COURT FILE NO.: 106/09

DATE: 20091110

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

JENNINGS, J. wilson and SWINTON JJ.

B E T W E E N:

DR. MOHAMMAD RASSOULI-RASHTI

Appellant

• and -

THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO

Respondent

J. Thomas Curry and Andrew Parley, for the Appellant

Danielle Miller, for the Respondent

HEARD at Toronto: October 1, 2009

SWINTON J.:

Overview

1The appellant, Dr. Mohammad Rassouli-Rashti (“Dr. Rassouli”), appeals from a decision of the Discipline Committee of the College of Physicians and Surgeons of Ontario (“the College”) dated October 20, 2008 finding that he had committed professional misconduct by obstructing a College investigation into a complaint against another physician.

Background Facts

2The appellant is a medical oncologist practising on an educational licence at Sunnybrook Hospital in Toronto.

3The College proceeding against him arose as a result of events on September 4, 2004. On that evening, the appellant met his friend, Dr. Manohar, and two women, A and X, for dinner. X was Dr. Manohar’s girlfriend. The appellant did not know A before that evening, and he was not aware that she was a patient of Dr. Manohar.

4After dinner, the four returned to the condominium of X, where they had drinks. While there, A and the appellant had sexual relations, as did Dr. Manohar and X. Sometime in the early morning, A and the two doctors left the condo at X’s request.

5In September 2004, A made a complaint about Dr. Manohar to the College, alleging that she was administered a drug at X’s condo, that she had sex against her will there, and she was then taken to Dr. Manohar’s condo in the same building, where she had non-consensual sex with him. In her complaint, she also made reference to a Dr. Mo, (later identified as the appellant), who had allegedly participated in sexual activity with her.

6The appellant was interviewed by Jenny Stephenson, Dr. Manohar’s counsel, by telephone. She indicated that she was Dr. Manohar’s counsel and told him of A’s complaint. She testified that she believed, but was not certain, that she advised the appellant that she wished to interview him for the purpose of preparing a response to the College on Dr. Manohar’s behalf.

7The appellant told Ms. Stephenson that X and Dr. Manohar took A from X’s condo to the elevator. Then he and Dr. Manohar went to Dr. Manohar’s condo, where the appellant spent the night.

8Ms. Stephenson included this information in a letter to the College dated November 23, 2004. The appellant was not given a chance to review the letter. In it, Ms. Stephenson stated that Dr. Manohar denied having sexual contact with A, and she set out the version of events given to her by X and the appellant. In that version, A left the condo before the two doctors did. Ms. Stephenson also gave contact information for the appellant and suggested that the College investigator contact him.

9As a result of this information, the College investigator informed the appellant of the complaint by A against him. In a letter dated February 3, 2005, the appellant responded to the complaint, stating that he had participated in consensual sexual activities and intercourse with A in X’s condo. He denied that A was administered any drug or substance. To his knowledge, Dr. Manohar did not participate in sexual activity with A. He stated that A had been escorted from X’s condo to the elevator by X and Dr. Manohar.

10On November 15, 2005, the allegations against the appellant and Dr. Manohar were referred to the Discipline Committee.

11X initially told the College investigator and Ms. Stephenson that A left her condo about 20 minutes before the two doctors left. However, on August 16, 2006, she admitted to the College that she had lied in her interview with the investigator. In her new interview, she said that the two doctors left her condo with A. She also stated that Dr. Manohar had encouraged her to lie to the College.

12During the course of the investigation, the College’s inspectors obtained the underclothing that A had been wearing on the evening of the alleged assaults. The underwear had a semen stain on it. Prior to the discipline hearing into the allegations, the College recovered a sample of Dr. Manohar’s DNA and conducted a DNA test. It showed that Dr. Manohar’s DNA matched the DNA of the semen on A’s underclothing.

13At the hearing of the Discipline Committee on October 5, 2006, Dr. Manohar pleaded “no contest”, and his certificate of registration was revoked. The allegations of professional misconduct against the appellant were dismissed after the prosecution indicated that it would not tender any evidence.

