Court File and Parties

COURT FILE NO.: 162/09 DATE: 2009-04-21

SUPERIOR COURT OF JUSTICE - ONTARIO (DIVISIONAL COURT)

RE: DR. SAMI KARKANIS, Applicant/Moving Party - and - College of Physicians and Surgeons of Ontario, Respondent

BEFORE: Justice Swinton

COUNSEL: Jenny P. Stephenson, for the Applicant/Moving Party Danielle Miller, for the Respondent

HEARD AT TORONTO: April 17, 2009

ENDORSEMENT

[1] The applicant, Dr. Karkanis, has brought a motion seeking an order to stay the proceedings of a Discipline Committee of the College of Physicians and Surgeons, scheduled to commence May 4, 2009, pending the outcome of an application for judicial review of a decision of a panel of the Discipline Committee dated April 9, 2009. The discipline hearing is to deal with a complaint raising allegations of sexual misconduct involving a former patient, RA.

[2] A publication ban is in effect in this application concerning the publication of the names or identifying details of RA and other individuals.

Background

[3] The applicant was previously the subject of another discipline hearing relating to sexual misconduct with a different patient, JP. In the course of that hearing, RA and another woman testified as similar fact witnesses.

[4] The Discipline Panel dealing with JP's complaint issued its decision dismissing the allegations on June 25, 2008. The Committee did not find RA's testimony credible with respect to two key aspects and concluded that her testimony was not credible with respect to the sexual assault. Having heard all the evidence, including that of the applicant, the Committee found that there had been at least one sexual act with RA, which the applicant testified was consensual, and a second act following an abdominal examination that was initiated by him in the belief that it was consensual. They attributed no weight to RA's evidence as similar fact evidence, although they commented on the applicant's evidence concerning his relationship with RA and expressed concern about aspects of this relationship.

[5] In December 2007, while the decision of the Discipline Committee hearing JP's complaint was under reserve, the College issued a Notice of Hearing with respect to the complaint of RA, alleging sexual abuse of a patient and disgraceful, dishonourable or unprofessional conduct. The particulars in Schedule A of the Notice state that the applicant behaved in an inappropriate and unprofessional manner and engaged in behaviour of a sexual nature with Patient A during a medical appointment.

[6] The applicant brought a motion before the Discipline Committee, heard January 19 and 20, 2009, seeking to quash the Notice of Hearing or have the allegations dismissed on the basis of issue estoppel and/or abuse of process.

[7] On April 9, 2009, the Committee issued its decision dismissing the motion. It held that the pre-conditions for issue estoppel had not been met and, in the alternative, if the pre-conditions had been met, issue estoppel was not warranted as a discretionary matter. They rejected the abuse of process argument, and they concluded that the applicant knew the case to be met. If there were need for further particulars, that should be addressed before the panel of the Discipline Committee hearing the allegations of misconduct.

[8] The applicant has brought a Notice of Application for judicial review of the April 9, 2009 decision, and he now seeks a stay of the Discipline Committee proceedings until the application is determined.

The Test for a Stay

[9] There are three elements to the test for a stay: is there a serious issue to be determined on the judicial review application; will the applicant suffer irreparable harm if the stay is not granted; and on the balance of convenience, will he suffer greater harm if the stay is refused than that caused to the public interest protected by the College (RJR-Macdonald Inc. v. Canada (Attorney General) (1994), 111 D.L.R. (4th) 385 (S.C.C.) at para. 43).

[10] The College concedes that the first part of the test has been satisfied, as the issues raised in the application are not frivolous or vexatious.

Irreparable Harm

[11] With respect to irreparable harm, the applicant makes several arguments. First, he argues that he cannot have a fair hearing on the Notice of Hearing as currently drafted, and he requires further particulars in writing.

[12] Second, he argues that he risks losing his hospital privileges at Rouge Valley Hospital. He has been practising and teaching in Dubai since the summer of 2006. The major reason for that absence is the ongoing disciplinary proceedings before the College. The applicant agreed to take a leave at the time of the JP complaint because of the serious allegations and because of a condition on his licence that required a chaperone whenever he met with a female patient and required a sign to that effect in every examining room he used.

[13] The Medical Advisory Committee of the Hospital has recommended that his hospital privileges not be renewed, because he has been on such a lengthy leave of absence and this is affecting the Hospital's ability to serve the public. A hearing by the Hospital board respecting the MAC recommendation is scheduled for April 22-24, 2009.

