COURT FILE NO.: 340/06

DATE: 20080219

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

CUNNINGHAM A.C.J.S.C., LANE and SWINTON JJ.

B E T W E E N:

TERRY L. WALKER

Self Represented, Applicant

David Dansereau, Agent

Applicant

• and -

HEALTH PROFESSIONS APPEAL AND REVIEW BOARD and LORNE ANDREW TUGG, MD, and THEA MARIE WEISDORF, MD

David Jacobs and Sean McFarling,

for the Respondent Board

Paul West for the Respondents Drs. Tugg and Weisdorf

Respondents

HEARD at Toronto: December 10, 2007

REASONS FOR DECISION

Cunningham A.C.J.S.C.:

[1] This is a judicial review of the decision of the Health Professions Appeal and Review Board (the Board) dated July 6, 2006. In that decision, the Board upheld, as reasonable, the investigation and decision of the Complaints Committee of the College of Physicians and Surgeons of Ontario (the Committee), concluding there was no misconduct on the part of the applicant Walker’s treating physicians. The applicant now seeks to have the decision of the Board set aside.

[2] By way of background, the applicant was treated by Drs. Thea Weisdorf and Lorne Tugg for various conditions including asthma, acne rosacea, anxiety, adaptation disorder and neuritis. For his anxiety, Dr. Weisdorf prescribed Paxil, a drug which the applicant believes has caused him brain damage.

[3] A complaint was brought by the applicant to the Committee, alleging inadequate care by Drs. Weisdorf and Tugg. In relation to Dr. Weisdorf, the applicant made the following complaints:

1. That she prescribed Paxil as an antidepressant, when he had complained about anxiety.

2. That she failed to respond to the applicant’s reported adverse response to Paxil.

3. That she failed to provide the applicant with his complete medical record.

4. That she failed to submit an adverse drug reaction form to Health Canada, as twice requested.

5. That she failed to warn the applicant of possible adverse reactions to Paxil.

6. That she failed to recognize that the applicant was not an alcoholic.

7. That she failed to assist the applicant with a chemically induced serotonin neuron-transmission disorder which he says resulted from Paxil having been prescribed.

[4] With respect to Dr. Tugg, the applicant complains:

1. That he failed to diagnose personality disorders or mental illness after spending only one hour in an interview and

2. That he told the patient there was no program at the hospital to treat him for the apparent side effects of Paxil, and that he brushed him off.

[5] The Committee, after considering the matter, decided to conduct an investigation and sought a medical opinion with respect to the care provided by Dr. Weisdorf. An independent assessor was engaged who reported that the prescribing of Paxil, in the circumstances, was reasonable, and further that Dr. Weisdorf’s practice directions were not only reasonable, but demonstrated an acceptable level of skill and judgment regarding the ongoing management of the medications.

[6] On August 23, 2004, the Committee released its decision, including a copy of the assessor’s report, but not his or her identify or qualifications. They concluded that Dr. Weisdorf’s care was indeed appropriate, finding that Paxil can and is used to treat anxiety and that there were medical reasons in the present case for not prescribing benzodiazepines. In the Committee’s view, Dr. Weisdorf’s chart illustrated she had responded to the applicant’s specific reported symptoms and that Paxil was stopped upon the applicant’s request.

[7] The Committee found that Dr. Weisdorf’s clinical chart showed that Paxil’s side effects were discussed with the applicant and that Dr. Weisdorf had kept admitted alcohol use in mind when deciding appropriate treatment. Accepting the view of the independent assessor, the Committee concluded there was no way to prove that the applicant had experienced any brain damage as a result of his having been prescribed Paxil. Clearly, the applicant did experience a range of distressing and debilitating syndromes commencing at approximately the same time that he started taking Paxil, but the Committee found that Dr. Weisdorf assessed, treated and ultimately referred the applicant appropriately in response to these apparent symptoms.

[8] The Committee also concluded the care received by the applicant from Dr. Tugg was appropriate in the circumstances.

