COURT FILE NO.: 213/03

DATE: 20050914

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

o’driscoll, jarvis and whalen jj.

B E T W E E N:

DR. R.A.R.

Appellant

• and -

THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO

Respondent

Tracey Tremayne-Lloyd and Lad Kucis, for the Appellant

Lisa Brownstone and Carolyn Silver, for the Respondent

HEARD AT TORONTO: June 16, 2005

O’DRISCOLL J.:

I. Nature of Proceedings

1The Respondent, The College of Physicians and Surgeons of Ontario (CPSO), served a Notice of Hearing, dated February 7, 2001, on Dr. R.A.R., the Appellant, alleging that he committed the following acts of professional misconduct:

1. Under paragraph 29.30 of Ontario Regulation 548 (“O. Reg. 548”), R.R.O. 1990, the Health Disciplines Act, R.S.O. 1990, in that he engaged in sexual impropriety with a patient;

2. Under clause 51(1)(b.1) of the Health Professions Procedural Code (Code), in that he sexually abused a patient;

3. Under clause 1(1)33 of O. Reg. 856/93 made under the Medicine Act, 1991, S.O. 1990, in that he engaged in acts relevant to the practice of medicine that having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional; and

4. Under paragraph 27.33 of O. Reg. 548, in that he engaged in conduct or an act relevant to the practice of medicine that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional.

2The Discipline Committee of the CPSO heard the allegations at Toronto on February 11 and 12, 2002 and February 3, 4, and 5, 2003.

3In its decision, given orally on February 5, 2003 and in writing on March 21, 2003, the Discipline Committee found that Dr. R.A.R. had committed professional misconduct with respect to all four (4) allegations set out in the Notice of Hearing.

4The Discipline Committee concluded that the appropriate penalty in this case was revocation of Dr. R.A.R.’s certificate of registration and a reprimand as required by ss. 51(5) of the Code. The following order was made:

1. The Discipline Committee directs the Registrar to revoke Dr. R.A.R.’s certificate of registration effective immediately;

2. The Discipline Committee requires Dr. R.A.R. to appear before the panel to be reprimanded, and the fact of the reprimand to be recorded on the register;

3. The Discipline Committee orders Dr. R.A.R. to reimburse the College for funding up to the amount of $10,000.00 provided for the complainant under the programme required under s. 85.7 of the Health Professions Procedural Code, and directs Dr. R.A.R. to post security acceptable to the College to guarantee the payment of any amounts Dr. R.A.R. may be required to reimburse under this order.

4. The Discipline Committee orders Dr. R.A.R. to pay to the College within 30 days of the date of this order the partial costs of this hearing fixed in the amount of $10,000.00.

PENALTY ORDER IN ABSENCE OF MANDATORY PENALTY

Further, the Discipline Committee is of the opinion that, in the circumstances of this case, the only appropriate penalty would be revocation of Dr. R.A.R.’s certificate of registration, even if revocation were not mandatory under the Code. Therefore, the Committee concludes that it would make the same penalty order as specified in paragraphs 1 to 4 above in the event there was no mandatory penalty under the Code.

5This appeal was brought under s. 70(1) of the Code, being Schedule 2 of the Regulated Health Professions Act, 1991, S.O. 1991, C. 18:

s. 70(1) A party to proceedings before …. a panel of the Discipline…Committee, other than a hearing of an application under subsection 72(1), may appeal from the decision of the … panel to the Divisional Court.

(2) An appeal under ss. (1) may be made on questions of law or fact or both.

(3) In an appeal under ss. (1), the Court has all the powers of the panel that dealt with the matter…..

6The appellant requests that the Discipline Committee’s decisions with regard to findings of professional misconduct and penalty be set aside and the judgment be granted as follows: that the charges of sexual abuse be dismissed; that the sexual abuse and mandatory revocation provisions, as they relate to the appellant’s conduct, be declared invalid; that the professional misconduct charges be adjudicated pursuant to and any penalty imposed be pursuant to the provisions of the Health Disciplines Act. In the alternative, the appellant asks that this matter be remitted for a rehearing.

