ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
THEN, GRAVELY AND WHALEN JJ.
B E T W E E N:
DR. RAVI DEVGAN
Appellant
- and -
COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO
Respondent
Joseph Markin, for the Appellant
Carolyn Silver, for the Respondent
HEARD: June 14, 2004
OVERVIEW
1The Appellant, Dr. Ravi Devgan, appeals to this Court from the decision of the Discipline Committee of the College of Physicians and Surgeons of Ontario (“the Committee”) dated April 30, 2003 whereby the Committee found Dr. Devgan to have engaged in professional misconduct in relation to his care and treatment of three terminally ill cancer patients. The Appellant also appeals the consequent decision on June 27, 2003 to impose the penalty of revocation.
2In general terms the Respondent, College of Physicians and Surgeons of Ontario, alleged that in providing alternative medicine to vulnerable terminal cancer patients at an exorbitant fee the Appellant failed to fairly and accurately explain what the patients could realistically expect in terms of results and that the Appellant further profited from the sale of medicines and vitamins he provided.
3Specifically, the notice of hearing alleged that Dr. Devgan committed the following acts of professional misconduct:
he failed to maintain the standard of practice of the profession under paragraph 1(1)2 of Ontario Regulation 856/93 under the Medicine Act, 1991 (O. Reg. 856/93);
he had a conflict of interest under paragraph 1(1)5 of O. Reg. 856/93;
he made a misrepresentation respecting a remedy, treatment or device under paragraph 1(1)13 of O. Reg. 856/93;
he made a claim respecting the utility of a remedy, treatment, device or procedure other than a claim which can be supported as reasonable professional opinion under paragraph 1(1)14 of O. Reg. 856/93;
he falsified a record relating to his practice under paragraph 1(1)16 of O. Reg. 856/93;
he charged a fee that was excessive in relation to the service performed under paragraph 1(1)21 of O. Reg. 856/93;
he committed an act or omission relevant to the practice of medicine that, having regard to all the circumstances would reasonably be regarded by members as disgraceful, dishonourable or unprofessional under paragraph 1(1)33 of O. Reg. 856/93;
he engaged in conduct unbecoming a physician under paragraph 1(1)34 of O. Reg. 856/93.
4The College withdrew allegations 1 and 8 as well an allegation of incompetence as defined by subsection 52(1) of the Health Professions Procedural Code (“the Code”).
5The Discipline Committee acquitted him of allegation (5) relating to the falsification of a record but convicted him of the remaining allegations and imposed the penalty of revocation.
6The general position of the Appellant on appeal is that the decision of the Committee is unreasonable as the allegations are not supported by the evidence to the required standard of proof and because the Committee erred in excluding or failing to properly take into account relevant evidence on the central issues. The Appellant submits that even if some allegations have been made out the penalty of revocation is excessive.
7The College has not appealed the acquittal with respect to allegation (5) but takes the position on appeal that there is ample evidence to support the reasonableness of the decision of the Committee with respect to those allegations of which the Appellant was convicted and that the Committee did not err either in excluding or failing to take into account relevant evidence. The College further submits that the penalty of revocation which was imposed is appropriate.
8For the reasons that follow I would dismiss the appeal as to both conviction and penalty.
FACTS
9The complainants were relatives of three terminally ill patients, Hugo Manzano, Angelo Colasanti and Julia Sarabando, who were treated by the Appellant for cancer of the pancreas, the lungs and the breast respectively and who are now deceased. Four witnesses were called by the College including the complainants as well as Celina Manzano, the daughter of Hugo Manzano. All witnesses were present in varying degrees at the initial assessment of the respective patients by the Appellant, at the decision to accept treatment and during the treatments which included non-traditional intravenous therapy and vitamin and mineral supplements. The Appellant and two of his staff testified for the defence. No expert witnesses were called by either party.
(i) Hugo Manzano
10On May 11, 2000, Mr. Manzano and his wife made an appointment for an initial consultation with the Appellant. Mr. Manzano had been diagnosed with pancreatic cancer at Mount Sinai Hospital and had had five chemotherapy treatments with no apparent success. He and his family knew his condition was very serious and Mr. Manzano wanted to try other options, including non-conventional treatment. The Appellant in his evidence confirmed that Mr. Manzano was “gravely ill”.
11Prior to his recommendation of any treatment Ms. Teofila Manzano implored the Appellant by means of a note to “please be as honest as possible with him and see what other alternatives there are for him”. She also personally asked the Appellant to be honest and tell them if he could not do anything. The Appellant agreed that it was “basic medicine” that the Walker Report Recommendations required him to fairly and fully explain both the advantages and limitations of both conventional and non-conventional treatment if unconventional treatment were offered to a patient.
12The Appellant did not consult Mr. Manzano’s medical records prior to commencing treatment but relied on the information given to him by Celina Manzano. The Appellant told Ms. Celina Manzano as well as her parents that he would cure Mr. Manzano by means of his “general protocol” treatment.
13Celina Manzano testified that the Appellant gave her literature regarding a substance known as “Carnivora” which was said to attack and destroy all varieties of cancer and which has successfully eliminated the tumours of several patients. The literature was critical of chemotherapy and radiation and indeed, Ms. Manzano testified that the Appellant told her that chemotherapy had a toxic effect and that it was the worst thing because it did not work and people got worse.
14The Appellant told the Manzanos the cost of four weeks treatment was $30,000 payable in advance but agreed at the request of the Manzanos to accept a weekly payment of $7,500 the day after the assessment so that treatment would begin immediately and a further $7,500 the following week. The money was withdrawn from their R.R.S.P.
15The Manzanos were informed by the Appellant that the treatment consisted of Carnivora therapy, I.V. and vitamins over a four week period, six days a week for three to four hours per day. The Manzanos testified that the Appellant did not personally participate in any of the treatments which were administered by a nurse. They were advised by the Appellant that the travel required by him to obtain Carnivora in Mexico was the reason for the expensive treatment. On cross-examination the Appellant admitted that the cost of the medication accounted for only a small portion of the fee ($1,375.00 of $15,000.00).
16The treatment ended on May 24, 2000 and the following day Mr. Manzano was admitted to hospital where he died on June 16, 2000.
17Mrs. Manzano requested a refund of the $15,000 but the Appellant told her that he would give back only $3,000 as the remainder was for research, an expense to which the Appellant had not previously referred. No refund was given. The Appellant testified that he was not obliged to refund any money because of the agreement between them but declined to refund the $3,000 because Mrs. Manzano had lied about the funeral expenses as she asked for the refund while her husband was still alive.
(ii) Angelo Colasanti
18Angelo Colasanti was diagnosed with terminal lung cancer in the fall of 1997. The cancer had metastasized to the bone and conventional therapy including chemotherapy had been discontinued by his physicians. Because Mr. Colasanti’s condition was deteriorating, his son Cesare, went to see the Appellant with his father after faxing his father’s complete medical records to the Appellant hoping that unconventional treatment would help his father.