[9] Following the release of the Committee’s decision on September 19, 2004, the applicant, in seeking a review of this decision, forwarded a lengthy letter dated January 13, 2005 to the Board outlining a list of concerns he believed should be reviewed. This letter covered a number of issues, quite apart from the appropriateness of the treatment the applicant had received. Amongst these other concerns were issues related to the independent assessor, including the identity and qualifications of the assessor and whether that person could truly be independent if he or she was a member of the Canadian Medical Protective Association (CMPA).

[10] In February 2005, the Board reviewed the Committee’s decision pursuant to s. 33(1) of the Health Professions Procedural Code, being Schedule 2 of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, and on July 6, 2005, released its decision upholding the findings of the Committee. In its decision, the Board held that the investigation conducted by the Committee was adequate and that its decision was reasonable. As the Board stated at page 7 of its decision, “The question before the Board is not whether it would have reached the same decision as the Committee, rather if the Committee’s investigation was adequate when it was performed, and/or if the Committee’s decision was reasonable when it was made.” Further on page 8, the Board stated, “It does appear however, that the Committee has considered the essential elements of the allegations. The Board was not made aware of any additional information that had it been acquired, might reasonably be expected to have affected the Committee’s decision regarding the complaint.” As to the reasonableness of the decision, the Board stated, “The decision is reasonable. Mr. Walker has struggled with what appears to be a considerable misfortune regarding his health. The record is quite clear, however, on the question of whether Mr. Walker has been investigated on the issue of his primary complaint-brain damage resulting from Paxil. In this regard, the record can only be read to indicate that Mr. Walker’s belief about the effect of Paxil on his health cannot be proven. In fact, a number of medical opinions in the record submit that Paxil is not the cause of Mr. Walker’s distress.”

[11] With respect to the issue of Dr. Weisdorf’s consideration of Mr. Walker’s possible alcoholism, the Board stated again at page 8, “In One (f) (alcoholic etc), the particular allegation does not appear to be well considered. It is very apparent that Mr. Walker, by his own admission, was a heavy user of alcohol. The concern that he might be mislabeled an alcoholic by a physician who is attempting to diagnose him thus does not seem to be in order in the framework of this matter.” The Board went on to find reasonable the Committee’s treatment of all other allegations against Drs. Weisdorf and Tugg.

[12] The standard of review of the matter before us is either reasonableness or patent unreasonableness (see Botros v. Beadle [2007] O.J. No. 3156 [QL] (On.Div.Ct.) at para. 33; Sigesmund v. Royal College of Dental Surgeons [2003] O.J. No. 1806 [QL] (On.Div.Ct.) at para 6). Both the Committee and the Board, in our view, are entitled to considerable deference in their deliberations, not only with respect to their determination of the facts, but also as to their dispositions. Whichever standard is used, we see no basis to interfere with the Board’s decision.

[13] The main focus of the applicant’s argument before us related to the unfairness of the Committee withholding the name of the independent assessor. As apparently is its common practice, the Committee determined that an opinion from an independent assessor would be necessary for it to carry out a proper investigation. Such an assessor was engaged on the understanding that his or her identity would not be revealed unless, in the view of the Committee, it was necessary to do so. The report came to the Committee during its investigation and its contents were revealed, without the identity, when the Committee reported its decision. The applicant submitted that this process deprived him of his right to cross-examine the independent assessor on his report pursuant to section 66 of the Health Professions Procedural Code (Factum, paragraph 77). This submission is in error. Section 66 is contained in that portion of the Code which governs incapacity hearings. There is no equivalent section in the Complaints procedure (sections 25 to 35), no doubt for the reason that the Complaints Committee does not conduct a hearing; it conducts an investigation.

[14] The applicant also submitted that the Committee had a duty to give reasons for its decision not to identify the assessor. The duty to give reasons is a part of the larger right to fairness in procedural matters, a right which varies according to the circumstances of the proceeding. In Silverthorne v. Ontario College of Social Workers (2006), 2006 10142 (ON SCDC), 264 D.L.R. (4th) 175 (Div.Ct.), this court dealt with a judicial review of the decision of the Complaints Committee of the College of Social Workers that the applicant, a member, should be cautioned. The applicant sought judicial review on the basis of breach of the duty of procedural fairness. Swinton J., for the majority, referred to Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817 where the Supreme Court:

…emphasized that the duty of fairness is variable and depends on a number of factors, including the following:

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.

