CITATION: Horri v. The College of Physicians and Surgeons, 2018 ONSC 3193
DIVISIONAL COURT FILE NO.: 178/17
DATE: 20180530
ONTARIO SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
C. Horkins, Thorburn and Pomerance JJ..
BETWEEN:
DR. MEHDI HORRI
Graham Ragan and Erin Page for the Appellant, Dr. Horri
Appellant
– and –
THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO
Morgana Kellythorne, for the Respondent
Respondent
HEARD at Toronto: May 16, 2018
BY THE COURT
OVERVIEW
[1] The Appellant, Dr. Mehdi Horri (“Dr. Horri”) is a family physician. For six months, he treated Patient A for depression, anxiety and sleep difficulties. Two weeks after the end of the doctor patient relationship, they commenced a three year sexual relationship. After the relationship ended, he was reported to the College of Physicians and Surgeons of Ontario (“the College”) for inappropriate behaviour with a former patient. Dr. Horri has no prior discipline record.
[2] At the hearing before the Disciplinary Committee of the College of Physicians and Surgeons (“the Committee”), Dr. Horri conceded that he had engaged in an act of professional misconduct that warranted sanction. The only issue was the penalty to be imposed upon him.
[3] The College called no witnesses.
[4] Dr. Horri testified that he knew he was not permitted to have a sexual relationship with an existing patient but was not aware that he was not permitted to enter into a sexual relationship with a former patient. After choosing to attend a course and reviewing the College’s Policy Statement No. 4-08, entitled, “Maintaining Appropriate Boundaries and Preventing Sexual Abuse” he became aware that his responsibility did not terminate at the end of the doctor-patient relationship. He stated that he would never do this again. His expert witness, psychiatrist Dr. Collins was of the view that Dr. Horri has achieved insight that will ensure he will not repeat the behaviour that led to this complaint to the College.
[5] The Committee revoked his licence to practice medicine.
[6] The penalty imposed by the Committee vastly exceeds the penalty imposed on similar offenders in similar circumstances committed at or around the same time.
[7] The Committee noted the need to reflect changing societal values (although the College has not modified its own Policy to make it clear that, as the Committee said, in all cases “sexual exploitation of a former patient who continues to be in a vulnerable position is totally unacceptable”).
[8] Dr. Horri appeals the decision of the Discipline Committee of the College of Physicians and Surgeons of Ontario to revoke his medical license for engaging in a sexual relationship with a former patient.
[9] We acknowledge the importance of protection of the public and maintaining public confidence in the profession. We also understand the importance of deferring to specialized tribunals and that our role is not to reweigh the evidence. However, for the reasons that follow, we find that the issue of penalty must be remitted to the Committee for reconsideration because:
[10] The sentence imposed vastly exceeds the sentence imposed in similar circumstances; and
[11] The Committee’s factual findings as to ongoing risk were not reasonably supported by the evidence.
THE ISSUE ON THIS APPEAL
[12] The sole issue is whether the penalty of revocation of Dr. Horri’s licence is clearly unfit such that the issue of penalty should be reconsidered.
[13] The questions to be answered are:
a) Was it reasonable for the Committee to depart significantly from the typical range of penalties imposed in prior cases?
b) Were the Committee’s findings reasonably supported by the evidence? and
c) If the Committee’s decision was unreasonable, what is the appropriate remedy?
COURT’S JURISDICTION
[14] The Divisional Court has jurisdiction to hear this appeal.
[15] Section 70(1) of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, Schedule 2, s. 70 provides that the issues of discipline and fitness to practice medicine are subject to appeal to the Divisional Court. An appeal may be made on questions of law or fact or both. In an appeal from the Board, the Court has all the powers of the Board.
STANDARD OF REVIEW
[16] The Ontario Court of Appeal has recently confirmed that the standard of review applicable to a penalty decision is reasonableness. (Groia v. Law Society of Upper Canada, 2016 ONCA 471, at para. 53, leave to appeal to SCC accepted on different issue, Joseph Peter Paul Groia v. Law Society of Upper Canada, 2017 4181 and The College of Physicians and Surgeons of Ontario v. Beitel, 2013 ONSC 1599 at para. 11.).
