CITATION: Chauhan v. Health Professions Appeal and Review Board and The College of Physicians and Surgeons of Ontario, 2013 ONSC 1621

DIVISIONAL COURT FILE NO.: 398/12

DATE: 20130405

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Swinton, Harvison Young, Lederer JJ.

BETWEEN:

Dr. Amitabh Chauhan

Appellant

– and –

Health Professions Appeal and Review Board and the College of Physicians and Surgeons of Ontario

Respondents

Christopher A. Wayland and David Whitwham, for the Appellant

David P. Jacobs, for Health Professions Appeal and Review Board

Amy Block and Jessica Amey, for The College of Physicians and Surgeons of Ontario

HEARD at Toronto: February 8, 2013

Harvison Young J.

Overview

[1] The Appellant, Dr. Amitabh Chauhan, appeals an order of the Health Professions Appeal and Review Board (“the Board”) dated July 17, 2012. The Board confirmed the decision of the Registration Committee (“Committee”) of the College of Physicians and Surgeons of Ontario (“the College”) which had directed the Registrar to refuse to issue a certificate of registration authorizing postgraduate education to the Appellant. The Appellant had been in his first year of residency in a plastic surgery program and his initial certificate was to expire in June 2011.

[2] Dr. Chauhan’s application was refused because he and another doctor had been charged in February 2011 with a number of criminal offences arising out of allegations that they had drugged and then sexually assaulted a woman who was a medical student at McMaster at that time. In June 2011, Dr. Chauhan was charged in relation to a separate set of allegations involving a different complainant, alleged to have taken place in 2003 before he was a medical student.

[3] There is no dispute that, but for these charges, Dr. Chauhan met the requirements for the issuance of a certificate of registration. The issue in this appeal is whether these charges, prior to conviction, can found a refusal to grant the certificate. The Appellant submits that the Board’s decision upholding the refusal was unreasonable, arguing that it misapplied the regulatory scheme and applicable case law, and that it violated the presumption of innocence. For the reasons that follow I find that the Board’s decision was reasonable and I would dismiss the appeal.

The Background Facts

[4] Dr. Chauhan was enrolled in his first year of residency training in the plastic surgery program at McMaster University. The College issued him a certificate of registration authorizing postgraduate education on July 1, 2010, with an expiry date of June 30, 2011.

[5] The College received notice on February 22, 2011, that Dr. Chauhan had been placed on a leave of absence with pay from McMaster as a result of the first set of criminal charges. One of the terms of his bail recognizance prohibited him from being at nine different health care facilities in Hamilton.

[6] In the spring of 2011, Dr. Chauhan applied for a new certificate authorizing postgraduate education for 2011-2012. Along with the application, he provided a Letter of Appointment from McMaster indicating that he had been offered further postgraduate training from July 1, 2011 to June 30, 2012 (Committee Decision, p. 4). At that point, he had been granted a leave of absence from the residency programme because of the charges, but he was eligible to apply for a new certificate because he was still a member of the programme.

[7] The Registrar advised Dr. Chauhan by letter dated June 6, 2011 that in light of the information received from McMaster regarding the criminal charges, the application was being referred to the Registration Committee of the College in order to determine whether his application met the non-exemptible requirements of s. 2(1) of O. Reg. 865/93 (“the Regulation”) to the Medicine Act, 1991, S.O. 1991, c. 30.

[8] Pursuant to s. 15 of the Health Professions Procedure Code, Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (“the Code”), a person seeking registration with the College applies to the Registrar of the College, who shall either register the applicant or refer the application to the Registration Committee. Section 2(1) of the Regulation provides as follows:

2. (1) It is a non-exemptible standard and qualification for a certificate of registration that the applicant’s past and present conduct afford reasonable grounds for belief that the applicant,

(a) is mentally competent to practise medicine;

(b) will practise medicine with decency, integrity and honesty and in accordance with the law;

(c) has sufficient knowledge, skill and judgment to engage in the kind of medical practice authorized by the certificate; and

(d) can communicate effectively and will display an appropriately professional attitude.

[emphasis added]

[9] This appeal turns on the interpretation and application of s. 2(1)(b).

