CITATION: Kunynetz v.College of Physicians and Surgeons of Ontario 2015 ONSC 6830
DIVISIONAL COURT FILE NO.: 518/15
DATE: 2015/11/04
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Leitch, Sanderson and Sachs JJ.
BETWEEN:
Dr. Rodion Kunynetz
Applicant
– and –
College of Physicians and Surgeons of Ontario
Respondent
Matthew P. Sammon and Katie Pentney, Counsel for the Applicant
Carolyn Silver and Shaun O’Brien, Counsel for the Respondent
HEARD at Toronto: October 23, 2015
Sachs J.
Introduction
[1] This is an urgent application for judicial review by the Applicant, Dr. Kunynetz. He seeks to quash the decision of the Inquiries, Complaints and Reports Committee (the “ICRC” or the “Committee”) of the College of Physicians and Surgeons of Ontario (the “College”) suspending his certificate of registration pending a full hearing on the merits of the complaints against him.
[2] In support of his application, the Applicant alleges that: the process that led to the Committee’s orders against him were tainted with unfairness from the outset; the Committee had no jurisdiction to make the order that resulted in his suspension; and that there was no reasonable basis for the Committee to suspend his certificate of registration pending the disposition of his discipline hearing.
[3] For the reasons that follow I would dismiss the application. In doing so, I find that the Applicant’s complaints of procedural unfairness are premature and can be tested before the Discipline Committee at an abuse of process motion that has been scheduled to be heard on November 10, 2015. Further, I reject the Applicant’s jurisdictional argument, which is based on a construction of the relevant statute that the decision in question had to be made at a meeting of all the members of the ICRC. This is an absurd interpretation that would undermine the purpose of the legislation since the ICRC has 58 members and quorum requires that a majority of those members be present. Finally, I find that the Committee’s decisions were reasonable.
Factual Background
[4] The Applicant is a dermatologist practicing in Barrie. He is a recognized expert in the field and was a peer assessor for the College for many years.
Recent Complaints
[5] On January 20, 2014, the College received a mandatory report from a physician in Barrie advising that his female patient, L.N., reported to him that the Applicant pressed his penis against her leg during a dermatologic examination in December of 2013. L.N. followed up with a letter of complaint to the College in February of 2014 asking the College to investigate her concerns. In that letter, she alleged that during an appointment at his office in December of 2013 the Applicant “pressed and rubbed his penis on my leg” and “pulled my shirt up as I was leaving to go back to my chair.”
[6] The College interviewed L.N. in February of 2014, at which time she explained that the Applicant’s penis had touched her right thigh and that “he didn’t just push it on me. He pushed it on me and rubbed it in a back-and-forth manner.” She further stated that “there’s no mistake of what he did. The only mistake is why I didn’t get up.”
[7] On May 5, 2014, another woman, J.B., sent the College a letter of complaint. J.B. asked the College to investigate the Applicant for “rubbing and pressing his private parts on my leg when I saw him for a spot on my head” approximately four years ago. When she was interviewed by the College, she stated she felt the Applicant getting aroused during the incident. J.B.’s complaint to the College was prompted by a call from the College investigator who had heard from L.N. that someone she knew had told her about J.B. and that she too had been concerned about her interactions with the Applicant.
Past Complaints
[8] On May 6, 2014, the College contacted E.C., who, in 2008, had contacted the College to advise that the Applicant had fondled her breasts when she went to see him for a skin condition on her legs and spots on her face. In 2008, E.C. elected not to pursue her complaint following a College initiated alternative resolution process.
[9] After being contacted by the College investigator, E.C. agreed to re-open her complaint. She did so by sending a letter of complaint on July 2, 2014.
[10] On May 13, 2014, the College investigator also contacted T.B., who had contacted the College in 1999 and disclosed concerns about the Applicant. At the time of her original complaint, T.B. said she would follow up with a written complaint, but never did. The investigator asked T.B. to meet with him and she agreed. One day after this meeting, T.B. filed a letter of complaint. In her interview with the College investigator, T.B. alleged that during a medical appointment involving a mole on her arm, the Applicant came up behind her and, without warning or consent, lifted her dress up over her head, exposing her. He then came in front of her, and, without warning or consent, pulled at her underwear and looked at her breasts and genital area. According to T.B., the Applicant provided her with no privacy or gown/covering.
