COURT FILE NO.: 303/05
DATE: 20060224
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CHAPNIK, WILSON, EPSTEIN JJ.
in the matter of an application for judicial review pursuant to the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, as amended
B E T W E E N:
MELISSA SCHEERER
Applicant
- and -
DR. DAVID WALDBILLIG
Respondent
- and -
David R. Wright and Tim Hannigan, for the Applicant
Valerie D. Wise, for the Respondent
MINISTRY OF THE ATTORNEY GENERAL
Intervenor
Connie Vernon, for the Intervenor
HEARD at Toronto: February 1, 2006
BY THE COURT
[1] The applicant, Melissa Scheerer, brings this application for judicial review to quash and set aside the decision of the respondent, Dr. David Waldbillig, dated January 16, 2004 (the Decision). In the Decision, Dr. Waldbillig decertified Ms. Scheerer as a Primary Care Paramedic and Advanced Care Paramedic under the jurisdiction of the Waterloo-Region-Wellington-Dufferin Base Hospital (the Base Hospital).
[2] We are told that there is no case in Ontario or Canada considering the certification or decertification of paramedics.
THE ISSUES
[3] The following issues are in dispute:
• Does this court have jurisdiction to review the Decision?
• In reaching the Decision do the principles of natural justice and procedural fairness apply, and if so, were they respected?
• In particular, did the respondent take into account irrelevant information in reaching the Decision?
• Did the respondent exhibit bias?
JURISDICTION
[4] We conclude that this court has jurisdiction pursuant to the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 as Dr. Waldbillig exercised a statutory power in reaching the Decision. Alternatively, we conclude that this court has jurisdiction because Dr. Waldbillig, as Medical Director of the Hospital, was a public officer performing a public function in accordance with the principles enunciated in Masters v. Ontario (1993), 110 D.L.R. (4th) 407 (Div. Ct.), and Martineau v. Matsqui Institution (Disciplinary Board), [1980] 1 S.C.R. 602.
The Statutory Power of Decision
[5] Effective January 1, 2002, amendments to regulations of the Ambulance Act R.S.O. 1990, c. A.19 took effect, providing a statutory structure for the certification of paramedics in Ontario. The incidents giving rise to the decertification of the applicant arose in 2002 and 2003.
[6] There is no separate statute governing the certification and qualifications of paramedics, such as exists, for example, regarding nurses or dental hygienists.[^1] Unlike nurses and dental hygienists, there is no self-regulating College governing paramedics. Paramedics are not one of the regulated health professions listed in the Regulated Health Professions Act.
[7] Certification or decertification of paramedics involves interplay between two statutes. The Ambulance Act provides the structure by which the Medical Director of a designated base hospital certifies or decertifies paramedics. The general power to delegate controlled acts for all physicians in Ontario, is found in section 27 of the Regulated Health Professions Act.
The Ambulance Act
[8] Under section 4(2)(d) of the Ambulance Act, the Ministry designates “base hospitals” in Ontario by way of written contract. A base hospital is responsible to monitor the quality of care provided by ambulance services in specified regions and districts, and to perform other functions assigned by regulation.
[9] Each base hospital designates a physician as a “Medical Director”, of a “base hospital program”. The “base hospital program” has, as one of its purposes, the delegation of controlled acts to paramedics. The Medical Director, in accordance with the provisions of the Ambulance Act, certifies paramedics working at the base hospitals by delegating authority to conduct controlled acts. The Medical Director also may decertify a paramedic by revoking the delegation of authority.
[10] Under O. Reg 257/00, section 8, in order to perform controlled acts, a paramedic must be authorized by a Medical Director:
8.(1) In addition to meeting the qualifications set out in subsection 6(1), a primary care paramedic shall,
(a) hold the qualification of emergency medical attendant; and
(b) be authorized by the medical director of a base hospital program to perform the controlled acts set out in Schedule 1.
(2) In addition to meeting the qualifications set out in subsection 6(1), an advanced care paramedic shall,
(a) be qualified as a primary care paramedic;
(b) have successfully completed an advanced care paramedic training program approved by the Director, and have obtained a pass standing in an advanced care paramedic examination set or approved by the Director; and
(c) be authorized by a medical director to perform the controlled acts set out in Schedule 2.
