr. Stanley’s seeks judicial review of the decision of the Health Professions Appeal and Review Board (the Review Board). That Board, was reviewing the decision of the Complaints Committee (the Committee) which found that Dr. Stanley had performed an improper breast examination and required him to attend for a Caution. The complainant, Joan Clodd, took no part in the judicial review.

2The issue for this court is whether the confirmation by the Board of the Complaints Committee’s decision was patently unreasonable.

FACTS

3On October 7, 1995, the complainant attended the emergency room of the Oakville Trafalgar hospital. She complained of rectal bleeding. With her, was a friend, Ms Anderson. The complainant alleged that Dr. Stanley behaved improperly in that he:

1. made an insensitive remark that she was “probably full of cancer” and

2. examined her breasts which was both not indicated and done in an inappropriate manner.

4It is not clear when she first complained to the College. There was a written complaint of August 12, 1996, but it is clear that the Complaints Committee was investigating prior to that date.

5The complainant stated to the Committee that Ms Anderson was in the examination room with her, but Dr. Stanley came in and asked Ms Anderson to leave. She did so. Dr. Stanley then made the remark about the cancer and performed the breast examination which made her feel as though she had been molested. He left the room and Ms Anderson re-entered. The complainant said that she told Ms Anderson that she thought she may be over-reacting but that she thought she had “just been molested.” She later told her family doctor, Dr. Pyle, who was her family doctor the same thing. Ms Anderson more or less confirmed what the complainant told her.

6On October 8, 1996, the College advised Dr. Stanley for the first time of the complaint. He responded by letter of November 28, 1996. Simply put, he stated that neither the remark nor the breast examination took place.

7The Committee continued its investigation and retained an expert to determine if the breast examination was indicated when a patient presents with rectal bleeding.

8The final investigation report of the Committee was issued March 10, 1997. It concluded, with respect to the cancer comment, that it would not sanction Dr. Stanley because it was purely a matter of credibility. In the words of the report:

The Committee is not well equipped to determine issues of credibility and is unable to reconcile the conflicting information provided by the parties. Absent corroborating evidence, (i.e. information from a witness who was present during their discussion), the Committee has no basis for choosing between the two reports.

9With respect to the breast examination however, the Committee used as corroboration the statements made by the complainant to Ms Anderson and Dr. Pyle after the event. The Committee concluded that the examination had occurred. Having found the examination had occurred, the Committee then relied on its own expert to say that the examination was not indicated. The expert opinion had not been given to Dr. Stanley. Indeed, the Committee did not provide Dr. Stanley with details of its investigation. They were made available to Dr. Stanley by the Review Board.

10The Review Board concurred in the conclusion of the Committee regarding the statement about cancer. With respect to the breast examination, however, the Board’s analysis is somewhat confusing. The Board stated that Ms Anderson and Dr. Pyle could not corroborate the act of the breast examination, but only that each one was told that it had occurred. The Review Board then found that, based on this evidence, the examination did occur. It found sufficient information in the record to support the remedial disposition of a Caution. The Committee’s decision was therefore confirmed.

Analysis

11The Review Board conducts only a review, not a fresh or further investigation. It is not a hearing. No evidence is called (see Yuz v. Laski, 57 O.R. (2d) 106). Still, a minimal level of procedural fairness must apply (see Nicholson v. Haldimand Norfolk (Regional) Police Commissioners, [1979] 1 S.C.R. 311). This fairness must apply to the entire proceeding commencing with the Complaints Committee.

12The respondent argues that this level of fairness was reflected in the process of the Committee and further states that the Review Board was correct in finding that there was evidence on which the Committee could base its report.

13In our view, the entire process fell below the standard of procedural fairness required.

14The Committee correctly decided that it could not determine matters of credibility and declined to do so. It then decided an issue of pure credibility on the basis of statements made by the complainant to others after the event. The Review Board said this approach was wrong, but then proceeded to rely on that very same evidence to determine credibility.

15Having made this finding of fact, the Committee and the Review Board then relied on its own expert to say the examination was not indicated. While this aspect may have been irrelevant to Dr. Stanley in light of his position that the examination had not taken place, it did alter the focus of the Committee’s inquiry without his knowledge.

16In addition, the delay in the entire proceeding was unconscionable. The Regulated Health Professionals Act procedural code contemplates a determination within 120 days. Though meant to be a guideline only, here a decision with respect to the complaint took 1,350 days. In the context of an investigation done in secret, a delay of this length falls below the basic level of fairness required.

17This Court should not interfere with a decision of the Review Board except in unusual cases, going to the denial of natural justice. Here, a senior surgeon with a long, unblemished career stood to have his reputation tarnished. He was entitled to a basic level of fairness in the proceeding. The process included findings of credibility, secrecy and delay. These elements combined to deny Dr. Stanley the level of fairness to which he was entitled.

18In our view, the Board was patently unreasonable in confirming the decision of the Complaints Committee. The decision of the Board is quashed.

19If counsel, cannot agree they may exchange and send written submissions with respect to costs within 15 days.

Benotto S. J.

Somers J.

Beaulieu J.