COURT FILE NO.: 285/04

DATE: 20050126

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Carnwath, Jarvis & swinton JJ.

B E T W E E N:

COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO

Applicant

• and -

DR. HENRY SHIU-YUEN AU, the DISCIPLINE COMMITTEE OF THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO AND C.A.R.S.A. aka THE NIAGARA REGION SEXUAL ASSAULT CENTRE

Respondents

Jennifer Scott & Lisa Spiegel, for the Applicant

Jonathan C. Lisus & Jennifer A. McKendry, for the Respondents

HEARD at Toronto: January 13, 2005

CARNWATH J.:

1Dr. Henry Shiu-Yuen Au is the subject of discipline proceedings brought by the College of Physicians and Surgeons of Ontario (“the College”). The Discipline Committee (“the Committee”) of the College is hearing allegations of sexual abuse by nineteen complainants during the course of their doctor-patient relationship between the years 1975 and 2002. Dr. Au has moved for disclosure of confidential third-party records relating to ten of the nineteen complainants.

2On motion of Dr. Au, the Committee ordered disclosure of certain records, purporting to apply the criminal standard for the release of such records. The issue to be decided is whether the Committee’s exercise of its discretion was reasonable.

BACKGROUND

3By notice of hearing dated October 15, 2003, the Complaints Committee of the College referred eight allegations of professional misconduct to the Discipline Committee. The allegations include sexual abuse of patients, sexual impropriety with patients, and conduct or acts relevant to the practice of medicine that having regard to all the circumstances, would reasonably be regarded by members of the College as disgraceful, dishonourable or unprofessional.

4The hearing was scheduled to proceed on April 19, 2004. Dr. Au moved before the Discipline Committee on March 15, 2004, for an order for the production of all clinical notes and records from twenty-four record-holders concerning ten of the nineteen complainants. The motion for production proceeded in two stages: the first stage dealt with the records of seven complainants and the second stage dealt with the records of the remaining three complainants.

5The Committee’s order and reasons for order on the first stage heard March 15, 2004, issued March 30, 2004. The Committee ordered certain clinical notes and records of various physicians produced in connection with Ms. D. MacD., Ms. A. P.-L., Ms. T.M., Ms. M. F.-L. and Ms. E. Cv.

6On the same day, March 15, 2004, the Committee made an order prohibiting the publication or broadcast of the names of the complainants in the proceeding or any information that could disclose the names or identities of the complainants.

7The following day, March 16, 2004, the Committee proceeded to review the clinical notes and records produced as a result of its order made on the preceding day. It ordered production of certain records involving four complainants, Ms. D. MacD., Ms. A. P.-L., Ms. T.M. and Ms. E. Cv.

8Following the Discipline Committee’s release on March 30, 2004, of its stage one and stage two orders and reasons for orders, the hearing was re-convened on April 12, 2004. The purpose of this hearing was to receive evidence and submissions in regard to an as yet unadjudicated portion of Dr. Au’s third-party records motion, which had been adjourned on consent to that date. The balance of the motion concerned third-party records in respect of three complainants, Ms. K.G., Ms. D.S. and Ms. D. MacQ.

9At the outset of the April 12 hearing, the Committee learned that the College intended to seek judicial review of the Committee’s orders and reasons for orders released on March 30, 2004. On the consent of both parties, the Committee ordered the hearing should be adjourned to resume upon final disposition of the judicial review application. The Committee also ordered a stay of those orders released March 30, 2004. Finally, the Committee concluded it had jurisdiction to proceed with the balance of the motion for production of third-party records in respect of the three complainants, K.G., D.S. and D. MacQ. On the agreement of both parties, the execution of any order made with respect to these three complainants would be stayed as well.

10The hearing on the last three complainants was held April 20 and 21, 2004, described in the Committee’s order and reasons for order as stage one – part 2. The Committee, in reasons issued June 17, 2004, dismissed the application for the records of Ms. K.G., D.S. and D. MacQ.

THE COMMITTEE’S STAGE ONE ORDER OF APRIL 30, 2004

11The Committee began by articulating what it considered to be the applicable principles and relevant considerations in the following terms:

The Committee considered the evidence filed, the very helpful submissions of counsel and the case law to which they made reference, and also considered the advice of its independent counsel. Each party highlighted a number of general principles applicable on such a motion.

