CITATION: Gutman v. College of Physicians and Surgeons of Ontario, 2018 ONSC 6936
DIVISIONAL COURT FILE NO.: 733/17 DATE: 20181119
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
LOCOCO, TRIMBLE, and MYERS JJ.
BETWEEN:
DR. MORY MAYER GUTMAN
Appellant
– and –
COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO
Respondent
Anglea Chaisson and Alexi N. Wood, for the Appellant
Amy Block, for the Respondent
HEARD at Toronto: November 19, 2018
PUBLICATION BAN NOTIFICATION
In the College of Physicians and Surgeons of Ontario and Dr. Mory Mayer Gutman, this is notice that the Discipline Committee ordered that no person shall publish or broadcast the names or any information that could disclose the identity of patients referred to orally or in the exhibits filed at the hearing under subsection 45(3) of the Health Professions Procedural Code (the "Code"), which is Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, as amended.
TRIMBLE, J. (Orally)
[1] Dr. Gutman appeals from the November 10, 2017 Order of the Discipline Committee of the College of Physicians and Surgeons of Ontario imposing a seven month suspension following a 30 day period to prepare files and patients for transfer to other doctors. He says that the Discipline Committee erred. It ought to have imposed a four month suspension with a 60 day preparatory period.
Facts
[2] The facts are not in dispute. Dr. Gutman was disciplined in 2011. By an Order dated January 7, 2011, he was suspended for four months. He was ordered to not treat female patients, and not to prescribe narcotics, controlled substances, and other specified substances.
[3] Dr. Gutman admits that between 2012 and 2016 he prescribed or approved refills of prescriptions for testosterone, sublinox, phenobarbital, and clobazam to several patients, contrary to the 2011 Order. He said he did so unintentionally (not knowing that they were substances prohibited by the 2011 Order) or by inadvertence, (notwithstanding that he had been “extremely vigilent” since the 2011 Order in writing prescriptions).
[4] Dr. Gutman also admits that he saw an elderly woman in his office to conduct a capacity assessment contrary to the 2011 Order. He explained that the consult was conducted in the presence of the patient’s relative and in plain view of the receptionist. He also said that the consult was “not what my restriction [from seeing female patients] was about.”
[5] At the hearing, Dr. Gutman suggested a sentence of three to six months with a 60 preparatory period. The College asked for nine months and a 15 day preparatory period.
Jurisdiction
[6] The Court has jurisdiction under s. 70(1) of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, and under subsection (3), has all the powers of the Panel or Board appealed from.
Standard of Review
[7] The standard of review of Discipline Committee decisions is reasonableness. In reviewing a decision on a reasonableness standard, the Court must have regard to the following principles:
(1) A decision is reasonable if it falls within a range of possible acceptable outcomes (see: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47).
(2) A decision is unreasonable only if, considering the reasons as a whole, there is “no line of analysis” in the reasons that could reasonably have led the tribunal to the result (see: Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, at paras. 48-56).
(3) Reasons must be taken as a whole. If the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met (see: Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, at para. 16).
(4) If the tribunal is a specialized body with expertise that the Court does not possess, and if their decisions require the exercise of discretion, it must be shown deference in both with respect to the facts and the law. The Court should not substitute its own reasons, but assess reasonableness on the record (see: Newfoundland, at para. 15).
(5) Deference is owed, especially with respect to sanctions for breaches of professional standards, in that they the tribunal had greater experience than the Court (see: College of Physicians and Surgeons of Ontario v. Peirovy, 2018 ONCA 420, 424 D.L.R. (4th) 613, at para. 31; Mast v. College of Nurses of Ontario, 2015 ONSC 5854, at p. 5; and Stetler v. Agriculture, Food and Rural Affairs Appeal Tribunal (2005), 2005 24217 (ON CA), 76 O.R. (3d) 321 (C.A.), at para 108).
Result:
[8] For the following reasons, the Appeal is dismissed:
(1) The Discipline Committee of the CPS is a specialized body with greater expertise than Courts in the choice of sanction for breaches of professional standards. In setting a penalty, it exercises its discretion. It is due deference.
(2) The reasons sufficiently set out a line of reasoning which clearly explains the penalty imposed.
(3) The penalty imposed by the Committee of seven months with a 30-day preparatory period is reasonable. It falls within a range of possible acceptable outcomes. It is only slightly higher than that sought by Dr. Gutman of three to six months with a 60-day preparatory period, than sought by the College of nine months with a 15-day preparatory period.
LOCOCO J.
[9] I have endorsed the Appeal Book as follows: “For the reasons given orally today by Trimble J., the appeal is dismissed. The appellant shall pay costs of $5,500 inclusive of disbursements and taxes to the respondent.”
___________________________ TRIMBLE J.
I agree
LOCOCO J.
I agree
MYERS J.
Date of Reasons for Judgment: November 19, 2018
Date of Release: November 21, 2018
CITATION: Gutman v. College of Physicians and Surgeons of Ontario, 2018 ONSC 6936
DIVISIONAL COURT FILE NO.: 733/17 DATE: 20181119
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LOCOCO, TRIMBLE, and MYERS JJ.
BETWEEN:
DR. MORY MAYER GUTMAN
Appellant
– and –
COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO
Respondent
ORAL REASONS FOR JUDGMENT
TRIMBLE, J.
Date of Reasons for Judgment: November 19, 2018
Date of Release: November 21, 2018