SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

CITATION: Rathe v. College of Physicians and Surgeons of Ontario, 2013 ONSC 821 DIVISIONAL COURT FILE NO.: 319/11 DATE: 20130402

B E T W E E N:

DR. CHARLES RATHE Appellant

• and -

THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO Respondent

Counsel: Roy Stephenson and Brian Moher, for the Appellant Amy Block and Lindsay J. Cader, for the Respondent

HEARD AT TORONTO: February 4, 2013

Swinton J.:

Overview

[1] The appellant Dr. Charles Rathe appeals from a decision of the Discipline Committee of the College of Physicians and Surgeons of Ontario ("the College") dated May 31, 2011. He submits that the Discipline Committee erred in failing to sever an allegation of sexual abuse from the other allegations in the Notice of Hearing; it erred in finding that the appellant engaged in the sexual abuse of a patient; and it erred in finding that he engaged in conduct unbecoming a physician because of his behaviour at a school concert.

[2] For the reasons that follow, I find the Discipline Committee reached a reasonable decision, given the evidence before it. Accordingly, I would dismiss the appeal.

Background Facts

[3] The Discipline Committee held a hearing respecting seven allegations of professional misconduct made against the appellant, a family physician. In the course of the hearing, the College adduced the evidence of 12 witnesses. The appellant did not testify, and he called only his wife as a witness.

[4] The Discipline Committee held that the College had proved six of the seven allegations of professional misconduct: the appellant had failed to maintain the standard of practice of the profession in prescribing the drug Ionamin; he engaged in conduct unbecoming a physician by acting in a hostile and aggressive manner at a school concert; he engaged in disgraceful, dishonourable or unprofessional conduct by acting rudely and inappropriately towards the son of a patient; he engaged in disgraceful, dishonourable or unprofessional conduct when he assaulted a female driver in a road rage incident; he engaged in disgraceful, dishonourable or unprofessional conduct by falsely representing that his patient, M.T., was employed as his office manager; and he engaged in the sexual abuse of his patient, M.T., including having sexual intercourse with her. The Discipline Committee found that the allegation relating to interference with an investigation by the Ontario College of Pharmacists was not established.

[5] Given the finding respecting sexual abuse of a patient, the appellant's certificate of registration was revoked in accordance with the mandatory revocation directed by the s. 51(5) of the Health Professions Procedural Code (Schedule 2 of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18).

[6] The appellant appeals only the findings related to sexual abuse and conduct unbecoming a physician, as well as the penalty of mandatory revocation of his certificate to practise.

The Issues

[7] The appellant raises three issues:

1. Did the Discipline Committee err in dismissing the appellant's motion to sever the allegation of sexual abuse?
2. Was the Discipline Committee's credibility assessment unreasonable?
3. Was the Discipline Committee's finding of conduct unbecoming a physician unreasonable?

The Standard of Review

[8] The questions at issue are ones of mixed fact and law or questions of fact. Deference is owed to the Discipline Committee on questions related to the standards of professional conduct, a matter within its expertise. So, too, is deference accorded to the Discipline Committee's assessment of credibility (Dr. Q. v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226 at paras. 38 and 39). Accordingly, the standard of review in respect of each of the issues raised by the appellant is reasonableness.

Did the Discipline Committee err in dismissing the appellant's motion to sever the allegation of sexual abuse?

[9] The appellant asserts that the Discipline Committee's refusal to sever the sexual abuse allegation from the other allegations prejudiced his hearing. He argues that the finding of sexual abuse was "tainted" by unfavourable character evidence because of the Discipline Committee's findings on the other allegations - for example, the road rage incident or the events at the school concert.

[10] In R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146, a criminal case, the Supreme Court of Canada stated that an appellate court should overturn a trial judge's decision on severance only if the judge acted unjudicially, or the ruling against severance resulted in an injustice. Whether a judge has acted judicially requires an examination of the circumstances at the time the decision was made. However, determining whether there has been an injustice requires a consideration of what transpired at the hearing (at para. 15).