The Registration Committee’s Decision

[10] In response to the Registrar’s letter that his application was being referred to the Committee, Dr. Chauhan wrote a letter in which he denied the criminal allegations and set out his career aspirations. He did not adduce any other evidence as to his character.

[11] Pursuant to the process set out in the Code, the application was considered by a panel on the basis of a documentary review. By decision dated September 15, 2011, the Committee refused to issue the certificate. While the Committee noted that normally a Letter of Appointment from a medical school and a registration request would qualify an applicant for a certificate of registration authorizing postgraduate education, it concluded that, having reviewed all the material submitted to it (including written submissions of counsel for Dr. Chauhan as well as a letter from Dr. Chauhan himself), “Dr. Chauhan’s past and present conduct does not afford reasonable grounds to believe that Dr. Chauhan will practise medicine with decency, integrity and honesty and in accordance with the law” (Committee Decision at p. 4).

[12] The Committee reviewed the allegations and charges against Dr. Chauhan and found that although “the allegations are denied by Dr. Chauhan and have not been proven”, they were very serious, related to multiple charges and more than a single individual, and resulted in a suspension from residency training as well as a prohibition from attending nine different hospitals in Hamilton. The Committee noted that “the very nature of the charges” raised “very grave concerns that are relevant to the College’s mandate to protect the public”. Accordingly, the Committee decided that the requirement of s. 2(1)(b) of the Regulation was not met (Committee Decision at pp. 5-6).

[13] In denying the application, the Committee noted that its decision did not bar the Appellant from applying for a certificate of registration at a future date, “…for example when the criminal proceedings against him are concluded”. However, it also added that the Committee was “unable to give Dr. Chauhan any assurance about the outcome of a future application” (Committee Decision, at p. 6).

[14] By letter dated October 18, 2011, Dr. Chauhan required the Board to hold a written review of his application.

The Board’s Decision

[15] Counsel for both parties made written submissions to the Board. No additional evidence regarding Dr. Chauhan’s character or conduct was adduced by him or on his behalf. The Board confirmed the Committee’s decision. It confirmed that the onus lies on the physician to demonstrate that he meets the registration requirements as set out in s. 2(1) of the Regulation, noting that

The frame of reference for making determinations under s. 2(1)(b) of the Regulation by necessity involves consideration of what is expected of a physician in society. This provision… expresses a fundamental requirement of what is expected of an individual who has been officially sanctioned under the laws of Ontario to practice medicine. (Reasons for Decision, para. 27)

[16] The Board noted that

…[w]hile criminal charges or criminal investigations cannot be taken as an indication of guilt, the fact that an applicant’s circumstances have given rise to ongoing societal actions of this nature raises public interest concerns (Reasons for Decision, para. 31).

[17] The Board also went on to consider the material provided by the Appellant to the Committee and the Board:

The Applicant has only provided the Registration Committee and the Board his own statement which outlines his career history and aspirations. His statement also indicates that he is “very troubled” by the allegations, has pleaded not guilty to the criminal charges and intends a vigorous defence…. He has provided no positive evidence that the Registration Committee or the Board could look to that would indicate that the Applicant in fact meets the conduct and character requirements of a physician under section 2(1)(b).

The information from the Applicant does very little if anything to counterbalance very serious concerns raised by the information concerning ongoing investigations into allegations of conduct that, if true, would undeniably disqualify a person who is seeking to hold a position of public trust as a physician. (Reasons for Decision, paras. 35-36)

[18] The Board accepted that the fact of criminal charges alone will not “necessarily” disqualify an applicant from meeting good character requirements for professional registration, stating that it is necessary to consider “all of the available information that has relevance to an applicant’s character to determine whether a regulator may be assured on the balance of probabilities that an applicant meets the requirements expected of a member of the profession”. (Reasons for Decision, para. 39)

[19] The Board found that in this case the Registration Committee had information about official investigations into allegations of conduct by the Applicant, which “…if proven, would clearly disqualify him from the practice of medicine” (Reasons for Decision, para. 33). The Appellant had the opportunity to bring information to counterbalance this information and to demonstrate that his past and present conduct affords reasonable grounds for the belief that he will practise medicine with decency, integrity and honesty and in accordance with the law. Instead, he offered only an outline of his career history and goals, indicated that he was “very troubled” by the allegations, has pleaded not guilty, and planned to vigorously defend the charges (Reasons for Decision, para. 35).

