minicounsel

COURT FILE NO.: 23/03

DATE: 20041001

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

GRAVELY, CARNWATH & PITT JJ.

B E T W E E N:

DR. HEUNG-WING LI

Appellant

and -

THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO

Respondent

Christopher A. Wayland & Sara J. Erskine, for the Appellant

Linda Rothstein & Megan Shortreed, for the Respondent

HEARD: September 20, 2004

CARNWATH J.:

1On December 19, 2002, the College of Physicians and Surgeons of Ontario found Dr. Heung-Wing Li guilty of three counts of sexual abuse, one count of sexual impropriety, as well as other related allegations. A Panel of the Discipline Committee revoked his certificate of registration on the same day, although the reasons for decision with respect to both liability and penalty were not released until May 23, 2003.

2Dr. Pamela Chart testified for the College as both a fact and expert witness. Shortly before the decision of December 19, 2002, Dr. Chart was appointed to the Discipline Committee.

3The first, and disposing, issue on this appeal is whether Dr. Chart’s activity as a member of the Panel raises a reasonable apprehension of bias. I find that it does and the decision of the Panel is quashed as being void ab initio.

BACKGROUND

4The allegations against Dr. Li were of improper touching of women’s breasts during the course of medical examinations and of improper comments of a sexual nature. The hearing took place during the weeks of May 13, November 22, and December 16, 2002. The Panel consisted of: Dr. D. Braden; Dr. J. Doherty; Dr. R. Guscott; Ms. J. Frederick; and Ms. P. Beecham. The Panel did not release its Reasons for decision with respect to liability and penalty until May 23, 2003.

5During the first week of evidence (in May, 2002), the College called Dr. Pamela Chart, a family doctor with a specialty in breast issues, as both a fact and expert witness.

6As a fact witness, Dr. Chart testified that she had instructed the appellant on how properly to conduct a breast examination. This evidence was relevant to one of the allegations, which was that the appellant had touched a complainant’s breasts improperly during the course of a clinical breast examination which took place after the appellant had seen Dr. Chart.

7At the same time, Dr. Chart was qualified as an expert in the area of “breast disease, breast screening and breast detection”. She gave opinion evidence to the effect that, inter alia, the examinations of the appellant conducted on the complainants fell below the standard of care.

8When the hearing resumed in November, Dr. Chart continued her participation by sitting with the College prosecutor and assisting him.

9The defence called its own expert, Dr. Howard Rudner. Dr. Rudner is a family doctor. He testified that, if the appellant performed the examinations in the manner he described, three of the examinations were appropriate and met the standard of care. Dr. Rudner explained how some incidental touching of the breast tissue may be inevitable during the course of certain appropriate examinations. Dr. Rudner also said that certain aspects of the fourth examination (a breast examination) also met the standard of care, while others (most notably that the appellant conducted the examination from behind the patient) did not.

10Dr. Chart had inquired by e-mail on July 12, 2002, whether the College needed physicians for the Discipline or other Committees. Ironically enough, Dr. Chart disclosed in the e-mail that “she recently gave evidence in a case before the College and, as the case was to resume in the fall, she would like to see it completed before making any further commitments”. On August 26, 2002, Dr. Chart was advised that her application would not be considered, since she had missed the deadline, but that it would be kept on file to be considered in the event of any vacancies. Vacancies arose in the fall and the Nominating Committee considered Dr. Chart’s application. College Council appointed Dr. Chart to the Discipline Committee on November 29, 2002. Three members of Dr. Li’s Panel were present at that College Council meeting – Dr. Guscott, Ms. Frederick, and Ms. Beecham.

11Dr. Chart’s appointment was noted in the January/February, 2003 edition of the Member’s Dialogue, the College’s official publication. Under Committee Members 2002-2003, Dr. Chart is listed as a member of the Discipline Committee and the publication was distributed to members of the profession and public in March, 2003.

12When appointed, all members of the Discipline Committee are provided with a copy of the Discipline Committee Manual. The hearings office sent Dr. Chart the Discipline Committee Manual with a letter of introduction on November 29, 2002. In addition, a copy of the Manual is available to Discipline Committee members during discipline hearings. In the Manual, Discipline Committee members are cautioned not to “speak to any person involved in the hearing…or witnesses, while the hearing is in progress” and that their findings “must be made exclusively on the evidence presented at the hearing”.