[11] In the present case, the Discipline Committee acted judicially when it considered the severance motion. It weighed a number of factors in coming to a determination whether severance was required in the interests of justice. A number of those factors are set out in Last at paragraph 18. In particular, the Discipline Committee asked whether the appellant would be prejudiced if the sexual abuse allegation were not severed from the other allegations and concluded that there would be no unfairness if severance were refused. It observed that the panel hearing the matter on the merits was unlikely to use evidence led with respect to one allegation in determining a different allegation, and the panel would not be likely to engage in propensity reasoning. It noted that while the appellant suggested that the lack of severance would curtail his ability to testify only on some counts, the disciplinary proceeding was a civil one, where the appellant was compellable in any event.

[12] I note, as well, that the appellant never provided any evidence that he intended to testify only with respect to some allegations. However, the Supreme Court in Last held that an accused has a burden to satisfy a trial judge that "objectively, there is substance to his testimonial intention" (at para. 26).

[13] When one examines what actually happened at the disciplinary hearing, one cannot conclude that there was manifest prejudice or injustice to the appellant because of the lack of severance. There is nothing in the reasons of the Discipline Committee to suggest that the members engaged in propensity reasoning, or that they improperly considered evidence from one allegation in deciding another allegation. In particular, there is nothing to indicate that their finding on sexual abuse was influenced by a view that the appellant was an individual who was "out of control", as his counsel suggested.

[14] The Discipline Committee's decision not to grant severance was reasonable, and there was no prejudice or unfairness to the appellant because of the failure to sever the allegation of sexual abuse. Accordingly, I would not give effect to this ground of appeal.

Was the Discipline Committee's credibility assessment reasonable?

[15] The appellant argues that the Discipline Committee should not have relied on the evidence of M.T. in support of its finding of sexual abuse, since her evidence was filled with inconsistencies and lacked corroboration.

[16] The Discipline Committee was well aware of the problems in M.T.'s evidence and discussed the problems in detail (Reasons, pp. 27-29). Nevertheless, it accepted her evidence that she had a sexual relationship with the appellant between 2005 and 2006 while she was his patient, and it clearly explained why it accepted that evidence. The Discipline Committee also noted that M.T.'s version of events was not contradicted by the appellant, as he did not testify.

[17] Moreover, there was confirmatory evidence in the form of hundreds of cell phone calls between M.T. and the appellant or his office in a four month period, calls that were often close to noon hour – the time M.T. said they usually met. As well, the appellant admitted that he had co-signed a loan agreement with M.T. (and lied about her employment status) so that she could buy a car in January 2006. He also left her a voicemail message saying that they should meet at their "usual place".

[18] The Discipline Committee's decision on the issue of sexual abuse of a patient was a reasonable one, given the evidence before it and its assessment of M.T.'s credibility.

Was the Discipline Committee's finding of conduct unbecoming a physician unreasonable?

[19] The Discipline Committee found the appellant had engaged in conduct unbecoming a physician, within the meaning of s. 1(1)34 of the Professional Misconduct Regulation, O. Reg. 856/93 because of the appellant's conduct at a school concert in February 2006. The appellant became involved in a loud verbal interchange with another parent, a woman who had at one time reported the appellant's family situation to the Children's Aid Society.

[20] The Discipline Committee described the appellant's conduct as a "loud, verbally aggressive, and egregiously profane outburst, while in a state of rage, at a school concert" (Reasons, p.11). It noted that this occurred at a public event at which children and their families were present. The Discipline Committee concluded that the behaviour was conduct unbecoming a physician after stating,

Regardless of what might have provoked his outburst, Dr. Rathe had a responsibility to control his behavior and to manage his anger in a fashion which did not subject the public to verbal abuse.