Current Proceedings with the College
[11] The Applicant has denied any inappropriate behaviour. According to him, nothing inappropriate occurred during any of the examinations that he conducted. Part of his job requires him to be in close physical contact with his patients and to examine all parts of their bodies. He also contends that he is a large man and it may have been that his abdomen accidentally came into contact with his patients when he was examining them.
[12] The Applicant also provided evidence from a urologist that: it would have been physically impossible for the Applicant to have pressed his penis against a patient while she is seated because of his large overhanging abdominal pannus; that the Applicant’s penis is not visible or accessible when he is standing due to his large abdominal girth, the size of his penis and the fat in his suprapubic area; and that it would be very difficult for the Applicant to examine anyone in a seated position who required examination of the head, shoulder and/or back without having some part of his abdomen touch the patient’s leg or thigh.
[13] On July 8, 2015, the ICRC referred the four allegations of alleged sexual abuse to the College’s Discipline Committee.
[14] Following this referral, the ICRC provided the Applicant with notice of its intention to make an interim order. After receiving submissions from both parties, the Committee issued an interim Monitoring Order on August 11, 2015 (the “Monitoring Order”). This order permitted the Applicant to continue his dermatology practice, but required a female monitor to remain in the room at all times during professional encounters with female patients. He was also required to post a sign in his office that stated, in part: “Dr. Kunynetz must not be alone in any examination or consulting room with any female patient.”
[15] On September 3, 2015, the Applicant entered an examination room alone to see a female patient. No female monitor was present. After the patient described her presenting complaint, the Applicant examined her face and took a biopsy of a lesion, spending about five to seven minutes alone with the patient. The patient was fully clothed throughout the encounter. According to the Applicant, he realized that a female monitor should have been present as he left the examination room.
[16] Thirteen days later, on September 16, 2015, the Applicant reported his breach of the Monitoring Order. In doing so, his counsel advised the College that while the Applicant fundamentally disagreed with the Committee’s position that the Monitoring Order was necessary, he assured the Committee that he “would take all reasonable steps to ensure strict compliance with the order going forward.”
[17] The next day, on September 17, 2015, the Applicant treated a female patient alone in an examination room, again without the presence of female monitor. During this encounter, the Applicant gave the patient medical advice about her medication and instructed her to return in four weeks. According to the Applicant, the patient was distraught, the door was left open throughout the interaction and no examination was performed. The patient was fully clothed throughout the encounter. The breach was discovered by a research assistant working for the Applicant, who noticed a billing record for the patient and asked the Applicant whether he had seen the patient. The Applicant then ensured that his practice monitor reported this second breach of the Monitoring Order.
[18] Both patients who were seen by the Applicant in the absence of a monitor were contacted shortly after their interactions with the Applicant and confirmed that they had no concerns about those interactions.
[19] On September 22, 2015, the College prosecutor advised the Applicant that the information concerning the breaches would be put before the ICRC to determine whether to refer additional allegations to the Discipline Committee and to potentially impose a new interim order.
[20] On September 25, 2015, the College prosecutor advised the Applicant of new information that it had received from over a dozen patients who had contacted the College expressing concerns about the Applicant. The concerns expressed centred about being unduly exposed in the Applicant’s office and about the Applicant rubbing his groin/genitals against them. The Applicant was provided with a summary of these complaints. The complaints had not been investigated, but they were put before the Committee when they met on September 29, 2015 to consider what to do about the breaches of the Monitoring Order.
[21] Prior to the meeting on September 29, 2015, the Applicant’s counsel provided submissions to the College, arguing that the Committee should not take any further action in connection with the breaches. His counsel also gave reasons as to why it would be inappropriate for the Committee to rely on the additional information that the College had received, but not investigated, in considering whether to take additional interim action.