Taking these factors into account, I am satisfied that the Committee owed the applicant [the member being investigated] a duty of procedural fairness, because the decision whether to refer a complaint and whether to caution a member affects that individual’s interests as a professional social worker. However, the content of the duty is limited, given the nature of the decision being made and the statutory context.

[15] In our view, these same considerations show the duty of procedural fairness to the complainant is even more limited. In the present case, for example, the complainant is not at risk of the loss of any profession or occupation, nor is his right to bring an action for malpractice affected in any way. The stakes for him are very low; the duty to him is commensurately low, subject to the other factors in Baker. This Committee investigates complaints and disposes of them either by referring them to another process or by determining that they should not be referred. The Committee does not make findings of fact nor impose any penalty; rather, it weighs the evidence to determine whether there is sufficient evidence to refer the matter to the Discipline Committee or the Fitness to Practise Committee. It is those bodies which will make findings of fact.

[16] Silverthorne illustrates the approach to be taken in reviewing the decisions of the Complaints Committee and of the Board. In the present case, the central feature of the procedure is that the Committee was exercising a screening function: it was an investigation and a decision as to the existence of sufficient evidence to warrant referral. It was not a hearing to determine with finality what the facts were and whether punishment should be imposed. Accordingly, following the analytical approach of Baker, and of Silverthorne, the scope of the disclosure to the complainant, indeed even to the member (see re the member: Botros v. Beadle and C.P.S.O. [2007] O.J. No. 3156; August 13, 2007, (Div.Ct.)), may be limited for the reasons permitted by the statute, including the protection of the interests of persons not parties.

[17] The complainant sought the identity of the assessor in order to challenge his evidence by cross-examination, a procedure which is not available to him under the statute. That reasons were not given for the refusal to identify the assessor may have been unwise on the part of the Committee and the Board, given that the complainant is unfamiliar with the statute, but in the circumstances it was not unfair to the complainant. Accordingly, we exercise our discretion not to allow the application for judicial review on this ground.

[18] As to the submission that the assessor may be compromised by membership in the CMPA, there is no evidence that he or she is a member, but we acknowledge that membership is almost universal among Canadian doctors. Even so, in our view, mere membership alone does not indicate any likelihood of bias or impropriety.

[19] The further argument before us had to do with the applicant not being given a copy of written submissions made to the Board by Drs. Weisdorf and Tugg. These doctors were represented by counsel before the Board, and there is some suggestion that although the counsel for the physicians had a copy of the applicant’s written submissions to the Board, counsel for the doctors did not provide him a copy of their written submissions.

[20] We have no way of knowing whether in fact written submissions on behalf of the doctors were provided to the Board. All we have is the applicant’s strong suspicion that they were. Counsel for Drs. Weisdorf and Tugg have provided an affidavit indicating that a review of their firm’s file did not rule out any written submissions. The Board’s file contains no written submissions. Therefore, we are left to speculate whether in fact any written submissions were provided. In any event, we would not set aside the Board’s decision on this basis as we do not believe it affected the fairness or reasonableness of the decision.

[21] Finally, the applicant claims in tort against the Board for carelessness in its review. A judicial review application is not the appropriate forum in which to bring a claim in tort and even if it were, the regulated Health Professions Act 1991, s. 36(3), specifically prohibits using the complaints process to found or defend a negligence suit.

[22] Accordingly, the application is dismissed. Neither respondent seeks costs and there will be no costs.

Cunningham A.C.J.S.C.

Lane J.

Swinton J.

Released: February 19, 2008

COURT FILE NO.: 340/06

DATE: 20080219

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

CUNNINGHAM A.C.J.S.C., LANE and SWINTON JJ.

B E T W E E N:

TERRY L. WALKER

Applicant

• • and -

HEALTH PROFESSIONS APPEAL AND REVIEW BOARD

Respondent

REASONS FOR DECISION

Cunningham A.C.J.S.C.

Released: February 19, 2008