College of Physicians and Surgeons of Ontario v. McIntyre, 2017 ONSC 116

CITATION: College of Physicians and Surgeons of Ontario v. McIntyre, 2017 ONSC 116

DIVISIONAL COURT FILE NO.: 403/15

DATE: 20170117

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MOLLOY, DAMBROT and RAMSAY JJ.

BETWEEN:

THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO

Respondent

– and –

MARY ELIZABETH MCINTYRE

Appellant

Amy Block and Carolyn Silver, for the Respondent

Eli Lederman and Robert Trenker, for the Appellant

HEARD: December 8, 2016 in Toronto

BY THE COURT:

REASONS FOR DECISION

A. INTRODUCTION

[1] The appellant, Dr. Mary Elizabeth McIntyre, appeals to this Court from decisions of the Discipline Committee (“the Committee”) of the College of Physicians and Surgeons of Ontario (“the College”) dated July 6, 2015 and March 22, 2016. In the first decision, the Committee found Dr. McIntyre guilty on various counts of failing to maintain the standards of the profession and unprofessional conduct and, with respect to one patient, sexual abuse. In its second decision, which dealt only with penalty, the Committee revoked Dr. McIntyre’s license to practice medicine.

[2] Dr. McIntyre appeals only one aspect of the liability decision – the Committee’s finding of sexual abuse with respect to the patient referred to as Y.[^1] In addition, and in any event of the result of the appeal on the liability finding, Dr. McIntyre appeals the penalty decision as being unreasonable and excessive in the circumstances.

B. THE COMMITTEE’S FINDING ON SEXUAL ABUSE OF PATIENT Y

The Conduct at Issue

[3] There were a significant number of issues initially before the Committee involving Dr. McIntyre’s practice. Prior to the hearing, all but two of those issues were resolved and an agreed statement of facts dealing with those matters was placed before the Committee.

[4] The two contested issues of fact before the Committee both involved Patient Y. On the first issue, the Committee found Dr. McIntyre guilty of failing to maintain a proper professional boundary between her and Patient Y. That finding is not challenged on this appeal. On the second issue, the Committee found that Dr. McIntyre sexually abused Patient Y. That finding is the subject of this appeal, along with the penalty imposed.

[5] The College subpoenaed Y to testify at the hearing, but she failed to appear. The College’s evidence at the hearing consisted of Dr. McIntyre’s medical records for Y and six witnesses, two of whom were the respective daughters of Dr. McIntyre and Y, with the other four being patients and employees of Dr. McIntyre. Based on the medical records, the Committee found that Y had been a patient of Dr. McIntyre since 1991 and that she had a long history of mental illness including: two hospitalizations on a Form 1; drug treatment with Lithium, a variety of anti-depressants and narcotics; and individual psychotherapy sessions. The last OHIP billing for Y was in October, 2010.

[6] This evidence established to the satisfaction of the Committee a close friendship that overstepped the bounds of professional conduct in the following ways:

a. Dr. McIntyre was involved in Y’s finances;

b. Dr. McIntyre and Y socialized. Y was in Dr. McIntyre’s home regularly. She helped the doctor with child care and housekeeping;

c. Y and Dr. McIntyre slept in the same bed when they travelled for children’s sports tournaments; and

d. The two were seen on the bed in states of undress on two occasions before or during the fall of 2010.

[7] With respect to the issue of sexual abuse, the Committee relied on the testimony of Dr. McIntyre’s daughter who testified that in November or December 2010 she saw her mother and Y on the bed exchanging a romantic kiss that lasted a few seconds.

[8] Dr. McIntyre did not testify and no other defence evidence was called.

[9] The Committee found that the kiss observed by Dr. McIntyre’s daughter constituted “touching of a sexual nature” as set out in the definition of “sexual abuse” under s. 1(3) of the Health Professions Procedural Code, which is Schedule 2 to the Regulated Health Professions Act, 1991.[^2] Therefore, if this act took place during the currency of the doctor-patient relationship, the offence of sexual abuse would be established. Counsel for Dr. McIntyre takes no issue with respect to the characterization of this kiss. The only real issue is whether the doctor-patient relationship had already ended prior to the kiss.

[10] There was no direct evidence as to when the doctor-patient relationship had terminated. Neither Y nor Dr. McIntyre testified. The last entry in the medical chart was for a medical visit in October 2010, for which a bill had been sent to OHIP. The Committee noted that patients often have gaps of time between doctor visits and that this pattern was also true for Y. The Committee also noted that Y was being treated for a mental illness that was “serious, longstanding and ongoing.” There was nothing in the chart to indicate that Y had terminated the relationship, nor was there any notation by Dr. McIntyre to that effect. The Committee referred to the College’s Policy Statement #3-08 on “Ending the Physician Patient Relationship,” which provides that the physician is responsible for documenting the termination of the relationship in the patient’s chart and arranging alternative services for the patient. There was no indication in the chart that Y’s medical information or care had been transferred to another doctor. Given the absence of such a chart entry and the ongoing nature of Y’s illness, the Committee concluded that the doctor-patient relationship was still in existence in November and December 2010.