[emphasis added]
The Regulated Health Professions Act
[11] All physicians, including the medical director have the power to delegate controlled acts under s. 27(1) of the Regulated Health Professions Act:
27.(1) No person shall perform a controlled act set out in subsection (2) in the course of providing health care services to an individual unless,
(a) the person is a member authorized by a health profession Act to perform the controlled act; or
(b) the performance of the controlled act has been delegated to the person by a member described in clause (a).
[emphasis added]
[12] In summary, when responding to a call, paramedics may be required to perform “controlled acts.” They are authorized to do so by a member. “Member” is defined in the Regulated Health Professions Act as a member of a College. The paramedics are not “members” authorized by a health profession Act to perform controlled acts, meaning that they must have such acts delegated to them under s. 27(2)(b) of the Regulated Health Professions Act. Subsection 28(1) states: “The delegation of a controlled act by a member must be in accordance with any applicable regulations under the health profession Act governing the member’s profession.”
[13] The “health profession Act” governing doctors is the Medicine Act, 1991, S.O. 1991, c. 30. Under s. 1(1)29 of O. Reg. 856/93 of the Medicine Act, it is professional misconduct to permit, counsel or assist a person who is not a member of the College of Physicians and Surgeons of Ontario (the College) to perform acts that should be performed by a member.
[14] We do not accept Dr. Waldbillig’s argument that the power to revoke is grounded in the contract between the Ministry and the Hospital. That contract specifically refers to the provisions of the Ambulance Act.
[15] Nor do we accept that the argument advanced by both the respondent and the Ministry, that the Decision flowed solely from the general power of all physicians to delegate controlled acts under section 27 of the Regulated Health Professions Act, and that Dr. Waldbillig was acting only as an individual physician.
[16] We conclude that the Decision to decertify Ms. Scheerer involves the exercise of a “statutory power”. The Decision is subject to judicial review as an exercise of a statutory power of decision that is determinative of legal rights or privileges, or confers or retracts a license. A license is defined in section 1 of the Judicial Review Procedure Act as including “any permit, approval, registration or similar form of permission required by law”.
[17] Admittedly, the rather cumbersome scheme might be streamlined and legislated in a more comprehensive and clear fashion. Nevertheless, our reading of the various applicable statutory provisions accords with the scheme and object of the provisions and the intention of the Legislature. As stated by the Supreme Court of Canada, “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 20 at para. 21).
Alternatively, the Medical Director was a public body exercising a public function
[18] Since Ms. Scheerer is seeking a remedy in the nature of certiorari, our finding of jurisdiction may rest solely on a finding that the Decision was made by a public body exercising a public function, and that the Decision affects Ms. Scheerer’s interests. In Martineau v. Matsqui Institution (Disciplinary Board), supra, Dickson J. (as he then was) explained the broad scope of the remedy of certiorari, at p. 628:
Certiorari is available as a general remedy for supervision of the machinery of government decision-making. The order may go to any public body with power to decide any matter affecting the rights, interests, property, privileges, or liberty of any person. The basis for the broad reach of this remedy is the general duty of fairness resting on all public decision-makers. [emphasis added]
[19] Courts have regularly relied on the principles expressed in Martineau, supra to give the remedy of certiorari a wide application: see, for example, Masters v. Ontario, supra. The only constant limit on the remedy is that it must be with regard to the performance of a public duty. If the source of a power is a statute, or subordinate legislation under a statute, then clearly the body in question will be subject to judicial review. This is not necessarily the case if the source of the power is contractual. The essential distinction is between a domestic or private tribunal, on the one hand, and a body of persons under some public duty on the other: see Re Midnorthern Appliances Industries Corp. and Ontario Housing Corporation et al. (1977), 17 O.R. (2d) 290 (Div. Ct.)
[20] The College of Physicians and Surgeons, has a stated vision in the interests of the public “to ensure the best quality care for the people of Ontario by the doctors of Ontario”. According to the College’s policy, the proper delegation of controlled acts, such as the delegation by Dr. Waldbillig to Ms. Scheerer, “can result in more timely delivery of quality health care” and make optimal use of “health care resources and personnel.”
