DIVISIONAL COURT FILE NO.: DC-17-712
NOTICE OF PUBLICATION BAN
In the matter of the College of Physicians and Surgeons of Ontario and Dr. Lee, this is notice that the Discipline Committee ordered that there shall be a ban on the publication, including broadcasting, of the names and identifying information of the complainants and similar fact witnesses, under subsection 47(1) of the Health Professions Procedural Code (“the Code”) which is Schedule 2 to the Regulated Health Professions Act, 1991.
The Discipline Committee also ordered a ban, under subsection 45(3) of the Code, on the publication of the names and identifying information of patients disclosed at the hearing.
Subsection 93(1) of the Code, which is concerned with failure to comply with these orders, reads:
Every person who contravenes an order made under … section 45 or 47… is guilty of an offence and on conviction is liable,
(a) in the case of an individual to a fine of not more than $25,000 for a first offence and not more than $50,000 for a second or subsequent offence; or
(b) in the case of a corporation to a fine of not more than $50,000 for a first offence and not more than $200,000 for a second or subsequent offence.
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Kiteley, Del Frate and Rady J.J.
BETWEEN:
The College of Physicians and Surgeons of Ontario
Respondent
– and –
Dr. Martin M.S. Lee
Appellant
Amy Block, for the Respondent
Mark Veneziano and Paul-Erik Veel, for the Appellant
HEARD at Toronto: January 21, 2019
THE COURT
1This is an appeal pursuant to s. 70(1) of the Health Professions Procedural Code, (the “Code”) which is Schedule 2 to the Regulated Health Professions Act, 1991 (the “RHPA”), S.O. 1991, c. 18 from the decisions of the Discipline Committee (the “Committee”) of the College of Physicians and Surgeons of Ontario (the “College”) dated January 18, 2017 (liability)1 and November 2, 2017 (penalty)2.
Background
2The Appellant is a rheumatologist. On September 23, 2015, the Inquiries, Complaints and Reports Committee (the “ICRC”) of the College referred allegations against the Appellant to the Committee. The allegations initially involved Patients A and B and the allegations in relation to Patient C were referred later to the Committee. The final Notice of Hearing, dated February 10, 2016, alleged that,
(a) with respect to Patient A, between approximately October 2008 and April 2012, Dr. Lee engaged in:
(i) sexual abuse of Patient A by asking inappropriate and personal questions about her sex life and showing her a pornographic magazine;
(ii) disgraceful, dishonourable, and unprofessional conduct by making remarks of a sexual nature, asking Patient A to pay cash for prescriptions, asking her to fill a prescription for Flamazine for him, and asking her to videotape another patient who was allegedly selling prescription drugs on the street;
(b) with respect to Patient B, between January 2008 and February 2011, Dr. Lee engaged in sexual abuse by asking inappropriate and personal questions about her sex life;
(c) with respect to Patient C, between April 2008 and June 2012, Dr. Lee engaged in:
(i) sexual abuse of Patient C by rubbing his groin against her right hip while administering a trigger point injection and using sexually explicit and crude language when asking her personal questions about her sex life;
(ii) disgraceful, dishonourable, and unprofessional conduct by asking questions in inappropriate language about Patient C’s personal sex life.
3The ICRC imposed a s. 37 interim order dated October 14, 2015, in effect until the final disposition of the discipline case, prohibiting the Appellant from engaging in professional encounters with female patients of any age without a monitor who was a female member of a regulated health profession and keeping a log of such encounters.
4During the four-day hearing in July 2016, Patients A, B and C gave evidence. The Appellant gave evidence during which he denied all of the allegations. The case turned on who the Committee believed.
5In the liability decision dated January 18, 2017, the Committee accepted the evidence of Patients A and C and did not accept the denials by the Appellant. With respect to Patients A and C the Committee held that the Appellant had engaged in sexual abuse and had engaged in disgraceful, dishonourable and unprofessional conduct. In the penalty decision dated November 2, 2017, the Committee ordered revocation of the Appellant’s licence to practice and other terms.
Decision of the Committee on Liability
6Patient A was 34 years old at the time of the hearing and had been treated by the Appellant for fibromyalgia from October 2008 to April 2012 including once or twice a week for trigger point injections until approximately 2011. Patient A did not report her concerns to the College. She told her family doctor who reported the matter to the College.
