Kumra v. College of Physicians and Surgeons of Ontario, 2011 ONSC 2904
CITATION: Kumra v. College of Physicians and Surgeons of Ontario, 2011 ONSC 2904
DIVISIONAL COURT FILE NO.: 512/09
DATE: 20110510
WARNING: A PARTIAL PUBLICATION BAN IN THIS PROCEEDING HAS BEEN ISSUED
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, FERRIER AND ASTON JJ.
BETWEEN:
DR. RAJIV KUMRA Appellant
– and –
THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO Respondent
Michael B. Fraleigh and W. Ross MacDougall, for the Appellant
Amy Block, for the Respondent
HEARD at Toronto: May 10, 2011
ASTON J. (orally)
[1] I will start by repeating that there is a partial publication ban in effect with respect to this matter and that no person shall publish or broadcast the names of patients or any information that would disclose the identity of patients who are referred to during the hearing or in any document filed at the hearing including the motion material filed with the Court, pursuant to s.45(3) of the Health Professions Procedural Code, which is Schedule 2 to the Regulated Health Professions Act, 1991 (as amended).
[2] Dr. Kumra challenges the decision of the Discipline Committee of the College of Physicians and Surgeons made July 15, 2009 which found him guilty of professional misconduct for having made false statements to his disability insurers regarding his capacity to work between 2001 and 2005. As a penalty, the Discipline Committee suspended Dr. Kumra’s Certificate of Registration for six months, directed him to enroll in an ethics course and to appear for a formal reprimand. It also ordered him to pay costs to the College.
[3] Dr. Kumra takes the position that the Discipline Committee erred in its interpretation of the terms of the insurance policies in question and in fact that Dr. Kumra was fully disabled in respect of his own occupation, as defined in the policies. He claims therefore, that the statements that he made were not false. Dr. Kumra also asserts that the Committee applied a penalty that was too harsh in the circumstances.
[4] The Achilles heel of Dr. Kumra’s position is that he chose not to testify as to what he meant or intended when he represented on numerous occasions that he was “fully disabled” or “unable to do any work”. It is not enough to ask the Discipline Committee to look to the language of the disability insurance policies themselves or to rely on Dr. Rathe’s “understanding” of what Dr. Kumra was saying to his insurance company. This case is not about the interpretation of insurance policies or about Dr. Kumra’s entitlement to benefits. It is about whether Dr. Kumra misrepresented his capacity to work and his medical condition.
[5] At the heart of the Discipline Committee’s decision was the question of whether the appellant’s representations were disgraceful, dishonourable, or unprofessional when contrasted with his true condition and activity.
[6] The nature and extent of Dr. Kumra’s incapacity to work is primarily a question of fact. The Discipline Committee’s findings are entitled to deference. The standard of review is reasonableness.
[7] The appellant has failed to demonstrate that the Discipline Committee’s conclusions failed to consider material evidence or were the product of any misapprehension of evidence. At pages 36 to 38 of its decision, the Discipline Committee considered numerous examples of particular evidence supporting its ultimate conclusion that there was a clear incongruence between false representations of disability by Dr. Kumra and the reality of his capacity to function and to work.
[8] Furthermore, the finding that Dr. Rathe was not a reliable witness is based on a detailed examination of Dr. Rathe’s evidence and a clear expression in the reasons for why the Discipline Committee came to that conclusion. There was ample evidence upon which the Discipline Committee could reasonably infer that Dr. Rathe and Dr. Kumra acted in concert and that Dr. Kumra authorized Dr. Rathe to make representations about Dr. Kumra’s capacity to work as a physician that were false.
[9] The appellant submitted that the period of suspension, six months, was excessive and failed to take into account his chemical dependency. The appellant further submitted that the Committee wrongly considered his lack of remorse as an aggravating factor. In our opinion, the lack of remorse was considered by the Committee to be the reason to direct the appellant to take an ethics course. The appellant does not take issue with that aspect of the penalty imposed. The duration of the suspension is a matter squarely within the expertise of the Committee. The suspension was considerably less than that sought by the College.
[10] We find that the suspension falls within the range of reasonableness and we have no reason to interfere with it.
JENNINGS J.
COSTS
[11] With respect to the appeal, having had the benefit of submissions from counsel, we are all in agreement that costs of $16,000.00 plus HST if applicable would be just in this matter. This appeal is dismissed for oral reasons delivered today. Costs payable to the College fixed at $16,000.00 plus HST if applicable.
ASTON J.
JENNINGS J.
FERRIER J.
Date of Reasons for Judgment: May 10, 2011
Date of Release: May 25, 2011
CITATION: Kumra v. College of Physicians and Surgeons of Ontario, 2011 ONSC 2904
DIVISIONAL COURT FILE NO.: 512/09
DATE: 20110510
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, FERRIER AND ASTON JJ.
BETWEEN:
DR. RAJIV KUMRA Appellant
– and –
THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO Respondent
ORAL REASONS FOR JUDGMENT
ASTON J.
Date of Reasons for Judgment: May 10, 2011
Date of Release: May 25, 2011