[21] In our view, the Decision was made by the Medical Director of a Base Hospital, who had the responsibility to make his decision with the public’s interest in quality health care in mind. The Decision clearly affected the rights, interests and privileges of the applicant, and Dr. Waldbillig was under a public duty when rendering the decision. On this basis alone, certiorari is available as a remedy in these circumstances, and we conclude accordingly that this court has jurisdiction.
THE FACTUAL BACKGROUND
[22] Ms. Scheerer was employed at the relevant time by Royal City Ambulance in the Waterloo Region, as a paramedic. Dr. Waldbillig, in his capacity as the Medical Director of the Base Hospital Paramedic Program, certified and later decertified her as both a Primary Care and an Advanced Care Paramedic.
[23] Two particular complaints involving Ms. Scheerer’s performance as a paramedic and the results of investigations into them led to Dr. Waldbillig’s decision to decertify her as a paramedic.
[24] The first complaint emanated from a patient as to treatment he received when Ms. Scheerer, while working with another paramedic as a Primary Care Paramedic, responded to a call on January 6, 2002. The 30-year-old patient, who had consumed a considerable amount of alcohol, was complaining of chest pain, nausea and shortness of breath. When he arrived at the hospital, the diagnosis was acute myocardial infarction and he was placed in the intensive care unit. The patient complained that the paramedics failed to examine him and that the signature on the Refusal of Service form for the ambulance call report (the ACR) had been forged.
[25] In response to the complaint, the Ministry of Health and Long-Term Care (the Ministry) commenced an investigation through the Investigations Certification and Regulatory Compliance Group (the ICRCG). The Base Hospital also began an investigation. Ms. Scheerer provided a written response to the complaint through the Ministry’s investigator; and the ICRCG concluded that the patient’s version of what occurred was more credible than Ms. Scheerer’s version. Following this, Ms. Scheerer completed a remedial program at the Ministry’s request and her ACR’s were audited for the following six months, without incident.
[26] Then, on October 26, 2002, another patient filed a complaint regarding an incident involving Ms. Scheerer’s performance as a Primary Care Paramedic. It is not disputed that the patient in question was mentally ill, delusional and dehydrated at the time and as such, was admitted to the Hospital’s intensive care unit.
[27] Ms. Scheerer was not asked to provide a written statement in response to this complaint, but she reviewed her partner’s response and signed a document in which he outlined his version of the events.
[28] In April 2003, Ms. Scheerer became certified as an Advanced Care Paramedic by passing the advanced care qualifying examination and attaining a passing grade of 90%. This achievement was independent from, and not required as part of any remedial program. As part of the advanced certification program, she worked with an experienced Advanced Care Paramedic, who observed her work over a course of about 480 hours and provided a “glowing” reference. As a result, on May 16, 2003, Dr. Waldbillig designated her an Advanced Care Paramedic at the Hospital.
[29] By letter dated January 16, 2004, Ms. Scheerer received Dr. Waldbillig’s written Decision decertifying her as both a Primary and Advanced Care Paramedic. In reaching the Decision, Dr. Waldbillig particularly noted the two investigations surrounding substandard patient assessment and care issues, falsification of ACR’s, professional ethics, credibility and Ms. Scheerer’s poor attitude displayed toward patients. The Decision was signed by the program director, the hospital director and Dr. Waldbillig, as Medical Director at the Base Hospital.
[30] The events that occurred between May 16, 2003, when Ms. Scheerer received her Advanced Care designation, and January 17, 2004, when she was decertified, can be briefly summarized as follows:
On May 22, 2003, Ms. Scheerer was advised at the commencement of her shift that a Ministry investigator would meet with her at the end of her 12-hour shift to discuss the second complaint. According to Ms. Scheerer, she did not have an opportunity to review any documentation and had difficulty recalling information due to the passage of time since the events giving rise to the complaint, a fact which she made known to the investigator.
On October 15, 2003, Dr. Waldbillig wrote to Ms. Scheerer, stating that the Base Hospital had now reviewed the Ministry’s investigation report concerning the second complaint and had concerns. As a result, she was now provisionally certified as an Advanced Care Paramedic, which meant she could only perform advanced duties when working with another Advanced Care Paramedic.
