Court File and Parties

CITATION: The College of Physicians and Surgeons of Ontario v. Minnes, 2016 ONSC 1186

DIVISIONAL COURT FILE NO.: 87/15

DATE: 20160219

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: The College of Physicians and Surgeons of Ontario, Respondent -and- Dr. Bruce Gordon Minnes, Appellant

BEFORE: Swinton, Rady and C. Horkins JJ.

COUNSEL: Andrew B. Matheson and Sapna Thakker, for the Appellant Lisa Brownstone, for the Respondent

HEARD at Toronto: February 16, 2016

PUBLICATION BAN: No one shall publish the name or any information that would disclose the identity of any of the complainants in this proceeding.

Endorsement

Swinton J.:

Overview

[1] Dr. Minnes (“the appellant”) appeals a penalty decision of the Discipline Committee of the College of Physicians and Surgeons of Ontario (“the College”) dated January 19, 2015. The Committee ordered that his licence be revoked after he was found to have engaged in conduct that would reasonably be regarded by members of the profession as disgraceful, dishonourable, or unprofessional.

[2] For the reasons that follow, I would dismiss the appeal, as the penalty was reasonable in the circumstances.

The Merits Decision of the Discipline Committee

[3] Based on admissions made by the appellant, the Committee found that he had failed to respect appropriate boundaries when he engaged in unwanted and inappropriate touching of several female hospital employees over the course of many years. Second, the Discipline Committee found that the appellant, a 47 year old pediatrician, had engaged in unwanted and coercive sexual activity with a 17 year old camp counsellor while he was acting as a camp doctor in the summer of 2007.

The Standard of Review

[4] It is well established that reasonableness is the standard of review of a penalty decision imposed by a discipline committee of a professional regulatory body (Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247 at para. 42).

The Issues

[5] The appellant argues that the Committee’s decision was unreasonable because

• the penalty of revocation fell outside the reasonable range of sanctions for the appellant’s conduct when other similar cases are considered;

• the Committee made an error in principle when it treated the appellant’s denial of the incident at the summer camp as an aggravating factor and imposed a burden on him to demonstrate remorse or insight; and

• the Committee improperly equated the appellant’s conduct with the criminal offence of sexual interference.

The Motion to Adduce Fresh Evidence

[6] The appellant seeks to adduce new evidence consisting of an affidavit of a law clerk that appends a letter from the appellant’s therapist, Dr. Doupe, dated June 4, 2015 describing his treatment since the penalty decision and suggesting a future plan.

[7] I would dismiss the motion for fresh evidence, as it does not meet the requirements set out in R. v. Palmer, [1980] 1 S.C.R. 759 and Sengmueller v. Sengmueller (1980), 17 O.R. (3d) 208 (C.A.).

[8] Specifically, the therapist’s letter is not relevant to the determination of the reasonableness of the penalty decision. The Committee was concerned about the risk of repeat misconduct and the possible danger to the public if the appellant continued to practise medicine. The letter does not address these questions. Moreover, given that the letter does not address these issues, it could not be expected to have affected the penalty decision.

[9] This is not a case where there will be injustice to the appellant if this evidence is refused. The appellant could use the new evidence either when he applies for reinstatement, which he has been eligible to do since January 19, 2016, or on a motion to vary the Committee’s order on the basis of facts arising or discovered after the order was made.

The Reasonableness of the Penalty Decision

[10] The Committee carefully set out the factors to be considered when determining an appropriate penalty. It did not treat the lack of remorse as an aggravating factor. Rather, it expressly acknowledged that remorse can be a mitigating factor (Reasons, p. 10).

[11] The Committee did not equate the appellant’s conduct with criminal conduct. Again, the reasons show that the Committee understood that there had been no criminal conviction (Reasons, p. 8), and it had been instructed by Independent Counsel that its task was not to determine whether there had been criminal conduct.

[12] The Committee reviewed case law, both from the College and Law Society of Upper Canada, to see how cases with some similarities had been treated. It reasonably stated that “the circumstances of each case are unique.” While the appellant relied on Re Noriega, [2003] O.C.P.S.D. No. 36 to show that a penalty of 9 months suspension would be within the range, that decision is distinguishable, as it resulted from a “no contest” plea to the facts recited by the College, and there was a joint submission on penalty. Moreover, the penalty was actually 18 months suspension that would be reduced to nine months if the doctor attended certain courses, plus ongoing restrictions on his medical practice.

[13] The Committee viewed the appellant’s misconduct at the camp as very serious, stating (Reasons, p. 8),

The Committee found that Dr. Minnes had abused his position of authority and trust vis à vis the complainant, in order to take advantage of her for his sexual gratification. He behaved in a fashion which the Committee characterizes as manipulative, coercive, opportunistic, and, seemingly, predatory.

[14] The Committee was particularly concerned about public safety and protection for future young patients of the appellant, given that he is a pediatrician. In particular, it was concerned about the risk that similar conduct might occur in the future. However, it had no evidence with respect to risk assessment, no evidence about the type of treatment proposed by the appellant and its anticipated outcomes, and no indication from him that he had insight into his conduct.

[15] The Committee was also concerned about the maintenance of public confidence in the integrity and reputation of the medical profession and its capacity for self-governance.

[16] Ultimately, the Committee concluded (Reasons, p.15),

In conclusion, in light of the serious and appalling nature of the offending behaviour in the camp incident, the need to protect the public, and the need to maintain public confidence in the integrity of the medical profession and its ability to govern itself effectively, the Committee concludes that Dr. Minnes’ certificate of revocation must be revoked.

[17] The Committee also noted that the findings with respect to the boundary issues made the penalty of revocation even more appropriate in the circumstances.

[18] In my view, the penalty was within the range of reasonable outcomes. The determination of penalty requires a consideration of many factors. Here, the Committee was concerned primarily with the protection of the public and the maintenance of public confidence in the system of self-regulation of the medical profession. The findings of professional misconduct were very serious, involving the misuse of a position of trust and authority in order to take sexual advantage of a vulnerable adolescent. The penalty was reasonable when considered in the context of other cases, in light of the facts of the present case including the boundary limitation issues, and the lack of evidence respecting risk of future misconduct.

[19] Accordingly, the appeal is dismissed. Costs to the College are fixed at $7,500.00 all inclusive, an amount agreed upon by the parties.

Swinton J.

Rady J.

C. Horkins J.

Date: February 19, 2016