14Two days earlier, however, the College had informed the appellant that while it would withdraw the charges against him in the first Notice of Hearing, it intended to investigate whether he had obstructed the Manohar investigation. On November 1, 2006, the College sent the appellant a letter indicating that the Executive Committee was investigating his obstruction of the investigation of Dr. Manohar.

15On March 6, 2007, the Executive Committee referred to the Discipline Committee allegations that the appellant committed an act of professional misconduct by obstructing the investigation of Dr. Manohar.

The Decisions of the Discipline Committee

16The appellant brought motions to quash and to stay the Notice of Hearing. With respect to the motion to quash, the appellant argued that the Executive Committee did not have jurisdiction to refer the allegations to the Discipline Committee, because there had been no complaint lodged against the appellant, and an investigator had not been appointed, as required by s. 75 of the Regulated Health Professions Procedural Code, being Schedule B to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (“the Code”).

17With respect to the motion for a stay, the appellant argued autrefois acquit, issue estoppel, and abuse of process, because the same allegation had been dismissed by an earlier panel of the Discipline Committee.

18Both motions were dismissed with reasons released October 20, 2008. The Committee held that the Executive Committee did have jurisdiction to refer the allegation of obstruction to the Discipline Committee. It rejected the motion to stay on the ground that the allegations in the present proceeding were not the same as those in the earlier proceeding, and there was no abuse of process.

19With respect to the merits of the case, the Discipline Committee heard evidence from A, X, and Dr. Manohar. The appellant did not testify.

20The Committee found that the appellant had given misleading or untrue information to the College and to Dr. Manohar’s counsel when he knew or should have known this information would be given to the College. The appellant’s February 2005 letter to the College corroborated Dr. Manohar’s initial position that Dr. Manohar and X escorted A to the elevator. If believed, this would have led the College to accept that A left the condo before both the doctors and, therefore, there was no opportunity for sexual contact between Dr. Manohar and A in Dr. Manohar’s condo. However, based on the more recent testimony of X and the testimony of A, the Committee found that the appellant left X’s condo with Dr. Manohar and A (Reasons pp. 11-12).

21The Committee found that in telling the College investigator and Ms. Stephenson that Dr. Manohar and X had escorted A out of X’s condo and to the elevator, the appellant must have known that he was providing false information and, in giving the false information, the appellant intended to mislead the College investigator (p. 14).

22The Committee concluded that there was no evidence presented by the College that the appellant knew that Dr. Manohar and A engaged in sexual relations in X’s condo. From the evidence before it, the Committee was also unable to conclude that the appellant was aware of sexual touching between Dr. Manohar and A while the four parties were together in X’s bedroom. It was also not satisfied that the appellant intentionally misled the College by failing to say that there was an opportunity for Dr. Manohar and A to have engaged in sexual acts (pp. 12-13).

23The Committee found the appellant had committed an act of professional misconduct through intentionally misleading the investigator. In misinforming the College, and thereby protecting Dr. Manohar, who could have remained a threat to other female patients, the appellant engaged in behaviour that would be regarded by members as disgraceful, dishonourable, and unprofessional. The Committee found his conduct unbecoming a physician and deserving of sanction.

24The Committee released its decision on penalty on February 13, 2009. It imposed a three month suspension of the appellant’s education certificate (reduced to one month if the appellant took a course in medical ethics) and a reprimand to be recorded in the Register. The appellant completed the course and suspension, and his reprimand was recorded.

The Issues

25There are three issues in this appeal:

1. Did the Discipline Committee err in determining that it had jurisdiction?

2. Did the Discipline Committee err in dismissing the motion for a stay?

3. Was the Discipline Committee’s finding of professional misconduct reasonable?

The Standard of Review

26Both parties agree that the appropriate standard of review on the third issue, the Committee’ finding of professional misconduct, is reasonableness, given past decisions of this Court (see, for example, Devgan v. College of Physicians and Surgeons of Ontario, 2005 2325 (Div. Ct.) at para. 36).

27The first issue raises a narrow issue of jurisdiction: the power of the Executive Committee to refer allegations of misconduct or incompetence to the Discipline Committee. It requires an interpretation of the Regulated Health Professions Procedural Code, legislation that applies to a number of professional colleges. In my view, the standard of review on this issue is correctness.