[22] On September 28, 2015, counsel for the College sought clarification from the Applicant’s counsel as to whether the Applicant was seeking additional time to respond to the potential referral of additional allegations to the Discipline Committee. Counsel for the Applicant responded that he was not requesting additional time, but was only seeking to ensure that the Committee did not consider the additional information that had not yet been investigated.
[23] On September 29, 2015, the ICRC met and decided to refer the allegations regarding the Applicant’s breaches of the Monitoring Order to the Discipline Committee. The Committee also decided to issue an order suspending the Applicant’s certificate of registration (the “Suspension Order”). The Applicant was advised of the Suspension Order and of his right to make further submissions regarding this order while the suspension was in place.
[24] On October 6, 2015, the Applicant made further submissions to the ICRC requesting that the Suspension Order be rescinded. On October 14, 2015, after considering the Applicant’s further submissions, the Committee declined to rescind the Suspension Order.
[25] The Applicant’s discipline hearing is scheduled to commence on November 24, 2015. The liability portion of that hearing is not likely to be completed until April of 2016. In addition, the Applicant has brought a motion before the Discipline Committee alleging abuse of process, which is scheduled to be heard on November 10, 2015. At this point, the focus of that motion is the College’s actions in reviving the two earlier complaints that had been made against the Applicant.
The Applicant’s Position on this Application
The Processes Leading to the Interim Orders Were Unfair
[26] The Applicant submits that the Suspension Order has had a devastating impact on his ability to continue in his profession. Given this, the Committee owed him a heightened duty of procedural fairness—a duty that the Committee breached at both the investigative and the adjudicative stage of its processes.
[27] According to the Applicant, the investigation against him was neither neutral nor thorough. The investigator’s agenda was not to even-handedly probe the allegations against him, but to build a case. This agenda is demonstrated by:
(a) the use of leading questions during the interviews that the investigator conducted with the complainants;
(b) the fact that, after the investigator had the Applicant’s explanation and expert report that it must have been his abdomen that the patients felt, the investigator did not go back to the complainants to ask them if they were mistaken about their original statements; and
(c) the fact that the investigator took steps to reopen a file that the College had closed five years ago and to revive a matter that was now 15 years old. Further, in investigating this complaint, the College took no steps to obtain expert evidence as to whether the examination complained of was medically necessary.
[28] In terms of its adjudicative process, the Committee, in imposing the Suspension Order, reviewed and relied upon a summary of uninvestigated complaints when it had not disclosed the patients’ names or detailed particulars of the complaints, thereby denying the Applicant a real opportunity to respond to those complaints.
The Suspension Order Was Made Without Jurisdiction
[1] The Applicant’s submission on this point is that the relevant statute does not permit a panel of the ICRC to impose an interim suspension order. Under the clear wording of the statute, such an order may only be imposed by the ICRC as a whole (i.e., a committee of over 50 members), a majority of which must be present to constitute a quorum.
[2] The Applicant also relies on s. 37(3) of the Code to support an argument that having made one interim order (the Monitoring Order), the Committee had no jurisdiction to make another (the Suspension Order). Section 37(3) of the Code provides that interim order “continues in force until the matter is disposed by a panel of the Discipline Committee.”
The Interim Orders Imposed by the Committee Were Unreasonable
[3] According to the Applicant, the Committee’s decisions to impose interim orders were unreasonable. In order to justify a Suspension Order, the Committee must form the opinion, on the basis of concrete evidence before it, that there is a likelihood or probability of harm to current or former patients. Because such orders are designed to protect patients from current or future conduct, dated or historical allegations will not generally provide evidence of a current risk of harm.
[4] Instead of applying this “probability” standard, the Applicant states that the Committee focused on what it described as the “possibility” that the four complaints before it indicated a “pattern of inappropriate, impulsive, opportunistic sexual behaviour on the part of [the Applicant].” According to the Applicant, the Code does not permit the drastic step of an interim order based on the mere possibility of past conduct.
[5] Finally, the Applicant argues that the Committee unreasonably imposed a blanket suspension that prohibited the Applicant from seeing both male and female patients. The Monitoring Order that the Applicant is alleged to have breached only related to his interactions with female patients.