[17] Deference is owed to the Discipline Committee on questions related to the standards of professional conduct, a matter within its expertise, and to the Discipline Committee’s assessment of credibility (Rathe v. College of Physicians and Surgeons of Ontario, 2013 ONSC 821 and Dr. Q. v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226 at paras. 38 and 39).
[18] A penalty is unreasonable where the decision fails to provide a line of analysis that could reasonably lead from the evidence before it to the conclusion reached or where there has been an error in principle or where the punishment is not rationally connected to the findings of misconduct (Adamo v. College of Physicians and Surgeons of Ontario, 2007 9873 (Div. Ct.), para. 20.).
[19] In College of Physicians and Surgeons of Ontario v. Peirovy, 2018 ONCA 420, the Court of Appeal recently provided direction on how this court should review penalty decisions of the Discipline Committee. Rouleau J.A. wrote, at paras. 37 and 38:
When it acts as a reviewing court of an administrative tribunal, the Divisional Court must not interfere if the decision is reasonable, that is “[i]f any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination”: Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, at para. 55 and Groia v. Law Society of Upper Canada, 2016 ONCA 471, 131 O.R. (3d) 1, at para. 81.
To overturn a penalty, the Discipline Committee must have made an error in principle or the penalty must be clearly unfit: Reid v. College of Chiropractors of Ontario, 2016 ONSC 1041, [2016] O.J. No. 3080 (Div. Ct.), at para. 99. A penalty will be clearly unfit where the decision does not fall within “a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47.
THE EVIDENCE BEFORE THE COMMITTEE
[20] The College called no witnesses. The only evidence proffered by the College was the College’s Policy Statement No. 4-08, entitled, “Maintaining Appropriate Boundaries and Preventing Sexual Abuse”. The parties submitted an Agreed Statement of Facts, Dr. Horri testified and he called Dr. Collins, a forensic psychiatrist.
The Policy
[21] The Policy provides as follows:
In determining the propriety of a sexual relationship between a physician and a former patient, a number of factors will be considered including:
• The length of the former professional relationship
• The nature of the patient’s clinical problem
• The type of clinical care provided by the physician
• The extent to which the patient has confided personal or private information to the physician and
• The vulnerability the patient has in the physician-patient relationship.
[22] There is no provision in the Policy that clearly prohibits a physician from engaging in a sexual relationship with a vulnerable former patient.
Agreed Facts
[23] At the hearing before the disciplinary hearing, the parties filed an Agreement Statement of Facts in which Dr. Horri admitted that,
a) He treated Patient A during a six month locum position as a family doctor;
b) He replaced Dr. X who went on maternity leave. Dr. X described the care provided to Patient A and indicated that she did not feel it was psychotherapy but more supportive in nature;
c) Dr. Horri met with Patient A twelve times in six months;
d) Patient A was a 23 year old female patient to whom he provided support for familial and relationship challenges, depression, anxiety, and sleep difficulties;
e) Patient A disclosed sensitive personal information to him during medical appointments, which she had not previously told anyone;
f) At the end of his locum, Patient A sent a note to Dr. Horri thanking him for his assistance. Thereafter, Dr. Horri telephoned Patient A to offer his ongoing friendship;
g) In the weeks subsequent to the termination of the doctor patient relationship, Dr. Horri and Patient A developed a friendship. They met on a few occasions for coffee or walks together;
h) Approximately two weeks after he stopped treating Patient A, Patient A invited Dr. Horri to her apartment. After watching a movie together, they had sexual intercourse;
i) Thereafter, they had a long-distance dating relationship, which continued on and off for approximately three years; and
j) During this time, Dr. Horri provided Patient A with gifts, including two $2,000 e-transfers, a credit card, and a laptop.
[24] Dr. Horri admitted that he committed an act of professional misconduct by engaging in a sexual relationship with a former patient too soon after the termination of the doctor-patient relationship.
Dr. Horri’s Testimony
[25] At the commencement of his testimony, when asked if there was anything that he wanted to say to Patient A, Dr. Horri said, “I’m sorry. I deeply apologize if this has caused so much harm. The intention was to support and help her through her hard time. The intentions were not to cause more harm. And I’m really sorry for this happening, the results.”