28With respect to the second issue, the appellant argues that the Committee erred in its application of the doctrines of autrefois acquit, issue estoppel and abuse of process. While the standard of review is not expressly addressed in the appellant’s factum, it is implicit that he advocates a standard of correctness on this issue.

29The second issue, as it relates to autrefois acquit and issue estoppel, raises issues of general law outside the specialized expertise of the members of the Discipline Committee. Therefore, the standard of review with respect to these questions is correctness.

30However, the issue of abuse of process raises questions of mixed fact and law. The Committee must be correct on the legal principles, as this is not a matter within the members’ expertise. However, deference is warranted with respect to their findings of fact and the exercise of their discretion to grant or refuse a stay.

Issue No. 1: Did the Discipline Committee err in determining it had jurisdiction?

31Subsection 36(1) of the Code appears to give the Executive Committee a broad power to refer matters of misconduct or incompetence to the Discipline Committee. It reads:

The Executive Committee may refer a specified allegation of a member’s professional misconduct or incompetence to the Discipline Committee.

32The appellant argues that the Executive Committee can refer allegations to the Discipline Committee only if it receives information in one of three ways:

1. following an investigation instituted under s. 75 of the Code at the request of the Registrar, the Complaints Committee or the Fitness to Practice Committee, which results in a report pursuant to s. 79;

2. as a result of a decision of the Complaints Committee pursuant to s. 26; or

3. as a result of a decision of the Quality Assurance Committee pursuant to s. 83(3).

33Section 75 of the Code empowers the Registrar to appoint investigators to determine if a member has committed professional misconduct or is incompetent in one of three circumstances:

1. where the Registrar believes on reasonable and probable grounds that the member has committed an act of professional misconduct or is incompetent, and the Executive Committee approves the appointment;

2. where the Executive Committee, after receiving a report from the Quality Assurance Committee, requests the Registrar to conduct an investigation; and

3. where the Complaints Committee receives a written complaint about a member and requests the Registrar to conduct an investigation.

34An investigator appointed under s. 75 has extensive powers set out in ss. 76 through 78 of the Code. They includes the power to enter the place of practice of a member and examine anything relevant, the power to obtain a search warrant for other premises and the power to copy or remove documents. Pursuant to s. 76(1), the investigator has all the powers of a commission under Part II of the Public Inquiries Act, R.S.O. 1990, c. P.41. These powers have been interpreted as having a broad scope, as shown by the recent decision of the Court of Appeal in Gore v. College of Physicians and Surgeons of Ontario, 2009 ONCA 546).

35In this case, there was no formal appointment of an investigator by the Registrar. Instead, the investigator who had been investigating A’s complaint reviewed the College file to determine whether there was a basis for an allegation of professional misconduct based on the appellant’s actions during the course of the Manohar investigation.

36While the investigator entitled his January 16, 2007 report “Report of a Registrar’s Investigation”, the title must be an error. In his letter to the appellant’s counsel informing them of the investigation, he writes, “Re: Executive Committee Investigation.” In any event, there is no question that he was not appointed by the Registrar under s. 75.

37The appellant argues that the Code does not provide for informal investigations, nor for a referral to the Discipline Committee unless the referral has arisen as a result of an investigation authorized pursuant to s. 75.

38The appellant cites no authority for the proposition that the Executive Committee’s power to receive information is limited to three sources only. In my view, the suggested interpretation of the Act is neither consistent with the language of the statute nor its overall purpose.

39The wording of s. 36(1) is broad in scope, and there is nothing to suggest that the Executive Committee can act only after a s. 75 investigation.

40The powers of an investigator appointed pursuant to s. 75 can be wide ranging in scope and intrusive in effect. Because of the reach of those powers, the legislation empowers the Registrar to appoint an investigator only in certain specified circumstances – for example, where the Registrar believes on reasonable and probable grounds that the member has committed an act of professional misconduct or is incompetent, and the Executive Committee approves the appointment, or where the Executive Committee, after receiving a report from the Quality Assurance Committee, requests the Registrar to conduct an investigation. The Registrar can also appoint an investigator where the Complaints Committee requests an investigation into a written complaint.