[20] In the Board’s view, all of this did “very little if anything to counterbalance” the information regarding the charges (Reasons for Decision, paras. 34-36). In the examples of Law Society of Upper Canada hearings that the Appellant provided, the Board noted that “significant positive evidence was adduced to support the qualifications of the candidates, to counter the effect of adverse information, and to address concerns raised.” (Reasons for Decision, para. 38).

[21] The Board also observed that, in the case before it, the Appellant could have requested a hearing under the Code, which would have allowed for viva voce evidence and cross-examination. Instead he opted for a written review and took the position that the criminal charges ought to be discounted because they had not been proven (Reasons for Decision, para. 37).

[22] In conclusion, the Board upheld the Committee’s conclusion that the information before it did not satisfactorily demonstrate that the Appellant had met the non-exemptible requirement of s. 2(1)(b) of the Regulation.

Standard of Review

[23] The standard of review applicable to the Board’s decision upholding the Committee’s refusal to issue the certificate of registration is that of reasonableness.

[24] The issue at the heart of this appeal concerns the interpretation and application of s. 2(1) of the Regulation cited above. In reviewing the Committee’s decision, the Board was administering “its own statute or statutes closely connected to its function, with which it will have particular familiarity”: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 54 and Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Federation, 2011 SCC 61, [2011] 3 S.C.R. 654 at para. 30.

The Issues

[25] The Appellant submits that the Board, in basing its refusal to renew his certificate on the unproven criminal charges, was wrong in law and unreasonable for two principal reasons. First, he submits that the Board misapplied the legal authorities upon which it relied. Second, and relatedly, he submits that a refusal to renew based on unproven criminal charges violates the fundamental principle of the presumption of innocence.

The Legal Framework and Authorities

[26] The Appellant focuses his first submission on the case of Stacey Lynn Stevens v. Law Society of Upper Canada, [2005] ONSLHP 15. He argues that the Board did not follow Stevens despite its assertion to the contrary. According to the Appellant, Stevens stands for the proposition that the mere fact of a charge is not evidence of bad character and cannot be relied upon to establish bad character. Further, he argues that Stevens also supports the proposition that

[I]f the only evidence against an applicant is the bare fact of an outstanding criminal charge, then the applicant is entitled to a presumption that he is of good character and should be granted a license on the strength of that presumption, even if he does not adduce evidence of his good character. (Appellant’s Factum, para. 15)

[27] For the following reasons, I do not agree that the Board misapplied Stevens. I also do not agree that it was required to apply the proposition set out in Stevens according to which good character is ordinarily presumed. At the outset, I note that the parties agreed that the Stevens decision binds neither the Board nor this court.

[28] The applicant in Stevens was a student member who was facing a number of criminal charges which included allegations of forgery, making false affidavits and commissioning unsworn affidavits in relation to a civil action contesting a will. The issue before the Law Society Hearing Panel was whether she was of good character pursuant to s. 27(2) of the Law Society Act, R.S.O. 1990, c. L. 8, which provided at the time that “[a]n applicant for admission to the Society shall be of good character”.

[29] Citing earlier decisions including Preyra, Re, 2000 14383 (ONLSHP) and Law Society of Upper Canada v. Alden Birman, 2005 ONLSHP 6, the Panel in Stevens held that

a. an applicant bears the burden of establishing on a balance of probabilities that he or she is presently of good character and should be admitted to the Society;

b. the same principles relating to standard of proof which apply in relation to professional misconduct, where the burden lies upon the Law Society, apply to proof of an allegation relied upon by the Law Society to oppose an application for admission to the bar;

c. in order to reconcile these principles,

…[i]n the ordinary course – where the Society’s opposition to the application is entirely based upon unproven allegations of misconduct – the applicant’s present good character will otherwise be presumed, and the application will generally succeed. (Stevens, p. 9)

[30] The Society in Stevens conceded at the outset that it was unable to prove the allegations on the criminal charges to the standard required by the Hearing Panel. Ms. Stevens nevertheless adduced evidence to respond to the criminal charges as well as “an almost overwhelming plethora of evidence”, both under oath and by way of documentation, to support her character. The Panel found her testimony to be “remarkable and persuasive”.