13The College did not set up any formal measure to ensure that Dr. Chart not communicate with the members of Dr. Li’s Discipline Panel before the decision on December 19, 2002, and the release of the written reasons on May 23, 2003.

14After her appointment to the Discipline Committee on November 29, 2002, Dr. Chart did not attend any formal meetings with any members of the Discipline Committee until January 8, 2003, when she attended a new-member orientation session. None of the Panel Members from Dr. Li’s discipline case attended that session, as they had received orientation in prior years.

15In the winter of 2003, Dr. Chart sat on Discipline Panels with members of the Panel that heard Dr. Li’s case as follows:

(a) January 20, 2003 – CPSO v. Cauchi

(b) February 17-21, 2003 – CPSO v. Cowan

16Several months after the Committee issued its reasons on May 23, 2003, Dr. Li’s counsel learned for the first time that Dr. Chart had been appointed to the Discipline Committee.

17On September 19, 2003, Dr. Li’s counsel wrote to the College prosecutor indicating that it had come to his attention that Dr. Chart may have begun sitting as a member of the Discipline Committee in early 2003 and asking that the College confirm her membership and the date of her appointment to the Committee. Dr. Li’s counsel sent subsequent letters dated October 3, October 20, 21 and 27, requesting an answer to his letter of October 3, 2003.

18The College replied by letter dated October 9, 2003, prompting Dr. Li’s counsel to make further inquiries in a letter dated October 30, 2003. Almost two months later, on December 22, 2003, defence counsel again wrote to the counsel requesting disclosure of the information. Following further prompting, on February 18, 2004, the College answered the request for information of October 30, 2003.

THE STANDARD OF REVIEW

19In considering the question of a reasonable perception of bias, a court owes little, if any, deference to the College. It is the court’s function to enforce the rules of natural justice and procedural fairness. (Gale v. College of Physicians and Surgeons of Ontario, [2003] O.J. No. 3948, Q.L.)

20Where a tribunal is said to have failed to give a party natural justice, the court does not need to engage in an assessment of the appropriate standard of review, but goes directly to the question whether the rules of procedural fairness or the duty of fairness have been adhered to. The court assesses the specific circumstances and determines what safeguards were required to comply with the duty to act fairly. (London (City) v. Ayerswood Development Corporation, [2002] O.J. No. 4859 (C. App.) at ¶10).

THE TEST FOR REASONABLE APPREHENSION OF BIAS

21The parties agree the test for reasonable apprehension of bias is as follows:

“What would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude?”

Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369

22The relevant inquiry is not whether there was, in fact, either conscious or unconscious bias on the part of an adjudicator, but whether a reasonable person properly informed would apprehend that there was bias. (Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259)

23If a reasonable apprehension of bias is found to exist, the decision is void ab initio and a new hearing must be ordered, regardless of whether it may appear to a reviewing court that the hearing would likely have resulted in a different decision. A reviewing court cannot deny the right to an independent and impartial hearing on the basis of its view as to what the result might have been had there been a fair hearing. (Newfoundland Telephone Co. v. Newfoundland (Public Utilities Board), [1992] 1 S.C.R. 263.

THE POSITION OF THE PARTIES

24Dr. Li’s counsel submits the apprehension of bias arises from the appointment to the Discipline Committee of an expert who had testified before a Panel of that Committee and assisted the prosecution. Moreover, members of the Panel participated in the appointment of Dr. Chart to the Discipline Committee. The defence was never told of these events. Counsel submits the members of the Panel would have to weigh Dr. Chart’s evidence, for the purpose both of making a decision and drafting reasons with the knowledge that she was a colleague of theirs on the Committee alongside whom they would sit on other Panels in the future. Although there is no evidence as to whether Dr. Chart ever discussed this case with members of the Panel, she had “private dealings” with several Panel members when she sat on Panels with them in other cases while the reasons were being drafted. Counsel submits the College was asking the Panel to accept Dr. Chart’s evidence on “core” and contentious issues. The defence was relying on conflicting evidence of its own expert and asking the Panel to prefer its expert to Dr. Chart on certain points. Further, there was no evidence of any institutional mechanism put in place by the College to ensure that Dr. Chart did not speak to the members of the Panel, as was the direction from the College to newly-appointed members to the Discipline Committee. The failure to disclose all this to the defence until after the reasons for the decision were issued prevented the defence from attempting to re-open the examination of Dr. Chart and to explore to what extent, if any, she had discussions about Dr. Li’s matter with the Panel members.