Ms. Sheerer was absent from work due to illness and stress from October 21 until December 23, 2003. By letter dated October 22, 2003, her family doctor forwarded an Attending Physician’s Statement to Dr. Waldbillig confirming a diagnosis of “eating disorder, obsessive compulsive disorder, depression, insomnia and anxiety.” These conditions were said to affect Ms. Scheerer’s ability to work in a “decision making” milieu due to fatigue and lack of energy.
On October 24, 2003, Ms. Scheerer met with Dr. Waldbillig and the Hospital director and was formally advised that her assessment skills, patient care and documentation were the subject of an active investigation. They were particularly concerned with her failure to attach EKG rhythm strips to her ACR’s. They later found her assertion that she “always attached the strips to the white copy of the ACR’s” was proven to be false. According to Ms. Scheerer, she never made such a claim, but stated rather that she always gave the strips to the triage nurse. In any event, on October 28, 2003, she received correspondence confirming that her provisional status would continue.
On November 5, 2003, she received a copy of the investigation report, through her union representative.
On December 11, 2003, due to a fainting spell, Ms. Scheerer was taken to the emergency department at the Hospital. Though Dr. Waldbillig was the only physician in the emergency room, he told her he could not treat her because of the conflict in their working relationship. He did not examine or assess her and advised her to go to another hospital or to come back after his shift ended. The next day, she saw her family physician, who adjusted her medication.
On January 7, 2004, Dr. Waldbillig contacted Ms. Scheerer’s mother and told her that Ms. Scheerer’s driver’s license had been suspended due to the fainting episode, of which he was obliged to notify the relevant authorities. Ms. Scheerer’s mother informed him that the family physician had resolved the imbalance of medication problem that had precipitated the fainting. According to Ms. Scheerer, Dr. Waldbillig never spoke to her directly to confirm this information. She also challenges the allegation that her license was suspended.
Ms. Scheerer was absent from work again in January 2004 due to stress related illness. She continues to be off work to this day.
[31] After the decertification, effective as of January 17, 2004, the following took place:
Ms. Scheerer’s family doctor filed a second Attending Physician’s Statement, which confirmed employment stress, anorexia, fainting episodes and anxiety concerning the termination of her license.
The Hospital agreed to review the decertification. A “without prejudice” meeting was scheduled to discuss a resolution of the matter. The parties were unable to resolve the matter at the meeting on May 14, 2004, but they continued to discuss settlement.
In April 2005, the Hospital agreed to conduct a review of the Decision. Both parties made written submissions and both provided submissions in reply. A decision was rendered on June 15, 2005, confirming Dr. Waldbillig’s decision.(the Review Decision). The Review Decision was signed by three individuals from the Essex-Kent Base Hospital Program: Dr. Bradford, who was Medical Director; Ms. Hedges, who was Program Manager; and Mr. Macri, a paramedic.
[32] As a result of the above, Ms. Scheerer is not certified to perform her job with any ambulance service under the jurisdiction of the Hospital, which is where she lives. She is also obliged to inform any other base hospital of her decertification. Since she has not worked 144 hours over the last 12 months, regardless of the outcome of this appeal, Ms. Scheerer must be recertified to qualify as a paramedic.
STANDARD OF REVIEW
[33] The parties agree that the appropriate standard of review with respect to questions of procedural fairness is that of correctness. However, where a decision is attacked on the basis of a denial of natural justice, it is unnecessary for the court to engage in an assessment of the review standard. The only question is whether the rules of procedural fairness have been adhered to. See Gismondi v. Ontario (Human Rights Commission), [2003] O.J. No. 419 (Div. Ct.), and London (City) v. Ayerswood Development Corp., [2002] O.J. No. 4859 (C.A.).
[34] If the procedural requirements of natural justice have been met, the applicable standard of review is determined through the functional and pragmatic approach as set out by the Supreme Court of Canada in Pushpanathan v. Canada (Minister of Citizenship and Immigration) (1998), 160 D.L.R. (4th) 193 at 208-215. The four factors to be considered are as follows:
(1) The existence or absence of a privative clause in the enabling statute;
(2) The expertise of the tribunal relative to the court;
(3) The purpose of the legislation; and
(4) The nature of the problem.