7Patient B was 51 years old at the time of the hearing and had been a patient from January 2008 to February 2011. She made a complaint to the College in August 2011.
8Patient C was 56 years old at the time of the hearing and had been diagnosed with arthritis and fibromyalgia. Dr. Lee treated her during the years 2005 to 2012 by prescribing analgesic medication and performing trigger point injections. For about five of those years, Patient C saw Dr. Lee once or twice a week for injections. She did not initiate contact with the College. The investigator from the College contacted her.
9In examination-in-chief, each of Patient A, B and C gave evidence with respect to the detailed allegations. Counsel for Dr. Lee cross-examined on most if not all of those details.
10Dr. Lee gave evidence. In examination-in-chief, he was asked by his counsel about every one of the detailed allegations and he specifically denied each of the allegations. In cross-examination, counsel for the College did not ask questions about the allegations of sexual abuse or sexually explicit language. The subjects in cross-examination included the implicit power imbalance between physician and patient, his significant patient load, his office procedures, the Institute of Clinical Evaluative Sciences (ICES) study that caused him in 2010 to change his prescribing practices with respect to opioids, whether he took cash for medications or for a prescription and, if so, whether receipts were issued, and whether one of his patients told him she thought another one of his patients was selling drugs.
11In cross-examination of Dr. Lee, counsel for the College referred to the clinical notes and records of each of the three patients. The Appellant conceded that there was missing information and that his record keeping and the legibility of his records needed improvement.
12Counsel for Dr. Lee did not conduct a re-examination.
13On pages 8 to 17 of the liability decision, the Committee summarized the evidence of each of the patients in examination-in-chief and in cross-examination. On pages 18 to 22, the Committee summarized Dr. Lee’s evidence with respect to each patient both in examination-in-chief and in cross-examination.
14On page 21, the Committee noted that, based on his patient sign-in sheets in May and June 2009 and August 2010, Dr. Lee agreed that he was seeing at least 75 patients each day and he would have balanced scheduled and unannounced visits. The Committee indicated that he had confirmed that he was so busy that he did not record which body part he was injecting each day and that hundreds of patient encounters would have only the date stamped and he would scribble the initials of the areas injected. The Committee also indicated he had confirmed that, at times, his notes consisted of rows of stamped dates along the left side, with squiggles on the right side which was a symbol for “as above” and that “very little, if any, clinical information was documented in patient charts”.
15On page 22, the Committee indicated that it was important to carefully assess the credibility and reliability of each witness, and it was extremely important in cases of sexual abuse allegations because typically the only witnesses are the complainant and the physician. The Committee distinguished credibility, which speaks to honesty, and reliability, which speaks to accuracy of the evidence. The Committee listed nine factors it held were typically considered in assessing the credibility and reliability of each witness as follows:
Did the witness seem honest? Is there any reason why the witness would not be telling the truth?
Did the witness have an interest in the outcome of the case or any reason to give evidence that is more favourable to one side or the other?
Did the witness seem able to make accurate and complete observations about the events at issue?
Did the witness seem to have a good memory?
Did any inability or difficulty that the witness had in recalling events seem genuine or did it seem made up as an excuse to avoid answering questions?
Did the witness seem to be reporting what she saw or heard or simply putting together an account based on information obtained from other sources?
Did the witness’ evidence seem reasonable and consistent as he or she gave it? Did the witnesses say something different on another occasion?
Do any inconsistencies in the witness’ evidence make the main points of the testimony more or less believable or reliable? Is the inconsistency about something important, or something minor in detail? Does it seem like an honest mistake? Is it a deliberate lie? Is the inconsistency because the witness said something different on another occasion or because he or she failed to mention something? Is there any explanation for the inconsistency? If so, does the explanation make sense?
What was the witness’s demeanor like when he or she testified, recognizing that while demeanor is a relevant factor in a credibility assessment, demeanor alone is a notoriously unreliable predictor of the accuracy of evidence given by a witness.