Statutory Framework
[6] This application must be considered in light of the statutory framework within which the College and the ICRC operate.
[7] The College is entrusted with serving and protecting the public interest in its regulation of the medical profession. It has this duty in carrying out all its objects. Its objects are set out in section 3 of the Health Professions Procedural Code (the “Code”), which is Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c.18 (the “RHPA”). These objects include: regulating the practice of the profession; developing, establishing and maintaining programs and standards of practice to assure the quality of the practice of the profession; developing, establishing and maintaining standards of professional ethics for its members; and administering the Medicine Act, 1991, S.O. 1991, c. 30, the Code and the RHPA as it relates to the profession.
[8] In Pharmascience Inc. v. Binet, 2006 SCC 48, [2006] 2 S.C.R. 513, at para. 36, the Supreme Court of Canada emphasized the importance of properly regulating professions that the public places trust in as follows:
This Court has on many occasions noted the crucial role that professional orders play in protecting the public interest. As McLachlin J. stated in Rocket v. Royal College of Dental Surgeons of Ontario… “[i]t is difficult to overstate the importance in our society of the proper regulation of our learned professions…” The importance of monitoring competence and supervising the conduct of professionals stems from the extent to which the public places trust in them…The delegation of powers by the state comes with the responsibility of providing adequate protection for the public.
[9] Section 37(1) of the Code authorizes the ICRC to make interim orders “directing the Registrar to suspend or impose terms, conditions or limitations on a member’s certificate of registration if, (a) an allegation is referred to the Discipline Committee; and (b) it is of the opinion that the conduct of the member exposes or is likely to expose his or her patients to harm or injury.”
[10] Pursuant to s. 37(2) of the Code, if an interim order is made the College is under a duty to prosecute the matter expeditiously and the Discipline Committee is required to give the matter precedence.
[11] Ordinarily an interim order cannot be made without providing the member with 14 days to make written submissions to the Committee. However, s. 37(6) provides that such an order may be made without notice to the member, “subject to the right of the member to make submissions while the suspension or the terms, conditions or limitations are in place, if the Committee is of the opinion, on reasonable and probable grounds, that the conduct of the member exposes or is likely to expose his or her patients to harm or injury and urgent intervention is needed.”
Standard of Review
[12] There is no dispute that when it comes to reviewing the merits of the ICRC’s interim decisions the standard of review is reasonableness.
[13] Issues going to procedural fairness do not require a standard of review analysis. Rather it is for the court to determine whether the requisite level of procedural fairness has been accorded, taking into account the factors in Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817. These factors include: the nature of the decision being made and the process followed in making it; the nature of the statutory scheme and the terms of the statute pursuant to which the decision-maker operates; the importance of the decision to the individual affected by it (the more important the decision is to the individual affected by it, the more stringent the requirements of procedural fairness); the legitimate expectations of the person challenging the decision and respect for the choices made by the decision-maker itself.
Procedural Fairness Issues
[14] In Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, 111 O.R. (3d) 561, the Court of Appeal dealt with the question of whether the application judge was wrong to grant judicial review and quash two decisions of two investigatory bodies of the College of Massage Therapists of Ontario. In that case, there was no issue that the College had committed real breaches of procedural fairness in reaching the decisions it did. It was for that reason that the application judge quashed the decisions at issue.
[15] On appeal, the Court of Appeal confirmed that “unless exceptional circumstances exist” a court on a judicial review application should not interfere in an administrative proceeding until that proceeding has run its course. Thus, if adequate alternative remedies are available under the administrative scheme in question, those remedies should be exhausted before the court intervenes: see Volochay, at paras. 68 to 69.
[16] In this case, the Applicant has brought an abuse of process motion that is scheduled to be heard before the Discipline Committee on November 10, 2015. According to the Applicant, that motion will be limited to only one of the procedural fairness arguments he is raising before us, i.e., the reopening of two older files. However, there is no reason why the other arguments could not also be raised and addressed at that time. The Discipline Committee is better placed than this court to hear and weigh evidence and to consider any allegations of abuse of process on a full evidentiary record. The Discipline Committee has a full range of remedies available to it in response to the abuse of process motion, including the authority to stay proceedings in appropriate circumstances.