[26] He described Patient A as “a cutter, but she wasn’t suicidal. She was impulsive but she wasn’t going to take any actions. This was more a cry for attention…She would be coming to the office for us to provide support and also to assess how she is adhering to the medication that she is receiving.”
[27] He said that the “sexual relationship was not an intention, it happened.”
[28] Dr. Horri also said, “I’m solely responsible. I’m the physician. I had the power and the responsibility to stop.”
[29] Before the penalty hearing, Dr. Horri took a two day course at Western University entitled: “Understanding Boundaries: Managing the Risks Inherent in the Doctor-Patient Relationship”. Counsel for the College conceded in oral submissions that this course is often ordered as part of the penalty imposed.
[30] The course was a mixture of lectures and post-workshop appraisals. During the course he reviewed the College’s guidelines entitled “Maintaining Appropriate Boundaries and Preventing Sexual Abuse” including the section entitled “Sexual Relationship after termination of the Physician Patient relationship.”
[31] Dr. Horri obtained a Certificate of Attendance for the Boundaries Course and received a Post-Workshop Appraisal Form. The Appraiser held that Dr. Horri “showed some evidence of personal insight”, “was attentive to group discussion and [made] contributions [that] were usually appropriate and helpful” and “appeared to subscribe to workshop objectives and consistently strove to interact with facilitators and other workshop personnel in a respectful manner.”
[32] The Lead Facilitator noted that Dr. Horri’s submission included “[v]ery insightful comments” and he was given an assessment of four out of five. Similarly, following Dr. Horri’s three month submission, the Lead Facilitator stated: “[y]our newly discovered insight into the power of maintaining balance in your life is good. Your next challenge will be to reassess yourself from time-to-time to avoid falling back into old habits. It’s frustratingly easy to backslide.” When asked whether he reassesses himself from time-to-time, Dr. Horri stated “[e]very single encounter with a patient, yes, I do.” Dr. Horri said he has worked hard to achieve a work life balance and attend to his family more.
[33] Dr. Horri explained that before he took the course, he knew that he could not socialize or have intimate relations with a patient but did not know that he should not do so with a former patient. He learned through the Boundaries Course that because of patient vulnerability, a doctor has the responsibility to avoid situations with patients and that being a physician comes with a lot of responsibility. He claimed:
I was not aware of these -- of the amount of damage, amount of impact that my actions would have on a patient, and I have that knowledge now. … and the consequences of my actions do not stop at the end of the doctor-patient relationship.
[34] When asked whether he would engage in a relationship with a former patient if he classified the physician-patient relationship as one of “low intensity”, Dr. Horri said: “Absolutely not. I would not enter a relationship with any patient of any duration of any kind.”
Expert Evidence of Dr. Peter Collins
[35] Dr. Peter Collins, a Forensic Psychiatrist in the Complex Mental Health Program and the Sexual Behaviours Clinic at the Centre for Addiction and Mental Health at the University of Toronto was asked to “assess Dr. Horri and determine the motivation in terms of his behaviour and if he was at risk for doing so [again] in the future.” Dr. Collins conducted a three hour psychiatric assessment of Dr. Horri in October 2015. Dr. Horri and Dr. Collins also had a further telephone interview after Dr. Horri completed the Boundaries Course. He did not do a second follow up to see what Dr. Horri incorporated into his practice over time although “we certainly discussed it over the phone over that period of half an hour 45 minutes or whatever it was.”
[36] Dr. Collins provided an expert report, dated February 15, 2016 in which he concluded that Dr. Horri:
i. does not have a mental illness or personality disorder that would be a concern for him to practice medicine. There was no indication of sexually deviant behaviour;
ii. is now “acutely aware” that his behaviour was inappropriate;
iii. has insight into the dynamics of the doctor-patient relationship and that it is defined by a distinct professional boundary and not the termination of care; and
iv. has achieved insight that will ensure he will not repeat the behaviour that led to this complaint to the College of Physicians and Surgeons of Ontario.