19The Appellant agreed that Mr. Colasanti who was very depressed and crying at the initial assessment was gravely ill. The Appellant nevertheless stated that he could help him by making him feel better, improve the quality of life and hopefully extend his life. The Appellant told the Colasantis that he had another patient similar to Mr. Colasanti who had a tumour approximately the size of a grapefruit that had shrunk by 50% during the therapy offered by the Appellant. Cesare Colasanti could not recall the Appellant discussing conventional treatment or the experimental nature of the Appellant’s own treatment.
20The Appellant offered his treatment at a cost of $30,000 (U.S.) on a monthly basis payable in advance. The Colasantis provided the money the same day by liquidating their long term G.I.C.’s because they were “desperate”. The treatments consisted of I.V. containing vitamins and minerals administered by nurses over several hours each day. The Appellant did not physically examine Mr. Colasanti nor administer the treatments spending less than a couple of minutes with Mr. Colasanti for the treatments.
21Approximately sixteen or seventeen treatments took place between March 18 and April 4, 1998. The last two were administered at an apartment rented by the Colasantis because Mr. Colasanti was too ill to go to the Appellant’s office. The Appellant agreed that but for a slight initial improvement the treatment was unsuccessful, that the cost of the medication was far less than the amount charged and that Mr. Colasanti did not receive all of the services that he paid for up front. The Appellant also agreed that the $30,000 (U.S.) monthly payment requirement up front would fairly imply to the patient and his family that the treatments would prolong or sustain life for at least that period.
22On April 4, 1998, Mr. Colasanti was taken to Sunnybrook Hospital where he remained until April 14, 1998. He died en route to his home. The Appellant refused a refund for the unused treatments as his agreement with the Colasantis did not obligate him to do so.
(iii) Julia Sarabando
23Antonio Sarabando testified that his wife Julia had terminal breast cancer which had metastasized to the bone when they initially saw the Appellant on September 25, 1997. On that occasion, the Appellant stated he would help his wife if they could afford it. Specifically, the Appellant stated he could cure her in approximately three months. The Appellant denied having made this claim and indeed stated it would be improper to do so.
24Although the Appellant requested the full cost of treatment in advance he agreed to accept Visa and MasterCard payments of $280 per treatment with the first treatment commencing on the initial visit. Over the course of treatment the Sarabandos paid the Appellant $42,000.
25The treatment for Mrs. Sarabando included I.V. injections, Demerol for pain and Polydox, an experimental treatment. The Appellant was not present for the treatments which were administered by nurses.
26At first the treatments improved Mrs. Sarabando’s condition but after approximately two months her condition began to deteriorate notwithstanding increased dosages. Subsequently, the Appellant told Mrs. Sarabando that Polydox and Herbs for Life would cure his wife and charged him $4,500 (U.S.) when the cost to him was $1,150 (U.S.).
27Mrs. Sarabando died on October 22, 1999.
28Dr. Devgan denied that he told the Manzanos his treatments would cure Mr. Manzano but claimed that he told them that the treatments would help Mr. Manzano feel better and become stronger to fight the cancer and might prolong his life. Dr. Devgan also maintained that he told the Manzanos that his treatment did not help all patients. Dr. Devgan stated that not only did he not offer a cure but emphasized that it was his practice to tell all his patients that he was not offering a cure in his examination-in-chief as follows:
Q. Was there any discussion about the fact that it’s not a cure?
A. I try to emphasize that in each case, especially when a patient is desperate. I say I cannot promise you a cure, only God can do that. Patients do like to put those words in your mouth, but I emphasize that this is not meant to be a cure.
29Ms. Vanmaurik testified that she never heard the Appellant tell anyone he was going to cure their cancer. It was not a part of her duties to attend at the initial consultation which normally lasted an hour or an hour and a half. For the most part she remained at reception but would on occasion be called up by the Appellant to either obtain or provide information. She had no specific recollection of the Sarabando consultation. She recalled being at the Manzano consultation for a few minutes and at the Colasanti consultation for a little longer, maybe 10 or 15 minutes.
30Ms. Ionescu, the Appellant’s nurse, testified that to the best of her recollection she never heard the Appellant promise to cure patients of cancer. In her view, no health professional would guarantee that. She attended for 10 to 15 minutes but not the whole of the Sarabando consultation but did not attend at either the Manzano or Colasanti consultation.
31Ms. Y. Vanmaurik the Appellant’s office manager testified that there was a 50% markup on oral products for which there was a price list in the office and that the price for health food products was approximately the same as patients could get it for at the health food store. These products were kept as a convenience for their patients.
32On the issue of sale of medication to his patients, the Appellant was cross-examined as follows:
Q. And I take it when you talk about your raw cost, you agree that what you charge to the patients for these medications is often more than your raw costs; correct?
A. Well, I’m not selling the medication to the patient, I’m administering a therapy, and I’m charging for the therapy.
Q. Right, but you have a price list showing the cost of medications; correct?
the medication to you; correct?
A. Yes.
Q. And if you turn up with me Exhibit 21 A. True, if someone wants to buy a bottle of any of these items, that’s what it would cost them.
Q. Right, and I’m saying if someone wants to buy a bottle of something, you charge often more than your actual raw cost, there’s some inflation of the price, the amount of the inflation may vary; is that right?
A. Yes, that’s right.
Q. So you charge . . . what you give to them, the medication, is at a profit to you, if we’re just talking about the actual medication; correct?
A. Yes.
Q. And just in terms of we talked about costs of other medication before the break, and you agreed with me that you do sell certain medications to patients at a price that exceeds your cost, or at a profit; correct?
A. Add a prescription fee, yes.
Q. You said that it may cost you x, and you charge the patients a price higher than that, which amounts to a profit to you, I think you agreed with me before lunch, isn’t that fair?
A. It’s a profit subject to overhead, yes.
Q. Right, subject to your overhead, but there is a profit in the actual cost of, I’ll just give you a copy of it, Doctor, this is a letter which attaches a price list of medications and drugs that you give to patients; correct?
A. Yes.
Q. And these are the price that you, through your counsel, provided to the College; correct?
A. Through my counsel? No.
Q. Well, it was sent to the College through your counsel?
A. Okay, yes.
Q. Right, but you were the one who filled in the prices to make sure they’re accurate; correct?
A. Yes.
Q. And if you’ll turn with me going to the chart, Doctor, I just want to go through some examples.
33Ms. Vanmaurik testified that there was a sign posted in the office advising patients that the treatments were unproved. There is no evidence however that the patients which are the subject of these charges either saw this sign or were directed to it.
34On the issue of the fees to cover patients Ms. Vanmaurik was of the view that the major components were the costs of obtaining the medication including travel costs as well as nursing care. The Appellant stated that his fees were consistent with those charged internationally by clinics offering similar treatment and included expenses for obtaining the medication, travel, research and overhead.