[17] Further, if the Applicant is successful before the Discipline Committee on his abuse of process motion, and, for example, obtains a remedy staying two or more of the complaints, he is entitled to move before that same committee to vary the Suspension Order. As the Divisional Court pointed out in Yazdanfar v. College of Physicians and Surgeons of Ontario [2009] O.J. No. 2478, at para. 46: “Section 16.1 of the Statutory Powers Procedure Act, R.S.O. 1990. C. S.22, provides that the Disciplinary Committee may make interim orders during the conduct of the hearing, including adjusting the s. 37 order, if the evidence unfolds such that adjustments are warranted.”
[18] The Applicant has put forward no exceptional circumstances that would warrant this court’s intervention in the face of what we find to be an adequate alternative remedy that can be pursued before the administrative body in question.
[19] With regard to the Applicant’s submission about unfairness regarding the Committee’s use of new information from a number of other patients, I note that the Committee’s only use of this information was in reference to the weight to be given to the Applicant’s own evidence from patients that did not file complaints. In this regard, the Committee stated as follows on page 12 of their October 14, 2015 decision:
We expect that there would be a large number of patients who did not have concerning encounters with Dr. Kunynetz, but this does not diminish that we have the four index complaints and that we also have received information from multiple other patients who have come forward with similar concerns.
[20] Using the information in this way created no procedural unfairness to the Applicant. The information was not used to create the concern that led to the imposition of the Suspension Order. This is clear from the following statement in Committee’s decision imposing the Suspension Order: “Dr. Kunynetz’s counsel raised the issue of the multiple new complaints (from male and female patients) that the Committee has received. While the Committee had this information before it, it did not affect its decision.”
[21] The new information was only used to offset the suggestion that the interim order was not warranted because many of the Applicant’s patients had no complaints about his conduct.
Was the Suspension Order Made Without Jurisdiction?
[22] The Applicant argues that the panel of three members of the ICRC lacked jurisdiction to make the Suspension Order. He bases his submission on the wording of s. 37 that states that the “ The Inquiries, Complaints and Reports Committee may, subject to subsection (5), make an interim order directing the Registrar to suspend…a member’s certificate of registration.”.(emphasis added).
[23] The submission of the Appellant is that the Code requires that interim suspension orders be made not be a panel of three, but rather by the entire 58 member Committee, represented by a majority of 30 individuals.
General Principles of Statutory Interpretation in the Regulatory Context
[24] The issue raised by the Appellant is one of statutory interpretation.
[25] The approach a court must take to statutory interpretation is the one set out by Ruth Sullivan in her text Sullivan on the Construction of Statutes, Fifth Edition (Markham: Lexis Nexis, 2008) at 1-21:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
[26] Similarly, Ontario’s Legislation Act, S.O. 2006, c. 21, Schedule F. s. 64 requires that acts be interpreted as being remedial and be given such fair, large and liberal interpretation as best assures the attainment of their objects.
[27] In Pharmascience v. Binet, 2006 SCC 48 the Supreme Court of Canada emphasized that courts must be flexible in their interpretation of the statutory powers granted to regulatory bodies to enable those bodies to discharge their essential and overarching duty to protect the public interest. Consistent with this principle, narrow interpretations of the statutory powers in the Code that would frustrate the legislative intent have been dismissed. (see: Sazant v. College of Physicians and Surgeons of Ontario, 2012 ONCA 727; Gore v. College of Physicians and Surgeons of Ontario, 2009 ONCA 546).
[28] Moreover, while legislation ought to be read in its context and its grammatical and ordinary sense, the Supreme Court of Canada in Paul v. The Queen, 1982 179 stated that legislation should not be interpreted in a manner that would lead to an absurd result:
The rule of law, I take it, upon the construction of all statutes, and therefore applicable to the construction of this, is, whether they be penal or remedial, to construe them according to the plain, literal and grammatical meaning of the words in which they are expressed, unless that construction leads to a plain and clear contradicition of the apparent purpose of the act, or to some palpable and evident absurdity.( page 33, emphasis added).