[14] Third, an affidavit from an articling student relates that the applicant is under considerable stress and anxiety from these proceedings.

[15] The College submits that the claims of irreparable harm here are speculative, or they will not be cured by an interim stay.

[16] With respect to the Notice of Hearing, I agree with the College's submission that the allegation of irreparable harm is speculative. The Discipline Committee in the April 9 decision determined that the applicant had sufficient notice of particulars to know the case against him. However, if there is a need for further particulars, or should he wish to attack the Notice, that should be done before the Discipline Committee hearing the allegations. It is premature to grant a stay on the ground that the applicant may suffer irreparable harm because of the way in which the Notice of Hearing is framed when the hearing has not commenced. In any event, if at the end of the day, the discipline proceedings turn out to be flawed because of the Notice or the disclosure, he has a full right of appeal to this Court.

[17] This is not a case where the applicant has shown that the forthcoming proceeding is fatally flawed because of same failure of natural justice or loss of jurisdiction. In such cases, there may well be a good case to argue irreparable harm, if the applicant would be required to go through the expense and stress of a hearing that is fatally flawed. The applicant has not shown that to be the case here.

[18] With respect to the possible loss of hospital privileges, the applicant has not shown that irreparable harm will be caused if a stay is not granted. While the loss of hospital privileges might well cause irreparable harm, I am not satisfied that the stay will have any impact on the decision of the Hospital board. To the extent that the Hospital is concerned about the length of the applicant's absence and the restriction on his licence, an interim stay will not address the Hospital's concerns. Indeed, it may well lengthen this current disciplinary proceeding, if the application for judicial review is unsuccessful.

[19] The applicant also submitted that he might be forced to testify in the disciplinary proceedings, as the way in which the College is proceeding has the objective of forcing him to testify in his defence and make the case for the prosecution. Again, this is speculative.

[20] With respect to the personal impact on the applicant, the evidence is unsatisfactory, as it is not directly from the applicant (see Li v. College of Physicians and Surgeons of Ontario, [2004] O.J. No. 1828 (Div. Ct.) at para. 23).

[21] Therefore, I am not satisfied on the evidence that the applicant will suffer irreparable harm if the Discipline Committee proceeds.

Balance of Convenience

[22] Even if the applicant showed that there were irreparable harm, the balance of convenience does not warrant a stay here.

[23] In this case, the stay is not sought with respect to a ruling of a Discipline Committee that prevents a physician from practising. Here, the applicant seeks to prevent a Discipline Committee from commencing proceedings.

[24] The complainant is scheduled to leave the country May 15, 2009 to work overseas for three to six months. While the applicant's counsel suggests that there will be motions for the Discipline Committee that will prevent RA from testifying before she leaves, there is still a possibility that she could be heard before she goes. If she is not heard, this risks delaying the complaint until the end of this year.

[25] Most importantly, there is a public interest in permitting a self-regulating profession to carry out its supervisory jurisdiction over members without regular interventions by the courts as the process unfolds. Absent exceptional circumstances, courts have refused to hear applications for judicial review, on the grounds of prematurity, while disciplinary proceedings are ongoing. In numerous cases, the courts have held that proceedings before administrative tribunals should not be fragmented (see, for example, Ontario College of Art v. Ontario (Human Rights Commission), [1993] O.J. No. 61 (Div. Ct.) at para. 6; Howe v. Institute of Chartered Accountants of Ontario (1994), 19 O.R. (3d) 483 (C.A.) at para. 13).

[26] It is not my task on this motion to determine whether the application for judicial review should be dismissed on the basis of prematurity. However, a concern about prematurity does weigh heavily in my decision that the balance of convenience favours the College. While the applicant argues that there will be a denial of natural justice and loss of jurisdiction if he is forced to continue with a hearing, I am not satisfied that is the case. I have already stated that his concerns about the Notice of Hearing and particulars should be raised before the Discipline Committee, and the issue estoppel/abuse of process arguments do not raise issues of jurisdiction or result in a fundamental failing of justice (see Hennick v. Toronto Community Housing Corporation (Ont. Div. Ct.) at paras. 6 and 8; Sherman v. Canada (Canada Customs and Revenue Agency), 2006 FC 715).

[27] When the type of harm alleged by the applicant is weighed against the public interest in proceeding with an administrative hearing, the balance of convenience favours the refusal of a stay.

[28] Therefore, the motion for a stay is dismissed. If the parties cannot agree on costs, they may make brief written submissions within 30 days of the release of this decision.

Swinton J.

DATE: April 21, 2009