35The Appellant admitted on cross-examination that he had a criminal conviction for one count of fraud and one count of making a false statement for which he had received a three month intermittent sentence and a restitution order in one case in the amount of $72,000 and in the second case for $128,000.
STANDARD OF REVIEW
36Counsel for the Appellant has not specifically addressed the standard of review. However, I agree with counsel for the Respondent that section 70 of the Health Professions Procedural Code provides for an appeal of the Discipline Committee’s decision on questions of law or fact or mixed questions of law and fact and that it has been conclusively established by the Supreme Court of Canada that the standard of review applicable on this appeal is reasonableness simpliciter. (See: Dr. Q. v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] S.C.J. No. 18 at paras. 16, 20-21, 36; Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] S.C.J. No. 17 at para. 27).
37In Ryan, supra, Iacobucci J. has outlined the approach that this court must follow in determining whether this court may interfere with the decision of the Committee as follows:
[48] Where the pragmatic and functional approach leads to the conclusion that the appropriate standard is reasonableness simpliciter, a court must not interfere unless the party seeking review has positively shown that the decision was unreasonable (see Southam, [1997] 1 S.C.R. 748, supra, at para. 61). In Southam, supra, at para. 56, the Court described the standard of reasonableness simpliciter:
An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. [Emphasis added]
[49] This signals that the reasonableness standard requires a reviewing court to stay close to the reasons given by the tribunal and “look to see” whether any of those reasons adequately support the decision. Curial deference involves respectful attention, though not submission to, those reasons.
[55] A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere (see Southam, supra, at para. 56). This means that a decision may satisfy the reasonableness standard if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling (see Southam, supra, at para. 79).
[56] This does not mean that every element of the reasoning must independently pass a test for reasonableness. The question is rather whether the reasons, taken as a whole, are tenable as support for the decision. At all times, a court applying a standard of reasonableness must assess the basic adequacy of a reasoned decision remembering that the issue under review does not compel one specific result. Moreover, a reviewing court should not seize on one or more mistakes or elements of the decision which do not affect the decision as a whole.
38I also bear in mind that it is not for this Court to overly scrutinize the language employed by the Committee in its reasons but rather to assess the substance of the reasons as a whole. In Re Del Core and Ontario College of Pharmacists (1985), 51 O.R. (2d) 1 (Ont. C.A.), Finlayson J.A. stated this principle at p. 7 as follows:
….. It was never intended that the decision of bodies such as this should be subject to such painstaking scrutiny as the Divisional Court has recorded here. The Court must be cognizant of the fact that not only are the members of the disciplinary bodies such as the College of Pharmacists experts in the field of their profession and thus knowledgeable of the problems of the profession, they are lay persons so far as the law is concerned. The courts have consistently held that the reasons given by discipline committees of self-governing bodies must be the reasons of the committees and cannot be written by counsel or professional staff: …..This being the case, it follows that courts should not be overly critical of the language employed by such bodies and seize on a few words as being destructive of the entire disciplinary process.
ANALYSIS
39As set out by McLachlin C.J.C. in Dr. Q. v. College of Physicians and Surgeons, supra, the task of the Committee in dealing with the allegations against the Appellant in this case was as follows:
[11] The Committee had three tasks before it in dealing with the allegations…first, it had to make findings of fact, including assessments of credibility; second, it had to select the appropriate standard of proof; and, third, it had to apply the standard of proof to the facts as found to determine whether the alleged impropriety had been proven.
40In its reasons for decision, the Discipline Committee stated at page 15:
Accordingly, the Discipline Committee is persuaded that the College has proved its case on the allegations contained in paragraphs 2, 3, 4, 6 and 7 of the Notice of Hearing on the basis of clear, cogent and compelling evidence on a balance of probabilities.
41The Appellant takes no issue that the standard of proof was correctly stated by the Committee in accordance with that outlined by this Court in Re Bernstein and the College of Physicians and Surgeons of Ontario (1977), 76 D.L.R. (3d) 38 and I am satisfied the Committee in discharging its second task employed the appropriate standard of proof.
42Rather it is the position of the Appellant that the Committee, in dealing with the allegations against the Appellant, failed to discharge its first task either by not making important findings of fact or by failing to give reasons for certain findings of fact and by erring in its assessment of credibility. The Appellant also takes the position that the Committee failed to discharge its third task because its factual findings were either not supported by evidence to the requisite degree of proof or because important evidence was either ignored or excluded.
43In assessing these submissions it will be convenient to deal with the allegations against the Appellant by grouping certain of the allegations together in the same manner as the Discipline Committee.
Misrepresentation/Making a Claim Respecting a Treatment
44The Discipline Committee reconsidered allegations 3 and 4 together as both these allegations encompass the representations and claims made by the Appellant with respect to the results that his treatments would produce. It is evident from the reasons of the Committee for conviction that the Committee considered these allegations to be the most serious. This is also reflected in the Committee’s decision on penalty.
The Findings of the Committee
45On the issue of credibility, the Committee found as follows:
The Discipline Committee found the four witnesses called by the College to be credible, sincere and forthright and accepted their testimony as fact with the exception of the testimony of Celina and Teofile Manzano regarding Hugo Manzano’s signature. The Discipline Committee found Dr. Devgan to be somewhat dismissive of the seriousness of the issues, particularly the extent to which the deceased patients may not have understood the prospects of improvement of their conditions.
46The Committee stated that the allegations raised the following issues:
(i) Did Dr. Devgan misrepresent the efficacy of such treatments to vulnerable cancer patients and their relatives?
(ii) Did Dr. Devgan make claims with respect to such treatments which could not be supported as reasonable and did he explain adequately what results could be expected from such treatments?
47The Committee found a common factual context with respect to the initial involvement of Mr. Manzano, Mr. Colasanti and Mrs. Sarabando with the Appellant. All three were gravely ill with cancer with conventional therapies largely exhausted; all three were immigrants whose first language was not English; all three and their families came to the Appellant with hope that something could be done to ease their suffering and improve their condition; all had the expectation that the Appellant, as a physician, would be honest and forthright about the prospects of improvement from his treatments.
48The gravamen of the Committee’s decision is as follows:
It is important to be clear that properly informed patients who are not misled or given inadequate information may choose to pay for the kinds of treatments offered by Dr. Devgan. The use of Carnivora, TVZ-7 and the other remedies provided to these patients was not at issue in this hearing. What the Discipline Committee is concerned about is the adequacy of information and ensuring sufficient understanding as to risks and benefits by patients who are very ill and desperate as in the cases here. The circumstances here show that desperate, terminally ill patients paid large sums of money for treatments that appeared to have little, if any, utility.
Further, we do not wish to suggest that physicians cannot tell patients that there may be positive outcomes notwithstanding very serious and often uncertain circumstances. However, a standard of reasonableness in the context of each case must apply such that where a patient is gravely ill and clearly terminal, caution must be exercised and clarity ensured in communicating with such a patient, particularly where English is not their first language. Patients in such circumstances may fervently wish to believe that there is hope for a cure or improvement. They may, as Mr. Colasanti suggested, have blinders on because they hope to hear a positive message. Physicians dealing with desperate people must be aware of this. The message must be delivered in a manner which does not overstate the prospect for improvement and which does not create unrealistic expectations.