[37] Dr. Collins states that “Prior to the course and the College complaint, [Dr. Horri] assumed that once the patient is no longer under care, one can enter into a relationship. He now realizes this understanding was wrong and the potential harm that it can pose to a patient.”
[38] Dr. Collins stated that Dr. Horri was not blaming the victim and that he accepted that what he did was wrong, that he was embarrassed and that he was disappointed in his behaviour.
[39] Dr. Collins conceded that a lack of insight into the cause of the behaviour could affect the risk of re-engaging in inappropriate behaviour. When challenged by the Committee as to Dr. Horri’s lack of control, he said that in order to accurately give an opinion as to Dr. Horri’s inability to control himself sexually, he would ask Dr. Horri a series of other questions which he did not have the opportunity to ask.
[40] Minimizing the patient’s vulnerability would also concern him.
The victim impact statement
[41] The Discipline Committee is only required to consider victim impact statements in the context of sexual abuse cases. Counsel for the Committee confirmed that Patient A would not be sworn as her victim impact statement “is not evidence in the proceeding.”
[42] Nevertheless, Dr. Horri consented to Patient A reading her victim impact statement.
[43] Patient A stated that she “felt weak, scared and isolated from the world” and “unable to drop her guard to open up to others.” She said she felt Dr. Horri had “used her history and extensive knowledge he obtained” and that she still “cannot ask for help due to the trust that was taken from me in such a blinding way that has affected my judgment in others.” She said she learned to distrust doctors and now can’t bring herself to tell people when she is hurting. She said that “no one deserves to be manipulated from a person we are taught to trust.”
The Committee’s Decision
[44] The Committee confirmed that this was not a case of sexual abuse of a patent. As such, revocation was not mandatory.
[45] In a 26 page decision, the Committee reviewed the misconduct, the type of medical services offered to Patient A, the length of time between the end of the doctor patient relationship, the commencement of the romantic relationship, the circumstances of the patient, and the likelihood that Dr. Horri would reoffend.
[46] The Committee held that the sexual misconduct was very serious. It involved a young, vulnerable former patient who was depressed, isolated and lonely to whom Dr. Horri provided counselling and talk therapy. The sexual relationship began only two weeks after the doctor-patient relationship ended.
[47] The Committee found that Dr. Horri minimized his actions. He said,
a) “She was just coming there for support…the nature of these visits were not clear to me…she was a cutter, but she wasn’t suicidal”;
b) “For some reason, she felt comfortable [talking to him], because maybe she thought that she would not be seeing me again, to disclose some information that she had not disclosed to her own family physician”;
c) Patient A was going through a vulnerable phase at the beginning but was not as vulnerable towards the end;
d) He did not perform psychotherapy to Patient A although her first two appointments were billed as psychotherapy; and
e) He did not intend to have a sexual relationship with Patient A and that this was outside of his ability to control as was the decision to engage in unprotected sex.
[48] The Committee accorded little weight to Dr. Collins’ opinion that Dr. Horri was unlikely to reoffend (although the College called no witnesses). The Committee noted that Dr. Collins had conducted only a three hour interview with Dr. Horri, Dr. Collins had not reviewed the findings of the appraisers from the Boundaries Course, and was not satisfied that the two-day course that Dr. Horri took on Boundaries would provide sufficient protection for the public.
[49] The Committee acknowledged that revocation was outside the range of typical penalties imposed in prior cases; however, revocation was justified because of the seriousness of Dr. Horri’s misconduct and the Committee’s concern that he did not have sufficient insight to control himself in the future. The Committee offered no review of similar cases.
The Committee held that typical penalties might need to reflect changing societal values. In support of this assertion, the Committee relied on CPSO v. Li (2003) ONCPSD 12, a case involving sexual abuse of a patient. The Committee concluded that revocation would:
[s]end a very clear message to the members at large that sexual exploitation of a former patient who continues to be in a vulnerable position is totally unacceptable. […] [And] send the message that the College is serious about its role in regulating the profession with public protection as its fundamental objective.