25Counsel for the College submits that an informed person would have to consider the practical reality of the College’s institutional structure. Counsel submits the College is responsible for many aspects of regulation (registration, complaints, discipline, incapacity, patient relations, quality assurance, etc.) and that while the College is a single corporation, the reality of its structure is that the various functions are administered separately. It was not reasonable to assume that completely separate functional arms of the College (the Nominating and Discipline Committees) should be aware of the other’s activities. The College submits the onus is on the appellant; there is a presumption of impartiality. The College further submits it is not reasonable to assume that the Panel holds Dr. Chart’s evidence in greater esteem simply because she was appointed to the Committee. Physicians who testify as experts are inevitably well-known both within and outside the College. In any event, says the College, there was virtually no conflict in the testimony of Dr. Chart and Dr. Rudner, the two opinion experts.

WHAT A REASONABLY-INFORMED BYSTANDER WOULD KNOW

26The hypothetical informed bystander would learn the following:

a) the decision of the Panel puts an end to Dr. Li’s professional life;

b) Dr. Chart obviously believed it would be preferable to be appointed to the Discipline Committee after the hearing of Dr. Li’s matter was completed;

c) in convicting Dr. Li, the Panel was required to weigh the evidence of Dr. Chart, where it conflicted with the defence medical evidence on the issue of Dr. Li’s standard of care;

d) following her evidence, Dr. Chart continued in the hearing with one minor absence to assist the College prosecutor;

e) the evidence in Dr. Li’s hearing concluded on November 22, 2002;

f) Dr. Chart was appointed to the Discipline Committee on November 29, 2002;

g) closing arguments in Dr. Li’s hearing took place on December 16 and 17, 2002;

h) the Panel delivered its oral decision and heard and determined the issue of penalty on December 19 saying that its reasons would follow;

i) Discipline Committee members were cautioned not to “speak to any person involved in the hearing or witnesses while the hearing is in progress”;

j) contrary to this policy of the College, Dr. Chart sat with members of the Dr. Li Panel on three occasions in 2003;

k) no machinery was put in place by the College to ensure that its policy of non-contact between witnesses and Panel members should take place until a hearing was completed;

l) the proceedings were not completed until May 23, 2003, and the Panel members would be required to consider Dr. Chart’s evidence in the course of drafting the Committee’s decision;

m) Dr. Li’s counsel did not find out about Dr. Chart’s appointment to the Discipline Committee and her subsequent activity on that Committee with members of Dr. Li’s Panel until well after the reasons for decision were issued on May 23, 2003

n) from the time Dr. Li’s counsel initiated his first inquiry about Dr. Chart’s membership on the Discipline Committee, it took five months for defence counsel to obtain all the details of Dr. Chart’s participation in the Discipline Committee;

Having so informed him or herself of the above facts, the question remains for this court to determine what that informed person, viewing the matter realistically and practically and having thought the matter through, would conclude.

ANALYSIS

27I find that such an informed person viewing the matter realistically and practically and having thought the matter through, would conclude that it is more likely than not that the decision-maker, whether consciously or unconsciously would not decide fairly. There are a number of analogous cases, not directly on point, which assist me in coming to this conclusion.

28A Prince Edward Island case involved the certification application by a trade union before the Labour Relations Board. A Mr. MacDonald was both a member of the Labour Relations Board and the business agent for the union seeking certification. Mr. MacDonald did not sit on the panel hearing the certification application, but the matter was brought before the trial division of the Supreme Court to determine whether these circumstances gave rise to a reasonable apprehension of bias. Chief Justice MacDonald commented on Mr. MacDonald being called as a witness at the hearing:

Here we have the situation of Mr. MacDonald being either a witness or propounder in this matter. As such, there will arise awkwardness in rejecting his testimony or the submissions made on behalf of the Union which he represents. Would a reasonable person be able to conclude that Board members would be able to separate their respective roles as Board member, witness, and propounder? I do not believe so. Persons who are appointed to the Board are, generally, not lawyers who have been trained, as part of their profession, to separate issues and parties. That is not to say that if Mr. MacDonald were a lawyer, in the present circumstance, I would reach a different conclusion. [U.F.C.W., Local 1252 (In Trusteeship) v. Prince Edward Island (Labour Relations Board), [1988] P.E.I.J. No. 11 (S.C.T.D.)]

