Court File and Parties

2018 ONSC 2945

DIVISIONAL COURT FILE NO.: DC 16-987-00JR DATE: 20180516

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Rory Van Sluytman, Applicant AND: Health Professions Appeal and Review Board and Dr. Faizal Ismail Bawa, Respondents

BEFORE: Kiteley, Wilton-Siegel, Broad, JJ.

COUNSEL: Rory Van Sluytman, acting in person David P. Jacobs, for the Health Professions Appeal and Review Board, Respondent Laura E. Robinson, for Dr. Bawa, Respondent.

HEARD at Oshawa: June 30, 2017

THE COURT

Endorsement

Background

[1] The applicant seeks judicial review of a decision dated February 23, 2016 of the Health Professions Appeal and Review Board (the “Board”), which confirmed a decision dated November 12, 2014 of the Inquiries, Complaints and Reports Committee of the College of Physicians and Surgeons (the “Committee”) (the “Initial Decision”) to take no further action in respect of the applicant’s complaint.

[2] The applicant visited a walk-in clinic in Bracebridge on August 6, 2014 and was prescribed an antibiotic by the respondent Dr. Bawa to address a medical condition. When the prescription ran out, he called a pharmacy in Gravenhurst on August 20, 2014 at the end of the day, with a view to obtaining a renewal of the prescription, relying on the pharmacy to fax a request to the clinic. He was told to call the pharmacy back the next day. It appears that the pharmacy did not receive a renewal prescription the next day. The applicant says that, after a telephone conversation with personnel at the clinic, he decided to attend the clinic on August 22, 2014. At that time, Dr. Bawa conducted a re-evaluation of the applicant and prescribed a renewal prescription.

Complaint by the applicant

[3] In September, 2014, the applicant made a complaint to the College of Physicians and Surgeons of Ontario (“CPSO”) that the respondent Dr. Bawa failed to provide him with a repeat prescription and refused to communicate with the pharmacy after the clinic received the pharmacy’s fax, thereby requiring him to attend the clinic in person. He also complained that the clinic had an inappropriate policy of refusing to accept faxed requests from pharmacies, only telephone calls.

[4] The CPSO referred the complaint to the Committee which subsequently rendered the Initial Decision. The applicant requested that the Board review the decision. In its decision dated February 23, 2016, the Board found that the Committee’s investigation was adequate and the Initial Decision was reasonable. The applicant launched this application for judicial review of the Board’s decision.

Standard of Review

[5] The Divisional Court has determined in Hefzi-Yekta v. Health Professions Appeal and Review Board, 2012 ONSC 6981 (Div. Ct.) at para. 7 that the applicable standard of review on a judicial review of a decision of the Board is reasonableness. Reasonableness is concerned with the evidence of “justification, transparency and intelligibility” in the decision-making process and with whether the decision falls within a range of possible, acceptable outcomes.

[6] Accordingly, on this application, this Court is not to rehear the review before the Board, much less to hear the applicant’s complaint on a de novo basis, but rather to determine only whether the Board’s decision was reasonable.

Analysis

[7] The Committee’s decision to take no further action was based among other things on a finding that the clinic has no policy on prescription renewals and often renews prescriptions by fax or telephone. It also found that Dr. Bawa’s general practice of re-evaluating patients rather than automatically renewing antibiotic prescriptions was “good medical practice” and that it was “reasonable for him to do so in the (Applicant’s) case”. The Committee also found that the applicant had called the clinic and was told that he needed to come into the clinic to be reassessed. The applicant disputes this finding. Whether or not this is correct is, however, of no material significance since it is clear that the applicant learned of Dr. Bawa’s position from Dr. Bawa on August 22, 2014 when he attended at the clinic and received the renewal prescription.

[8] It is important to note that the scope of the Committee’s authority was to determine whether remedial action should be taken with respect to Dr. Bawa. Among other things, the Committee did not have the authority to award financial compensation. The Committee also noted that Dr. Bawa had discussed the incident with the applicant and offered his sincere apologies.

[9] In the review decision, the Board noted that its authority was limited. It does not extend to making a finding of misconduct, incompetence or fraudulent statements as requested by the applicant. The mandate of the Board is limited to considering the adequacy of the Committee’s investigation and the reasonableness of the Initial Decision.

[10] The Board found that the Committee’s investigation covered the applicant’s complaint and the investigation in question and included the relevant documentation required to review the conduct and actions of Dr. Bawa. The Board specifically addressed two issues raised by the applicant. It concluded that certain email correspondence of the applicant that he believed had not been in the record was in fact included even if not listed in the table of contents. It also concluded that the fact that the Committee did not have tape recordings of telephone conversations between the applicant and the pharmacy, the College investigator and clinic staff, which tape recordings were given to the Board, did not render the College’s investigation inadequate. Accordingly, the Board found the College’s investigation to be adequate.

[11] We are of the view that this is a reasonable conclusion. In particular, as the Board noted, there is no indication of further information that might reasonably have been expected to have affected the Initial Decision if it had been presented to the Committee or the Board.

[12] The Board also concluded that the Committee’s decision to take no remedial action in respect of Dr. Bawa fell within a range of possible, acceptable outcomes that are defensible in respect of the facts and the law. In reaching this conclusion, the Board relied on the considerations set out above upon which the Committee based its determination.

[13] We agree that the Board’s decision was reasonable. It is supported by the information that was before it and itself falls within a range of reasonable outcomes.

[14] Accordingly, the application is dismissed.

Kiteley J.

Wilton-Siegel J.

Broad J.

Date: May , 2018.