41However, in some cases, these extensive powers are not needed, and nothing in the Code precludes a less formal investigation. Indeed, courts have concluded that a regulatory body has implied authority to conduct an informal investigation in circumstances where it is not necessary to resort to the powers accorded to an individual who is conducting a formal investigation (Brosseau v. Alberta Securities Commission, 1989 121 (SCC), [1989] 1 S.C.R. 301 at pp. 14-15). In Cusack v. Ontario Securities Commission, 1993 9393 (ON SCDC), [1993] O.J. No. 1243 (Ont. Ct. (Gen. Div.), Charron J. (as she then was) stated (at p. 13 (Quicklaw version)):

… I think one can only conclude that the Commission has the implied authority to conduct informal investigations and gather information on a voluntary basis without having recourse to the intrusive powers contained in the Act which were enacted for the purpose of enabling it to do its task in cases where some coercion is required.

42In the present case, the College investigator reviewed documents already in the possession of the College as a result of the investigation into A’s complaint. He did so in order to make a report to the Executive Committee so that the Executive Committee could determine whether to refer allegations of professional misconduct to the Discipline Committee. In the circumstances, there was no need for the intrusive powers conferred on a s. 75 investigator in order to carry out the investigation.

43The interpretation of the powers of the Executive Committee advocated by the appellant is inconsistent with the purpose of the Code. Pursuant to s. 3(2) of the Code, the College has a duty to serve and protect the public interest. As a result, courts determining the scope of the investigative powers of a self-regulating profession have emphasized the need for a flexible interpretation that will allow investigators to effectively discharge their responsibility to obtain relevant information pertaining to a member’s conduct (Pharmascience Inc. v. Binet, 2006 SCC 48, [2006] 2 S.C.R. 513 at paras. 36-37; Gore, supra, at para. 29).

44The appellant relies on the case of Katzman v. Ontario College of Pharmacists, 2002 16887 (ON CA), [2002] O.J. No. 4913 (C.A.), on the basis that this case shows the importance of interpreting the Code strictly with respect to matters of professional discipline (at para. 29). I note that in the paragraph cited, the Court stated the following:

Thus while the discipline process against a health professional must recognize the public interest involved, care must also be taken to accord that professional the full due process that the disciplinary legislation was intended to provide.

45In Katzman, the Court was interpreting the powers of the Complaints Committee, which are set out in s. 26 of the Code. In the course of an investigation into a complaint of specific misconduct, other misconduct was discovered. The Court of Appeal held that the Complaints Committee was not authorized to refer the new allegations to discipline, given the restrictive wording of s. 26(2) of the Code. Pursuant to s. 26(2)1, the Complaints Committee can refer a specified allegation of misconduct or incompetence to the Discipline Committee “if the allegation is related to the complaint”.

46Unlike the Complaints Committee, the Executive Committee is subject to no restriction on its power to refer in s. 36. Moreover, the Court of Appeal stated in Katzman that pursuant to s. 26(2)4 of the Code, the Complaints Committee could have referred the new allegations to the Executive Committee to allow the latter to consider a referral to discipline under s. 36(1) (see Katzman, para. 36).

47The appellant relies as well on Henderson v. College of Physicians and Surgeons of Ontario (2003), 2003 10566 (ON CA), 65 O.R. (3d) 146 (C.A.) That case is distinguishable, as hearing fairness was in issue. In Henderson, the Registrar sought to refer new allegations of professional misconduct and incompetence to the Discipline Committee after a discipline hearing had commenced against the member. The Court of Appeal held that the Registrar did not have statutory authority to do this, and the College had failed to follow the procedure in s. 38(1) of the Code. As well, the member was entitled to particulars of the new complaint before the hearing commenced.

48In the present case, there is no allegation of a breach of the rules of natural justice or procedural fairness. The College gave the appellant notice of its intention to investigate possible obstruction charges at an early stage and offered him several opportunities to provide a response to the allegations.

49In my view, the Discipline Committee correctly concluded that the Executive Committee had the statutory authority under s. 36(1) of the Code to refer the allegations of obstruction to the Discipline Committee without first resorting to an investigation pursuant to s. 75 of the Code.

Issue No. 2: Did the Discipline Committee err in dismissing the motion for a stay?