29In Dr. Li’s case, it remained for members of the Panel to weigh Dr. Chart’s evidence, for the purpose of making a decision and for the purpose of drafting reasons, with the knowledge that she was a colleague of theirs on the Discipline Committee with whom they likely would be called upon to sit on other panels in the future. These circumstances could affect how the Panel members viewed her evidence, if only on a subconscious level.

30In Alberta, a witness gave evidence before the Public Utilities Board on behalf of certain industrial rate intervenors. At the time the evidence was given, the witness was on a retainer to the Board on a consulting capacity with respect to the Board’s approach to and process of analysis of a general rate application. The Alberta Court of Appeal held the mere fact that the witness had been retained as a consultant by the Board at some point in the past did not, in itself, give rise to a reasonable apprehension of bias. However, the fact that the witness continued to play this role at the time his evidence was considered was fatal:

The real thrust of Mr. Major’s complaint, as he conceded during oral argument, is not so much the past engagement of Drazen as its result: his ongoing relationship with the board. This, we think, is a legitimate concern. It is a dangerous policy to put Mr. Drazen in a position where he is at once advisor and witness. Assume, for example, that he has met regularly and privately with a member of the panel while his testimony is under consideration by that member. No matter how much the member protests that the merits were never discussed, a well-informed person can reasonably fear that these private dealings might lead the trier to hesitate to cause himself – and Mr. Drazen – the awkwardness of rejection of his testimony. A professionalism which transcends these concerns is not only demanded of but possible for those who perform a judicial role; but one might reasonably fear failure to comply with that standard by one who exposes himself to avoidable pressure of this sort. Private dealings between an individual member and a witness – unless shown to be totally innocuous – should not be permitted to occur while his evidence is under deliberation. [Re Public Utilities Board, [1985] A.J. No. 666]

31In Dr. Li’s case, there is no evidence whether Dr. Chart ever discussed the case with members of the Panel. What is known is that she had “private dealings” with some of them when she sat on Panels with them in January and February of 2003 while the reasons for the Panel’s decision were being drafted. There is no evidence one way or the other as to how innocuous these “private dealings” were. However, the College’s own policy was to instruct new members of the Discipline Committee not to speak to anyone while a hearing was ongoing in the circumstances in which Dr. Chart found herself. Indeed, as noted earlier, Dr. Chart herself had recognized the potential difficulty of being appointed to the Committee while a case in which she was a witness was ongoing.

32I reject the submission that the College’s institutional structure somehow explains or excuses the College’s failure to disclose Dr. Chart’s appointment to the Discipline Committee to Dr. Li’s counsel. At the meeting of November 29, 2002, the minutes of College Council show Dr. Guscott, Ms. Beecham and Ms. Frederick as present. The minutes show further Dr. Chart’s appointment to the Discipline Committee. The Panel members had to be aware of her membership on the Discipline Committee over two weeks before closing argument and the decision of December 19, 2002.

33I reject the submission that to all intents and purposes, the hearing ended on December 19, 2002. This is yet another example of the danger in announcing a decision “with reasons to follow”. The reasoning process may lead to a change of mind. In any event, it remained for the Panel to weigh Dr. Chart’s opinion on the standard of care during a period in which she sat with Panel members on other matters.

34I reject the submission there was virtually no conflict in the testimony of the experts. I refer to but two instances. They disagreed on the construction to be placed on Dr. Li’s remark that a patient’s boyfriend could carry out a breast examination. They disagreed on whether “cupping” of a breast could take place in a proper breast examination. The Panel was required to weigh these differences in its deliberations.

35The College’s failure to put in place a mechanism to prevent the very event College policy warned against – speaking “to any person involved in a hearing or witnesses while the hearing is in progress” – resulted in a breach of the policy. The further failure to disclose Dr. Chart’s appointment foreclosed any inquiry by the defence about what, if any, discussions she may have had with Panel members concerning Dr. Li’s case. The difficulty defence counsel had in obtaining the details of what happened does nothing to dispel a reasonable apprehension of bias.

36I find on a preponderance of the evidence a reasonable apprehension of bias to exist. The decision of the Panel is quashed as being void ab initio. It is therefore unnecessary to consider the other grounds for judicial review advanced by the applicant.

37The parties may make written submissions as to costs to be forwarded to the Registrar of the Divisional Court.

GRAVELY J.

CARNWATH J.

PITT J.

Released: 200409

COURT FILE NO.: 23/03

DATE: 20041001

ONTARIO