COURT FILE NO.: 213/03
DATE: 20050310
SUPERIOR COURT OF JUSTICE - ONTARIO
(Divisional Court)
RE: DR. R.A.R.
Appellant/Respondent
- and -
THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO
Respondent/Moving Party
BEFORE: Mr. Justice Howden
COUNSEL: Lisa Brownstone, for The College of Physicians and Surgeons of Ontario, (Moving Party)
Mark Adilman, for the Appellant/Responding Party
HEARD: March 4, 2005
E N D O R S E M E N T
HOWDEN J.:
[1] In 1998, the appellant Dr. R.A.R. began treating L.C. as a patient. In 1991, L.C. initiated interest in a personal relationship. It became sexual. Both the professional and the sexual relationship continued. By 1992, they were living together as common law spouses with the intent to marry. On January 1, 1994, the Health Professional Procedural Code was adopted as Schedule 2 to the governing legislation for health professionals, making revocation of a doctor’s certificate of registration mandatory where a finding of sexual abuse was made; sexual intercourse was one of five types of sexual contact which the Code deems to be sexual abuse. L.C. and Dr. R.A.R. separated in 1996. Reconciliation remained a hope until 1998 when the doctor terminated the relationship. L.C. then complained to the College. In 2003, the Discipline Committee held its hearing and found that Dr. R.A.R. had committed acts of sexual impropriety and sexual abuse.
[2] All of the above were findings by Lang J. in May, 2003 when she allowed the appellant’s motion to stay the revocation order of the College on terms. She found that the three grounds for a stay – serious issue to be tried, irreparable damage, and balance of convenience – merited the order made. The major change since then is that Mussani v. College of Physicians and Surgeons, [2004] L.J. No. 5976 (Ont. C.A.) has been decided by both Divisional Court (2003), 2003 45308 (ON SCDC), 64 O.R. (3d) 641 (Div. Ct.) and Court of Appeal. Both courts upheld the constitutional validity of the mandatory revocation provisions.
[3] The College asserts that there is no longer a serious issue to be tried on this appeal and that the balance of convenience has shifted for the same reason. The College requests an order varying Lang J.’s order and lifting the stay of the revocation.
[4] The appellant has recognized that Mussani has impacted upon his grounds for appeal. However, he by no means concedes lack of serious issues and an amended notice of appeal has been delivered. The appellant intends to raise the following four issues on his appeal and submits that none of them are taken away by the Mussani judgments:
i) whether Dr. R.A.R.’s long-term committed relationship with the complainant L.C. falls within the “spousal exception” delineated by both the Divisional Court and the Court of Appeal decisions in Mussani;
ii) whether Dr. R.A.R. had a constitutional right to choose with whom he co-habited from 1992 – 1998, and whether that right was violated by the application of the sexual abuse provisions of the Regulated Health Professions Act to his long-term relationship with L.C.;
iii) whether, in deciding to convict Dr. R.A.R. of sexual abuse, the Discipline Committee of the College took into account irrelevant factors, including OHIP billing improprieties by Dr. R.A.R., regarding which he had no prior notice and was never charged; and,
iv) whether Dr. R.A.R. was improperly punished by the Discipline Committee through the retroactive application of the RHPA’s sexual abuse and mandatory revocation provisions, which came into force on January 1, 1994 and did not exist when his impugned conduct occurred.
[5] Mussani involved the consensual sexual relationship by a doctor with one of his patients. Both doctor and patient were married to others throughout this period. The decision to marry or cohabit has been held to be a fundamental right under s. 7 of the Charter of Rights and Freedoms. Fancy v. Shepherd (1997), 1997 1473 (NS SC), 155 D.L.R. (4th) 680 (N.S.S.C.) The Court of Appeal in Mussani held that the central conclusion in Fancy, the right to choose freely with whom the claimant would live, was not engaged in Mussani, and that that right is “quite different, however, from any claim by a health professional to have even a consensual, non-exploitive sexual relationship with a patient, which everyone connected with the case acknowledges is unacceptable”. (para. 58)
[6] In addition, the Mussani record did not include evidence from a medical professional which is part of the record in this appeal. That evidence includes the following:
• it is within the standards of practice of family doctors in Ontario to provide medical care to their spouses;
• that the care provided by this appellant would fall within care that family doctors would provide their own spouses.
