Court File and Parties

Citation: College of Physicians and Surgeons of Ontario v. Noriega, 2012 ONSC 4084

Divisional Court File No.: 433/11

Date: 2012-07-09

Ontario Superior Court of Justice Divisional Court

Before: Lax, Nordheimer and Perell JJ.

Between:

The College of Physicians and Surgeons of Ontario Respondent

– and –

Dr. Eleazar Humberto Noriega Appellant

Counsel: Amy Block and Alice Cranker, for the Respondent Jenny P. Stephenson and Jennifer A. McKendry, for the Appellant

Heard at Toronto: July 9, 2012

Oral Reasons for Judgment

NORDHEIMER J. (ORALLY)

[1] Dr. Noriega appeals the decision of the Discipline Committee Panel of the College of Physicians and Surgeons that found him guilty of professional misconduct for allegedly sexually touching a young girl when she was a patient of his some thirty years earlier.

[2] The principle challenge to the College’s decision is that the reasons given for the finding of misconduct are conclusory and insufficient to allow for meaningful appellate review. While the appellant accepts that the sufficiency of reasons is not a stand-alone ground for quashing a decision (see N.L.N.U. v. Newfoundland & Labrador (Treasury Board), 2011 SCC 62, [2011] S.C.J. No. 62), the appellant does submit that the reasons must still be adequate, in the context of the facts as a whole, to explain why the decision was reached and permit meaningful review as to the reasonableness of the outcome.

[3] The respondent, on the other hand, submits that based on the evidentiary record that can be used to supplement the reasons, the Discipline Panel’s decision was a reasonable one and is entitled to deference. Reasons of course are the mechanism by which one determines whether the decision is one that falls within the range of acceptable outcomes and is a reasonable one.

[4] We agree that the reasons of the Discipline Panel fail to meet the minimum standard required, one that was described in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, as demonstrating justification, transparency and intelligibility. First and foremost, the reasons do not undertake any analysis whatsoever of the evidence of Dr. Noriega who denied having inappropriately touched the complainant. There is no critical examination of his evidence nor reasons given as to why his evidence was not to be believed. In essence, the reasons simply accepted the complainant’s evidence and thus by implication rejected the evidence of the doctor. If Dr. Noriega’s evidence was to be rejected by the College, then he was entitled to know why his evidence was being rejected. Some analysis of and reasons for rejecting his evidence was required at a minimum. Otherwise, Dr. Noriega is left with no idea why his evidence was not accepted.

[5] On that point, we refer to the following observation from Law Society of Upper Canada v. Neinstein (2010), 99 O.R. (3d) p. 1 (C.A.) at para. 80:

It can be fairly said that Mr. Neinstein, on a reading of the Hearing Panel’s reasons, would have absolutely no idea what, if anything, the Hearing Panel made of his evidence, and that of his supporting witnesses. Nor can a reviewing appellate court know what the Hearing Panel made of that evidence. Indeed, the reasons suggest that the Hearing Panel, having found C.T. credible, never engaged in any analysis of Mr. Neinstein’s evidence. The Hearing Panel’s silence in respect of the evidence led on behalf of Mr. Neinstein renders meaningful appellate review of the Panel’s credibility assessments very difficult.

[6] That failing is made more troublesome by the treatment of the complainant’s evidence by the Discipline Panel that is similarly problematic. There were inconsistencies in, and additions made to, the complainant’s evidence before the Panel from that that the complainant had given in various earlier statements as to what occurred and when it occurred that are not adequately addressed in the reasons. Indeed, the Panel on the one hand relied on the consistency of the complainant’s evidence and yet at the same time dismissed her poor memory of other events as “not an important factor in assessing her credibility” without explaining why.

[7] These inconsistencies take on increased importance when one realizes that there was a possibility that the complainant may have confused what occurred during the pelvic examination that she had in June 1978 with what she later claimed occurred at her last visit with Dr. Noriega that the records established took place in January 1979.

[8] This potential for confusion and misunderstanding regarding the nature of the examination that occurred in June 1978 was underscored by both of the nurses who gave evidence before the Panel as to the steps taken to “demystify” the process and attempt to obviate the potential for misunderstanding as to the nature of the examination.

[9] In fact, there was no evidence whether the complainant received this instruction. That said, and notwithstanding that evidence, the Discipline Panel did not allow for such a possibility and dismissed the suggestion as “inconceivable” that the complainant could have been confused. They further dismissed the change in the complainant’s evidence that the offending conduct had taken place in 1978, to one where it occurred in January 1979 as not being “material”, notwithstanding the import of that timing on this potential for confusion.

[10] Another concern is the obvious emphasis that the Panel put on the demeanour of the witness. While demeanour is an aspect of the credibility analysis, it is dangerous to place too great a reliance on it in reaching the ultimate conclusion. We again refer to the Court of Appeal’s decision in Law Society of Upper Canada v. Neinstein, in this instance at para. 66:

Furthermore, while demeanour is a relevant factor in a credibility assessment, demeanour alone is a notoriously unreliable predictor of the accuracy of evidence given by a witness.

[11] Put simply, a witness may be very certain about something and still be mistaken. This caution regarding reliance on demeanour evidence is not apparent in the Discipline Panel’s approach to the complainant’s evidence.

[12] In the end result, the reasons of the Discipline Panel do not fulfill the fundamental purpose of reasons, and that is to “allow the reviewing court to understand why the Tribunal made its decision” (see again N.L.N.U. v. Newfoundland Labrador (Treasury Board), at para. 16).

[13] Without being able to understand why the conclusion was reached, it is impossible to determine whether the conclusion is a reasonable one on these facts. As the Newfoundland case held, there are two requirements. One is to know why the decision was made and the other is to determine that it falls within the range of acceptable outcomes. The nature of this case allowed for only two possible outcomes, either of which would be reasonable. The core issue is why the result was reached.

[14] The appeal is therefore allowed. The finding of the Discipline Committee Panel is set aside and the matter is remitted to a different panel for a new hearing.

LAX J.

Costs

[15] I have endorsed the Appeal Book and Compendium, “For reasons delivered orally by Nordheimer J. on behalf of the panel, the appeal is allowed. No costs are sought. The undertaking with respect to Dr. Noriega’s practice limitations is to continue until the disposition of the re-hearing by the College.”

NORDHEIMER J.

LAX J.

PERELL J.

Date of Reasons for Judgment: July 9, 2012

Date of Release: July 24, 2012