Procedural Fairness Allegation

[11] The appeal from the finding of sexual abuse is primarily based on the submission that the Committee breached principles of procedural fairness. The appellant’s factum asserts that:

(1) Prior to the hearing, in its Pre-Hearing Conference Memorandum dated May 22, 2014, the College acknowledged that the doctor-patient relationship ended in October 2010;

(2) The College was in possession of a letter from Y to Dr. McIntyre dated October 21, 2010 in which Y “unequivocally terminated” the doctor-patient relationship and had provided that letter to Dr. McIntyre in disclosure;

(3) Notwithstanding these two facts, the College in oral closing submissions, “for the first time in the proceeding,” took the position that the doctor-patient relationship was still ongoing in November and December 2010;

(4) In doing so, the College was seeking a finding which it knew to be false; and

(5) Until the closing submissions of the College, counsel for Dr. McIntyre had no notice that this position would be taken, nor any reason to expect that it would be taken.

[12] Immediately following the College’s closing submissions to the Committee, counsel for Dr. McIntyre asserted that counsel for the College had taken a position in argument that took the defence by surprise. He submitted that counsel for the College knew the doctor-patient relationship was terminated in October by the patient and that the College had in its possession Y’s letter to that effect. He sought to file the letter, to which College counsel objected. Counsel for Dr. McIntyre then sought to reopen his case to file the letter, to which College counsel also objected on the grounds that the letter itself was hearsay unless introduced through a witness, and in any event it was too late for the defence case to be reopened.

[13] After seeking advice from its own counsel, and adjourning to consider the matter, the College declined to consider the letter and refused to permit the defence to reopen its case.

[14] Counsel for Dr. McIntyre submits that this was a breach of procedural fairness and resulted in an unfair hearing for Dr. McIntyre.

Lack of Foundation for Procedural Fairness

[15] The material filed on this appeal did not include the letter from Y (purporting to terminate the doctor-patient relationship) or the College’s Pre-Trial Conference Memorandum (which was said to have set out the College’s position on the termination date of the doctor-patient relationship), although both were referred to by counsel in argument before the Committee as well as in the appellant’s factum in this court. Prior to the hearing of the appeal, counsel for the College put counsel on notice that if the appellant sought to rely on these documents at the argument of the appeal, he needed to bring a motion to admit fresh evidence. No such motion was brought.

[16] At the beginning of the argument before us, the President of the Panel raised this issue with counsel. It is regrettable that the Committee did not see fit to mark the letter from Y as a lettered exhibit so that it would be available for review on appeal. That way it would not form part of the evidence considered by the Committee, but would assist this Court in the event we were of the view that the letter might have been material to whether Dr. McIntyre had a fair trial. When we expressed this view to counsel, the College consented to the letter being before the Court for that limited purpose and we did receive it subject to that limitation.

[17] The Panel advised counsel for Dr. McIntyre that we would not deal with the letter for any other purposes, in the absence of a motion to adduce it as fresh evidence. The College’s Pre-Trial Conference Memorandum was also not in evidence before us, nor was it in evidence before the Committee. There was no evidence before this Court that, prior to the hearing, the College had led defence counsel to believe that the College accepted October 2010 as the date the doctor-patient relationship terminated, as was now being argued by the appellant. This panel asked appellant’s counsel if he wished an adjournment of the appeal so that he could file the appropriate affidavit material to support his argument that he was taken by surprise, that the College had misled him in some way, or that the College had taken a position it knew to be untrue.[^3] Counsel declined that invitation and elected instead to proceed with the hearing of the appeal without seeking to supplement the record.

[18] Thus, there was no evidence before us as to: (1) whether or how counsel for the appellant had been misled or taken by surprise by any position taken by the College; (2) the authenticity of the purported letter from Patient Y; (3) the evidence of any witness who could have been called at the hearing to testify that Y’s letter had been sent and received; or (4) the actual date upon which the doctor-patient relationship was terminated if it was different from the date found by the Committee.

No Breach of Procedural Fairness

[19] As a tribunal with the power to discipline doctors and potentially take away their ability to practice their chosen profession, the Discipline Committee of the College of Physicians and Surgeons is recognized as owing a high degree of procedural fairness to those who are subject to their proceedings.[^4] This is acknowledged by the College itself in its own internal rules and procedures.

[20] With respect to issues of procedural fairness and natural justice, some courts have held there is no standard of review. Rather, once the scope of the duty of procedural fairness is established, the tribunal is simply obliged to observe it.[^5] In other cases, courts have held that the standard of review for issues of procedural fairness is correctness. For example, the Supreme Court of Canada stated in Mission Institution v. Khela that the “standard for determining whether the decision maker complied with the duty of procedural fairness will continue to be ‘correctness’.”[^6]

[21] In this case, the characterization of the standard of review is not an issue, nor indeed is there any real issue as to the content of the Committee’s duty of procedural fairness. Rather, the issue is whether the Committee’s refusal to accept the letter from Patient Y into evidence at the end of the hearing rendered the hearing unfair. Based on the evidence before us, including the transcripts of the proceedings before the Committee, we find no breach of procedural fairness.