16On page 23, the Committee noted that there was no obligation on Dr. Lee to disprove any of the allegations and that the burden was on the College to prove the allegations on a balance of probabilities. On page 23, the Committee wrote the following:
When giving his testimony, Dr. Lee was controlled and spoke very carefully. He acknowledged the chaos in his office and did not deny how busy he was and how poor his charting was. Dr. Lee was concise and direct in his denial of the facts alleged by each complainant in support of the allegations. The Committee will have more to say with respect to Dr. Lee’s credibility below. (Emphasis added)
Patient A
17On pages 24 to 25, the Committee provided its analysis and concluded that Patient A was a credible and reliable witness. The analysis included the following:
(a) The Committee concluded that Patient A’s explanation for not reporting the Appellant’s behaviour to the College “made sense”. She was able to give an accurate and complete recollection of the events and her memory of the events was very good. The Committee noted Dr. Lee’s allegation that Patient A had become disgruntled when he tapered her narcotics, but accepted her evidence that she understood she needed to taper them and that it was medically necessary.
(b) The Committee noted the suggestion in cross-examination that she had a poor memory based on a 2010 assessment. The Committee was not persuaded that any memory problems impacted the reliability of her evidence and pointed out that there were no gaps in her account of the facts in dispute.
(c) The Committee observed that Patient A’s answers were succinct, to the point and without embellishment. The Committee believed her evidence that she had been charged cash for a prescription and had not been provided with a receipt. The Committee pointed out that Dr. Lee had denied that that had happened but the Committee was persuaded that it did occur, based on the assessment of her credibility and the reliability of her evidence.
(d) Based on the details provided by Patient A, the Committee believed her evidence that the Appellant had showed her a gay magazine and had made inappropriate comments with respect to her sex life.
(e) The Committee also believed Patient A that the Appellant had questioned her about other patients selling drugs on the street and that he had asked that she photograph or videotape it.
(f) The Committee believed Patient A’s evidence that Dr. Lee requested that she fill a prescription for Flamazine for him on the basis that it was an odd request and Patient A had been able to provide sufficient detail regarding the context that the Committee was convinced it had occurred.
18At page 25 of the decision, the Committee held as follows:
In summary, the Committee found Patient A to be credible and her testimony to be reliable. Dr. Lee’s denial of the allegations regarding Patient A is irreconcilable with her evidence, which the Committee finds to be true. With respect to Patient A, the Committee finds that:
Dr. Lee engaged in sexual abuse of Patient A by asking her inappropriate and personal questions about her sex life and by showing and discussing a pornographic magazine with her. These were remarks and gestures of a sexual nature.
Dr. Lee engaged in conduct relevant to the practice of medicine, that, having regard to all the circumstances, would reasonably [be] regarded by members as disgraceful dishonorable [sic] and unprofessional by (i) making remarks and gestures of a sexual nature as described above; (ii) asking her to pay cash for prescriptions; (iii) asking her to fill a prescription for Flamazine for him; and (iv) asking her to video or photograph other patients.
Patient B
19The Committee found that the allegations with respect to Patient B were not proven. We nonetheless refer briefly to that aspect of the decision as it reflects on the Committee’s approach to the analysis of honesty and reliability.
20Having summarized her evidence on pages 19 and 20, the Committee provided four examples of the problems with Patient B’s evidence. On pages 26 and 27, the Committee concluded that the “inconsistencies and exaggerations undermined the reliability” of her evidence. Given that analysis, the Committee did not address the issue of honesty. The Committee found that the allegations with respect to Patient B had not been proven.
Patient C
21On pages 27 to 30, the Committee provided its analysis and concluded that Patient C was an honest and reliable witness. The analysis included the following:
(a) Despite the suggestion made by counsel for Dr. Lee in cross-examination, the Committee found that Patient C’s evidence was untainted by any suggested disgruntlement arising from reduction of narcotics. Patient C had not made a complaint, which suggested that she did not bear him any ill-will.
(b) Patient C was able to make accurate and complete observations about the key events. She readily admitted that there were problems with her memory at times, but she had no problem remembering exceptional events.
(c) Patient C was genuine and forthright and her evidence in direct and cross-examination was consistent.
(d) The Committee found it reasonable that although Patient C had some memory loss, she was able to recall the distinct and unusual incidents such as the inappropriate remarks that Dr. Lee made to her or the manner in which he inappropriately touched her while administering an injection.
(e) The Committee noted that Patient C had a very good recall for things such as patient flow and charting. And her observations regarding the way Dr. Lee ran his office were consistent with what Dr. Lee acknowledged.