7At the outset of the hearing, the Appellant denied all allegations. However, his counsel invited the Discipline Committee to make a finding against him in respect of allegations 3 and 4 in the Notice of Hearing, namely that he had engaged in conduct that was disgraceful, dishonourable and unprofessional.

II. Chronology

8Counsel for the CPSO provided the members of the Court with the following “timeline”:

DATE EVENT

February 1, 1988 LC becomes Dr. R.A.R.’s patient

Approximately Spring 1992 Relationship becomes social; shortly thereafter, sexual

Approximately 1993 Dr. R.A.R. and patient begin living together

September, 1993 Dr. R.A.R. and patient become engaged.

January 1, 1994 RHPA sexual abuse provisions came into effect

October 30, 1995 Patient buys house that Dr. R.A.R. and patient move into together

Summer, 1996 Patient’s mother dies; relationship between Dr. R.A.R. and patient begins to deteriorate

December, 1996 Shortly after Dr. R.A.R. moves out, patient sells house

November 12, 1996; December 12, 1996 Dr. R.A.R. provides psychotherapy to

January 9, 1997; February 10, 1997 patient during and following break-up of relationship and during attempts at reconciliation (some appear to be while in Puerto Vallarta together)

February 14, 1997; March 17, 1997 Dr. R.A.R. signs physician statement of disability, describes patient as suffering from clinical depression and as “totally disabled from gainful employment”

Spring, 1997 Talk of reconciliation; Dr. R.A.R. continues to treat patient

Spring, 1998 End of doctor-patient relationship; patient

goes to another physician

Reasons of the Discipline Committee

Although Dr. R.A.R. denied all allegations at the outset of the hearing, his counsel invited the Committee to make a finding against him in respect of allegations 3 and 4 in that he had engaged in conduct that was disgraceful, dishonourable and unprofessional.

The Committee understands that acts of professional misconduct involving sexual relationships with patients that occurred prior to January 1, 1994 are covered by the provisions of the Health Disciplines Act and that such acts subsequent to January 1, 1994 are governed by the Regulated Health Profession Act, 1991. However, the Committee accepts unreservedly the College’s position that contemporaneous sexual relationships with patients have always been unacceptable and particularly so when the doctor-patient relationship precedes the sexual one.

In this case, the Committee accepts the evidence that LC was Dr. R.A.R.’s patient since 1988 and commenced a sexual relationship with him in 1991. LC’s evidence in this regard was not challenged. Both the doctor-patient and the sexual relationship continued until 1998. It is abundantly clear that Dr. R.A.R.’s misconduct spans both legislated periods.

Defence counsel argued that Dr. R.A.R. never engaged in a sexual relationship with LC under the guise of medical treatment. The Committee accepts the College’s position that sexual misconduct is not to be considered as qualitatively different based on the location of the acts. The law is very clear in this respect. It prohibits sexual relationships with a patient wherever they take place and not just within the context of a medical encounter. The Committee also considered that Dr. R.A.R. billed for multiple medical “visits” that took place in the same home that he shared with LC.

Defence counsel argued strongly that the relationship between LC and Dr. R.A.R. had become a spousal one by September 1993 and that this now pre-existing spousal relationship was then caught by the passage of the legislation in January 1994. He further suggested it was open to the Committee to interpret that the legislation was not intended to capture this type of relationship. The Committee unequivocally rejects this line of argument. The legislation leaves no opportunity for discipline panels to “interpret” the intent of the legislators. Sex with a patient is sexual abuse, regardless of whether the sexual relationship has a positive or negative outcome. Dr. R.A.R. knew, or ought to have known that sex with his patient prior to 1994 was unacceptable. By January 1, 1994 he knew, or ought to have known that such misconduct was now sexual abuse and that the public and the profession had adopted a zero tolerance to such behaviour. Notwithstanding this knowledge, he made no effort to disengage himself from LC either personally or professionally.