[22] It was apparent throughout that the College was taking the position that Dr. McIntyre was guilty of sexual abuse and that the College was relying on the evidence of her daughter about the kiss. The medical chart and the letter apparently written by Y were disclosed to the defence. The medical chart was admitted into evidence; the letter from Y was not. Counsel for Dr. McIntyre was aware that the letter was not in evidence when the defence elected to call no evidence. Based on the evidence before us, we see no basis for finding that the College misrepresented the position it would take on this issue.

[23] Further, we see no basis for finding that counsel for the College took a position it knew to be untrue. Apparently, the College obtained a copy of the letter from Y. Without testimony from a witness, there is no way of knowing if the letter was ever delivered to Dr. McIntyre. It was not in Y’s medical chart. There was no transfer to medical records to a different doctor. Further, on its face, the letter appears to be more of a break-up of a friendship, with the termination of the doctor-patient relationship being incidental. Some excerpts of the letter purportedly written on October 21, 2010:

The last few months I have been receiving phone calls from you that are totally out of context with our friendship. You have been mean and are extremely mad at me. …Your only interest in our friendship now is to lash out to hurt me.

The reason I hang up the phone on you is to protect myself from your verbal and emotional abuse when I can’t listen anymore.

Oct 20/10 on the phone you said you were going to have me admitted to St Thomas for lies I was saying about you and I (much more to this story but I won’t write about it here).

Could you please inform me in writing of any medical concerns or conditions I might not be aware of. Thank you. And I will still need a copy of my chart (sorry).

As a result of a combination of outlined points in this letter I am informing you that you are no longer to be my physician. With deep regret [signature] Hand delivered.

Copy: Dr Laforte

[24] Based on the evidence at trial, the personal friendship between Dr. McIntyre and Y was still ongoing after October 21, 2010. It is therefore not fair to say that the College knew that the doctor-patient relationship had ended on October 21, 2010 as of the date of that letter.

[25] The submissions made by the College to the Committee were careful. Counsel for the College submitted that there was no evidence that Dr. McIntyre took steps to end the doctor-patient relationship, citing the medical chart. She argued that in a doctor-patient relationship of 20 years, the fact that there were no entries in the chart after October 2010 was not conclusive that the relationship had ended. Y had a 20-year history of mental illness and was on numerous prescription medications that were ongoing. College counsel invited the Committee to draw a factual inference that the doctor-patient relationship was still ongoing through November and December 2010, given the nature of Y’s medical needs, the absence of a referral to another doctor, and the absence of any indication in the medical chart that the relationship was terminated (which was the doctor’s professional responsibility to record).

[26] There was no misrepresentation by College counsel, nor did she make any submission that did not fairly arise from the evidence before the Committee. We see nothing improper or unfair in any of the submissions by College counsel.

[27] We note that counsel for Dr. McIntyre did not seek an adjournment of the hearing to consider the matter and any further steps he might take. He did not seek to adjourn in order to secure the attendance of Patient Y to testify, nor did he seek to call another doctor to testify as to when he or she might have started a new doctor-patient relationship with Patient Y, nor did he seek to call Dr. McIntyre to testify as to when the doctor-patient relationship ended. He sought only to reopen his case in order to file the letter itself.

[28] We agree with counsel for the College that the letter, standing alone, would not be admissible evidence before the Committee. In the absence of a witness who could testify as to the letter being sent and received, the letter itself may be nothing more than the musings of Patient Y. Even if the letter had been sent, there would need to be evidence that it had been acted upon, as opposed to the issue being resolved between the parties, particularly in light of the undisputed evidence that the close nature of the personal relationship between Dr. McIntyre and Patient Y continued after the date of the letter.

[29] In our view, the Committee was correct in its decision not to admit the letter into evidence in this situation. The appellant was only deprived of the admission of an inadmissible document that could not reasonably have affected the result. There was no breach of procedural fairness and no conduct by either counsel for the College or the Committee that rendered the hearing unfair.

Burden of Proof

[30] Counsel for the appellant argued that the Committee effectively reversed the onus of proof by requiring the doctor to establish that the doctor-patient relationship had ceased prior to the sexual conduct that took place in December 2010. We reject that submission.