The Committee concluded that the dual requirements of (i) ‘likely relevance’, and (ii) that production be ‘necessary in the interests of justice’, as discussed by the Supreme Court of Canada in R. v. Mills, apply to the stage one determination as to whether records should be produced to the Committee for its review. The Court’s earlier decision in R. v. O’Connor also bears continued importance, particularly as to the definition of ‘likely relevance’ and the analysis of that preliminary threshold.

Both parties agreed that burden of establishing ‘likely relevance’ rests on the moving party, Dr. Au. Both parties also adopted the definition of ‘likely relevance’ set out at para. 22 of O’Connor. The moving party is obliged to demonstrate likely relevance on the foundation of an evidentiary or informational basis that is case-specific. The approach must be contextual. There may, of course, be practical limitations on how specific a moving party can be in advancing this aspect of the argument given that the member has never seen the records to which he seeks access. The moving party may not, however, rely on stereotypical or purely speculative assumptions or reasoning. In this regard, while subsection 278.3(4) of the Criminal Code obviously does not apply to this discipline hearing, the Committee had some regard to the principles set out therein, by analogy. It is the bare reliance on the assertions set out in that provision that has been held to be insufficient; they may be relied upon if there is an appropriate evidentiary or informational foundation.

As counsel for Dr. Au pointed out, certain examples of potential relevance are reviewed in O’Connor at para. 29, including the example of records which may contain information concerning the unfolding of events underlying the complaint. However, the mere fact that a complainant saw a physician, psychiatrist or counsellor following the event, without more, is not among these examples and is insufficient to meet the threshold. As counsel for the College pointed out in reference to R. v. Batté, where the subject record contains statements made by a complainant to a therapist on matters potentially relevant to the complainant’s credibility, there must be some basis for concluding that the statements have some potential to provide the defence with some added information not already available to the defence, or have some potential impeachment value.

In assessing the likely relevance of the records sought on this motion, the Committee had regard to the fact that some of the alleged incidents are said to have occurred many years ago. Many of the records sought are relatively contemporaneous with the alleged events, and in certain cases (based on the complainants’ evidence at the criminal preliminary inquiry) may represent the initial recounting of events. Credibility will be a critical issue at the hearing, and in the case of certain complainants the existing documentary record as disclosed is limited. Indeed, in the case of two of the subject complainants (Ms A.P.-L. and Ms E. Cv.), Dr. Au has no clinical records and apparently has no memory of having treated these individuals.

As to whether production of records to the Committee is ‘necessary in the interests of justice’, the Committee considered and balanced the member’s core right to make full answer and defence with the complainants’ important constitutional rights of privacy, security of the person and equality. The Committee had regard to the Court’s direction in Mills that if the Committee concludes that it is necessary to examine a record to determine whether it should be produced to enable the defence to make full answer and defence, then production to the Committee for this purpose is necessary in the interests of justice. The aim is to seek the truth and ensure that there is no miscarriage of justice, while protecting to the greatest extent reasonably possible the complainants’ important privacy and related constitutional rights.

12The Committee then proceeded to consider the individual cases of Ms. D. MacD, Ms. A.P.-L., Ms. T.M., Ms. M.F.L. and Ms. E. Cv. It decided to review the records it had ordered produced (to the extent they were available) and determine whether any of the records should be produced to the parties as well as any conditions or limitations that might be attached to such production.

THE COMMITTEE’S ORDER AND REASONS FOR ORDER – STAGE TWO

13The Committee first articulated the principles it felt should be applied at the stage two determination:

In its decision in respect of the stage one determination, the Committee reviewed the applicable legal principles on such a motion. The dual requirements of ‘likely relevance’ and that production be ‘necessary in the interests of justice’ also apply to a stage two determination. There are two significant differences, however, on a stage two determination. First, the Committee has had an opportunity to carefully review the records ordered produced to it following the stage one decision. There is no longer any need to consider what may be contained in the records; the Committee can assess ‘likely relevance’ with a far greater degree of precision, and is better able to balance the member’s and the complainants’ competing constitutional interests having regard to what is actually contained in the records. Second, the context for production is different. The degree of intrusion on the complainants’ rights is clearly greater where the records are produced to the defence and thereafter may become evidence, or form the basis for questions, at the hearing. This is obviously a relevant consideration. At the same time, the member’s right to make full answer and defence can more accurately be evaluated having regard to what is specifically contained in the record.