[31] I do not agree with the Appellant that the Board misunderstood or misapplied Stevens. Rather, it found Stevens to be a useful example “of how criminal allegations have been assessed in the context of the legal profession” (Reasons for Decision, para. 39). It focused on the fact that Ms. Stevens, unlike Dr. Chauhan, had advanced significant evidence in support of her good character, noting that this evidence had included twenty-two individuals attesting to the applicant’s character as well as a number of witnesses who spoke of her moral and ethical trustworthiness and suitability as a candidate for admission to the Law Society.

[32] The Board did not purport to apply or import the same legal principles or framework from the legal profession to that applicable to the interpretation of s. 2 (1) of the Regulation. It did consider the authorities referred to it by the Appellant, citing Law Society of Upper Canada v. Evans (2008), 2008 34276 (ON SCDC), 91 OR (3d) 163 (Div. Ct.) and Birman, above. However, as it stated, it was not persuaded by these authorities that the Committee had acted inappropriately in arriving at the decision that it did on the facts. The Board emphasized that in all the Law Society regulatory cases involving hearings “significant positive evidence was adduced to support the qualifications of the candidates, to counter the effect of adverse information, and to address concerns raised” (Reasons for Decision, para 38). See Evans at para. 14 and Alden Birman v. Law Society of Upper Canada, 2006 ONLSHP 32 at paras. 16-23.

[33] It is clear that the Board did not adopt from the Law Society cases the principle that the onus will ordinarily be presumed to have been met, and that “bare” criminal charges will not be sufficient to rebut that onus. Rather, it emphasized repeatedly that the onus remains on the applicant to satisfy the requirements set out in s. 2(1)(b) of the Regulation.

[34] The heart of the Appellant’s submission is that the Board, in failing to apply the same legal analysis to s. 2(1)(b) which has been articulated in relation to the legal profession, acted wrongly or unreasonably. I disagree.

[35] The central question before this court is whether the Board acted reasonably in confirming the Committee’s refusal. This must be considered in terms of the context of the regulatory framework applicable to the medical profession and not that applicable to the legal profession. It does not follow that the Board’s decision was unreasonable simply because it did not adopt the approach taken under the regulatory scheme applicable to the legal profession.

[36] There are a number of significant differences between the two regulatory schemes.

[37] First, unlike s. 27 of the Law Society Act, s. 2(1)(b) does not require a finding of good character. As the Board noted at para. 26, an applicant must show that he or she has “…past and present conduct which affords reasonable grounds for belief that they will practice medicine with decency, integrity and honesty and in accordance with the law” [emphasis added]. The nature of the inquiry is framed broadly and is prospective. On the other hand, the focus in the Law Society character hearings is on the present. As the Panel stated in Stevens at para. 11 (quoting from Preyra)

…The relevant test is not whether there is too great a risk of future abuse by the applicant of the public trust, but whether the Applicant has established his good character at the time of the hearing on the balance of probabilities. […] The issue is his character today, not the risk of reoffending.

[38] Second, unlike “good character” hearings before the Law Society Hearing Panel, the Code specifically provides for a documentary review. The Registration Committee considers the material before it and makes a judgment as to whether the applicant meets the non-exemptible requirements in s. 2(1) of the Regulation. In a registration review by the Board, the process chosen by the Appellant in this case, the Board reviews this decision to determine whether the Registration Committee’s assessment was reasonable.