(f) The Committee found that the explanation Patient C gave for not previously reporting specific words she said Dr. Lee used when speaking with her about her sex life was truthful and plausible.
(g) The Committee did not accept the submission that Patient C was inconsistent in her description of the inappropriate touch as “grinding” and “rubbing” because, in the context of the event, there was no material difference. Patient C was clear that the incident happened from behind, that the physical touching was in a circular motion and she believed it to be intentional.
(h) The Committee was struck by Patient C’s candid comment that, “I am not naïve” and her ability to call out the behaviour. Her testimony was consistent with having said those words to Dr. Lee and that Dr. Lee pulled away (from her) immediately.
(i) The Committee accepted her evidence that she continued seeing Dr. Lee despite the incident of sexualized touching because it really didn’t bother her that much.
(j) Patient C demonstrated a clear recollection of Dr. Lee’s chaotic office environment.
(k) The Committee found Patient C’s testimony to be dispassionate, calm, mature, and honest.
(l) The Committee noted that Patient C also testified that she felt Dr. Lee was a compassionate, sympathetic, and caring doctor and she candidly admitted that she did not feel threatened by Dr. Lee and she thought he was a good doctor.
(m) The Committee found her evidence was clear, cogent and convincing.
(n) “Given the strength of Patient C’s evidence,” the Committee did not believe his denial. The Committee noted that there was no documentation to justify any clinical reason for questioning Patient C about her sex life and, if there were a clinical reason, the language Dr. Lee used was inappropriate.
(o) With respect to the allegation of sexualized touching, the Committee referred to Dr. Lee’s explanation and his demonstration of his usual procedure in giving trigger point injections. The Committee noted counsel’s submission that Patient C had been mistaken with respect to what she felt. However, the Committee accepted her evidence as to what she felt and her belief that Dr. Lee’s touching was intentional.
(p) The Committee referred to the allegation that Patient C had become disgruntled when Dr. Lee tapered her off narcotics, but did not find any evidence that that was the case or that it had any impact on her regard for him or the veracity of her evidence. The Committee pointed out her evidence that she understood the medical reason why it had to be done.
22As indicated above, the Committee found Patient C to be an honest and reliable witness. In the ensuing analysis, the Committee did not use the words “credibility” and “reliability”. However, the analysis of her evidence is consistent with the application of many of the nine factors listed above that are commonly considered in addressing credibility and reliability.
23At page 30 of the decision, the Committee held as follows:
The Committee believed Patient C. Dr. Lee’s denial of inappropriate remarks or contact is simply irreconcilable with her evidence. As a result, the Committee does not believe him.
The Committee finds that:
Dr. Lee sexually abused Patient C in that he inappropriately rubbed his groin against her right hip area while administering a trigger point injection. This was contact of a sexual nature.
Dr. Lee sexually abused Patient C by using sexually explicit and crude language when asking her personal questions about her sex life. These were remarks of a sexual nature.
Further, Dr. Lee’s line of questioning with respect to Patient C’s personal sex life, and his choice of words when asking these questions would reasonably be regarded by members of the profession as disgraceful, dishonorable [sic] or unprofessional.
Dr. Lee
24As indicated above in paragraph 16, the Committee indicated it would have “more to say with respect to Dr. Lee’s credibility”. There is no subsequent reference to the credibility or to the reliability of his evidence. With respect to Patient A and Patient C, the Committee believed and relied on their evidence and did not accept the Appellant’s denial. With respect to Patient B, the Committee found her evidence not to be reliable and so did not analyse the evidence of Dr. Lee.
Decision of the Committee on Penalty
25The College took the position that the appropriate penalty was revocation, a public reprimand, security for reimbursement for funding for therapy for Patients A and C in the amount of $32,120 and costs of the five day hearing in the amount of $25,500.
26The Appellant took the position that the appropriate penalty was a six month suspension, a public reprimand, a term that once he returns to practice that he see female patients in the presence of a chaperone for two years and a requirement to pay the cost of two days of the hearing.