See also Ryan v. Law Society of New Brunswick (2003), 2003 SCC 20, 223 D.L.R. (4th) 577 (S.C.C.) at 587-592, paras. 17-42; Dr. Q. v. College of Physicians & Surgeons (British Columbia) (2003), 2003 SCC 19, 223 D.L.R. (4th) 599 (S.C.C.) at 609-13.
[35] Since there is no right of review for the decisions of a Medical Director, and Dr. Waldbillig is said to have more expertise than the Court on issues of patient assessment and care, and the problem is factual in nature, Dr. Waldbillig claims that the decision attracts considerable deference and hence, a standard of review of patent unreasonableness.
[36] Though there is no statutory right of review pertaining to a Medical Director’s decision, neither is there a strong privative clause protecting his or her decisions from review. Moreover, the Supreme Court of Canada in Voice Construction Ltd. v. Construction General Worker’s Union, Local 92, 2004 SCC 23, [2004] 1 S.C.R. 609, described the circumstances in which the standard of patent unreasonableness will apply as rare, at para. 18:
A decision of a specialized tribunal empowered by a policy-laden statute, where the nature of the question falls squarely within its relative expertise and where that decision is protected by a full privative clause, demonstrates circumstances calling for the patent unreasonableness standard. By its nature, the application of patent unreasonableness will be rare. A definition of patently unreasonable is difficult, but it may be said that the result must almost border on the absurd. Between correctness and patent unreasonableness, where the legislature intends some deference to be given to the tribunal's decision, the appropriate standard will be reasonableness. In every case, the ultimate determination of the applicable standard of review requires a weighing of all pertinent factors. [emphasis added]
[37] Considering all of the above in the context of the four factors outlined in Pushpanathan, and the particular situation before us, we conclude that the appropriate standard of review of the Medical Director’s decision is reasonableness.
NATURAL JUSTICE AND PROCEDURAL FAIRNESS
[38] Ms. Scheerer contends that Dr. Waldbillig denied her natural justice or procedural fairness in this matter.
[39] It is well settled law that a duty of procedural fairness lies on a public authority making an administrative decision affecting “the rights, privileges or interests of an individual.” See, for example, Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643. At the same time, the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, emphasized that the content of the duty of fairness is variable and depends on a number of factors, including:
(1) the nature of the decision being made;
(2) the nature of the statutory scheme;
(3) the importance of the decision to the individual or individuals affected;
(4) the legitimate expectations of the person challenging the decision; and
(5) the choices of procedure made by the agency itself.
[40] In the circumstances here, the Medical Director has the power to investigate issues and complaints pertaining to a paramedic’s performance and to impose various sanctions, including decertification. Though the controlling legislation is silent as to process, the Hospital, in conjunction with the Legislature, has formulated policies that address this matter procedurally.
[41] The Hospital policy, which has not been formalized, sets out a procedure to “clarify the policy of decertifying a paramedic” if the “Medical Director finds that the paramedic was responsible for a most serious breach of protocol.” Among other things, the policy contemplates a review by a Committee composed of a Medical Director, a Program Director and two to four practicing certified peer paramedics from another Base Hospital. That provision states:
“A Paramedic Peer Tribunal panel in consultation with the Medical Director will determine the decertification of the Paramedic. A Paramedic Peer Tribunal will consist of a Chair, a Medical Director, a Program Director and a group of 2-4 practicing certified peer paramedics from other Provincial Base Hospital Programs.”
[42] The province of Ontario has been attempting to develop a province wide procedure for decertification. The record before us contains a draft of such a procedure termed the Ministry Decertification Review Procedure. While not in force, in permissive language, it provides a procedure if a paramedic opts to have his or her decertification reviewed by the Base Hospital.
[43] The decision of Dr. Waldbillig is of utmost importance to Ms. Scheerer. It has affected her ability to be employed as a paramedic in the region in which she resides and where she has worked for over four years.
