COURT FILE NO.: 676/03; 677/03; 678/03
DATE: 20060627
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Dr. Wagdy Botros, Applicant
-and-
David Beadle, The College of Physicians and Surgeons of Ontario and The Health Professions Appeal and Review Board, Respondents
AND RE: Dr. Wagdy Botros, Applicant
-and-
James MacLean et al. Respondents
AND RE: Dr. Wagdy Botros, Applicant
-and-
George Vanslack et al Respondents
MOTION: By the Health Professions Appeal and Review Board, Respondent, moving in each Application
HEARD: November 16, 2005
BEFORE: Lane, J.
COUNSEL: Steven G. Bosnick, for the Health Professions Appeal and Review Board, Respondent, moving party;
Gordon Slemko, for the Applicant;
No one appeared for the other parties.
E N D O R S E M E N T
[1] This is a motion by the Health Professions Appeal and Review Board (hereinafter “Board”) in each of these three matters to seal certain portions of the files so that counsel for the applicant, but not the client, will have access to them. The motion was heard on November 16, 2005, but I was asked to retain the matter undecided pending settlement discussions between counsel. I did so, unwisely as it turned out, because when I was informed in April 2006 that the decision would be needed, I was engaged in two long civil jury trials back to back. Hence the delay until now in releasing the decision.
[2] Dr. Botros, a physician and psychiatrist, operates sleep clinics in London, Kitchener and Mississauga. He has treated thousands of patients without complaint. In 2000 and 2001, three patients, Messrs. Beadle, MacLean and Vanslack, made complaints about his conduct and treatment of them. The Complaints Committee of the respondent College investigated the applicant’s practice, dealt with the three complaints at the same time and released its decisions on June 10, 2002. It determined that the applicant would be cautioned and his practice referred to the Quality Assurance Committee of the respondent College.
[3] Dr. Botros requested a review of each of the decisions by the Board. In the course of its review, the Board received 28 pages of additional documentation from the College related to the Beadle complaint. It determined that the material would be disclosed to Dr. Botros except for “..the information concerning the individuals who were neither parties to the complaint nor patients. Therefore only information regarding Dr. Botros’ own patients and the interview will be disclosed to him.” Dr. Botros contends that the late disclosure of the material which was disclosed, on the eve of the hearing, was prejudicial to him. He also speculates that the undisclosed material originated with a “disgruntled former employee”.
[4] Also in the course of its review, the Board received seven pages of additional material in relation to the MacLean complaint. None of this material was disclosed to Dr. Botros. In the MacLean decision, the Board stated that the material included memoranda about conversations with persons not parties to the review, which would not alter the decision but, if disclosed, would be prejudicial to the interests of such persons. In the exercise of its discretion, the Board withheld the information.
[5] In decisions released on October 1, 2003, the Board affirmed the decisions of the Complaints Committee in each of the three cases that Dr. Botros be cautioned. It also affirmed the referral of the Beadle and MacLean matters to the Quality Assurance Committee, but declined to refer the Vanslack matter to that Committee. It appears that, in coming to these decisions, the Board had before it all of the new material, including the portions not disclosed to Dr. Botros.
[6] On November 5, 2003, Dr. Botros commenced judicial review applications in respect of each of the Board’s decisions. One basis for the relief sought in each of these judicial reviews is the failure of the Board to make full disclosure to Dr. Botros of the materials on which it would make its decision.
[7] The Board is required by section 10 of the Judicial Review Procedure Act[^1] to file with the reviewing Court the record of the proceedings of which review is sought. Recognizing that this obligation extends to the material it had before it which was not revealed to Dr. Botros, the Board applies for an order permitting it to file those portions withheld from Dr. Botros in a sealed form.
[8] The Board’s discretion to refuse to disclose material to a party is based upon section 32 of the Health Professions Procedural Code under the Regulated Health Professions Act.[^2] That section provides that the Board shall disclose to the parties everything it receives from the Registrar as to the complaint which the Board is requested to review. Section 32 (3) lists certain exceptions which the Board may refuse to disclose if disclosure may, in the Board’s opinion:
a) disclose matters involving public security;
b) undermine the integrity of the complaint investigation and review process;
c) disclose financial or personal or other matters of such a nature that the desirability of avoiding their disclosure in the interest of any person affected or in the public interest outweighs the desirability of adhering to the principle that disclosure be made;
d) prejudice a person involved in a criminal proceeding or in a civil suit or proceeding; or
e) jeopardize the safety of any person.
[9] The Board submits that the issue is not whether the reviewing court should have the same material before it that the Board had, but whether the undisclosed portions should now be revealed to the applicant. Access to these undisclosed records is the very relief sought in this application and release now to the applicant would render the application moot in some respects. The point is whether the decision not to disclose was within the jurisdiction of the Board, in the light of its obligation to act fairly as between the parties.
[10] The position of the applicant, responding to the Board’s motion to provide the record partially sealed, is that the non-disclosure was not justified by the legislation; that sealing of patient information is inconsistent with other orders of the Board; and that the court should err on the side of disclosure so that justice can both be done and manifestly be seen to be done.
[11] In my view, the Board is correct that unsealing the records at this point is premature. The right or duty of the Board to keep some kinds of information secret even though it may be relevant to the issues is the very issue on which the Divisional Court’s view is sought and the court speaks through the full panel and not through the motions judge. Accordingly, an order will go as per the Draft Order filed, permitting the Board to file the record in partially sealed form, the sealed portions not to form part of the public record until such time as the panel may so direct. The interests of justice may be served by the undertaking proposed in paragraph 7 of the Notice of Motion and Schedule G to the draft order permitting disclosure to counsel but not to the clients.
[12] Costs of this motion reserved to the panel.
Lane J.
DATE: June 27, 2006
[^1]: R.S.O. 1990 c. J.1
[^2]: Regulated Health Professions Act, 1991 c. 18, Schedule 2, Health Professions Procedural Code, s. 32.