27The parties filed an Agreed Statement of Facts that indicated the Appellant had been the subject of a decision by the ICRC in 2015 in relation to treatment of the complainant’s late husband. The ICRC had accepted an undertaking from the Appellant that he would cease to provide certain pain medication including nerve blocks and trigger point injections and would relinquish his prescribing privileges with respect to narcotic drugs. The Appellant had successfully completed an educational program regarding doctor-patient boundaries. No concerns regarding the Appellant’s compliance with his undertaking had been identified. In the final report, the clinical supervisor indicated that the Appellant’s medical record-keeping had improved and met the standard of practice.
28The Agreed Statement of Facts also indicated that the interim order dated October 14, 2015 remained in effect. It was noted that five instances, involving four patients, had been identified between January and June 2016 in which the Appellant had submitted a claim to OHIP in respect of a professional encounter with a female patient that was not noted in the patient log. In four of the five instances, the Practice Monitor initialled the entry in the patient’s record corresponding to the encounter. In the fifth instance, the entry was not initialled. The Practice Monitor speculated she may have forgotten to fill out the log in those instances. The College’s Practice Monitor had spoken to three of the four patients. One patient could not recall but the other two patients confirmed that the Practice Monitor was present at every appointment.
29The penalty hearing was held on May 2, 2017. As a result of Bill 87, referred to as the Protecting Patients Act, 20173, amendments to the RHPA came into force May 30, 2017. Pursuant to s. 51(4.1) of the amended Code, the Committee could no longer impose gender-based terms on a physician’s certificate of registration. The Committee agreed to the request by College counsel to make submissions on the application of the amendments and also requested that the parties provide submissions on the application, if any, of Sliwin v. College of Physicians and Surgeons,4 regarding the issue of reimbursement of the College fund for patient therapy and counselling. The Committee received those written submissions and the advice of independent legal counsel on both issues.
30In the supplemental submissions the College reiterated that revocation was appropriate and submitted that the RHPA amendments, removing the penalty option of gender-based terms, conditions or limitations, should apply retrospectively because the amendments were procedural in nature and were put in place to protect the public. The College continued to seek reimbursement of the College fund for patient therapy and counselling and distinguished the facts in the Sliwin case.
31The Appellant took the position that the Committee could still impose a gender-based restriction because of the presumption against statutes operating retrospectively. Furthermore, if the Committee concluded that it was bound by the RHPA amendments, the appropriate disposition was to require the Appellant to see all patients in the presence of a chaperone for two years. On behalf of the Appellant, counsel took the position that the Sliwin decision reinforced that “there must be a reasonable basis in the evidence” and that neither of Patient A or Patient C had testified that she had received, wanted to receive or intended to obtain counselling as a result of the conduct of the Appellant.
32The Committee noted that, while subsection 51(5) of the Code requires mandatory revocation for some acts of sexual abuse, those acts were not present in this case. The Committee therefore concluded that revocation was not mandatory here, but discretionary. The Committee indicated that it considered and applied the following principles:
(a) public protection;
(b) maintaining the reputation and integrity of the profession and public confidence in the College’s ability to regulate the profession in the public interest;
(c) specific deterrence of the member;
(d) general deterrence of the profession;
(e) opportunity for rehabilitation of the member.
33The Committee concluded that revocation was the appropriate penalty given the gravity of Dr. Lee’s misconduct, which involved both the sexual abuse of patients and disgraceful, dishonourable and unprofessional conduct, in multiple respects.
34The Committee considered the following aggravating factors:
(a) This was not a single isolated incident of poor judgment but a series of many types of boundary violations of a sexual nature and other misconduct involving more than one patient over an extended period of time.
(b) Dr. Lee’s misconduct took place in a clinical setting when the patients were dependent and vulnerable. Dr. Lee had exploited two vulnerable patients and prioritized his needs or wants. His misconduct constituted a significant breach of public trust that brings the reputation of the profession into disrepute. He had caused harm to both patients and to public confidence in the profession.
(c) The Committee gave significant weight to the testimony of Patient A that she was uncomfortable with Dr. Lee’s sexual discussions, but she remained silent and did not complain, because she was worried that participating in College proceedings would result in “ticking off a community that is described as a brotherhood” (physicians), whose services she needed to control her pain. And the Committee referred to her Victim Impact Statement when she wrote about the permanent lack of trust caused by his conduct. The Committee noted that Patient A’s traumatic experience with Dr. Lee caused her to sever her doctor-patient relationship not only with Dr. Lee, but also with her family physician. And the Committee noted that she is fearful that other doctors will find out about the disciplinary proceedings and think that she is a “troublemaker” and will not want to treat her.
