Covey v. Health Professions Appeal and Review Board, 2012 ONSC 6122

CITATION: Covey v. Health Professions Appeal and Review Board, 2012 ONSC 6122

DIVISIONAL COURT FILE NO.: 143/12

DATE: 20121026

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

ASTON, LAX AND SWINTON JJ.

B E T W E E N :

DR. DAVID COVEY

Applicant

– and –

HEALTH PROFESSIONS APPEAL AND REVIEW BOARD, COLLEGE OF CHIROPRACTORS OF ONTARIO and ANN HANNAH

Respondents

Gary Srebrolow, for the Applicant

David P. Jacobs, for the Respondent Health

Professions Appeal and Review Board

Richard Steinecke and Rebecca Durcan, for the Respondent College of Chiropractors of Ontario

HEARD at Toronto: October 26, 2012

SWINTON J. (ORALLY):

[1]

Background

The applicant seeks judicial review of a decision of the Health Professions Appeal and Review Board (“the Board”) dated August 11, 2011, which dismissed his request to review a decision of the Inquiries, Complaints and Reports Committee of the College of Chiropractors of Ontario (the “ICRC”) dated December 16, 2009.

2The ICRC decided to send the applicant a written caution because of the tone and language of a letter he had sent to a patient on June 1, 2009. The ICRC decided to take no further action with respect to any other elements of the complaint before it, namely:

1. the failure to order a bone density test;

2. the concern about a lack of clear explanation to the patient;

3. the comment that a doctor would give pain medication (as it was not in a position to assess what was said); and

4. the oral comment that the patient’s spine was “falling apart”, as it did not have information from the patient on that issue.

3The Board found that the investigation of the ICRC was adequate and the decision to give a written caution was reasonable, given the tone and language to the patient and the applicant’s admission that the tone could have been gentler, and the reference to a decreased life span was incorrect.

4The applicant challenges this decision because the Board failed to deal with an allegation of reasonable apprehension of bias he raised in a letter to the Board following the hearing. The claim was based on the participation of Dr. Gleberzon on the ICRC, because Dr. Gleberzon was a co-author of a publication that criticized an article on the treatment philosophy followed by the applicant. He also challenges the Board’s decision as unreasonable.

[5]

Standard of Review

The standard of review of the Board’s decision is reasonableness. To the extent that there is an issue of bias this Court must determine whether this claim is well founded.

[6]

The Bias Claim

In our view, there is no merit to the bias claim. The fact that Dr. Gleberzon was a co-author of an academic article several years before the hearing relating to the research methodology and conclusions in another article does not give rise to a reasonable apprehension of bias. The applicable test is whether a reasonable person, properly informed, would believe that it is more likely than not that the decision maker would, consciously or unconsciously, not decide fairly. See Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259 at paragraph 60.

7The applicant takes the position that the ICRC was biased because Dr. Gleberzon’s views, as expressed in the article, indicated that Dr. Gleberzon did not subscribe to the same treatment philosophy as the applicant. In fact, the views expressed in the Cooperstein article are part of an academic debate about the methodology in the Oakley article.

8The ICRC’s decision did not depend on a particular philosophy or any opinion about how serious the patient’s condition was. Rather, as the ICRC stated at p.4 of its reasons:

Although the professional members recognize that the patient history and examination may reveal a more serious problem than would be evident from the x-rays alone, this would not appear to justify the following alarmist statement found in Dr. Covey’s letter: “What you have is serious! The neck x-ray above shows that the curve in your neck is reversed, and you have advanced arthritis and degeneration because of it. This tensions the spinal cord and cuts off healing and repair to the body.” In the Committee’s view, the following statement in the letter is unsupported by medical or scientific evidence: “a reversed curve like yours decreases your life span by at least 10 years.” The letter tells [the patient] that “it is foolish” to seek a doctor’s advice and then not pursue it.

9It is clear that the ICRC was only concerned about the language and tone of the letter and nothing more. While the Board failed to address the issue of reasonable apprehension of bias, no person reasonably informed of the facts would conclude that there was a reasonable apprehension of bias on the part of the ICRC.

10The Michaud decision of another panel of the Board in respect of a different complaint against the applicant is of no assistance in determining the bias claim in the present case.

[11]

The Written Caution

As to the Board’s decision upholding the written caution, that decision is reasonable. The Board reasonably found the investigation was adequate, as no expert evidence was needed to assess the tone and language of the letter. The tone and language of the letter are unprofessional, and the ICRC and Board reasonably concluded that the applicant should be so advised. The purpose of the caution was educational and not disciplinary and was moderate in the circumstances.

[12]

Disposition

Therefore, the application for judicial review is dismissed.

ASTON J.:

[13]

Costs

The application is dismissed in accordance with the oral reasons of Justice Swinton on behalf of the panel. No costs requested, none ordered.