In the circumstances of this case, the Discipline Committee accepts the evidence of Celina Manzano and Teofile Manzano that they understood that Dr. Devgan stated that he might be able to cure Mr. Manzano’s cancer. The Discipline Committee also accepts that Dr. Devgan informed Mr. Colasanti and Mrs. Sarabando, and their respective family members, that he would be able to make them more comfortable and might be able to improve their condition and prolong their lives. Dr. Devgan agreed that there might be an implied representation to the Manzanos and the Colasantis that in seeking a substantial up-front fee to cover treatment for a period of some weeks, there would therefore be an expectation of prolonging life for that period of time.
In all of the circumstances, the Discipline Committee finds that Dr. Devgan did make misrepresentations respecting the treatments that he offered and made claims respecting the utility of treatments that are not supported as reasonable professional opinion.
49Counsel for the Appellant submits that the Committee unreasonably concluded that the Appellant was guilty of allegations 3 and 4 because of a number of significant errors on important issues.
50First, it is submitted that there was little or no reliable evidence that any misrepresentations were made respecting the treatment administered by the Appellant to his patients. In my view, there is no merit to this submission.
51In assessing this ground of appeal I bear in mind the observation of the Chief Justice in Dr. Q., supra, at para. [38]:
[38] Finally, however, the need for deference is greatly heightened by the nature of the problem – a finding of credibility. Assessments of credibility are quintessentially questions of fact. The relative advantage enjoyed by the Committee, who heard the viva voce evidence, must be respected.
52In my view, there was evidence before the Committee on which it could reasonably make its findings and decide that the allegations had been proved. Mrs. Manzano and her daughter testified the Appellant could cure Mr. Manzano who died within a month notwithstanding the Manzanos request that the Appellant be as honest as possible. Mr. Colasanti said that the Appellant told him he could prolong the life of his father and make him more comfortable. Mr. Colasanti’s condition rapidly deteriorated within two weeks of the Appellant’s treatment and he died approximately one month after the treatments began. The Appellant conceded that his request for $30,000 (U.S.) up front representing one month’s treatment implied his treatments would prolong life for at least that time period. All of this evidence was accepted as credible by the Committee. Mr. Sarabando stated that the Appellant would cure his wife in three months. After initial improvement her condition deteriorated notwithstanding increased dosages and treatments. Counsel does not suggest that the Committee overlooked any gaps or inconsistencies in the evidence of the witnesses for the College such as to render them unreliable. In my view, there was ample evidence of egregious exaggerations of the efficacy of his treatments on the part of the Appellant in his representations to his patients and a corresponding failure to adequately and fairly outline both the advantages and limitations of conventional and unconventional treatment. In my view, it is appropriate in the circumstances of this case for this Court to defer to the findings of the Committee on the issue of credibility as there is no reason to interfere.
53Secondly, the Appellant submits that he was entitled to know why his evidence was disbelieved and that the failure to provide a reason is fatal to the conviction.
54I agree with counsel for the Appellant that the Committee’s reference to the dismissive attitude of the Appellant to the seriousness of the issues referred to in the passage quoted above where the Committee found the patients credible does not constitute a reason for rejecting the evidence of the Appellant. However, this Court has consistently held that while it is preferable to give reasons for rejecting the credibility of a witness, a failure to do so does not constitute reversible error.
55In Trotter v. College of Nurses of Ontario, [1991] O.J. No. 348, Craig J. stated:
It has been held that the reasons of a tribunal which is made up of persons who were not legally trained, ought not to be the subject of “painstaking scrutiny”. It is not fatal to a decision that specific mention is not made of certain evidence; nor is it fatal if specific reasons are not given before its rejection.
56In Callaghan v. College of Physicians and Surgeons of Ontario, this Court stated the following at para. [19]:
[19] It is apparent that the Committee did not accept the evidence of Dr. Stolberg as to the need for an elaborate statistical analysis of the work of the appellant and others in his department before arriving at the conclusions reached by Dr. Hobbs and Dr. Cockshott. It would have been preferable for the Committee to have made an express finding that it rejected the opinion of Dr. Stolberg, but the failure to do so does not, in our view, constitute reversible error.
57It is evident on this record that on the key issues of the representations and claims made by the Appellant to his patients as to the efficacy of his treatments and his failure to outline their limitations the Committee found the witnesses proferred by the College to be “credible, sincere and forthright”. It is evident that the Committee implicitly rejected the evidence of the Appellant which was in stark contrast to that of the patients because it lacked those attributes. Moreover, I agree with counsel for the College that there was ample evidence upon which to reject the credibility of the Appellant. First, as a matter of law, the criminal record of the Appellant for crimes of dishonesty is cogent evidence adverse to the Appellant on the issue of credibility. Secondly, there are significant inconsistencies in the evidence from which adverse findings as to the credibility of the Appellant were available to the Committee. For example (and these examples are not exhaustive) the Appellant asserted that he never treated a patient without their medical record but the evidence is clear that he treated Mr. Manzano without his medical record. On the issue of the falsification of the consent form he emphatically asserted that the consent form must be signed either in the waiting room or when the patient met with him. Later, he testified that not everyone signs the consent form and that a verbal consent is acceptable. I would not give effect to this ground of appeal.
58Thirdly, the Appellant also submits that the Committee erred in finding that the Appellant made misrepresentations respecting the treatments he offered and made claims respecting the utility of treatments that are not supported as “reasonable professional opinion” as there was no evidentiary basis as to what “reasonable professional opinion” is regarding the treatments provided by the Appellant. The Appellant submits that the Committee could not convict the Appellant on allegations 3 and 4 without expert evidence. In my view, there is no merit in this submission.
59On the facts of this case no expert evidence was necessary on the issue of “reasonable professional opinion” beyond that of the expertise of the Appellant himself and that of the medical members of the Discipline Committee. At issue in this case was not an assessment of the objective efficacy or merits of the treatments used by the Appellant but the representations and claims he made to the three patients as to the efficacy of the treatments. The Committee accepted the evidence of the patients’ family members that the Appellant would cure them (Manzano and Sarabando) or that he would prolong their life (Colasanti). The Committee accepted and the Appellant conceded that by taking a fee up front, the Appellant implied he would prolong life for the period which the fee represented (Manzano and Sarabando). The Committee also accepted the evidence of the patients family members as to the extent to which the Appellant discharged his obligation to outline the limitations of unconventional treatment in accordance with the Walker Report Recommendation, an obligation which the Appellant conceded was “basic medicine”.