14The Committee then concluded that the following documents should be produced to the defence and College counsel:

1. In respect of Ms D. MacD. portions of the chart of Dr. Rivers with redactions directed by the Committee;
2. In respect of Ms. A.P.-L. a single page excerpt of Dr. Leung’s chart;
3. In respect of Ms T.M. portions of Dr. Collinson’s chart with redactions as directed by the Committee;
4. In respect of Ms E. Cv. portions of the following clinical records with redactions as directed by the Committee: (i) Dr. Fakim’s chart; (ii) Dr. Sternadel’s chart.

15The Committee did not find the remainder of the records reviewed by it to be likely relevant to issues at the hearing or necessary to produce in the interests of justice.

16The Committee then articulated the factors it took into consideration in making its order:

• the seriousness of the allegations and the right of Dr. Au to make a full answer and defence;
• the privacy and equality rights of the complainants;
• the nature and substance of the records;
• the need to have sufficient context to understand the records;
• the extent to which Dr. Au and the allegations against him are noted in the records;
• the ability to assess the credibility of the complainants.

The Committee concluded by attaching conditions to the productions it ordered to ensure the confidentiality of the records.

THE POSITION OF THE PARTIES

17The College’s position is that while the Committee correctly held that the dual requirements of “likely relevance” and “necessary in the interests of justice” apply to the stage one determination of whether records should be produced to the Committee for its review, the Committee failed to follow the Mills test when it:

(a) applied the O’Connor [R. v. O’Connor (1995), 1995 51 (SCC), 103 C.C.C. (3d) 1 (S.C.C.)] test of ‘likely relevance’;

(b) failed to follow appellate jurisprudence relating to interpretation of ‘likely relevance’ under both O’Connor and Mills [R. v. Mills (1999), 1999 637 (SCC), 180 D.L.R. (4th) 1 (S.C.C.)];

(c) failed to apply s. 278 of the Criminal Code to the case before it; and,

(d) failed to give effect to the complainants’ rights to privacy and equality.

18Dr. Au’s position is that discipline proceedings, pursuant to the enabling legislation, are governed by civil rules of evidence. Nevertheless, counsel for Dr. Au submits the panel appropriately applied the principles identified by the Supreme Court of Canada in O’Connor and Mills and in R. v. Batté (2000), 2000 5751 (ON CA), 34 C.R. (5th) 197 (O.C.A.). Counsel submits that the burden on Dr. Au is a reasonable possibility that the information sought is “logically probative to an issue at trial”. The likely relevance threshold will be passed if there is some basis for concluding that the statements have some potential to provide the accused with some added information not already available to the defence or have some potential impeachment value (Batté, at para. 72). Counsel submits that the requirement an accused be able to show that the statements have some potential to provide added information or some potential to impeach credibility of the complainant is not an onerous one (Batté, para. 76). Contrary to the College’s assertion, counsel submits the panel undertook a case-specific analysis of each of Dr. Au’s records requests by first assessing the likely relevance of each record, then determining if it would be in the interests of justice to produce them to the panel for its review, and then repeating this same two- step process as part of its disclosure assessment.

THE STANDARD OF REVIEW

19Both parties submit that the standard of review of the Committee’s decisions is one of reasonableness and I agree. The application of a standard of reasonableness involves asking whether the reasons given, when taken as a whole, can support the decision after a somewhat probing examination. An unreasonable decision is one that is basically not supported by any reasons that can withstand a somewhat probing examination (Ryan v. Law Society of New Brunswick (2003), 2003 SCC 20, 223 D.L.R. (4th) 577 (S.C.C.)).

PREMATURITY

20Both counsel are in substantial agreement that this application for judicial review does not fall within the principle enunciated in Howe v. Institute of Chartered Accountants of Ontario (1994), 1994 3360 (ON CA), 19 O.R. (3d) 483 (C.A.). Normally, the court will only interfere with a preliminary ruling made by an administrative tribunal where the tribunal never had jurisdiction or has irretrievably lost it. However, the protection of the complainants’ privacy interests in this matter requires a determination at this stage of the proceedings; were it not so, the disclosure ordered would take effect and the privacy interest denied. Subsequent proceedings might well establish that the order should not have been made. That possibility must be eliminated at this stage of the proceedings.

ANALYSIS

21The Committee in its wisdom chose to be bound by the dual requirements of “likely relevance” and that production be “necessary in the interests of justice” as discussed by the Supreme Court of Canada in Mills. It adopted the Mills standard in consideration of the second stage. I find it unnecessary to consider whether the Committee is bound by Mills and the provisions of s. 278 of the Criminal Code – the Committee chose to have regard to the principles set out in the criminal law authorities by analogy. Given the importance of the privacy interests of the complainants and the potential consequences for Dr. Au’s licence to practise, I find it was reasonable for the Committee to make its decision in the light of Mills and the Criminal Code provisions.