[39] Third, the Board has developed its own principles applicable to registration reviews. Significantly, it repeatedly affirms (in this and in other decisions) that the applicant bears the onus of showing that he or she meets the registration requirements: see Reasons for Decision at para. 25; Ahmed v. Ontario (Health Professions Appeal and Review Board), 2011 ONSC 4217 at para. 12; Bugwandin v. College of Physicians and Surgeons of Ontario, 2012 60641 (ON HPARB) at para. 39. There is no presumption of good character in the regulatory scheme, either in the legislation itself or pursuant to the principles as developed by the Board. There is nothing in the Code which would require or arguably even support the interpretation that such a presumption exists.

[40] The Appellant urged this Court to interpret the legislative scheme relating to applications for registration “harmoniously” with that applicable to professional misconduct. That, however, would ignore the scheme of the legislation itself. This scheme clearly sets the process of registration as part of a gatekeeping function regulating entry to the profession. This gatekeeping function, as the Board noted at para. 26, is an important element of maintaining public trust in the medical profession:

When seeking registration to practice medicine in Ontario, individuals must meet a non-exemptible requirement of having past and present conduct which affords reasonable grounds for belief that they will practice medicine with decency, integrity and honesty and in accordance with the law. Such a determination will at times require discretionary judgement on behalf of the professional regulator, and involves the interest of an individual to practice his or her profession of choice and an assurance to the public that the individuals who are permitted to practice the profession meet the standards expected of the profession.

[41] This is a very different matter from the investigation and adjudication of an allegation of professional misconduct under ss. 36 – 56 of the Code. It is clear that the regulatory framework contemplates such a difference. In short, there is no statutory basis for requiring that the College prove professional misconduct on the balance of probabilities to justify refusal of an applicant.

[42] In sum, the Board’s rejection of the Law Society approach to good character determinations was reasonable given the distinct regulatory regime applicable in the present case. It was under no obligation to adopt the principles which have been applied in the Law Society regulatory context. The regulatory scheme supports the Board’s conclusion that the onus is on the applicant to establish that the non-exemptible requirements set out in s. 2(1) have been met. It was reasonable for the Board to find that onus is not presumed to be met.

Presumption of Innocence

[43] The Appellant also submits that, in confirming the decision of the Committee, the Board (as well as the Committee itself) ignored the presumption of innocence. In my view, this submission is misplaced. To begin with, it is clear from both decisions that neither the Committee nor the Board made any determination as to whether the Appellant was or was not guilty as charged. The Committee specifically acknowledged that it was aware that the charges were allegations only and had not been proven (Committee Decision, p. 5). Similarly, the Board also acknowledged that criminal charges and investigations cannot be taken as an indication of guilt and are not proof that an event occurred (Reasons for Decision, para. 42).

[44] That said, the Board rejected the argument that it follows from the fact that the charges were not proven that they must be wholly disregarded. The Appellant’s position, in essence, would require the Committee and Board to treat criminal charges as irrelevant to a consideration of s. 2(1). In my view, the Board’s position is reasonable for a number of reasons which are clearly articulated in the Board’s decision.

[45] First, the information before the Committee and the Board included very serious criminal charges. The allegations involve the use of drugs and include acts of a violent sexual nature involving more than one complainant. While these are unproven allegations, the existence of such charges is surely a relevant consideration in an application for membership in a professional organization governed by legislation which requires the College to consider the public interest.

[46] The Board has repeatedly confirmed, in discharging its regulatory function, that the College and the Committee have a duty to serve and protect the public interest and to see that professional standards are upheld. Given the College’s public interest mandate, the Registration Committee must consider all the information it has before it. This may even include unproven complaints, for example, because they may be relevant to the protection of the public interest. It is hard to see how the College could fulfill its public interest mandate if unproven criminal charges were to be entirely disregarded as far as the licensing of doctors is concerned.

[47] In addition, even within the criminal justice system itself, it is not the case that criminal charges in themselves must always be treated as irrelevant when considering the public interest and public confidence in the administration of justice. Bail applications illustrate circumstances in which unproven allegations may nevertheless be treated as legally relevant in light of public interest considerations. Similarly, the Human Rights Tribunal of Ontario has repeatedly held that the Human Rights Code, R.S.O. 1990 c. H. 19 does not prohibit discrimination on the basis of pending criminal charges: see De Pelham v. Ontario (Human Rights Tribunal), 2011 ONSC 7006 (Div. Ct.).