60In my view, in the context of this case the most cogent evidence on the issue of “reasonable professional opinion” was that of the Appellant himself who testified that he told his patients that he could not promise his treatments could cure them but that only God could cure them and further that to tell a patient that his treatments would cure them would be medically improper. Once the Committee found as a fact that he did tell his patients that he could cure them or that he implied to them that he could prolong their lives for at least time represented by his fee there was in my opinion no need for the College to adduce expert evidence that this representation or the claims he made about his treatment were supported by “reasonable professional opinion”.
61Moreover, it was within the medical expertise of the Committee to determine on the basis of the medical evidence of the condition of the patients as well as the effect of the treatments on the patients whether the representations and the claims made by the Appellant were supported by “reasonable professional opinion”. Similarly, it was within the medical expertise of the Committee to determine if the adequacy of the explanations of the Appellant as to the limitations of his treatments conformed to the Walker Report Recommendations with respect to unconventional treatment were supported by “reasonable medical opinion”. The patients were entitled to fully understand the benefits and risks of what they consented to and it was within the expertise of the Committee to determine if the Appellant had fulfilled this obligation (See: Reddall and the College of Nurses (1983), 42 O.R. (2d) 412 at p. 416-17 (Ont. C.A.)). I would not give effect to this ground of appeal.
62Finally, the Appellant submits that the Discipline Committee erred in preventing the Appellant from introducing evidence which was relevant to the issues with respect to allegations 3 and 4 and which, if admitted would have made a difference to the outcome.
63Counsel for the Appellant before the Committee sought to have admitted the evidence of three or four cancer patients “as to a) the representations made to them by the doctor when the first went to him with regard to the treatment for their cancer; b) their condition with regard to their belief as to the terminal cancer they had, and c) the hope or success that had been derived, they believe, from this doctor’s treatment”. Counsel elaborated that the proferred evidence went to the big issue before the Committee, namely, what did Dr. Devgan tell his patients. Counsel put his submission on the issue of the representations made to other patients as follows:
There is evidence today that he promised a cure. There will be evidence that he offered them something else.
If you have …and that something else is that they in fact were not offered a cure but were told it had worked on other patients.
64The Appellant submits that the exclusion of this evidence, in particular of the representations made to these patients, as irrelevant constituted a breach of the Appellants rights to natural justice and denied him the right to defend himself against the allegations against him.
65In my view, the Committee did not err in excluding the proferred evidence of other patients as to their own opinion regarding their medical condition or their own opinion with respect to the benefits or successful results denied by him from the Appellant’s treatments. As I have stated the central issue before the Committee was not an assessment of the merits of the treatments but what representations or claims the Appellant had made with respect to the treatments and in particular, as counsel realized, whether his clients had claimed that his treatments would cure end stage cancer patients. In my view, the opinion of the other cancer patients as to the nature of their own condition and of the successes which they may have derived from the Appellant’s treatments had no probative value. Even if there was some minimal probative value in establishing the merits of the Appellant’s treatments with other patients I agree with the Respondent that it would only have been of assistance to the Committee and fair to the Respondent if the evidence had been adduced by the Appellant himself through the production of the medical records of the other patients. The Appellant did not avail himself of this approach and in his submission did not wish to be restricted in this fashion.
66However, the exclusion of the evidence of the representations made by the Appellant to other cancer patients is more problematic if, as the Appellant submits, the excluded evidence was admissible as evidence of habit or routine. Although counsel for either parties had not supplied the court nor the Committee with any authority on this issue, evidence of habit or routine has been ruled to be admissible both in a criminal and civil context.
67In R. v. Watson (1996), 108 C.C.C. (3d) 310 (Ont. C.A.) the accused in a murder case sought to introduce evidence that the deceased always carried a gun on the basis that if that evidence was admitted it would support the accused’s position that he was not involved in the murder. Although it is not necessary to set out the specific reasons of the court for admitting the evidence, it will be helpful to outline the legal principles elucidated by the Court of Appeal which inform the admissibility of evidence of habit or routine. At pages 324-326, Doherty J.A. stated the following:
Where a person’s conduct in given circumstances is in issue, evidence that the person repeatedly acted in a certain way when those circumstances arose in the past has been received as circumstantial evidence that the person acted in conformity with past practice on the occasion in question: Cross and Tapper on Evidence, 8th ed. (Markham, Ont: Butterworths, 1995) at pp. 25-26; Wigmore on Evidence (Tillers rev. 1983), vol. 1A, pp. 1607-1610; R. Delisle, Evidence: Principles and Problems, 4th ed. (Scarborough, Ont.: Carswell, 1996) at p. 38; McCormick on Evidence, 4th ed. (1992), vol. 1, pp. 825-830. For example, in McCormick at p. 826 it is said:
…Surely any sensible person in investigating whether a given individual did a particular act would be greatly helped in his inquiry by evidence as to whether that individual was in the habit of doing it.
The position taken in these authorities is, in my opinion, consistent with human experience and logic. The fact that a person is in the habit of doing a certain thing in a given situation suggests that on a specific occasion in which those circumstances arose the person acted in accordance with established practice. It makes the conclusion that the person acted in a particular way more likely than it would be without the evidence of habit. Evidence of habit is therefore properly viewed as circumstantial evidence that a person acted in a certain way on the occasion in issue. . . . .
The recognition that evidence of habit is relevant to prove conduct on a specific occasion begs the more fundamental question – what is a habit? McCormick at p. 826 describes habit as:
the person’s regular practice of responding to a particular kind of situation with a specific type of conduct. [Emphasis added.]
Habit therefore involves a repeated and specific response to a particular situation.
Mair’s graphic assertion that the deceased carried a gun “like a credit card. He never left home without it” strongly suggests repeated and specific conduct. Mair’s statement does not suggest that the deceased’s possession of a weapon was limited to any particular situation. To the contrary. Mair indicated that the deceased always carried a gun. The general nature of the habit described by Mair does not affect the relevance of the evidence, but would, along with other aspects of the evidence (e.g. the duration and regularity of the habit), go to the weight to be given to the evidence by the jury.
68It is also useful to refer to the observations of Professors Delisle and Stuart in Evidence. Principles and Problems, 6th edition, Carswell, where they explain with their customary clarity the basis of admissibility and the probative value of evidence of habit at p. 125:
Evidence of how a person acted on another occasion is evidence of a circumstance from which we ask the trier of fact to infer that the person acted in a similar fashion on the occasion being litigated. If the evidence is that the person always, invariably, acted in a certain way, the circumstantial evidence is very probative and deserves to be received. We label this as evidence of Habit but see it for what it is – a piece of circumstantial evidence, more specific than evidence of the person’s general character but differing only in degree and not in kind. If the circumstantial evidence indicates invariable habit the evidence is very powerful. If the evidence is that the person normally acted in that way the circumstantial evidence is less powerful. If the evidence is that he acted in that way occasionally the court may have concerns that the time necessary to hear the evidence may not be justified given the low probative value.