[31] The Committee correctly identified the burden of proof and stated that the onus was on the College to prove all elements of the offence, including that the alleged sexual conduct took place during the doctor-patient relationship.[^7]

[32] Further, the Committee applied that standard in its reasoning, placed the onus on the College to prove the existence of the relationship, and never shifted that burden to the doctor. Whether there is a doctor-patient relationship in existence is a question of fact.[^8] The standard of review is reasonableness.[^9] The Committee’s findings of fact on this point are set out at para. 72 of its Reasons, as follows:

The OHIP record for Ms Y indicates that Dr. Mcintyre’s last billing for a medical visit for her was in October 2010. Counsel for Dr. McIntyre argued that there was no evidence that the doctor-patient relationship was ongoing in November or December 2010 (i.e., when the kissing incident took place). Most patients have gaps in time when they have not had a medical visit with their doctor and there were such gaps in Dr. McIntyre’s chart for this patient . Because a patient is not seen for a month, or months, does not mean the doctor-patient relationship has been terminated. The College’s Policy Statement #3-08 on Ending the Physician Patient Relationship provides that the physician is responsible for documenting the termination in the patient’s chart and arranging alternative services for the patient. Although counsel for Dr. McIntyre submitted in closing argument that the patient had terminated the relationship, there was no evidence in the medical chart or otherwise presented that established this. The absence of a chart entry as to a termination or transfer of responsibility, and the nature of the patient’s mental illness, establishes to the Committee’s satisfaction that the doctor-patient relationship was ongoing. Given the nature of the medical treatment of Ms Y as evidenced in her patient chart, the mental illness being treated was serious, longstanding and ongoing. The Committee finds on the record before it that the doctor-patient relationship with Dr. McIntyre had not ended at the time of the kissing incident in November or December, 2010.

[33] The Committee’s conclusion is a reasonable one based on the evidence before it. It is also consistent with principles established in previous discipline cases before the College.[^10] In making findings of fact, the Committee is entitled to take into account the absence of evidence, such as the absence of any notation in the patient’s chart and the absence of any indication in the chart that the patient’s records have been transferred to another doctor. The Committee’s reasons are transparent and intelligible and show a direct path from the evidence to the ultimate finding of fact. In reaching that conclusion, the Committee did not reverse the burden of proof.

[34] Later in its reasons, the Committee considered the College’s argument that an adverse inference could be drawn from the doctor’s failure to testify as to the termination of the doctor-patient relationship. The Committee again stated (at para. 78) that the onus remained on the College and that the doctor had no onus to prove or disprove anything. The Committee also stated (at para. 77) that it had reached its conclusion as to the existence of the doctor-patient relationship at the time of the kiss based solely on the evidence and without drawing any adverse inference. However, the Committee went on to consider whether an adverse inference could be drawn. The Committee noted that the College had established a prima facie case, that a physician does not enjoy the “right to remain silent” (as would apply, for example, in criminal proceedings), and that Dr. McIntyre would have relevant evidence to provide if she had chosen to testify. In these circumstances, the Committee held that it would have been appropriate to draw an adverse inference that the doctor’s evidence would not have supported the argument that the doctor-patient relationship had been terminated as of the October 2010 letter.

[35] Again, we find the Committee’s analysis to be transparent and intelligible and its conclusion reasonable. Although this part of the analysis was not essential to the Committee’s decision, it does not involve any reversal of the onus of proof and does support the factual conclusion otherwise reached.

Conclusion on the Liability Decision

[36] There was no unfairness or improper conduct by counsel for the College before or during the hearing. The Committee conducted a fair hearing and did not breach any principles of procedural fairness. The Committee’s findings on liability were well-reasoned and supported by the evidence. The Committee correctly placed the burden of proof on the College throughout. There is no basis to interfere with its conclusion that Dr. McIntyre sexually abused Patient Y.

[37] Although other grounds of appeal had been advanced in the Notice of Appeal and factum, those were abandoned by counsel at the hearing of the appeal. Accordingly, the appeal with respect to the finding of sexual abuse is dismissed.

C. THE PENALTY DECISION

[38] The Committee ordered the revocation of Dr. McIntyre’s registration with the College, thus terminating her ability to practice medicine. Dr. McIntyre was also ordered to reimburse the College in the amount of $16,060.00 paid by the College to patients and the College’s costs of $13,380.00. Dr. McIntyre appeals the penalty of revocation and submits that the Committee: (1) misapprehended the evidence and its own earlier findings of misconduct; (2) erred in principle by failing to consider the “least restrictive option” appropriate in the circumstances; and, (3) erred in principle by imposing a penalty that was disproportionate in all the circumstances.

Standard of Review

[39] As previously noted, the standard of review for decisions of the College’s Discipline Committee is reasonableness. A penalty decision of the discipline tribunal of a self-regulated profession is at the heart of its discretion and is owed great deference. This Court will not interfere with a decision on penalty absent an error in principle or a sentence that is clearly unfit.[^11]

No Misapprehension of Evidence

[40] The appellant submits that the Committee based its penalty decision on findings of fact that were contrary to the findings previously made in its decision on liability. This error, the appellant argues, caused the Committee to unfairly equate the conduct of Dr. McIntyre to that of other doctors guilty of far more egregious conduct.

[41] It is clear that the Committee’s finding of sexual abuse during the doctor-patient relationship was based on the romantic kiss that took place in November or December, 2010. The Committee said (at para. 73):

The Committee finds that Dr. McIntyre and Ms Y kissed in a romantic way while on Dr. McIntyre’s bed. In the view of the Committee, this constitutes touching of a sexual nature and therefore sexual abuse of a patient. The Committee finds that Dr. McIntyre engaged in sexual abuse of a patient.