[44] Realistically, the decision also impacts her ability to work under the certification of another Base Hospital. Regardless of whether or not she is required to report the decertification to a prospective employer, the reality is that in any event, her doing so or failing to do so, will undoubtedly adversely impact upon her future employment as a paramedic.
[45] In all of the circumstances, we find that Ms. Scheerer was entitled to procedural fairness.
[46] Ms. Scheerer raises a number of complaints as to the procedure afforded her – the failure to provide her with a hearing or opportunity to respond to the investigative reports; failure to allow her the opportunity, either formally or informally to clarify inaccuracies relied upon by Dr. Waldbillig or to respond to findings of credibility; and failure to advise her of the case against her prior to the decision to decertify being made.
[47] It is admitted on behalf of Dr. Waldbillig that the exact procedures as set out in the Base Hospital’s policy were not followed. This may be explained in part by the unfortunate wording of the policy. Among other things, it is ambiguous as to whether the decertification decision is to be made by the Medical Director alone or the Medical Director in consultation with a Paramedic Peer Review panel. We have been advised that the policy has been clarified.
[48] Nevertheless, we find that Dr. Waldbillig did meet the requirements of procedural fairness. Ms. Scheerer did receive notice of the investigations; she was given an opportunity to meet with Dr. Waldbillig on two occasions and to respond to them. She provided a written statement in response to the first complaint and signed off on a written statement of her partner in response to the second complaint. Dr. Waldbillig gave her notice of the additional concerns, which he raised in a face-to-face meeting.
[49] Though no formal hearing was provided, this was not required. As noted above, paramedics are specifically excluded from the Regulated Health Professions Act; nor did Ms. Scheerer raise concerns related to procedure when she met with Dr. Waldbillig. Finally, Ms. Scheerer was provided with written reasons for the decision of Dr. Waldbillig decertifying her and an opportunity to make full written submissions to the Review Committee, which she did with the assistance of legal counsel.
[50] It is well settled law that procedural defects of the nature of those about which Ms. Scheerer complains do not render the proceeding void but are amenable to rectification in a subsequent proceeding in which natural justice is accorded. See: Harelkin v. University of Regina, [1979] 2 S.C.R. 561 at 581; Posluns v. Toronto Stock Exchange and Gardiner, [1966] 1 O.R. 285 (Ont. C.A.), aff'd, [1968] S.C.R. 330; King v. University of Saskatchewan, [1969] S.C.R. 678; Re Clark and Ontario Securities Commission (1966), 56 D.L.R. (2d) 585 (Ont. C.A.); and Re Polten and Governing Council of the University of Toronto (1975), 59 D.L.R. (3d) 197 (Ont. H.C.)).
[51] In its decision, the Review Committee conducted a full review of the appropriateness of the action taken by the Base Hospital. Given all of the evidence before the Committee, it confirmed the decision of Dr. Waldbillig.
[52] In our view, the respondent met the requirements of procedural fairness in the particular circumstances of this case.
INFORMATION CONSIDERED IN THE DECISION
[53] The applicant also contends that Dr. Waldbillig failed to consider all relevant factors and considered irrelevant ones, in reaching the Decision. In brief, he did not consider that issues had been resolved through a remedial program with respect to the first ICRCG investigation report; he relied on the second report without considering its inaccuracies or the fact that Ms. Scheerer had passed the requalifying exam required by the Ministry after the second complaint; and he relied on unproven and extraneous matters such as the applicant’s alleged termination for calling in sick to a previous employer, her illness though she had been medically cleared to work in late December 2003, and the fact she had been driving after being informed that her driver’s license was suspended whereas according to her, it was never suspended; and finally, he failed to consider that she had not committed a “critical omission.”
[54] All of these arguments were made in detail, however, before the Review Board. As to the extraneous information, the Review Board stated:
It would appear that the inclusion of information related to Ms. Scheerer’s driver’s license status and termination of employment at Dufferin-Caledon Ambulance Service, is meant to provide further insight into the trust issue between Ms. Scheerer and the Base Hospital. Since these issues are outside the realm of responsibility of a Base Hospital Program, we did not consider them while making our submission (sic).