The Purpose of Section 37
[29] It is clear that the purpose of s. 37 is to enable the ICRC to take urgent interim action on short notice, or in some cases, on no notice, to protect patient safety. It would not be consistent with this purpose if that urgent decision is required to be made by the majority of a Committee composed of 58 members rather than the statutory quorum of a panel of three which performs other related statutory functions of that Committee.
[30] The Applicant’s submission that there is nothing absurd about requiring the majority of a Committee of 58 members to make an interim suspension order because such an order can have drastic consequences to the member is undermined by the fact that a far more drastic order – namely, full revocation- can be made by a panel of the Discipline Committee, a quorum for which is three members.
The Legislative Scheme
[31] Section 37 is part of an overall scheme captured in sections 25-37 and 75-79 of the Code to regulate investigations into members’ conduct and competence. Central to this scheme is the ICRC, which is empowered to investigate complaints, to refer complaints to the Discipline Committee and to impose interim orders restricting or suspending the members’ practice where patients are at risk of harm. The functions of the ICRC are undertaken to regulate the profession in the public interest.
[32] There are sections other than section 37 where reference is made to the Inquiries Reports and Investigations Committee where the structure of the Code would dictate that what is meant is a panel of the ICRC. For example:
(i) Section 25(1) requires the Chair of the ICRC to select a panel to consider a report that is made by the Registrar under s. 79(a). The panel then disposes of the report of the Registrar’s investigation under s. 26(1). However, s. 79(a) requires the Registrar to report the results of investigations to the ICRC – the word “panel” is omitted. It makes no sense that the legislature would have intended the Registrar to report his investigation to the entire ICRC where a panel of the ICRC has been struck to consider and dispose of that very report.
(ii) Similarly, s. 75(1)(c) states that the Registrar may appoint investigators in respect of a complaint where requested by the ICRC. Again, the word “panel” does not appear in the subsection. Yet, if a panel has been struck to investigate, consider and dispose of a complaint, it cannot have been intended that the entire ICRC be the only body that can request the appointment of an investigator.
(iii) Section 38(1) is the section of the Code that deals with setting up panels to hold discipline hearings. It provides that such panels shall be selected to hold hearing of “allegations of a member’s professional misconduct or incompetence” referred to the Discipline Committee by the “Inquiries, Complaints and Reports Committee”. The word “panel” is not used. Yet complaints are referred to the Discipline Committee panels composed of members of the ICRC. Are these complaints not to have hearings? This would be illogical, indicating that the reference to ICRC means a panel of the ICRC.
(iv) Once the Discipline Committee has heard the matter the panel is directed by s. 54 of the Code to give its reasons in writing to the parties. Section 54 further provides that “if the matter had been referred to the Discipline Committee by the Inquiries, Complaints and Reports Committee” the reasons are also to be provided to the complainant. Again, the word “panel” is not used. Yet, when complaints emanate from complainants, the referrals to the Discipline Committee come from panels of the ICRC.
The Legislative History
[33] In 2007, the Ontario legislature passed the Health Systems Improvement Act, S.O. 2007, c. 10, which amended the RHPA. These amendments, which came into effect on June 4, 2009, were directed in part at improving the efficiency and transparency of the complaints procedures at the regulated health colleges (Official Report of Debates (Hansard) May 28, 2007, March 20 and 26, 2007 ). To this end, the amending legislation created a new committee, the ICRC, which replaced the former Complaints Committee and subsumed the member-specific functions of the Executive committee.
[34] Before the 2007 amendments, the Complaints Committee had jurisdiction over the investigation and disposition of complaints. The Executive Committee, on the other hand, had jurisdiction over the Registrar’s investigations. When it came to interim public protection orders, it was only the Executive Committee ( a much smaller committee than the current ICRC) who could impose these orders, following the referral of a complaint to discipline, whether that referral was made by the Complaints Committee or the Executive Committee. This meant that if the Complaints Committee had referred a matter to the Discipline Committee and there was a risk of harm to patient safety pending the hearing by the Discipline Committee, the matter then had to be considered by the Executive Committee before an interim order could be issued under s. 37. Needless to say, this created inefficiency where patients were at risk. Enabling both functions to be performed by one committee, the ICRC, eliminated this inefficiency.