(Libman opinion, Respondent’s Record, Vol. 3, tab 9, pp. 380-387)
[7] Furthermore, it does not appear to me that Mussani forecloses the retroactivity of punishment arguments in view of the formation of a committed spousal relationship before enactment of the mandatory revocation and the attempted foreclosure of any discretion in the disciplinary body, once the forbidden acts are proved. It will be the appellant’s submission that before 1994, when L.C. and Dr. R.A.R. became interested sexually in each other and when they entered a committed cohabitational relationship, and even after January 1, 1994 for a time, the disciplinary landscape had included some measure of interpretation by the Committee of legislative intent and it was recognized that there were degrees and circumstances of conduct and appropriate penalty on a continuum of seriousness included within the term sexual abuse. E.g., College of Physicians and Surgeons v. Boodoosingh (1990), 1990 6686 (ON SC), 73 O.R. (2d) 478 (Div. Ct.); (1993), 12 O.R. (3d) 701 (Ont. C.A.); Melunsky v. College of Physiotherapists of Ontario (1999), O.J. No. 148 (Div. Ct.); College of Physicians and Surgeons v. Genereux, case comment in CPSO Member Dialogue, May 1994.
[8] The appellant has made his case that these are serious issues that remain open to be advanced despite the comments on hypotheticals in the Court of Appeal decision in Mussani. Those comments were made in regard to vagueness and overbreadth attacks on the legislation’s constitutional validity. This appellant has an evidentiary record that is distinct from those arguments which he has a right to use to advance his case in this court. While I understand the College’s position that comments in Mussani tend to narrow or foreclose some of the appellant’s positions, nevertheless they do not detract from them as serious issues for the Court to decide on a record which is different from that before the court in Mussani.
[9] As to irreparable damage and balance of convenience, Lang J. found the following in 2003:
Dr. R.A.R. argues that he will suffer irreparable harm if a stay is not granted. His reputation as a physician and his referral base will be adversely and seriously impacted. His patient population will be diminished. He will lose the fundamental ability to support himself and his family. If his challenge is ultimately successful, it will then be very difficult for him to rebuild his practice. This is the kind of impact, he argues, that cannot be compensated by damages. Dr. R.A.R.’s patients have been supportive of his request to continue in practice. They expressed concern that his removal from practice would deprive them of access to medical care and expressed their confidence in his abilities as a doctor. Dr. R.A.R. has established that irreparable harm will follow from the refusal of a stay.
The balance of convenience obviously favours the granting of a stay, at least from Dr. R.A.R.’s perspective and those of his patients. There is, however, a public concern about allowing a physician to continue in practice when his own professional body has revoked his certificate for sexual abuse. The concern is apparent. The question to be asked is whether Dr. R.A.R.’s continued practice poses any threat to his patients and whether his continued practice would bring the administration of his profession into disrepute.
There is no evidence before the court that Dr. R.A.R. would pose a threat to his patients or to the public if he were allowed to continue in practice pending his appeal. Dr. R.A.R. continued in practice for about four and a half years after the matter came to the College’s attention. There has been no indication of further difficulties in that lengthy interim period. Any concerns, such as the concern addressed by L.C. in her victim impact statement, can be met by imposing appropriate conditions on Dr. R.A.R.’s practice.
I do however take into consideration the evidence that was before the Discipline Committee that the social relationship with L.C. began in Dr. R.A.R.’s office at a time when they were discussing her personal problems. While the relationship between them was successful for a lengthy time, the result may well have been different. Entering into a personal relationship with a patient is inherently perilous for both the patient and the physician. The physician puts him or herself at risk of disciplinary proceedings with potentially dire consequences. More importantly, the patient is at risk of, at least, emotional harm arising from the circumstances in which the relationship was kindled. It is imperative that any stay be subject to terms that will ensure such a situation will not again arise pending the hearing of the appeal. This is particularly important in this case where, as a result of Mussani, the appeal may be delayed beyond what would ordinarily be expected.
I must also consider the potential impact of a stay on the public interest more generally, in the sense of public confidence in the ability of the College to regulate its physicians. The Legislature, in providing for mandatory revocation in sexual abuse cases, has clearly expressed its repugnance for such behaviour. This is not a case, however, where a practitioner has exploited a vulnerable patient during treatment for his own gratification. The unusual manner in which L.C. initiated the relationship, and its long-term nature, does not evoke concerns that would be raised by a physician who took advantage of a power imbalance. Further, Dr. R.A.R.’s patients have attested to their perception that Dr. R.A.R. respected physician’s/patient boundaries.
[10] The evidence before me is that the monitoring terms imposed by Justice Lang are being complied with, that his patients continue to support Dr. R.A.R. and have not in large part found an acceptable alternative for treatment. It is also apparent that Dr. R.A.R. represents no threat to the public in continuing his practice within the terms of the stay granted by Lang J. The factors of irreparable harm and balance of convenience continue to weigh very heavily in favour of maintaining the stay for the reasons expressed by Justice Lang.
[11] Accordingly, the College’s motion to terminate the stay is dismissed. Both parties request an order to expedite the hearing of the appeal. The order to expedite is granted; it is important that the issues in this appeal be dealt with as soon as possible.
[12] If the parties are unable to agree upon costs of this motion, submissions may be sent to me this week through Divisional Court in Toronto, and thereafter, to my chambers in Barrie, within fifteen days.
HOWDEN J.
DATE: 20050310