[50] The Committee concluded that revocation “is necessary to protect the public in the circumstances of this case”, given the seriousness of the “sexual exploitation of a very vulnerable [former] patient” who was 23 years old with mental health issues, the exploitation of Patient A’s vulnerability and the panel’s lack of reasonable confidence in his level of insight or control in future based on the evidence before it.
ANALYSIS
1. Was it reasonable for the Committee to depart from the typical range of penalties imposed in prior cases?
[51] Decision-makers may take into account changing social values in imposing penalty (R. v. Lacasse, 2015 SCC 64, [2015] 3 SCR 1089 at paras 98-103). Maintenance of public confidence is a shifting standard and the Committee’s penalties should remain in accordance with public standards and expectations (Adams v. Law Society (Alberta), 2000 ABCA 240 at paras. 6-7.).
[52] However, a penalty is unreasonable where it fails to provide a line of analysis that could reasonably lead from the evidence to the conclusion such that the reader can assess whether there has been an error in principle or whether a punishment has been imposed that is not rationally connected to the findings of misconduct (Adamo v. College of Physicians and Surgeons of Ontario, 2007 9873 (Div. Ct.), para. 20, and The College of Physicians and Surgeons of Ontario v. Minnes, 2016 ONSC 1186.). This is particularly true where the Committee decides to make a marked departure from prior cases (McLean v. Law Society of Saskatchewan, 2012 SKCA, 347 DLR (4th) 414.).
[53] Moreover, as noted by the Court of Appeal in College of Physicians and Surgeons of Ontario v. Peirovy, 2018 ONCA 420, “… it is well settled that consistency in sentencing is as important in professional bodies as in the criminal courts, and that consideration should be given to disciplinary penalties imposed in similar cases: see Re Stevens and Law Society of Upper Canada (1979), 1979 1749 (ON SC), 55 O.R. (2d) 405 (Div. Ct.), at p. 411; Law Society of Upper Canada v. Neinstein (2008), 2008 48142 (ON SCDC), 241 O.A.C. 199 (Div. Ct.), at para. 15.”
[54] The circumstances in Ontario (College of Physicians and Surgeons of Ontario) v. Redhead, 2014 ONCPSD 2 are most similar to the facts in this case. Of the many recent decisions involving physicians who engaged in sexual relations with a former patient, only one has resulted in revocation of the physician’s licence. In that case (Minnes), the physician was found to have been involved in inappropriate sexual touching of several staff over a period of years, assaulted an underage female camp counsellor and did not accept responsibility for his actions.
[55] A review of these similar decisions is set out below:
[56] In Redhead, a physician engaged in a sexual affair with a former patient about one month after treating her for a mental illness characterized by anxiety, depression and suicidality. Dr. Redhead’s five attendances on Ms. X within a short time included significant exploration of her mental state, her thoughts, her past history and her circumstances. Dr. Redhead twice admitted her to hospital, attended her there, and repeatedly assessed her risk of suicide. Dr. Redhead engaged in significant therapeutic interventions with Ms. X.
[57] Dr. Redhead treated a patient in significant mental distress with both words and medications. The Committee found there was a significant power imbalance in their relationship, both by virtue of their previous doctor-patient relationship and also because of his awareness of her particular vulnerabilities. His provision of gifts of money and drugs to her was exploitative of her vulnerability and augmented the power imbalance between them. Ms. X had a long history of emotional and psychiatric disturbances and she continued to be vulnerable. The Committee could not conclude that he was very unlikely to reoffend.
[58] Dr. Redhead received a five-month suspended sentence.
[59] In Karkanis (Re), [2010] O.C.P.S.D. No. 1 (finding), [2010] O.C.P.S.D. No. 15, the physician was found to have engaged in sexual relations with a former patient too soon after the doctor-patient relationship ended. The physician knew that the patient was vulnerable as a result of disclosures she made to him while he was her physician. The physician had treated the patient for three years. An aggravating factor was that one of the incidents of sexual relations took place on the physician’s examining table following a request by her to be medically examined.
[60] Dr. Karkanis received a five-month suspension.