[35] Similarly, prior to the 2007 amendments, there was no provision for making interim orders except on 14 days notice to the member. As a result of the amendments, in recognition of the fact that there are certain situations where the public could be at risk unless immediate action is taken, the legislature enacted s. 37(6).
[36] To interpret s. 37 as requiring a majority of a committee consisting of 58 members to make an urgent decision would be to undermine the efficiency (with the consequent effect on the ability to protect the public) that the amendments to s. 37 were meant to achieve.
Section 37(3)
[37] While s. 37(3) of the Code provides that an interim order made under s. 37(1) of the Code “continues in force until the matter is disposed of by a panel of the Discipline Committee”, it does not provide that such an order cannot be amended or replaced by another order. To interpret the section as having the latter meaning would be to undermine, rather than promote, the ability of the ICRC to respond to situations where it is clear that its previous interim orders will no longer offer the necessary protection to the patients of a member. This in turn would run counter to the primary objective of the legislation in question – to serve and protect the public interest.
Conclusion re Jurisdiction
[38] For these reasons I find that the Committee did have jurisdiction to make both the Monitoring Order and the Suspension Order.
Was the Suspension Order Reasonable?
[39] The Committee issued two sets of reasons respecting the Suspension Order; the first on September 29, 2015 and the second on October 14, 2015 in response to the Applicant’s request that the Suspension Order be rescinded. These reasons reveal the following about why the Committee imposed the Suspension Order and decided that it should not be rescinded:
(1) The Committee started with its assessment of the conduct that led to the imposition of the Monitoring Order, namely the four complaints of sexual abuse. The Committee categorized this conduct as “very serious” and stated that it “could think of no scenario in which the behaviour as described in the various complaints would have been appropriate or medically justifiable.” The Committee referenced its reasons for imposing the Monitoring Order, which included the fact that the complaints spanned a long period of time and “contained overlapping themes of inappropriate sexual touching (Patient B, Patient C and Patient D) and privacy violations (Patient A, Patient B, and Patient D)”.
(2) The Committee considered the expert evidence that the Applicant filed which consisted of the evidence of an urologist (summarized above) and the evidence of a dermatologist. The dermatologist stated that in all the cases he reviewed, it was appropriate for the Applicant to perform a full skin examination.
(3) With respect to the urologist’s evidence, the Committee stated the following:
The Committee carefully reviewed Dr. Zadra’s opinion and notes that while he posits that due to Dr. Kunynetz’s size, it would be impossible for patients to feel Dr. Kunynetz’s penis in the manner described, the Committee does not find this persuasive. There is no indication that Dr. Zadra examined Dr. Kunynetz while his penis was erect, and this, of course, would protrude differently than if it were not erect, and we are not persuaded that a woman would not know the difference between an erect penis and a large pannus. Moreover, as noted above, the Committee cannot generally assess credibility or engage in testing evidence. It is not appropriate at this time to assess whether the patients mistook a large pannus for a penis.
(4) With respect to the dermatologist’s evidence, the Committee stated the following:
Similarly, the Committee does not find Dr. Hong’s information regarding the examination of patients to alleviate our concerns. We are not able to assess credibility at this stage, and while it may have been appropriate for Dr. Kunynetz to perform a full examination, the manner in which it was performed has not been established at this point, for example, whether it was done in a sexualized manner, whether patients provided consent, and/or whether they were properly gowned.
(5) The Committee then examined the information it had concerning the breaches of the Monitoring Order. It noted that the first breach occurred after the Monitoring Order had been in place for a month (by which time the Applicant should have been used to its terms) and was not reported for 13 days, in spite of the fact that the Applicant realized that he had breached the Monitoring Order almost immediately. It also noted that the second breach occurred the day after the first breach had been reported, when the terms of the Monitoring Order should have been foremost in the Applicant’s mind. In the Committee’s view, this proximity pointed to the fact that the Applicant was unable to comply with the Monitoring Order and would continue to breach it in the future.