[42] In its penalty decision, the Committee made the following statements:

The kiss was only one aspect of this abusive relationship. They were clearly in an intimate relationship at the same time Patient Y was Dr. McIntyre’s patient.[^12]

Dr. McIntyre has engaged in boundary violations with Patient Y for many years. Although the time of the commencement of the sexual relationship is unknown, it nonetheless started when Patient Y was still a patient of Dr. McIntyre and dependent on her for care.[^13]

Dr. McIntyre sustained close personal relationships with both Patient Y and Mr. X concurrently with her doctor-patient relationship. The doctor-patient relationship was terminated with Mr. X before the sexual relationship commenced. However, with Patient Y, the doctor patient relationship continued during their sexual relationship.[^14]

[Emphasis added]

[43] The appellant argues that these references to a sexual relationship demonstrate that the Committee misapprehended its own findings of misconduct, which had been based on only one kiss and not a “sexual relationship.”

[44] We find no merit to this argument. It is clear from the Committee’s decision that it was fully cognizant of the underlying facts when making its decision on penalty. The Committee is permitted to refer to and rely upon additional facts arising from the evidence in the course of its penalty decision, provided those findings are not inconsistent with earlier findings on liability, and provided counsel, when making their submissions on penalty, are aware of the factual matrix before the Committee upon which the penalty decision would be based. There is no contradiction between any recitation of the facts by the Committee in its penalty decision and its findings of fact in its liability decision. It is clear that the Committee found an ongoing, intimate personal relationship between Dr. McIntyre and Patient Y over the course of many years that violated the boundaries appropriate to the nature of this doctor-patient relationship. It is also clear that the Committee found that at some point this relationship included sexual contact of a sort amounting to sexual abuse, based on the kiss that was witnessed in November or December 2010. The Committee’s findings in this regard are amply supported by the record and consistent throughout both phases of its decision-making. The Committee was always clear about the nature of Dr. McIntyre’s conduct when comparing this case to the conduct of other doctors in other reported cases.

Applicability of the “Least Restrictive Option” Principle

[45] The appellant argues that the Committee erred in principle by failing to recognize that it was required to impose the “least restrictive” penalty that was appropriate to the circumstances. In our view, there is no such principle governing the approach of a discipline committee in the imposition of a penalty on its member.

[46] The appellant relies upon a decision of another discipline committee in College of Physicians and Surgeons (Ontario) v. Lee in which reference is made to the proportionality principle and then a brief excerpt from the Supreme Court of Canada’s decision in R. v. Solowan is quoted, as follows:[^15]

As noted in Tse v. College of Physicians & Surgeons (Ontario) (1979), 1979 2047 (ON SC), 23 O.R. (2d) 649 (Ont. Div. Ct.), at pp. 8-9, the proportionality of a penalty involves consideration of the seriousness of the conduct, which includes the impact of the conduct on its victims. In R. v. Solowan, 2008 SCC 62, [2008] 3 S.C.R. 309 (S.C.C.), the Court wrote (at para. 3): “Unwarranted resort to maximum sentences is adequately precluded by proper application of those principles, notably the fundamental principle of proportionality....” and noted that it was appropriate “to impose the least restrictive sanction appropriate in the circumstances.”

[47] First of all, it is not clear that Lee even purports to establish the general proposition that the least restrictive sanction principle as applied in criminal law should be incorporated into the imposition of discipline penalties. Second, even if that was the thrust of the Lee decision, that decision is not binding on the Discipline Committee in this case. Third, if Lee does stand for that proposition, it is wrong.

[48] The principle of the “least restrictive sanction” referred to by the Supreme Court of Canada in Solomon (which is a criminal case) is a well-known criminal law principle of sentencing imposed by statute under s. 718.2(b) of the Criminal Code, which requires the sentencing judge to take into account the principle that “an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances.” There is no equivalent statutory provision governing the imposition of penalties by a discipline committee, which is not surprising given that the central function of the discipline committee is not to “punish” offenders, but rather to govern its members for the protection of the public.[^16]

[49] The Committee in this case considered the decision in Lee and declined to apply the “least restrictive option” principle. In doing so, the Committee relied on the decision of this Court in Iacovelli v. College of Nurses of Ontario, citing the following excerpt:[^17]

The words “least onerous and least restrictive” occur nowhere in the RHPA and form no part of the legislature’s intention in drafting s. 59(2). They are plainly unsuitable to the functions of the health profession College, whose overarching duty is not to pose the least restrictions on its members, but rather to protect the public. All of the College’s actions are taken to serve and protect the public interest. A member’s interest in practicing without restrictions must necessarily take second place to this overriding duty.