69In the civil context, the decision of the British Columbia Court of Appeal in Belknap v. Meakes (1980), 64 D.L.R. (4th) 452 is instructive as there is some factual similarity to the instant case. At pp. 465-6, Seaton J.A. stated the following:
The defence had a difficult time putting its case. Dr. Meakes was prevented from saying what he did before the operation. He could not specifically remember it. That is understandable. Nearly three years elapsed between the operation and the trial, and two and one-half years elapsed between the operation and the time the allegation of negligent blood pressure management was raised. Dr. Meakes said that his “pre-operative assessment is a very standard part of my practice” and that he could say what had happened “because this is a habit from which I do not waiver”. The trial judge said that he did not think the evidence was admissible unless the witness could “remember what he said to Mr. Belknap” and that if the evidence of Dr. Meakes’ practice from which he did not waiver was admitted it carried so little weight that it would be “not much help to me at all”.
If a person can say of something he regularly does in his professional life that he invariably does it in a certain way, that surely is evidence and possibly convincing evidence that he did it in that way on the day in question.
Wigmore on Evidence, vol. IA (Tillers rev. 1983), states that there is no reason why habit should not be used as evidence either of negligent action or of careful action (para. 97), and that habit should be admissible as a substitute for present recollection. Phipson on Evidence, 13th ed. (1982), paras. 9-22, reaches a similar conclusion.
70In the instant case there was no issue as to the admissibility of the evidence of the Appellant as to the representations he routinely claimed to have made to all of his cancer patients. It is of some importance to consider the Appellant’s own evidence of what he routinely told his patients before considering the admissibility of the proferred evidence of the 3 or 4 other cancer patients as to what the Appellant represented to them. The Appellant’s evidence was that he never told any patient that his treatments would cure them because to do so was improper. What he did tell them was that he could not promise a cure but that only God could do that. He told them that his treatments would not harm them but would help them feel better and to become stronger to fight the cancer and might prolong life and that while his treatments had helped some patients his treatments did not help all patients.
71In my view, the terse outline by counsel of the proferred evidence of the 3 or 4 other cancer patients simply amounts to this: 1) the Appellant did not say anything about a cure; 2) the Appellant did say that his treatment did “work” on other patients. In the context of the Appellant seeing four to five cancer patients a week over a number of years the proferred evidence that he did not mention a cure on 3 or 4 specific occasions which are not even identified by means of a timeline does not amount to evidence of any habit or routine on the part of the Appellant to never mention a cure within any of the authorities to which I have referred or have been able to find. In my view, at its highest this evidence may be minimally supportive of the credibility of the Appellant that he never mentioned a cure to his cancer patients. Even if the evidence could have been used for that limited purpose its probative value is so slight that it was properly excluded in the exercise of its discretion by the Committee.
72In McCormick on Evidence (5th ed.) Practitioner Treatise Series Vol. 1 (1999) West Group, the authors state that there must be enough instances to permit the finding of habit and provide a helpful example to demonstrate how evidence of specific instances may result in admissibility of evidence of routine conduct or exclusion at the discretion of the court. At p. 690 in footnote 22 the authors state:
- See, e.g., Strauss v. Douglass Aircraft Co., 404 F.2d 1152, 1158 (2d Cir. 1968); Wilson v. Volkswagen of America, 561 F.2d 494, 511-12 (4th Cir. 1977); Coats & Clark, Inc. v. Gay, 755 F.2d 1506, 1511 (11th Cir. 1985) (“the methods employed by a single warehouser at a single location are not sufficiently probative of the custom of the warehouse industry generally”); State v. Mary, 368 N.W.2d 166, 168-169 (Iowa 1985) (10-12 observations of nurse drawing blood samples adequate to show habitual features of her procedure); Weisenberger v. Senger, 381 N.W.2d 187, 191 (N.D. 1986) (insufficient number of observations to establish habit of driving on extreme right of narrow country roads); Steinberg v. Arcilla, 535 N.W.2d 444 (Wis.Ct.App.1995) (anesthesiologist’s regular response of positioning arms of patients in certain way during each of 65 to 70 cases per month); Lewan, supra note 1; Mode Code Evid. R. 307(3) (“many instances”); supra note 10.
And footnote 24 contains the following example:
See supra § 185. Thus, citing illustrations to the Model Code of Evidence Rule 307, the Federal Advisory Committee mentions the possibility of admitting testimony by W that on numerous occasions he had been with X when X crossed a railroad track and that on each occasion X had first stopped and looked in both directions, but that offers of ten witnesses, each testifying to a different occasion, might be excluded in the discretion of the court. Note to Fed.R.Evid. 406(b).
73It will be evident that in this case evidence of 3 or 4 witnesses who can testify only that the Appellant did not mention anything about a cure but do not purport to testify about anything the Appellant states he routinely or habitually did tell his patients about a cure does not rise to the probative value of the evidence mentioned in the example. In my view, the Committee was not unreasonable in excluding this evidence in its discretion nor was the Appellant deprived of natural justice or unfairly impeded in establishing his defence.
74Alternatively, even if the proferred evidence was technically admissible, its probative value is so slight that this is an appropriate case to apply the curative proviso as there was no substantial wrong or miscarriage of justice within the meaning of s. 134(6) of the Courts of Justice Act. (See: Khan v. The College of Physicians and Surgeons of Ontario (1992), 9 O.R. (3d) 641 at 675-6 (Ont. C.A.); Bartashunas v. Psychology Examiners, [1992] O.J. No. 1845 at p. 7 (Div. Ct.)). The Committee allowed the Appellant full opportunity to give evidence of his habitual and routine representations with respect to a promise of a cure and as well as to the three patients who are the subjects of the allegations. The Committee strongly endorsed the credibility of the patients’ family members and accepted their evidence. In my view, it cannot reasonably be said in the circumstances of this case that the evidence of the 3 or 4 proferred witnesses would have made any difference to the result. I would not give effect to this ground of appeal.
75In a similar vein, the Appellant submits that the Discipline Committee wrongly ignored the evidence of the Appellant’s witnesses, Ms. Vanmaurik and Ms. Ionescu. Both witnesses testified that they never heard the Appellant promise to cure a cancer patient. Once again, in my view, the evidence of these witnesses does not amount to evidence of habit or routine within the authorities.
76Ms. Ionescu was the Appellant’s nurse and it was not part of her duties to attend the initial consultation nor did she attend the consultation of any cancer patient save for 10 or 15 minutes of the Sarabando consultation which lasted for an hour or an hour and a half. In my view, she had no evidence of probative value to give on the issue of routine or habitual representations that the Appellant may have made promising a cure to his patients. At its highest the evidence of Ms. Ionescu was supportive of the credibility of the Appellant to the extent that in the 10 or 15 minute interval in which she was present at the Sarabando consultation the Appellant did not mention a cure. The probative value of this evidence is so slight that it could not reasonably have affected the result.