[61] In Ontario (College of Physicians and Surgeons of Ontario) v. Weaver, 2012 ONCPSD 6 the physician engaged in a sexual liaison with a former patient within one day after severing the doctor-patient relationship with her. This misconduct was exacerbated by the fact that Dr. Weaver knew that the patient was having marital and family problems. Dr. Weaver exploited her vulnerabilities and his actions in pursuing a sexual relationship with her brought her harm. The only mitigating factor was that the physician had no prior history before the Discipline Committee of the College.
[62] Dr. Weaver received a six month suspension.
[63] In College of Physicians and Surgeons of Ontario v. Peirovy, 2018 ONCA 420, after a contested trial, a medical doctor in a walk-in clinic was found to have sexually abused four patients by engaging in sexual touching and committed disgraceful, dishonourable or unprofessional conduct with respect to a fifth.
[64] The Committee suspended the physician’s licence for six months and imposed restrictions on his practice for 12 months thereafter. They ordered him to take training, to pay $64,000 for therapy for the victims and $35,000 in costs.
[65] In The College of Physicians and Surgeons of Ontario v. Minnes, 2016 ONSC 1186, the Committee found that a 47 year old pediatrician 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. He later engaged in unwanted and coercive sexual activity with a 17 year old camp counsellor in the summer of 2007. The Committee found that revocation 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.
[66] Dr. Minnes’ licence was revoked.
[67] It is agreed that the penalty in this case greatly exceeds the penalties awarded in similar cases. The Committee held that revocation was required “because of the seriousness of the misconduct” and “there will always be cases that call for a sentence that falls outside a particular range”.
[68] The Committee offered no justification to support the vast increase in penalty, other than to say that each case is unique, the law must accord with societal values, and it is important to denounce and deter improper behaviour. None of the cases were reviewed by the Committee to explain its conclusion.
[69] Where there is a marked departure from case law, a clear rationale must be offered especially where the penalty is dramatically increased. As was noted in Stevens v. the Law Society of Upper Canada, 1979 1739 (ON SC), this requires a “conscious comparison” between the case under consideration and similar cases”. The Divisional Court underscored the importance of this step, observing that: “If the comparison with other cases is not undertaken, there may well be such a wide variation in the results so as to constitute not simply unfairness but injustice”.
[70] No rationale was provided in this case. There was but passing reference to previous cases and no conscious comparison was undertaken. The Committee acknowledged that it was venturing outside of the range of penalty, but offered no insight into how this case compared to those with similar facts and lesser penalties. The cases that were considered by the Committee were more serious than this one, involving repeat offenders and more aggravated offences. A range of penalty is never carved in stone, but departures should be rooted, if not in precedent, then in principle.
[71] There is no analysis that could reasonably lead from the evidence to the conclusion, and it is impossible to assess whether there has been an error in principle or whether a punishment has been imposed that is not rationally connected to the findings of misconduct.
2. Were the Committee’s findings regarding the ongoing risk posed by Dr. Horri, reasonably supported by the evidence?
[72] In professional discipline cases, proof must be “clear and convincing and based upon cogent evidence.” (F.H. v. McDougall, 2008 SCC 53 at para 31.).
[73] In The College of Physicians and Surgeons of Ontario v. Beitel, 2013 ONSC 1599 (Div. Ct.) at paras. 25-30 the Discipline Committee was asked to consider four different scenarios in determining whether an incident of sexual abuse had occurred. The Committee rejected the first three scenarios based on a lack of evidence. It then made a finding that the fourth scenario had occurred, based on the fact that the first three were unproven. The Court held that this type of analysis failed to allow for or consider the possibility that even if the three scenarios were rejected, the fourth scenario was not established on a balance of probabilities.
[74] Where an inferential gap exists, it can only be properly overcome by evidence. If there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation and conjecture. (R. v. Munoz (2006), 2006 3269 (ON SC), 86 O.R. (3d) 134 (S.C.J.), at para. 29.).
[75] We agree with Dr. Horri that there was insufficient evidence from which to conclude that he is an ongoing risk to the public. Dr. Horri’s testimony on this issue was as follows:
Q. And so, at this point, you thought that it would be okay two weeks after ending the doctor-patient relationship with her to engage in sexual relations with her; is that right?
A. It wasn’t -- the sexual relationship was not an intention. It happened.
Q. Okay. So, if the sexual relationship was not an intention, is that to suggest that was outside of your ability to control at that point?