[50] The appellant points out that the Iacovelli decision did not involve the imposition of penalty, but rather a requirement imposed by the Inquiries, Complaints and Reports Committee that a member undergo an independent medical assessment as to fitness to practice. That is correct as to the context in which the issue arose, and the Committee in this case was alive to that fact. Nevertheless, the Committee was of the view that the general principles enunciated by the Divisional Court in Iacovelli were applicable to the issue before it. We agree entirely with the Committee in this regard. Penalties imposed by a self-regulating professional body are not the same as punishments imposed for criminal wrong-doing. While the discipline tribunal is required to be fair and even-handed in dealing with its members, it is guided first and foremost by its duty to protect the public. Many of the same principles involved in criminal sentencing will come into play in the imposition of discipline penalties, but that does not mean that principles binding on a judge in criminal sentencing are simply transportable into the administrative discipline process.

[51] We also adopt the reasoning of the Alberta Court of Appeal in Adams v. Law Society (Alberta)[^18] on this issue, as did the Committee. The Alberta Court of Appeal stated in Adams (at para. 6):

Before addressing the specific grounds of appeal, it may be helpful to consider the context of a professional disciplinary hearing. Professional bodies are those to whom the government has seen fit to grant monopoly status. With this monopolistic right comes certain responsibilities and obligations. Chief amongst them is self-regulation. Self-regulation is based on the legitimate expectation of both the government and public that those members of a profession who are found guilty of conduct deserving of sanction will be regulated – and disciplined – on an administrative law basis by the profession’s statutorily prescribed regulatory bodies. Thus, a professional disciplinary hearing is not a criminal hearing; it is an administrative hearing. Admission or proof of the alleged professional misconduct (or incompetence) is not the same as a plea or finding of guilt in a criminal matter. Rather, it is a finding of conduct deserving of sanction or incompetent practice based on administrative principles, including applicable evidentiary rules. A professional misconduct hearing involves not only the individual and all the factors that relate to that individual, both favourably and unfavourably, but also the effect of the individual’s misconduct on both the individual client and generally on the profession in question. This public dimension is of critical significance to the mandate of professional disciplinary bodies.

And further, at para. 27:

Finally, Adams argued that the penalty of disbarment is much more severe than penalties that have been imposed in other similar cases, and that disbarment in this case is manifestly unreasonable. We acknowledge that considering the dispositions in disciplinary matters in other cases and in other jurisdictions can be helpful. But this assessment must be undertaken with due respect to contemporary values in Canadian society. In this regard, we observe that in the past, there has sometimes been a tendency to minimize and excuse misconduct of a sexual nature between the members of some professions and their clients. Further, and in any event, because the relevant facts vary greatly from case to case, care must be taken to consider each complaint in the context of its particular circumstances. As stated earlier, we do not accept the proposition still often invoked in criminal cases, that the most serious disciplinary sanction, disbarment, should be reserved for the most serious misconduct by the most serious offender. In this case, the majority of the Hearing Committee correctly addressed the relevant factors and held that disbarment was the appropriate disposition. [Emphasis added]

[52] In this case, the Committee held that its determination on penalty should be based on “the guiding principle of protection of the public.” The Committee further identified the principles of proportionality, general deterrence, specific deterrence, denunciation and, where appropriate, rehabilitation as being relevant to its task as well as the importance of maintaining the public’s confidence in the profession’s ability to self-regulate in the public interest.

[53] These are the proper principles to be applied in imposing penalty sanctions. The Committee identified and applied these principles and made no error of principle in its determination that revocation was the appropriate penalty in this case.

The Penalty Imposed Was Reasonable

[54] The appellant argues that revocation is an excessive penalty that is disproportionate given the circumstances of this doctor as well as when compared to sentences imposed on other physicians. In support of that submission, the appellant points to an agreement between defence counsel and the College that if Dr. McIntyre was convicted only of the offences that were the subject of the agreed facts before the Committee, both counsel would jointly recommend a one-year license suspension with certain additional conditions, including a period of supervision thereafter. The appellant argues that the additional misconduct by Dr. McIntyre cannot justify a jump from a one-year suspension to revocation.

[55] This argument was also made before the Committee and rejected. Counsel for Dr. McIntyre had advocated a two-stage process whereby the admitted conduct was penalized separately from the conduct involving Patient Y. The Committee held that it was inappropriate to approach the consideration of penalty as if these were criminal offences on a multi-count indictment. [^19] Rather, the proper line of analysis was to consider all of the misconduct globally in order to determine the appropriate penalty. We agree that this is the correct approach for the reasons given by the Committee and precedent from this Court cited by the Committee.

[56] In any event, any agreement between counsel is not binding on the Committee, particularly when it is predicated on only part of the misconduct now before the Committee. The Committee was required to, and did, consider the matter afresh.