35Under the heading “Mitigating Factors” the Committee considered the following:
(a) The Committee noted that demonstrating insight can be a mitigating factor. However, there was no evidence that Dr. Lee had insight into his conduct or that he had made any significant attempt at remediation. Lack of insight should be taken into account in considering the physician’s aptitude and prospects for rehabilitation.
(b) Dr. Lee’s attendance at a two-day boundaries course and the fact that there were no reports of any boundary violations or sexual abuse after the course or during the time when he had a practice monitor, are not significant mitigating factors in this case. There was no evidence of any remediation to address the conduct at issue. There is no rehabilitative aspect to having a practice monitor in place.
(c) It was a mitigating factor that there were no prior findings of misconduct in over twenty years of practice.
(d) There was a complaint with respect to boundary violations of a non-sexual nature which resulted in a caution by the ICRC [in 2015] and an order that Dr. Lee take the College boundaries course, which he completed. Dr. Lee had also complied with his undertaking with respect to supervision in relation to clinical issues.
(e) Dr. Lee had submitted a brief of letters of reference, five of which were from patients, one from a resident who had spent time in Dr. Lee’s office while a medical student and one from Dr. Lee’s practice monitor. The Committee held that evidence of a physician’s good character and reputation ought to be accorded little weight in circumstances in which there have been findings of sexual abuse. Such conduct occurs primarily in private and is often inconsistent with the external person of the abuser (Ontario (College of Physicians and Surgeons of Ontario) v. Margaliot, 2016 ONCPSD 53). The Committee noted that even Patient C described Dr. Lee as a compassionate, sympathetic and caring doctor.
36In written submissions, counsel for Dr. Lee had summarized a number of cases and asserted that the conduct at issue in those cases was more egregious than Dr. Lee’s misconduct. At page 11, the Committee held as follows:
Many of these cases were decided more than five years ago. The Committee was mindful that previous cases may be considered as a guide in determining the appropriate penalty, but each individual case is unique and the Committee is not bound by its prior decisions.
The Divisional Court recently held in Ontario (College of Physicians and Surgeons of Ontario) v. McIntyre, 2017 ONSC 116 and in Ontario (College of Physicians and Surgeons of Ontario) v. Peirovy, 2017 ONSC 136 that the Committee’s prior penalty ranges in cases of physician sexual abuse are out of step with present day society’s values and expectations. The Committee recognizes that changing societal values speak to a need for more serious penalties in cases such as this one. (Emphasis added)
37At page 12 of the penalty decision, the Committee concluded that a retrospective application of the RHPA amendments, which prohibited the imposition of gender-based terms, conditions and limitations, was appropriate because the legislature’s intention was reflected in the title of the amending legislation, Protecting Patients Act, 2017.
38The Committee held that even if the amendments did not have retrospective application, it would not have ordered that Dr. Lee be permitted to continue with a practice monitor for all female patients because, given the nature of the misconduct, revocation was the appropriate penalty based on this analysis at page 12:
The Committee has concluded that revocation is the appropriate penalty in this case. This was a case in which there were multiple incidents of professional misconduct, which occurred over a lengthy period of time. In addition to the sexual abuse of two patients, the Committee found that Dr. Lee asked Patient A to pay cash for prescriptions and to fill a prescription for him. He also asked Patient A to videotape or photograph another patient. Dr. Lee clearly took advantage of two vulnerable patients who were dependent on him for management of their chronic pain.
Ordering that Dr. Lee practise with a practice monitor for all patients, as suggested by his lawyer, is not an appropriate penalty in the circumstance of this case. To permit this would send the wrong message to the public and the profession. To practise medicine is a privilege, not a right. Dr. Lee abused the trust and vulnerability of his patients and took advantage of them to further his own needs. While allowing him to practise with a practice monitor may protect the public in that one would expect that he would not engage in similar conduct in the presence of a third party, this Committee must also ensure that a penalty order meets the objectives of maintaining the integrity of the profession and confidence in the profession’s ability to govern itself in the public interest. Given the nature and scope of the misconduct at issue, the Committee is of the view that nothing short of revocation will suffice in meeting these objectives.