A. Yes, ma’am.
[76] Dr. Horri’s testimony that he was not in control when he first had sex with Patient A was in answer to a leading question to explain how his emotions overcame him at a time when he did not understand that this behaviour was not permitted. Dr. Horri also testified that he would never do this again, as he now knows this is not permitted. Dr. Collins testified that he did not believe Dr. Horri would do this again and that Dr. Horri is not a sexual deviant or suffering mental illness. Dr. Horri’s new appreciation for the consequences of these actions is also supported by the findings of the facilitators of the Boundaries Course.
[77] In his initial assessment from the Boundaries course, Dr. Horri received two grades of “good” or 4 out of 5, and one grade of “fair”. “Fair” is defined as “some evidence of personal insight and openness to the intended help offered by others.” The Committee found that this did “not provide a sufficient comfort level to conclude that Dr. Horri had sufficient insight into his boundary violations.” Dr. Horri’s two remaining scores of “good”, or 4 out of 5, are defined as “[subscribed] to workshop objectives and consistently strove to interact with facilitators and other workshop personnel in a respectful manner.” This evidence was unchallenged.
[78] After completing the Boundaries Course, Dr. Horri submitted two follow-up written submissions. The Lead Facilitator of the Boundaries Course acknowledged Dr. Horri’s “very insightful comments” and his “newly discovered insight into the power of maintaining balance in [his] life”. The Appraiser found that at the six month follow-up, Dr. Horri had “returned an evaluation of his success in changing patterns with regard to identifying and respecting boundaries with patients” and “demonstrated personal reflection on effort to make change.”
[79] The Committee did not accept Dr. Collins’ evidence that he was not a risk to the public. It was open to the Committee to accept some all or none of the evidence adduced. However, it was not open to the Committee to draw conclusions in the absence of clear evidence to substantiate that conclusion. Rejection of evidence does not amount to positive proof of an opposing fact. We note that the College presented no evidence to contest the findings of Dr. Collins.
[80] Finally, the Committee does not seem to have considered that Dr. Horri had no prior complaints and took responsibility for his actions.
[81] For these reasons, we find the proof of ongoing risk was not “clear and convincing and based upon cogent evidence.”
3. What is the appropriate Remedy?
[82] The usual remedy, when an application for judicial review to quash or set aside a decision of an administrative decision maker is granted, is to remit the matter to the decision maker for re-determination. This respects the legislative policy to leave such decisions to the administrative body. (College of Physicians and Surgeons of Ontario v. Petrie (Div. Ct.), 1989 4276 (ON SC), 68 O.R. (2d) 100 [1989] O.J. No. 187.)
[83] The matter of penalty is therefore remitted to the Committee for redetermination of the appropriate penalty bearing in mind the obligation to:
a) provide a line of analysis that could reasonably lead from the evidence to a reasonable conclusion and punishment that is rationally connected to the findings of misconduct; and
b) consider disciplinary penalties imposed in similar cases including the fact that this was Dr. Horri’s first offence, he conceded liability, he elected to seek help prior to the imposition of penalty and there was no clear prohibition against entering a sexual relationship with a vulnerable patient shortly after treating her.
[84] Protection of the public is of the utmost importance. It is also important to conduct a process that is fair.
[85] For these reasons, the Appeal is granted, the decision of the Committee is quashed and matter of penalty is remanded to the Committee for reconsideration.
[86] Partial indemnity costs are awarded to the Appellant Dr. Horri, in the amount of $12,000 inclusive of H.S.T. and disbursements as per the agreement between the parties.
___________________________ Thorburn J.
I agree
Horkins J.
I agree
Pomerance J.
Date of Release: May 30, 2018
CITATION: Horri v. The College of Physicians and Surgeons, 2018 ONSC 3193
DIVISIONAL COURT FILE NO.: 178/17
DATE: 20180530
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
C. Horkins, Thorburn and Pomerance JJ..
BETWEEN:
DR. MEHDI HORRI
– and –
THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO
REASONS FOR JUDGMENT
BY THE COURT
Released: May 30, 2018