[55] As to Ms. Scheerer’s qualifications, the Review Board found documentation supporting the fact that “she had difficulty recognizing critically ill patients,” and her decision-making skills were lacking. As to the judgment of the applicant, the Review Board noted that though there may be valid medical and personal reasons for her lack of judgment, “the safety of the patients of Ontario must take precedence over the health issues of the individual.”
[56] In reaching the Decision, Dr. Waldbillig considered the credibility of the applicant in the context of patient care. He was entitled to rely on the Ministry’s written report. While it appears that some of the factors considered are irrelevant to the Decision, the element of trust is an important factor when a doctor delegates authority to perform controlled acts. It does not appear to us that Dr. Waldbillig placed undue importance on extraneous matters. The crux of his report dealt with his own findings, matters of credibility and the investigative reports from the Ministry. His reasons reflect significant concerns that by reference may well have amounted to a “critical omission,” though he did not specifically address this in his reasons.
[57] It is not necessary for a court to deal with every argument presented by a party. When applying the reasonableness standard, a court must review the reasons of the tribunal to ascertain whether any of the reasons support the decision: see Law Society of New Brunswick v. Ryan. supra, at paras. 48-49.
[58] We find in this case that the reasons in the Decision are well-founded and supported by the evidence.
THE ALLEGATION OF BIAS
[59] The applicant alleges bias was exhibited towards her through the conduct of Dr. Waldbillig; specifically, his refusal to treat her in the emergency during a medical crisis or to arrange for an alternative; his failure to contact her regarding her license until January 7, 2004; his failure to follow proper procedures or to treat her in the same manner as her partner or other paramedics with respect to the second complaint; and his failure to provide her with an opportunity to become recertified.
[60] There is no merit to this argument. Dr. Waldbillig’s conduct towards Ms. Scheerer during the investigation and the decision-making process demonstrated no element of bias. He is bound to consider the entirety of the evidence in respect of a particular individual, and each case undoubtedly bears different circumstances. It was his contention that he did not treat Ms. Scheerer in the emergency room as he did not want to learn information that he ought not to know as Medical Director. The alternatives he suggested at the time appear to have been reasonable in the circumstances. As to the question of recertification, this too was considered by the Review Committee, which stated:
To date there is no plan to recertify Ms. Scheerer. Dr. Waldbillig remains unconvinced that he can trust Ms. Scheerer’s judgment in providing appropriate patient care while working under his license. It would be impossible to recertify an individual while their judgment is consistently in question. Given the documented events, we find no information to support the requirement of a recertification process.
[61] Far from displaying bias, the decisions of Dr. Waldbillig as confirmed independently by the Review Committee, are, we find, reasonable in the context of this case.
CONCLUSION
[62] In summary, in all of the circumstances, we conclude that we have jurisdiction to review Dr. Waldbillig’s Decision, that Ms. Scheerer was entitled to a duty of fairness, that the duty of fairness was not breached.
[63] The applicant has not satisfied the onus to show that the decision of Dr. Waldbillig is unreasonable. In our view, the respondent, in rendering the Decision did not err in principle or law, as alleged. Any irregularities in the procedure were technical within the meaning of s. 3 of the Judicial Review Procedure Act. No substantial wrong or miscarriage of justice has occurred. The other issues raised by Ms. Scheerer are without merit.
[64] The application for an order quashing and setting aside the Decision of Dr. Waldbillig dated January 16, 2004 is, therefore, dismissed.
[65] The applicant was successful on the issue of jurisdiction, and the respondent was successful on the substantive issues. In these circumstances, there shall be no order as to costs. The intervenor, Ministry of the Attorney General does not seek costs.
CHAPNIK J.
WILSON J.
EPSTEIN J.
Released: February 24, 2006
COURT FILE NO.: 303/05
DATE: 20060224
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CHAPNIK, WILSON, EPSTEIN JJ.
B E T W E E N:
MELISSA SCHEERER
Applicant
- and -
DR. DAVID WALDBILLIG
Respondent
REASONS FOR JUDGMENT
CHAPNIK, WILSON, EPSTEIN JJ..
Released: February 24, 2006
[^1]: Nursing Act, 1991, S.O. 1991, c. 32; Dental Hygiene Act, 1991, S.O. 1991, c. 22.