22I reject the submission of the College that the Committee applied the O’Connor test of “likely relevance”. This submission may have been prompted because the Committee found that both parties adopted the definition of “likely relevance” set out in para. 22 of O’Connor. However, the Committee properly recognized that the bare reliance on the assertions set out in s. 278.3(4) of the Criminal Code was insufficient; the factors mentioned there could only be relied upon, the Committee found, if there was an appropriate evidentiary or informational foundation. Further in its reasons, the Committee stressed that the mere fact a complainant saw a physician, psychiatrist or counsellor following the event, without more, was insufficient to meet the threshold. The Committee instructed itself there must be some basis for concluding that the statements have some potential to provide the defence with some added information not already available to the defence, or have some potential impeachment value. I reject the College’s submission the Committee erred in law in failing to recognize that the breadth of the respondents’ requests for production was more akin to general discovery and the kind of “fishing expedition” declared improper by the Supreme Court in O’Connor. Of the nineteen complainants joined in the single prosecution, Dr. Au sought production of certain records of ten complainants. On stage one, the Committee ordered 80% of the records produced. On stage two, the Committee ordered disclosure of five records. I find this not to be a “wholesale production”.

THE INDIVIDUAL COMPLAINANTS CONSIDERED AT STAGE ONE

23In considering the Committee’s analysis of “likely relevance” and the “interests of justice” in the first stage, I find three factors applicable to the five complainants whose records were ultimately ordered produced.

24First, the context of the analysis was neither that of a domestic sexual assault nor a random sexual assault, rather that of an alleged assault in the course of a medical consultation. As was noted in the minutes of the B.C. Medical Association submitted to the Committee (Dr. Au’s Supplementary Application Record, Tabs E, F and G), patients may misapprehend medical procedures and perceive sexual connotations where none exist.

25Second, the Committee more resembled a jury than a judge. The Committee comprised three doctors and two lay people, a composition capable of bringing a sensitive approach to the respective constitutionally protected interests, the right of privacy and the right to make full answer and defence.

26Third, the complaints related to consultations from four to twenty years before the hearing. In some instances, Dr. Au had no recollection and no record of the complainant. For a doctor in a busy practice to recall details of consultations with individual patients that took place from four to twenty years before would be difficult indeed. It would not be unreasonable for the Committee to conclude that the records would be both relevant and important to the doctor’s ability to make full answer and defence.

27I turn, then, to the Committee’s findings with respect to the five individual complainants.

Ms. D. MacD.

28The Committee found the medical records of Dr. Rivers and Dr. Kraus met the threshold of likely relevance and that in the interests of justice they should be produced to the Committee. The Committee noted that the complainant testified at the preliminary hearing that she told both physicians of the alleged abuse by Dr. Au, but no mandatory reports were filed. The Committee was, no doubt, referring to Schedule 2 of the Regulated Health Professions Act, S.O. 1991, c. 18, known as the Health Professions Procedural Code. The Code requires a member of a health profession to file a report with the applicable Registrar of the member’s College on reasonable grounds, obtained in the course of practising, that another member has sexually abused a patient. I find the allegation of sexual abuse, coupled with the absence of a mandatory report, to be singularly case-specific. I find the Committee’s decision reasonable.

29The Committee also found that the records of Lisa Verberg, a counsellor, were likely relevant and that it was in the interests of justice that they be produced to the Committee, given there was a significant relationship with the complainant starting almost immediately after the alleged abuse. The Committee noted the close connection in time between the alleged abuse and the relationship. I find the Committee’s decision to be reasonable.

The Committee made the same finding with respect to the suicide note of April 12, 2001, made by Ms. D. MacD. The complainant testified at the preliminary inquiry that she had referred to Dr. Au in the suicide note and that his conduct was a reason for her attempt. The Committee noted that Ms. D. MacD. had signed a form authorizing the release to the Crown of certain hospital records which included the suicide note. I find the Committee’s decision on this point reasonable.

Ms. A. P.-L.