[21] The appellant challenges the finding of the Discipline Committee because he describes his conduct as "off duty". He submits that there must be a limit to the extent to which the Discipline Committee can probe into a member's private life, particularly here, where no patient was directly affected.

[22] It is noteworthy that s. 1(1)34 of the regulation does not contain words "relevant to the practice of medicine", unlike s. 1(1)33, which includes as professional misconduct,

An act or omission relevant to the practice of medicine that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional. (emphasis added)

[23] In Sazant v. College of Physicians and Surgeons, 2012 ONCA 727, the Court of Appeal referred to these two provisions of the regulation and then stated that the broad definition of professional misconduct is designed to ensure that physicians are fit to practise according to standards set by the profession itself. Fitness was said to include "conduct in the physician's private life that reflects on his or her integrity" (at para. 98).

[24] In my view, the Discipline Committee reasonably concluded that the appellant engaged in conduct unbecoming a physician, given the primary school setting, with children present; the profane and demeaning language used against another parent; and the aggressive manner of the appellant described by the witnesses. We are not dealing here with speech protected by the Charter of Rights, nor is this a case where the appellant is being disciplined for what might be described as purely private conduct or simply rude behaviour. Indeed, the language used here was in the nature of a verbal assault in a public setting with children present. It resulted in a recognizance in which the appellant was ordered to keep the peace. Accordingly, the Discipline Committee reasonably concluded that the appellant had engaged in conduct unbecoming a physician. As a family physician, he had a responsibility to control his anger so as not to subject members of the public to verbal abuse.

Conclusion

[25] Given the finding on sexual abuse of a patient, the appellant was liable to the mandatory penalty of revocation of his certificate of registration. Therefore, I need not address any arguments related to penalty.

[26] For these reasons, the appeal is dismissed. If the parties cannot agree on costs, they may make brief written submissions through the Divisional Court office within 21 days of the release of this decision.

Swinton J.

Harvison Young J.

LEDERER J. (Dissenting, in part):

[27] I have no trouble with the refusal to grant the appeal in respect of the sexual abuse of the patient or the refusal of the Discipline Committee to sever that issue from the other complaints. I do have concerns with respect to the finding of conduct unbecoming a physician.

[28] This is an appeal as is permitted by s. 70 of Health Professions Procedural Code. The Code is incorporated into the Regulated Health Professions Act, 1991 (see: S.O. 1991, Chapter 18 s. 4) and is published as Schedule 2 to that Act. In this case, the applicable standard of review is "reasonableness". The issue is whether the finding of the Discipline Committee that the actions and language of Dr. Rathe at the school concert constituted "conduct unbecoming a physician" was reasonable.

[29] There appears to be little doubt that such conduct can arise in circumstances removed from the care and treatment of patients (see: Sazant v. College of Physicians and Surgeons of Ontario, 2011 ONSC 323, [2011] O.J. No. 192 at paras. 261 and 264, appeal dismissed 2012 ONCA 727). Having said this, there must be some boundary that limits the ability of the Discipline Committee to censure the conduct of physicians removed from their professional activities. What Dr. Rathe did and the language that he used was unacceptable in anyone, much less a doctor, but we do not discipline most people for being rude or confrontational.

[30] It cannot be that a Discipline Committee of a professional college is free, under the auspices of reasonableness, to impose limits on the everyday social behaviour of its members. Not every act undertaken by a physician that would generally be understood to be unacceptable would fall within a "range of possible acceptable outcomes" that included conduct unbecoming a physician (see: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 at para. 47). In short"...some but not all off-duty conduct can give rise to discipline for professional misconduct or conduct unbecoming (see: Fountain v. College of Teachers (British Columbia) 2007 CarswellBC 2007, [2007] W.W.R. 281, at para. 65).

