Donald Chong v. College of Physicians and Surgeons of Ontario, 2014 ONSC 6040

Citation: Chong v. College of Physicians and Surgeons of Ontario, 2014 ONSC 6040

DIVISIONAL COURT FILE NO.: 416/14

DATE: 20141016

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

DONALD CHONG

Applicant

– and –

COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO

Respondent

David B. Cousins, for the Applicant

Vicki A. White and Bay Ryley, for the Respondent

HEARD at Toronto: October 16, 2014

harvison young j. (ORALLY)

1Dr. Chong seeks a stay of the College’s order dated July 30, 2014, which imposed conditions on his practice, pending his judicial review application of this order.

2The order followed an assessment of Dr. Chong’s practice by the Quality Assurance Committee (“QAC”) and directed the Registrar to impose the following terms and conditions on Dr. Chong’s Certificate of Registration, pursuant to s. 80.2(1) of the Health Professions Procedural Code:

(i) Within 20 days of the date of this order, Dr. Chong must obtain, at his own expense, a clinical supervisor “clinical supervisor” who is acceptable to the College and who has signed an undertaking in the form attached hereto as “Appendix 1”. The supervision will include the following:

(a) Dr. Chong must meet with the clinical supervisor once every week to review twenty of his patient charts including charts from patients with potentially serious or emergent issues, to discuss Dr. Chong’s care and treatment plan, identify any concerns regarding the care and treatment plan and make recommendations for improvement. The clinical supervisor will report to the College monthly.

(b) or the first two months commencing on the date the clinical supervisor signs “Appendix 1”, the clinical supervisor must also observe Dr. Chong in its clinical practice (including patient encounters) for a minimum of half a day, three hours every two weeks.

(c) After two months and after the College has received a minimum of two reports from the clinical supervisor, and after the clinical supervisor has observed Dr. Chong in practice, a minimum of four occasions, twelve hours, the frequency of the observation by the clinical supervisor can be reduced to one-half day, three hours a month if the following conditions have been met and only after they are met:

(i) The clinical supervisor recommends to the College that the frequency of observation be reduced, and

(ii) The College approves of the reduction and the frequency of the observation. If Dr. Chong is unable to obtain a clinical supervisor as set out in sub (1) above, Dr. Chong must cease practising medicine immediately until such time as he has obtained a clinical supervisor acceptable to the College.

(iii) This order will remain in effect until 11:59 p.m. on July 30, 2015 unless rescinded or varied by the Quality Assurance Committee.

3The test for a stay is:

1. Is there a serious issue to be tried?

2. Will the applicant suffer irreparable harm? and,

3. If the stay is not granted, and if so, where does the balance of convenience lie? (RJR-Macdonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311. The test is not in dispute.

4With respect to the first limb of the test, Dr. Chong raises a number of grounds which he submits warrant judicial review. These include both natural justice grounds as well as submissions that the order made was unreasonable and unsupported by the record. While the respondent College does not agree that the applicant has met the first limb of the test, it submits that, in this case, it is not determinative in any event.

5As the applicant points out, the “serious issue to be tried” test sets a low bar. However, even assuming that there is a serious issue or issues to be presented by this judicial review application, I am not satisfied that the other two limbs support granting a stay in this case.

6With respect to the “irreparable harm” limb, the burden is on the applicant to establish a real risk of disastrous consequences if the stay is not granted: (Matheson v. College of Physicians and Surgeons of P.E.I.), (2009) P.E.I.J. No. 8 2009 at para. 23).

7On behalf of Dr. Chong, Mr. Cousins submits that the true effect and intent of the order is to suspend or prevent Dr. Chong from practising at all, with disastrous financial consequences, and causing a serious risk that he will lose his practice altogether. He also submits that this will harm his patients by depriving them of the care of their doctor.

8There are a number of problems with this argument. First, the nature of the harm must be more than merely financial and it must be clear and not speculative. As the Court of Appeal wrote in the Sazant decision:

Evidence of irreparable harm must be clear and not speculative, and it must be supported by evidence that demonstrates that he would suffer it. In other words, it is Dr. Sazant who must suffer irreparable harm; not his patients or other third parties. In virtually all cases where a governing body of professionals decides to revoke a member’s privilege of practice, a financial inconvenience or loss will inevitably result. Thus, although it is a proper factor to consider, it will generally be far from dispositive.

9The most significant problem with Dr. Chong’s position with respect to irreparable harm, however, is the fact that the harm asserted does not flow from the order itself. There is no evidence, in my view, that supports the submission that the OAC intended to, de facto, suspend Dr. Chong. The requirement of clinical supervision would not result in a loss of practice or irreparable financial harm notwithstanding the fact that there will be a financial cost to Dr. Chong.

10I am not persuaded on the evidence that it would not be possible to find a physician to assist him. In short, Dr. Chong has not met his burden of showing irreparable harm flowing from the order made.

11I also conclude that the balance of convenience favours the College. The assessment reflects concerns about patient safety. The order seeks to manage these concerns with terms and conditions that will protect the ongoing patient safety while allowing Dr. Chong to continue to practice. The fact that this is not a case which arose from the death of a patient or findings of abuse or assault does not answer the concerns about patient safety, particularly where the other side of the scale in these circumstances is financial loss. Here, the balance of convenience, where the College has imposed terms and conditions which would permit Dr. Chong to continue to practice while addressing or managing any potential risk to patient safety clearly favours the College.

12As I indicated earlier, I do not accept the premise of Dr. Chong’s argument that the order amounted to a suspension. Had it been an outright suspension, my conclusion on the balance of convenience might have been different.

13While I would therefore dismiss the motion for a stay, I would also order that the hearing of the application, which counsel agree should require one day, should be expedited and set down for a day during the week of February 9, 2015, which dates I am advised counsel would be available.

COSTS

14I have endorsed the Motion Record, “Motion for stay dismissed for reasons delivered orally. Hearing of judicial review application expedited and fixed for one day on February 9, 2015. Costs fixed at $3,500 to be awarded in the cause.”