30The Committee found the records of Dr. George Henry, Dr. Cho Yau Leung and Dr. Chue Man Lau were likely relevant and it was in the interests of justice that they be produced to the Committee. Dr. Au had no records nor any memory of this complainant. The alleged conduct is said to have occurred more than twenty years ago. The Committee found that if Dr. Au’s records were passed on to any of the three physicians and remained with them, Dr. Au had a right to his own notes and records. There was no evidence of a mandatory report. I find the Committee’s decision to be reasonable.

Ms. T.M.

31The Committee found the records of Dr. Elizabeth Collinson and the records of Henry Smees, a counsellor, were likely relevant and that it was in the interests of justice that they be produced to the Committee. Ms. T.M. testified at the preliminary hearing that she saw Dr. Collinson immediately after she left Dr. Au. Furthermore, she recounted and discussed her concerns regarding Dr. Au with Dr. Collinson. Again, no mandatory report was filed with the College. Ms. T.M. testified at the preliminary inquiry that she discussed incidents involving Dr. Au with Mr. Smees on at least three occasions. There is no evidence of a mandatory report being filed. I find the Committee’s decision to be reasonable.

Ms. M. F.-L.

32The Committee found the record of Dr. Geffen, limited to June 13, 2002, was likely to be relevant and that it was it was in the interests of justice that it be produced to the Committee. Dr. Geffen, a pain specialist, saw Ms. M. F.-L. on June 13, 2002, at which time she informed him that she believed she had been sexually abused by Dr. Au. A mandatory report was filed. When I construe what the Committee considered against the provisions of s. 278.3 of the Criminal Code, I find insufficient case-specific factors to conclude the Committee’s decision was reasonable. I find it to be unreasonable.

Ms. E. Cv.

33The Committee found the records of Dr. Dowd, Dr. Sternadel and Dr. Fakim were likely to be relevant and that it was it was in the interests of justice that they be produced to the Committee for its review. Dr. Au had no record of his treatment of Ms. E. Cv. and did not remember her. The alleged incident is said to have occurred in 1985. The Committee found that if Dr. Au’s records formed part of the three physicians’ record that he had a right to his own notes. In addition, Ms. E. Cv. testified at the preliminary hearing that she told Dr. Dowd about the alleged incident with Dr. Au. There was no evidence of a mandatory report. I find the Committee was reasonable in its finding with respect to Ms. E. Cv.

THE COMMITTEE’S ANALYSIS IN THE SECOND STAGE

34The Committee correctly noted the dual requirements of “likely relevance” and that production be “necessary in the interests of justice” also apply to a stage two determination. It noted it was no longer necessary to consider what may be contained in the record; the Committee felt it could access “likely relevance” with a far greater degree of precision and was in a better position to balance a member’s and the complainants’ competing constitutional interests, having regard to what was actually contained in the records. The Committee correctly noted that the degree of intrusion on the complainants’ rights was clearly greater where the records are produced to Dr. Au and, thereafter, may become evidence or form the basis for questions at the hearing. The Committee found this to be a relevant consideration.

35The Committee then ordered portions of Dr. Rivers’ chart with redactions as directed by the Committee in respect of Ms. D. MacD.; the Committee ordered a single-page excerpt of Dr. Leung’s chart in respect of Ms. A.P.-L.; the Committee ordered portions of Dr. Collinson’s chart with redactions in respect of Ms. T.M.; the Committee ordered portions of the clinical records of Dr. Fakim and Dr. Sternadel with redactions in respect of Ms. E. Cv.

36The Committee found the remainder of the records unlikely relevant to issues at the hearing or unnecessary to produce in the interests of justice. The redactions ordered were directed to preserve the complainants’ privacy and equality rights in respect of portions of the documents which are not relevant to issues on the hearing.

37The Committee then took into consideration those factors set out in para. 15 above.

38Under all the circumstances, I find the Committee’s decision on the stage two analysis was reasonable.

CONCLUSION

39With the exception of the stage one order with respect to Ms. M. F.-L., the decision of the Committee is confirmed.

40The application is dismissed.

41If costs cannot be agreed upon, counsel have fifteen days to make brief written submissions as to costs.

CARNWATH J.

JARVIS J.

SWINTON J.

Released: 20050126

COURT FILE NO.: 285/04

DATE: 20050126

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

CARNWATH, JARVIS & SWINTON JJ.

B E T W E E N:

COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO

Applicant

• and -

DR. HENRY SHIU-YUEN AU, the DISCIPLINE COMMITTEE OF THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO AND C.A.R.S.A. aka THE NIAGARA REGION SEXUAL ASSAULT CENTRE

Respondents