[57] We do not agree with counsel for the appellant that the penalty of revocation was imposed as a result of one kiss. The Committee’s decision was based on a large range of misconduct, not just involving Patient Y, but also five other patients and their families over a period of many years. It is important to recognize the extent of that misconduct which was found by the Committee to be “disgraceful, dishonourable and unprofessional” with regard to Dr. McIntyre’s “clinical care and treatment of patients and her failure to maintain appropriate boundaries with her patients.” That misconduct included:[^20]

• Failing to respond appropriately to requests by the College and patients for their medical records;

• Failing to maintain appropriate patient records;

• Improperly storing vaccines;

• Not responding to patients’ care concerns;

• Failing to appropriately make referrals for patients;

• Failing to complete forms that patients required;

• Behaving rudely to patients and discharging them without justification or notice and without following the College policy;

• Leaving the patients waiting for hours or more;

• Failing to safeguard the patient’s privacy;

• Mismanaging appointments with specialists;

• Failing to maintain appropriate boundaries with Patient X during the doctor-patient relationship by engaging in a close friendship with Patient X and by commencing a sexual relationship with him several months after the end of the doctor-patient relationship in circumstances where it was inappropriate to do so. Patient X had been Dr. McIntyre’s patient for many years and suffered from several mental health issues; and,

• Failing to maintain appropriate boundaries with Patient Y during a lengthy doctor-patient relationship and sexually abusing Patient Y while still in that relationship. Patient Y was vulnerable due to her longstanding mental health issues. She had been Dr. McIntyre’s patient for many years. Dr. McIntyre took advantage of the power imbalance in her physician-patient relationship to become involved with Patient Y socially, financially, and sexually.

[58] The Committee considered the principle of proportionality and rejected the submission that Dr. McIntyre’s conduct was at the “low end of the spectrum.” In doing so, the Committee pointed to the various forms of misconduct and the long-standing nature of the misconduct. The Committee felt that Dr. McIntyre’s conduct demonstrated a pattern of abuse of power and control and of “using her patients to fulfill her own needs.” Both Patient X and Patient Y were found to be vulnerable patients with long-standing mental health issues, making the breach of trust and abuse of power particularly serious.

[59] The Committee reviewed relevant case authorities and considered the penalties imposed on other doctors in similar circumstances. As is so often the case, there was no other case precisely on all fours with this one. The Committee distinguished many of the cases in which revocation had not been ordered on the basis that the conduct of Dr. McIntyre was distinguishable as being longer in duration or involving multiple patients. The Committee also noted that Dr. McIntyre was guilty of many forms of misconduct, not just failing to observe proper boundaries with patients. With respect to one case, the 1996 decision in College of Physicians & Surgeons (Ontario) v. Nagahara,[^21] the Committee noted that the society’s current understanding of the effects of sexual abuse by doctors has changed over the past 20 years, making the decision unhelpful as a precedent. The Committee stated (at para. 122) of its Reasons:

CPSO v. Nagahara, [1996] OCPSD No. 8, involved egregious, intrusive sexual abuse during a physical examination. Dr. Nagahara was also criminally convicted of sexual assault for this incident. The College ordered his registration suspended as well as other terms, conditions and limitations to address the risk he posed for sexual re-offence. Nagahara is nearly 20 years old, and our understanding [of] the devastating implications of sexual assault has substantially shifted in the years since. Accordingly, suspending Dr. McIntyre’s certificate of registration would neither meet the mandate of public protection nor maintain the credibility and reputation of the College based on the facts of this case. [Emphasis added]

[60] The applicability of precedent and the general principle of maintaining consistency in the penalties imposed for similar situations are difficult issues for discipline committees, particularly on issues where public mores may be evolving. Interestingly, two days before this Panel heard this case, we heard another appeal from a different discipline committee of the College of Physicians and Surgeons. In that case, Dr. Peirovy was found guilty of sexually abusing four female patients (by inappropriately handling their breasts in the guise of doing a medical examination) and of unprofessional conduct in relation to a fifth patient (asking her out on a date after doing a chest examination). His license was suspended for six months and various other restrictions were imposed. This Panel granted the College’s appeal, finding that the sentence was unfit, and in dealing with the issue of reliance on precedents commented that, “a litany of clearly unfit penalties does not justify the penalty imposed in this case.”[^22]

[61] Having taken all of these relevant factors into account, the Committee concluded that the penalty of revocation was warranted give the nature and duration of the misconduct, the vulnerability of Patients X and Y, and the breach of trust and power involved. The Committee also was guided by the importance of deterrence, protection of the public and ensuring that the public continued to have confidence in the College to protect the interests of patients. The Committee summed up these principles as follows at paras. 136-138:

Dr. McIntyre’s misconduct involved boundary violations that continued for years. Patient Y was a vulnerable woman with mental health issues who required hospitalizations, and ongoing medication, among other assistance. Mr. X was also vulnerable with significant mental health issues. In both cases, Dr. McIntyre was in a position of trust and had power and control in the relationship.

The College has a mandate to govern its members. When physicians engage in professional misconduct, as Dr. McIntyre did, the public loses confidence in the profession. If the penalty is not proportional with the seriousness of the misconduct, the profession is further tarnished.