…Regardless of the inappropriateness of the sexual relationship in the first place, there is simply no justification for Dr. R.A.R. not to have transferred LC’s care to another physician once he was so clearly in breach of the accepted behaviour of his profession. In the Committee’s opinion, his failure to do so is perhaps the most egregious aspect of his misconduct.

III. Standard of Review

9The statutory right of appeal given in s. 70, supra, includes questions of law or fact or both. The RHPA does not contain a privative clause to screen the Discipline Committee from court scrutiny.

10The Supreme Court of Canada has determined that disciplinary bodies of self-governing professions should be awarded a large degree of autonomy and their decisions should not be interfered with “unless judicial intervention is clearly warranted”: Pearlman v. Manitoba Law Society Judicial Committee, [1991] 2 S.C.R. 869, 888.

11The Supreme Court of Canada said in Pezim v. British Columbia (Superintendent of Brokers), [1974] 2 S.C.R. 557, 591:

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

12In Re Takahashi and College of Physicians and Surgeons of Ontario (1979), 26 O.R. (2d) 353, 363 (Div. Ct.) Robins J. said:

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. [my emphasis]

13The Supreme Court of Canada in 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 and 36 and in the Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] S.C.J. No. 17 at para. 27 and the Divisional Court in Devgan v. College of Physicians and Surgeons of Ontario, [2005] O.J. No. 306 have held that the standard of review is one of reasonableness.

IV. The College of Physicians and Surgeons Notices to Members, Issue No. 3, January 1982

14It stated, in part:

PHYSICIANS TREATING THEIR OWN FAMILY

Members are reminded that the Code of Ethics of the Canadian Medical Association, which this College has formally adopted as a standard for physician conduct, states that an ethical physician:

“will provide only minor or emergency services to himself or his immediate family and these without payment.”

V. Grounds of Appeal

15Counsel for the Appellant submits that there should be a “spousal exemption” read into the legislation in order to avert the draconian results which would otherwise take over.

16The Discipline Committee had ample evidence of the following matters before it:

(a) that there was a doctor/patient relationship between Dr. R.A.R. and LC from February 1, 1988 to the spring of 1998, and

(b) there was a sexual relationship between the same two people from the spring of 1992 until the spring of 1998.

17The evidence before the Discipline Committee showed that the relationships were concurrent during that period of time. The concurrency of the relationships are necessary ingredients to meet the definition of “sexual abuse” under the legislation which carries a mandatory penalty of revocation of licence.

18Counsel for the Appellant referred us to the decision of the Court of Appeal for Ontario in Mussani v. College of Physicians and Surgeons of Ontario, [2004] O.J. No. 5176 and submitted that it provided or allowed, through reasonable interpretation, for a “spousal exemption to the strictures of the sexual abuse” provision. We are of the view that, if concurrence is proved, there is no such exemption.

19Counsel for the Appellant also submitted that the Discipline Committee had applied the 1994 legislation in such a manner as to create a retroactive application of the statute. In our view, the Committee applied the 1994 legislation on and after January 1, 1994 to the conduct that it found on the evidence and that there is no retroactive application of the section.

VI. Result

20In my view, the Discipline Committee’s decision is supported by evidence and reasons which stand up to probing examination. In summary, the decision under review is reasonable and the appeal is dismissed.

VII. Costs

21If counsel are unable to agree as to costs, counsel for the CPSO will serve and file a draft bill of costs within twenty (20) days of the release of these reasons. Thereafter, the Appellant will have five (5) days to respond. Thereafter, costs will be fixed.

VIII. Publication Ban

22There will be a continuation of the publication ban imposed by the Discipline Committee of the CPSO prohibiting the publication or broadcast of the name of the complainant/patient, or information by which she might be identified.

O’Driscoll J.

Jarvis J.

Whalen J.

Released:

COURT FILE NO.: 213/03

DATE: 20050914

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

o’driscoll, jarvis and whalen jj.