[48] It is an overstatement of the presumption of innocence to suggest that it means that criminal charges must always be treated as irrelevant to any legal determination involving the accused person. As the Board emphasized in its reasons, there has been no finding of guilt, and it was not making any such finding. Rather the charges were treated as circumstances (along with all the other information before it) which were relevant to the question of whether the Appellant had met the non-exemptible requirement set out in s. 2(1).

[49] Second, as the Board noted at para. 34 of its reasons, an application for registration is very different from a criminal trial:

… It has a different purpose and it has different standards. The Applicant has been advised of the information before the Registration Committee and the Board. He has full opportunity to submit any information that demonstrates that his past and present conduct affords reasonable grounds for belief that he will practice medicine with decency, integrity and honesty and in accordance with the law.

[50] Neither the Committee nor the Board treated the existence of the charges as exhaustive of the matter in itself. The Board emphasized that the charges constituted a circumstance that was properly considered along with all the other information it took into account in determining whether the Committee had been reasonable in finding that the Appellant had not discharged his onus under s. 2(1)(b) of the Regulation. As noted earlier in these reasons, the Appellant chose to proceed by means of a documentary review rather than a hearing and adduced no evidence other than the letter referred to above in which he outlined his background and career aspirations.

[51] As the Board continued at para. 35 of its reasons:

The Applicant has only provided the Registration Committee and the Board his own statement which outlines his career history and aspirations. His statement also indicates that he is “very troubled” by the allegations, has pleaded not guilty to the criminal charges, and intends a vigorous defence. While he has noted that, “The Canadian Forces has taken a supportive position acknowledging that the charges against me are unproven allegations and as such my ability to serve as a reservist has not been disrupted…”, he has provided no positive evidence that the Registration Committee or the Board could look to that would indicate that the Applicant in fact meets the conduct and character requirements of a physician under section 2(1)(b).

[52] In addition, and as the Respondent College noted, the practice of medicine in Ontario is a privilege, not a right. Physicians by the very nature of their work hold a position of high public trust to society at large and to the individual patients whom they treat. They carry out intimate work and are authorized under the Medicine Act to perform a number of intimate and potentially dangerous acts, including prescribing drugs. The application process serves the role of ensuring that there is a reasonable basis that those who are granted this privilege do so with honesty, integrity, and in accordance with the law, so as to not violate that essential position of trust: Sazant v. College of Physicians and Surgeons of Ontario, 2011 ONSC 323, [2011] O.J. No. 192 (Div. Ct.) at para. 175.

[53] The Board’s approach did not, in my view, violate the presumption of innocence. The Board and the Committee made no assumption or finding of guilt. In determining whether the Appellant had satisfied s. 2(1)(b), they were exercising their statutory responsibility to govern the medical profession in the public interest. They found that the fact of these charges were circumstances to be placed before the Committee and considered, along with all the other information before it, in making its determination, pursuant to the regulatory framework as discussed above, as to whether the Appellant had satisfied the non- exemptible requirements in s. 2(1)(b).

Conclusion

[54] In conclusion, the Board’s decision was reasonable. The result in the circumstances falls within the range of possible, acceptable outcomes, and, as discussed above, the decision is intelligible, transparent and justified: Dunsmuir at para. 47. The appeal is dismissed.

[55] If the parties are unable to agree as to costs, they may make brief written submissions to the court within 30 days of today’s date through the Divisional Court office.

Harvison Young J.

Swinton J.

Lederer J.

Released: April 8, 2013

CITATION: Chauhan v. Health Professions Appeal and Review Board and The College of Physicians and Surgeons of Ontario, 2013 ONSC 1621

DIVISIONAL COURT FILE NO.: 398/12

DATE: 20130405

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Swinton, Harvison Young and Lederer JJ.

BETWEEN:

Dr. Amitabh Chauhan

Appellant

– and –

Health Professions Appeal and Review Board and the College of Physicians and Surgeons of Ontario

Respondents

REASONS FOR JUDGMENT

Harvison Young J.

Released: April 8, 2013