50The appellant submits that the Discipline Committee should have granted the motion for a stay, either on the basis of autrefois acquit or issue estoppel or as an abuse of process. Regardless of which label is used, he argues, the issues raised in the second proceeding had been raised in the first proceeding against him or they could have been raised in that proceeding.

51The doctrine of autrefois acquit is not available in a disciplinary hearing before the College. Autrefois acquit is a special plea codified in s. 607 of the Criminal Code available to an accused in a criminal proceeding. A disciplinary hearing is a civil proceeding.

52In the civil context, a party may be able to claim res judicata on the basis of cause of action estoppel. That doctrine is available if the cause of action in a second proceeding is the same as the cause of action decided in an earlier proceeding. Alternatively, issue estoppel applies where three conditions are satisfied: the issue in the current proceeding is the same as the one decided in the prior proceeding; the prior decision is final, and the parties to both proceedings or their privies are the same (Angle v. Minister of National Revenue, 1974 168 (SCC), [1975] 2 S.C.R. 248 at 254).

53The elements required for cause of action estoppel and issue estoppel are not present in this case, as the matters in issue in the first proceeding were different from the issues in the second proceeding. While both Notices of Hearing contained an allegation of professional misconduct, the particulars of the allegations were significantly different. In the First Notice of Hearing, the appellant was alleged to have participated in the sexual abuse of A. In the second Notice of Hearing, the allegations related to the appellant’s obstruction of the investigation into A’s complaint against Dr. Manohar. Therefore, the first criterion for issue estoppel has not been satisfied, as the second proceeding does not deal with an issue determined in the first proceeding.

54The appellant argues that the allegations in the second proceeding could have been raised in the first proceeding, and therefore, issue estoppel applies. I disagree. The first proceeding dealt with allegations of sexual abuse of A on a specified date. During the course of the investigation of A’s complaint, the appellant engaged in conduct that led to the second allegation of professional misconduct. As a matter of procedural fairness, that allegation could not have been raised in the first proceeding (see Henderson, supra).

55Therefore, the Committee correctly rejected the motion to stay on the basis that the doctrines of autrefois acquit and issue estoppel did not apply.

56With respect to abuse of process, the Committee correctly identified the governing legal principles set out in the decision of the Supreme Court of Canada in Toronto (City) v. Canadian Union of Public Employees (C.U.P.E.), Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77 at para. 37. The Committee then concluded that there was no attempt by the College to relitigate a matter already decided, and there was no misuse of procedure by the College. I see no basis for this Court to interfere with the Committee’s conclusion that the abuse of process argument should fail.

Issue No. 3: Was the Discipline Committee’s finding of professional misconduct reasonable?

57The appellant argues that the Committee erred in finding he had committed professional misconduct, as there was no basis to determine any intention on his part to mislead. As well, the Committee is said to have made errors of mixed fact and law and of law in coming to this conclusion. The appellant also submits that the evidence against him fell short of the requirement of “clear and convincing proof based on cogent evidence” from Re Bernstein and College of Physicians and Surgeons of Ontario (1977), 1977 1072 (ON SC), 15 O.R. (2d) 447 (Div. Ct.) at para. 120), and the Committee failed to apply the correct onus or standard of proof.

58The College submits that the decision was reasonable, as the Committee made findings of fact that were amply supported by the evidence. The Committee applied the Bernstein standard and correctly placed the onus of proof on the College.

59It is clear that the Committee was aware of the Bernstein standard, as it made explicit reference to the standard when it rejected the allegation that the appellant misled the College respecting sexual activity by Dr. Manohar. The fact that it did not mention the Bernstein standard in other parts of the reasons is of no significance. Moreover, the Committee clearly understood that the onus of proof was on the College, as indicated by its reasons in dismissing some of the allegations against the appellant.

60In any event, I note that the Supreme Court of Canada in F.H. v. McDougall, 2008 SCC 53 made it clear that there is only one standard of proof in civil cases – that of proof on a balance of probabilities – and the trier of fact must always scrutinize the evidence with care in order to determine if an alleged event occurred (at para. 49). In my view, the Committee did scrutinize the evidence with care before coming to its conclusions.