77The situation of Ms. Vanmaurik is somewhat different. While it was not part of her duties as receptionist and office manager to attend at the initial consultation, she would occasionally be called by the Appellant to attend briefly at the initial consultation of cancer patients to provide or obtain information. Indeed she attended at the Manzano consultation for a few minutes and at the Colasanti consultation for a little longer, maybe 10 or 15 minutes, again a consultation that lasted from one hour to an hour and a half. If her evidence had been that she attended many of the consultations for the entire duration of the consultation and that invariably no mention was made of a cure her evidence would have probative value. However evidence that she on occasion briefly attended the consultations where no mention was made of a cure can have only a very slight probative value and cannot amount to evidence that the Appellant routinely or habitually did not promise a cure to his patients. Again at its highest, the evidence of Ms. Vanmaurik may have slight probative value in supporting the evidence of the Appellant that he did not promise the Manzanos or the Colasantis a cure at least within the few minutes and 10 to 15 minutes during their respective consultation in which the witness was present. In my view, however, this evidence could not have affected the result.
78It is not appropriate to subject the reasons for decision of the Committee who are not legally trained to the same scrutiny as the reasons of a court. In my view, the observations of Craig J. in Trotter, supra (para. 55) are apposite:
It is not fatal to a decision that specific mention is not made of certain evidence… It is apparent from the reasons of the Committee, taken as a whole, that it did give careful consideration to the credibility of witnesses for and against the appellant. It has not been shown that they misapprehended the testimony of witnesses on important issues or that they failed to consider material parts of the evidence.
79I would not give effect to this ground of appeal.
Conflict of Interest/Charging an Excessive Fee
80The Discipline Committee considered allegations 2 and 6 together as both these allegations deal with the fees charged by the Appellant with respect to the sale of product to patients and for the administration of treatment to patients respectively.
(a) Conflict of Interest
81Allegation 2 deals with conflict of interest which is defined in Part 10 of Ontario Regulation 114/94 under the Medicine Act in section 16(d) as follows:
- It is a conflict of interest for a member where the member….
(d) sells or otherwise supplies any drugs, medical appliance, medical product or biological preparation.
82The Committee found based on the defence evidence given in cross-examination both by Ms. Vanmaurik (see para. 31 supra) and by the Appellant (see para. 32 supra) that there was a mark up as high as 50% on many of the medical products used and these medical products had been sold at a profit in breach of s. 16(d) of Reg. 114/94 under the Medicine Act and thereby found the Appellant guilty under allegation [2].
83In my view, there is ample evidence to justify the conclusion reached by the Committee. The Appellant has not discharged the burden on him to demonstrate that the conclusion of the Committee was unreasonable.
(b) Excessive Fees
84The Committee in its reasons considered the evidence of the Appellant that the fees for treatment in addition to overhead reflected the cost of research, and were comparable to other international clinics The Committee found that the “research” largely consisted of travel to observe other professionals and to obtain approval in Ottawa of certain medical products in Canada and not in research studies produced by the Appellant himself in relation to the effectiveness of the products. The Committee found little by way of publication or lectures by the Appellant manifesting his research.
85The Committee found:
The overall fees charged (e.g. $30,000 U.S. for one person for one month’s treatment at 6 days per week) seem excessive on their face in relation to the underlying cost of the drugs, the fact that most treatments were administered by a nurse and the office support services were performed by one person. The Discipline Committee was not satisfied that the vague references to Dr. Devgan’s research, which was the main basis offered for the added cost of treatment, were substantial enough to justify the fees charged…. The Discipline Committee was also satisfied that Dr. Devgan charged fees that were excessive in relation to the services performed.
86On this issue the Appellant submits that the Committee erred in not properly factoring into the fees charge the travel and research undertaken by the Appellant to obtain the substances and to appropriately dispense the treatments to his patients.
87In my view, there is nothing unreasonable in the approach which the Committee took in concluding that the fees were excessive in relation to the services performed and the research which had been undertaken to perform these services. There was overwhelming evidence that the medications and vitamins provided a small fraction of the fees charged. For example, in the Manzano case the Appellant agreed the medications cost a maximum of $1,375.00 of the $15,000 fee which was charged. By way of further example, the Appellant agreed that Mrs. Sarabando paid $4,500 (U.S.) for Polydox and Herbs for Life which cost the Appellant approximately $1,100 (U.S.). The evidence is clear that the Appellant took virtually no part in administering the treatments which were administered by one nurse and that office support consisted of one person. In my view, it was open to the Committee to weigh this evidence as well as the evidence proferred by the Appellant as to his travel to conduct research and the actual research produced by the Appellant in light of its expertise which draws upon its knowledge of medical matters and the practice and procedures of the profession. In this respect, this court accepts the direction of the Court of Appeal in Re Reddall and the College of Nurses (1983), 42 O.R. (2d) 412 where MacKinnon A.C.J.O. stated at p. 417:
On any appeal one would expect the Divisional Court to give considerable weight to the decisions of the Tribunal which has weighed the admissible evidence in light of its expertise and we do not deny the value of that expertise.
(See also: Re Golomb v. The College of Physicians and Surgeons of Ontario (1976), 68 D.L.R. (3d) 25 at 45 (Div. Ct.)).
88Secondly, the Appellant submits that the Committee could not conclude that the fees were excessive unless the College could provide evidence to contradict the Appellant’s evidence that his fees were comparable to those international clinics offering similar treatment.
89In my view, there is no merit to this submission. Although an examination of costs of comparable treatments may be a factor in determining whether the fee charged by the Appellant is excessive, such cost comparisons are not determinative as those costs may also be excessive. The issue is not whether the fees are similar but how the fees are derived. In its reasons the Committee properly took into account the evidence of the Appellant as to comparable fees for similar treatments charged by international clinics and appropriately observed that no further information was provided, i.e. on the key issue as to how the fees were derived. In my view, once the College has discharged its burden to show that the fees charged by the Appellant are excessive on the basis of evidence as to how they are derived, there is no additional burden on the College to demonstrate that the fees charged internationally for comparable treatments are also unjustifiable.
Disgraceful, Dishonourable and Unprofessional Conduct
90In its reasons the Committee accepted the College’s submission that if the Committee found the Appellant guilty of the allegations in the Notice of Hearing (exclusive of allegation (5)) taken together then the Committee could also find that the conduct set out in those allegations, taken together, would support a finding by the Committee that the Appellant had committed acts which are disgraceful, dishonourable and unprofessional so as to support a finding of guilt of allegation (7).
91The findings of the Committee illustrate this approach:
The Discipline Committee concluded from Dr. Devgan’s testimony and his demeanor at the hearing that he did not seriously consider dissuading patients from trying his treatments, regardless of the state of their illness, if they wanted to pursue non-conventional treatment. It was the clear impression from his testimony that Dr. Devgan would treat patients even where the prospect of real improvement was very slim. Particularly where the cost of treatment was so high and typically payable up-front, this caused the Discipline Committee great concern. Terminally ill, desperate and hopeful patients are entitled to choose appropriate treatments for themselves but it is the physician’s obligation to ensure that they understand fully the benefits and risks of what they consent to. Where, as here, the patients are so extremely vulnerable, inadequate explanations are given, the physician profits, and the fees are so great, the Discipline Committee is satisfied that Dr. Devgan’s conduct in relation to these three patients was disgraceful, dishonourable and unprofessional.