[31] In this case, the Discipline Committee has done nothing more than accept that the conduct of Dr. Rathe was as described by the three witnesses called on behalf of the College. There is no rationale to the finding other than Dr. Rathe was aggressive, confrontational and used thoroughly foul language at the school concert. There is no explanation why this conduct, as opposed to any other rude behaviour, crosses the line such that a finding of conduct unbecoming a physician falls within the range of possible acceptable outcomes. Simply put, it is not possible to know if the result was "reasonable". In the absence of more, the Discipline Committee is left virtually without constraint in deciding that any rude behaviour, in a public place, is conduct unbecoming a physician.

[32] The case law provides some guidance as to considerations that could bear on the problem of identifying where the limits may lie.

[33] A finding that a solicitor who seduced young girls, leading, in one instance, to a conviction in the United States, was sufficient to support disciplinary action by the Law Society. The court held that the conduct was not only reprehensible, it seriously reflected upon and shattered the professional integrity of the solicitor to the point where protection of the public was involved (see: Re: Cwinn and Law Society of Upper Canada 1980 1694 (ON SC), 28 O.R. (2d) 61 at 69).

[34] The dog of a police constable chased his neighbour and barked and growled at him. In a heated telephone exchange that followed, the constable called his neighbour a "senile old bastard". He was reprimanded by the Chief of Police. It was "an abuse of authority". The "inappropriate response 'leaves the public or the individual with less than a professional impression of you and this department'" (see: Blakeney v. Nova Scotia (Police Review Board), [1995] N.S.J. No. 30 (C.A.) at para. 5). The decision was based on the understanding that a police officer is expected to conduct himself with respect and courtesy whether he or she is on or off duty.

[35] In Sazant v. College of Physicians and Surgeons of Ontario, supra, a doctor engaged in professional misconduct that was sexual in nature with three boys, one of whom was a patient. Much of the case dealt with constitutional questions surrounding the investigation of the matter. The Discipline Committee did determine that the impugned conduct was relevant to the practice of medicine (see: paras. 77, 261 and 264 (Div. Ct.)).

[36] In Fountain v. College of Teachers (British Columbia), supra, a teacher was found guilty of conduct unbecoming a member of the profession. He shot a gun over the heads of two grown children following a dispute in which they had beaten him. The Court included, as part of the framework for the analysis of off-duty conduct, whether the particular conduct evidenced direct impairment in the ability of the individual to function in the professional capacity both in respect of the specific job and in the "wider sense" of the important characteristics of the occupation (see: paras. 52 and 65).

[37] It was not suggested that the finding of the Discipline Committee that "...Dr. Rathe engaged in loud, verbally aggressive and egregiously profane outburst while in a state of rage, at a school concert" was anything other than a fair representation of the evidence of the three witnesses but:

• Did it reflect on his professional integrity?
• Was he, are doctors always, on duty?
• Were his actions relevant to the practice of medicine?
• Did it impair his ability to function as a doctor?

[38] These are not tests that have to be met. They are just guides that may be useful in determining if the disparaged conduct is such that a finding of behaviour unbecoming a physician falls within the "range of possible acceptable outcomes".

[39] I say all of this cognizant of the reference in the Notice of Hearing that the behaviour of concern "...resulted in the ordering of a recognizance, on September 21, 2006 that Dr. Rathe keep the peace and that he abstain from communicating or associating with certain individuals". This is repeated in the reasons of the Discipline Committee that considered the motion to stay the proceedings and sever the allegation concerning the sexual abuse of the patient. It is not referred to in the decision of the Discipline Committee which considered the allegations made against Dr. Rathe. There is nothing that explains how the recognizance came to be ordered or made. I also note the reference, in the reasons of the majority, to the encounter at the school concert as constituting a "verbal assault". This is potent language. It is not clear to me that the conduct of Dr. Rathe, as confrontational as it was, crosses over this particular line.

[40] I would grant the appeal, but only insofar as it applies to the finding of conduct unbecoming a physician which arose from the events at the school concert.

LEDERER J.

Released: April 2, 2013