61The Committee examined the evidence of A, X and Dr. Manohar and concluded that A left X’s condo in the company of Dr. Manohar and the appellant. Therefore, it found that the appellant had given misleading or untrue information to College investigators and to Ms. Stephenson, Dr. Manohar’s counsel, when he said that A left the condo prior to the departure of the two doctors. A reading of the transcript shows that the evidence supports the Committee’s finding.

62The appellant argues that there was no basis on which the Committee could determine any intention to mislead the College in the Manohar investigation, given that the information at issue was given to Ms. Stephenson, Dr. Manohar’s counsel, and formed part of the appellant’s response to a complaint against him.

63The Committee found that the appellant knew, when he gave information to Ms. Stephenson, that it would be given to the College as part of its investigation of Dr. Manohar. The appellant takes issue with that finding, relying on the fact that Ms. Stephenson stated, “Whether or not I actually said I will be referring to evidence, I can’t say”.

64There is evidence to support the Committee’s conclusion that the appellant knew the information given to Ms. Stephenson would be provided to the College. Ms. Stephenson testified that she believed she told the appellant she was preparing a response to A’s complaint to send to the College on behalf to Dr. Manohar, although she was not sure that she informed him that his account would be provided to the College.

65The Committee also found that the appellant specifically intended to mislead the Manohar investigation. It reasonably concluded that the appellant’s story - that A left X’s condo before the doctors – was false. The Committee rejected the suggestion that the appellant may have had a faulty memory of the night’s events, as opposed to intentionally giving false information. In its reasons, the Committee stated (p. 14):

Given that Dr. Rassouli-Rashti gave essentially the same story twice to the College within a short time of the events in question, that was false and that the others who were involved with him ultimately admitted to be false, the Committee cannot accept as probable the suggestion that Dr. Rassouli-Rashti may simply have had a different recollection of events. The Committee finds that Dr. Rassouli-Rashti must have known the information he was providing was false, and that in giving it he intended to mislead the College to the benefit of his friend Dr. Manohar. He understood that his friend of 20 years was facing jeopardy in the potential loss of his certificate of registration. He also faced potential consequences himself with the College due to Ms. A’s allegations of sexual coercion involving drug and alcohol use in which he was allegedly involved. Even though those allegations were ultimately dismissed, it was in Dr. Rassouli-Rashti’s interest to cast doubt on the allegations made by Ms. A. The Committee believes that he intended to obscure the truth, halt the investigation and discredit the evidence of Ms. A.

66Counsel for the appellant argued that the appellant would not have known the information he provided to Dr. Manohar’s counsel could obstruct the College investigation. However, Ms. Stephenson believed she would have told the appellant that he was being interviewed because she was filing a response to the College on behalf of Dr. Manohar. In light of this, it was reasonable for the Committee to conclude that the appellant knew that the information he provided to her would be used on Dr. Manohar’s behalf to refute A’s allegations.

67The appellant also suggests that the Committee erred in finding obstruction of the investigation of Dr. Manohar, as the information provided by him in his response of February 3, 2005 was in relation to a complaint about his own conduct. While the College investigator may have placed a copy of the letter in the investigation file relating to Dr. Manohar, the Committee is said to have erred in finding an intention to mislead the Manohar investigation through the appellant’s response to the complaint against him.

68However, A’s complaint related to both the appellant and Dr. Manohar. It should have been obvious to the appellant that what he said in his letter of February 3, 2005 would be relevant to the College’s investigation of Dr. Manohar as well.

69The appellant also submits that the evidence of the College’s investigator Tom McNamara shows that the appellant did not, in fact, obstruct the College’s investigation. Even if the attempt to obstruct the investigation did not succeed, the Committee reasonably concluded that an attempt to obstruct a College investigation constitutes professional misconduct.

70There was ample evidence to support the Committee’s findings of fact, and its conclusion that the appellant committed professional misconduct was reasonable.

Conclusion

71For these reasons, I would dismiss the appeal. The parties have agreed that there should be no order of costs of the appeal, and none are awarded.

72The publication ban governing the publication of the names of the two witnesses, A and X, is continued.

Swinton J.

Jennings J.

J. Wilson J.