COURT FILE NO.: 438/09
DATE: 20091015
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
DR. MARVIN SAZANT
Appellant
- and -
COLLEGE OF PHYSCIANS AND SURGEONS OF ONTARIO
Respondent
Marie T. Henein and Tracey Tremayne-Lloyd, for the Appellant
Danielle Miller, for the Respondent
HEARD at Toronto: October 15, 2009
jennings J.: (Orally)
[1] Dr. Sazant has appealed the findings of the College’s Discipline Committee that he engaged in disgraceful, dishonourable or unprofessional conduct of a sexual nature with three complainants and a young patient and the penalty imposed on September 9, 2009, of the immediate revocation of his licence to practice. He now seeks a stay of the penalty pending disposition of the appeal.
[2] The parties agree that the RJR three-step test for granting a stay applies, that is that the Doctor must show:
(a) there is a serious question to be tried,
(b) absent a stay he will suffer irreparable harm, and
(c) the balance of convenience favours a stay.
[3] Multiple grounds of appeal are put forth, including a challenge to the constitutionality of the governing legislation, an alleged breach of Charter rights and the admission of similar fact evidence at the hearing. The College concedes that serious questions had been raised. A brief review of the facts is required prior to discussing the second and third branches of the test:
(a) Dr. Sazant is 74 years of age. He has practised medicine for 46 years. Many of his patients have been with him since the inception of his practice. In the main, his practice involves care of the elderly. Both parties refer to the outpouring of patient support for the Doctor and the concern of his elderly patients at the loss to them of their caregiver.
(b) The complaints of sexual abuse are historic, spanning the period from 1970 to 1991. Although criminal charges were laid arising out of some of the complaints, they were subsequently stayed or withdrawn.
(c) The College was aware of some of the allegations as early as 1991. In 1998, new allegations came forward and the College was so advised. In 1999, the College took an undertaking from the Doctor that he would not treat persons under 16 years of age.
(d) In 2005, the College initiated Disciplinary proceedings. In April 2006, the Executive Committee of the College imposed an interim order on the Doctor that he not have any professional encounters with patients under 16 and giving permission to the College to moniter compliance with that order.
(e) The hearing commenced two years later. The decision of misconduct was made on February 20, 2009.
(f) The Doctor has practised without incident since 1991.
(g) The findings of the panel were that the doctor committed acts of sexual impropriety in respect of three of the four young persons, including one who is a patient. The misconduct was obviously extremely serious.
[4] The College submits that because of the interim order that was issued, the bar to obtaining a stay has been raised, it being the clear intention of the legislature expressed in s.37(4) of the Code to give instant effect to any penalty imposed by the College.
[5] No authority was cited to me to support that proposition and I reject it.
[6] I turn to irreparable harm. If the Doctor cannot practice, he will have no income and at his age alternative employment is highly unlikely. I am told he has no family from which he can seek support. Notwithstanding the expressions of loyalty and support from his elderly patients upon which counsel for the College relies to refute irreparable harm to his practice, I am not persuaded that at the respective ages of his patients and of himself, the Doctor could expect his patients to return sometime in the future if his appeal is successful. I am therefore satisfied that irreparable harm to the Doctor will be the result if a stay is not granted.
[7] I turn to the balance of convenience, which requires that I consider the rights of Dr. Sazant against the risk to the public of granting a stay.
[8] Counsel for the College submits eloquently that there is a difference between public interest and public safety. Acknowledging that the undertakings and interim order, under which the Doctor has practised and by which he has apparently strictly abided for at least ten years, have addressed public safety, she submits with some force that it is contrary to the public interest and the faith of the public in both the courts and the College to permit the Doctor to continue to practice pending an appeal after a finding of sexual misconduct has been made. She was unable to refer me to any case applying that submission to refuse a stay in cases involving misconduct, let alone sexual misconduct. On the other hand there are numerous cases, many of which are contained in the moving party’s books of authorities, in which stays have been granted on terms in cases of sexual misconduct.
[9] In find the comments of Lang J. (as she then was) referred to by Howden J. in Rosenberg v. College of Physicians and Surgeons, (2005) 137 ACWS (3d) 1045 at para. 9 of Howden J.’s judgment, to be of assistance.
[10] I must take into account the obvious disruption to the lives of Dr. Sazant’s patients if a stay is not granted. I consider the time that has passed since the abhorrent acts occurred and the incident-free period that has elapsed since the conduct was first reported.
[11] I accept the legitimate concern of the College that permitting a member found to have committee sexual misconduct to continue to practice might bring the administration of his profession into disrepute. However, I am not persuaded that in this case, that is a likely result.
[12] Given the time that has elapsed since misconduct, and the success of the interim controls in protecting the public, I find the balance of convenience clearly favours the granting of the stay.
[13] A stay of the penalty will be granted on the conditions set forth in the interim order, the stay to continue until the completion of the appeal or until further order of this Court.
COSTS
[14] I have endorsed the back of the Motion Record: “For oral reasons delivered today, order to go granting stay on terms contained in the interim order. Counsel advised the Court that transcripts should be available quickly. On that assurance, I order the appeal to be expedited. Costs of today reserved to the panel hearing the appeal”.
JENNINGS J.
Date of Reasons for Judgment: October 15, 2009
Date of Release: October 20, 2009
COURT FILE NO.: 438/09
DATE: 20091015
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
DR. MARVIN SAZANT
Appellant
- and -
COLLEGE OF PHYSCIANS AND SURGEONS OF ONTARIO
Respondent
ORAL REASONS FOR JUDGMENT
JENNINGS J.
Date of Reasons for Judgment: October 15, 2009
Date of Release: October 20, 2009