Revocation in this case is appropriate because of the nature and context of Dr. McIntyre’s boundary violations with vulnerable patients, which took place over years, and her breach of the trust of her patients, the public, and the profession. Revocation serves the purpose of maintaining public protection and confidence in the profession. It should also serve as a deterrent to the membership in general.

[62] In reaching its decision, the Committee was cognizant of the particular circumstances of this particular doctor and these particular patients. However, the Committee also took a broad policy-based view of its own mandate: to protect the public; to recognize the devastating impact on patients when the trust they place in doctors has been violated, particularly through sexual abuse; and to maintain public confidence in the ability of the medical profession to regulate itself in the public interest. These are matters squarely within the particular expertise of the Committee and are entitled to great deference. In our view, the Committee’s penalty decision is reasonable, defensible, and supported by cogent reasons. There is no basis for this Court to interfere.

D. CONCLUSION

[63] In the result, the appeal is dismissed with costs to the respondent in the agreed amount of $10,000.

MOLLOY J.

­­­­­­­­­______________________________

DAMBROT J.

RAMSAY J.

Released: January 17, 2017

CITATION: College of Physicians and Surgeons of Ontario v. McIntyre, 2017 ONSC 116

DIVISIONAL COURT FILE NO.: 403/15

DATE: 20170117

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MOLLOY, DAMBROT and RAMSAY JJ.

BETWEEN:

THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO

Respondent

– and –

MARY ELIZABETH MCINTYRE

Appellant

REASONS FOR DECISION

The Court

Released: January 17, 2017

[^1]: The Committee made an Order prohibiting the publication of the names of patients and complainants, which Order was continued in this Court. We will refer to the patients throughout by the letters assigned to them in the Committee’s decision.

[^2]: S.O. 1991, c. 18

[^3]: It should be noted that this was without any suggestion as to the likely outcome if such an application to supplement the record were brought.

[^4]: Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, at para. 25.

[^5]: Moreau-Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11, [2002] 1 S.C.R. 249, at para. 74; see also London (City of) v. Ayerswood Development Corp. (2002), 167 O.A.C.120 (C.A.), at para. 10.

[^6]: Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502, at para. 79; see also Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at para. 43.

[^7]: Ontario (College of Physicians and Surgeons of Ontario) v. McIntyre, 2015 ONCPSD 25, at para. 45 [Reasons of the Committee].

[^8]: Mussani v. College of Physicians and Surgeons of Ontario (2003), 2003 45308 (ON SCDC), 64 O.R. (3d) 641 (Div. Ct.), at para. 84; aff’d 2004 48653 (ON CA), 74 O.R. (3d) 1 (C.A.); See also Leering v. College of Chiropractors (Ontario), 2010 ONCA 87, 98 O.R. (3d) 561, at para. 41; College of Physicians & Surgeons (Ontario) v. Boodoosingh (1990), 1990 6686 (ON SC), 73 O.R. (2d) 478 (Div. Ct.), at para. 4.

[^9]: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 51; Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247.

[^10]: Ontario (College of Physicians and Surgeons of Ontario) v. Brown, 2015 ONCPSD 20, at para. 110; College of Physicians & Surgeons (Ontario) v. Lukezich, 2006 CarswellOnt 10015 (Ont. CPSDC), at paras. 84-85; Redhead, Re, 2013 CarswellOnt 5873 (Ont. CPSDC), at para. 76.

[^11]: Reid v. College of Chiropractors of Ontario, 2016 ONSC 1041 (Div. Ct), at paras. 98-99; Groia v. Law Society of Upper Canada, 2016 ONCA 471, 131 O.R. (3d) 1, at para. 232.

[^12]: Reasons of the Committee, at para. 123.

[^13]: Ibid, at para. 115.

[^14]: Ibid, at para. 124.

[^15]: College of Physicians & Surgeons (Ontario) v. Lee, [2010] O.C.P.S.D. No. 8, at para. 5, citing R. v. Solowan, 2008 SCC 62, [2008] 3 S.C.R. 309, at para. 3.

[^16]: Mussani v. College of Physicians & Surgeons (Ontario) (2004), 2004 48653 (ON CA), 74 O.R. (3d) 1 (C.A.), at para. 95.

[^17]: Reasons of the College, at para. 129, citing Iacovelli v. College of Nurses of Ontario, 2014 ONSC 7267, 331 O.A.C. 201 (Div. Ct.), at para. 53.

[^18]: Adams v. Law Society (Alberta), 2000 ABCA 240, 82 A.R. 157.

[^19]: Stevens v. Law Society of Upper Canada (1979), 1979 1749 (ON SC), 55 O.R. (2d) 405 (Div. Ct.); Cwinn v. Law Society of Upper Canada (1980), 1980 1694 (ON SC), 28 O.R. (2d) 61 (Div. Ct.), at para. 13.

[^20]: Reasons of the Committee, at paras. 107-110.

[^21]: College of Physicians & Surgeons (Ontario) v. Nagahara, [1996] O.C.P.S.D. No. 8.

[^22]: College of Physicians and Surgeons of Ontario v. Peirovy, 2017 ONSC 136