(6) The Committee considered the evidence that the Applicant had made some changes to his practice that would ensure that the Monitoring Order would not be breached again. On this point the Committee found that “we have no new compelling information to suggest that Dr. Kunynetz will be more attentive to the order in the future. While he has suggested some changes to his practice, these are not sufficient to alleviate our concern that he will not comply with the order, whether it be due to inadvertence or some other reason.”
(7) The Committee also considered the Applicant’s submission that the breaches were minor, that the patients did not remove their clothing and that the second visit occurred with the door open. In this regard, the Committee noted that the Monitoring Order was clear on its terms and did not make any exceptions. The Committee also found that encounters that last five minutes of the type described by the Applicant when he breached the Monitoring Order are “not insignificant visits for a dermatologist; these are full visits and should not be minimized or discounted as brief discussions only.” In the Committee’s view, the breaches were significant breaches.
(8) The Committee “carefully considered” the impact that a suspension order would have on the Applicant’s livelihood. It stated that it was for this reason that it had first imposed the lesser restriction of a Monitoring Order. Given the fact that the Applicant had breached the Monitoring Order, the protection of the public mandated that he be suspended. As put by the Committee:
Since Dr. Kunynetz has demonstrated an inability to comply with the [Monitoring] Order, the Committee is of the opinion that the [Monitoring] Order does not adequately protect the public and without immediate action, more breaches may take place, thus exposing patients to harm or injury.
[40] In assessing the Committee’s decision to suspend the Applicant, it is important to keep in mind that reasonableness is a deferential standard animated by the principle that certain questions before administrative tribunals do not lend themselves to one particular result. In other words, the reasonableness standard recognizes that on certain questions reasonable people may disagree.
[41] In this case, the Committee was faced with a number of allegations of sexual abuse, a serious concern given the Committee’s mandate to protect the public in the face of the vulnerability of patients in the context of a medical encounter. The Committee had imposed an order designed to meet this concern, without necessitating the Applicant’s suspension. The Applicant breached this order twice. Further, after he breached the order the first time, he did not report the breach for 13 days. Then, immediately after reporting the first breach, he breached the order again. In the face of this history, it cannot be said that the Committee was unreasonable in finding that the Applicant was unable to abide by an order to monitor his practice. Given this reality, it was not unreasonable for the Committee to conclude that his patients would likely be exposed to potential harm or injury if the Applicant was allowed to continue to practice.
[42] With respect to the Applicant’s claim that the Committee’s issued its decision on the basis of a “possibility” as opposed to a probability of harm, the Committee’s reference to “possibility” occurred in its Monitoring Order decision when it indicated that it “was troubled by the possibility that the four complaints, which relate to conduct spanning over 16 years, indicate a pattern of inappropriate, impulsive, opportunistic sexual behaviour on the part of Dr. Kunynetz. In our view, the possibility of such a pattern warrants an appropriate response to ensure the protection of Dr. Kunynetz’s female patients.”
[43] It is clear from reading the decisions as a whole that the Committee was mindful of and applied the right statutory test. In this regard, reviewing courts should not subject a fact-finder’s reasons to minute and painstaking scrutiny. Our task is to review the reasons as a whole and in context, not to focus on one word: see R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 19.
[44] For these reasons, I find that the Committee’s decision to impose the Suspension Order was a reasonable one.
Conclusion
[45] For these reasons, the application is dismissed. As agreed by counsel, the Applicant is to pay the Respondent its costs of the application, fixed in the amount of $10,000.00.
Sachs J.
Leitch J.
Sanderson J.
Released: November 4, 2015
DIVISIONAL COURT FILE NO.: 518/15
DATE: 2015/11/04
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Leitch, Sanderson and Sachs JJ.
BETWEEN:
Dr. Rodion Kunynetz
Applicant
– and –
College of Physicians and Surgeons of Ontario
Respondent
REASONS FOR JUDGMENT
Sachs, J.
Released: November 4, 2015