Fielden v. Health Professions Appeal and Review Board, 2013 ONSC 4261

Background

1This is an application for judicial review to quash the May 3, 2012 decision of the Health Professions Appeal and Review Board, which upheld the decision of the Inquiries Complaints and Reports Committee of the College of Physicians and Surgeons of Ontario to verbally caution the applicant. The applicant was alleged to have acted unprofessionally and with bias in administering an independent medical examination to a patient.

2The applicant seeks to have the decision set aside and to have the matter remitted to a differently reconstituted panel.

3The applicant is an orthopaedic surgeon. On December 20, 2006, Ms. Nancoo sustained several injuries when she was struck by a motor vehicle while crossing the road. On May 4, 2010, Ms. Nancoo submitted an application to the insurer for catastrophic benefits in accordance with the Insurance Act.

4The applicant was retained by the insurer to conduct an orthopaedic Independent Medical Examination (IME) of Ms. Nancoo. The applicant met with Ms. Nancoo on August 11, 2010 and conducted the IME. On August 24, 2010, the College received a complaint for Mr. Warren, Ms. Nancoo’s lawyer regarding Dr. Fielden’s behaviour during the course of the IME.

5The Committee found that Dr. Fielden’s behaviour when conducting the IME was inconsiderate and inappropriate. The Committee decided not to refer the matter to the Discipline Committee but rather to verbally caution Dr. Fielden in person regarding being professional, objective and courteous in performing IME’s. HPARB dismissed Dr. Fielden’s appeal and determined that the Committee’s investigation was adequate and that its decision to caution Dr. Fielden was reasonable.

Standard of Review

6The applicant seeks judicial review. Assuming that the decision is reviewable at all, it is accepted that the standard of review is reasonableness.¹

Analysis

7We do not agree that the Board erred in not finding that the Committee’s Decision was unreasonable by failing to make a credibility finding in the circumstances of this case and particularly the applicant’s submission that these facts required the Committee, in effect, to make a determination with respect to Ms. Nancoo’s credibility.

8First, it is clear that the Committee has no jurisdiction to make credibility findings per se. (See McKee v. Health Professions Appeal and Review Board, 2009 55293 (ON SCDC), [2009] O.J. No. 4112). The Committee exercises a screening function. It conducts an investigation and renders a decision as to the existence of sufficient evidence to warrant referral to the Discipline Committee. It does not hold any hearing to determine with finality what the facts were. Here, the Committee decided not to refer the matter to the Discipline Committee. This decision was amply justified on the record and particularly on the basis of the admissions and statements made by Dr. Fielden.

9We also find no error of procedural fairness on the part of the Committee. The Committee was entitled to take into account all of the information it obtained in its investigation in determining the appropriate course of action. What the applicant refers to as “add on issues”, in fact came from Dr. Fielden’s responses to the complaint which raised additional concerns. These did not give rise to any further notice entitlements.

10The decision of the Committee to caution the applicant in person is not a “sanction”. Cautions are entirely remedial in nature and intended to assist the applicant to improve his practice. A caution administered by the Committee is not a penalty and must be contrasted with the range of penalties that can be imposed by the Discipline Committee of the College consequent to a finding of professional misconduct. The Discipline Committee of a College can impose a variety of sanctions, which may be recorded on the permanent and public record of a member. By contrast, a caution is remedial only, cannot involve any finding of professional misconduct (a finding which is outside the jurisdiction of the ICRC and the Board), and does not appear on the register or in any public document of the College.

11The Committee required that Dr. Fielden be cautioned on being objective, professional and courteous in performing independent medical exams. One of the basis upon which the Committee expressed concern was factual errors which it stated Dr. Fielden had made in his report. For example, stating that he had incorrectly asserted that Ms. Nancoo had been treated in a private rehab facility when the record indicates that she had been. Given the absence of support for the finding that Dr. Fielden made factual errors in this case, there is no reasonable basis for cautioning him on this point. With this one exception, we find the Committee’s decision to caution Dr. Fielden was reasonable as was the HPARB decision.

Conclusion

12The application is therefore dismissed. The Board does not seek costs.