92As I understand his argument, the Appellant does not contend that all of the conduct in the individual allegations, taken together, cannot make out the allegation that the Appellant has committed acts which are disgraceful, dishonourable and unprofessional as a matter of law. The Appellant contends that because the conduct in the individual allegations must be taken together any failure on the part of the College to prove the conduct which is the subject of one or more of the allegations must necessarily result in a failure to prove allegation (7). While I accept the premise of this submission, it must fail in the circumstances of this case as I have found that the College has proved the conduct overlying the individual allegations (exclusive of allegation 5) taken together.
93Secondly, the Appellant contends in his factum that “by finding the Appellant guilty of both the specific offences as well as the basket clause set out in paragraph 7 of the Notice of Hearing, the Appellant was subjected to double jeopardy”. This submission must fail as in my view there has been no breach of the rule against multiple convictions. While the factual basis of the individual allegations, taken together, is the same as that of allegation (7), the constituent elements of the offences are different. The explanation given by the Divisional Court in Carruthers v. College of Nurses (1996), 31 O.R. (3d) 377 of the rule against multiple convictions as applicable to disciplinary proceedings provides a complete answer to the contention that the Appellant has been subjected to double jeopardy. At p. 399 Watt J. on behalf of the Court stated the following:
It would not seem contested that there is a sufficient factual nexus amongst the several allegations to warrant application of the principle. All arise out of the same conduct or transaction. In each instance, the relevant conduct consists of the kissing of M.B. by the appellant during the course of restraining procedures.
In my respectful view, however, the legal nexus which is critical to the application of the rule against multiple convictions is lacking in this case. Each count is a separate basis upon which the appellant may be adjudged guilty of professional misconduct. To be found guilty of professional misconduct on the basis of physical abuse of a patient, involves proof of matters quite different than required to establish failure to maintain the standards of the profession, or conduct which would reasonably be regarded by members as disgraceful, dishonourable, or unprofessional. The elements which go to guilt differ. Notwithstanding that there was a common act, kissing the patient, M.B., there were distinct delicts, causes or matters which properly sustain separate findings of guilt.
The rule against multiple convictions, if applicable to disciplinary proceedings, does not bar the findings of guilt made in respect of the appellant.
PENALTY
94In assessing the penalty of revocation imposed by the Committee it is important to set out some of the principles which must guide this Court.
95In Ryan, supra, Iacobucci J. explained the reason why courts should show deference to disciplinary bodies in imposing penalty. In my view, those reasons are as applicable in their context to the medical profession as to the legal profession. At paragraph 31:
[31] First, the Discipline Committee has greater expertise than courts in the choice of sanction for breaches of professional standards. By s. 55(1)(a) of the Act, the Discipline Committee is composed of a majority of members of the Law Society who are subject to the same standards of professional practice as the lawyers who come before them. Current members of the Law Society may be more intimately acquainted with the ways that these standards play out in the everyday practice of law than judges who no longer take part in the solicitor-client relationship. Practising lawyers are uniquely positioned to identify professional misconduct and to appreciate its severity (see Pearlman v. Manitoba Law Society Judicial Committee, [1991] 2 S.C.R. 869, at p. 890; Re Law Society of Manitoba and Savino (1983), 1 D.L.R. (4th) 285 (Man. C.A.), at pp. 292-93); on the matter of expertise, see also Moreau-Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11, at paras. 43-53).
96This court has consistently adhered to the principles articulated by Robins J. in Re Takahashi and College of Physicians and Surgeons (1979), 26 O.R. (2d) 353 (Div. Ct.) where at p. 364 he stated:
The Discipline Committee of a professional body is charged with a public responsibility to ensure and maintain high standards of professional ethics and practice. The penalty imposed by it against a member for professional misconduct, as has often been said, is not to be lightly interfered with. The committee in the proper discharge of its function is best able to assess the gravity of the misconduct and its consequences to the public and the profession. Unless there is error in principle, unless the punishment clearly does not fit the crime, so to speak, a Court sitting in appeal ought not to disturb the penalty and substitute its judgment for that of the committee.
97In imposing the penalty of revocation the Committee noted that the Appellant had been found guilty of professional misconduct for having a conflict of interest for which a reprimand and a $5,000 fine was imposed.
98In imposing revocation the Committee stated:
Physicians practising in Ontario must uphold the core values of the profession. Their colleagues and peers demand nothing less. The public deserves to be confident that their doctors will treat them with expertise and honesty. Complementary medicine is not the issue here. A doctor may offer this type of care without compromising core values of the profession and without offering false hope. This committee believes that in order to uphold the values of the profession and to protect the public, revocation is the only penalty that is appropriate in the circumstances of this case. Dr. Devgan preyed on his most vulnerable patients. The public needs protection from dishonest physicians who use their profession to exploit their patients.
99In upholding the penalty of disbarment in Ryan, supra, Iacobucci J. stated the following at paragraph [59]:
[59] Applying a somewhat probing examination of the Discipline Committee’s analysis and decision, I find that the reasons given by the Committee, taken as a whole, are tenable, grounded in the evidence, and supporting of disbarment as the choice of sanction. There is nothing unreasonable about the Discipline Committee choosing to ban a member from practicing law when his conduct involved an egregious departure from the rules of professional ethics and had the effect of undermining public confidence in basic legal institutions.
100Similarly, in the context of the present use, applying a somewhat probing examination of the Discipline Committee’s analysis and decision, I find that the reasons given by the Committee taken as a whole, are tenable, grounded in the evidence and supporting of revocation as the choice of sanction. There is no error in principle in revoking the licence of a physician who charges excessive fees to desperate people by promising cures which are conceded by him to be untenable and improper, in circumstances where as the Committee found, he does not fairly give his patients an opportunity to assess the merits of all available treatments as the Walker Report recommendations require and which the Appellant concedes is “basic medicine”. There is nothing unreasonable about revoking the right to practise of a physician whose conduct constitutes an egregious departure from appropriate practise and whose conduct undermines public confidence in his profession.
DISPOSITION
101For all of these reasons the appeals against both the convictions and the penalty are dismissed.
102If counsel are unable to agree upon costs of the appeal within 14 days of the release of these reasons, each counsel may file brief written submissions along with a draft bill of costs within 30 days of the release of these reasons. Thereafter, costs will be fixed.
Then J.
Gravely J.
Whalen J.
Released:
COURT FILE NO.: 337/03
DATE: 2005010131
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
THEN, GRAVELY AND WHALEN JJ.
B E T W E E N:
DR. RAVI DEVGAN
Appellant
- and -
COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO
Respondent
REASONS FOR JUDGMENT
Then J.
Released: January 31, 2005