Revocation should provide general deterrence to the profession. Remarks, behaviour and touching of a sexual nature have no place in the practice of medicine. While inquiries with respect to a patient’s sexual health may be appropriate in certain circumstances, such inquiries must be made respectfully, using appropriate language, and must never be made in furtherance of a physician’s own sexual curiosity or gratification. The Committee notes that the sexual remarks made in this case were of a particularly crude, graphic and coarse nature. In addition to using vulgar language, Dr. Lee asked his patients questions about their sex lives that were of no medical relevance. Dr. Lee also frequently discussed his own marriage and sex life with Patient A. Patient C testified that she heard vulgar language from Dr. Lee only two or three times. Patient A, however, testified that Dr. Lee started making inappropriate comments almost immediately upon starting to see him in 2008 and that these comments happened quite often. Further, the Committee found that Dr. Lee sexually abused Patient C by intentionally rubbing his groin against her right hip area while administering a trigger point injection. Although revocation is not mandatory, this act of sexual abuse, together with the Committee’s other findings of sexual abuse and professional misconduct, weigh strongly in favour of revocation.
The Committee hopes that its Order in this case will send a clear message to other victims of sexual abuse by physicians that reporting such behaviour is encouraged and will be taken seriously.
39As indicated above, the College asked for an order requiring Dr. Lee to reimburse the College for funding for counselling or therapy for Patients A and C and to post security in the amount of $32,120. The Committee reviewed the relevant sections of the Code and of Ontario Regulation 59/94 and noted that the maximum amount of funding for a person in respect of a case of sexual abuse is the amount that the Ontario Health Insurance Plan would pay for 200 half-hour sessions. The Committee noted that there is no obligation in the Code for an eligible person to provide any evidence of an intention to engage in therapy.
40The Committee noted the evidence in examination-in-chief of Patient C that she was very uncomfortable by Dr. Lee’s inappropriate inquiries regarding her sexual relations with her husband, but in cross-examination she said she had told the College investigator that nothing in Dr. Lee’s conduct made her feel terribly uncomfortable. She had also testified that she continued to have trust and confidence in Dr. Lee’s ability to treat her even after the incident in which he rubbed up against her. Patient C did not provide a victim impact statement.
41The Committee referred to the victim impact statement made by Patient A in which she said she had been seriously impacted by Dr. Lee’s misconduct. She also said that she has difficulty trusting medical professionals and had severed her relationship with her family doctor as a result of these incidents. She said that despite her significant health problems, she had no family doctor. She also made reference to reliving the experience and of being re-victimized. She said that she was exhausted, physically and emotionally, by having to protect herself.
42The Committee concluded as follows:
It is clear to the Committee that counselling should be made available to Patient A, so that she can address the impact of the abuse and, hopefully, regain trust in the medical profession and access the medical care she needs.
While the Committee noted the Divisional Court’s reasons for not ordering security for reimbursement of the fund for counselling and therapy in the Sliwin case, the Committee accepts the request for such an order in this case. In particular, the Committee noted the differences in the facts of this case and the Sliwin case. The Committee recognizes that sexual abuse victims may seek out counselling or therapy at some considerable time following their abusive experiences. Moreover, the Committee recognizes that confronting a sexual abuser, testifying in a hearing and/or having the abuse acknowledged and condemned by this Committee may affect a patient such that she subsequently chooses to seek counselling or therapy to address the impacts of the abuse.
43The Committee ordered Dr. Lee to reimburse the College for the maximum amount of funding that could be provided to Patients A and C and post an irrevocable letter of credit for that purpose.
Jurisdiction
44Section 70 of the Code establishes a right of appeal to this Court from a final decision of the Committee. The appeal may engage questions of law and/or facts. Section 70(3) of the Code provides that this court “has all the powers of the panel that dealt with the matter”.
Standard of Review
45The parties agree that the standard of review of decisions of the Discipline Committee of the College as to liability is reasonableness defined in the often-quoted decision of Dunsmuir v. New Brunswick5 as follows:
Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law.
46In applying the standard of reasonableness, the court is required to show deference to the decision of the tribunal as indicated in paragraph 49 of Dunsmuir as follows:
Deference in the context of the reasonableness standard therefore implies that courts will give due consideration to the determinations of decision makers. As Mullan explains, a policy of deference “recognizes the reality that, in many instances, those working day to day in the implementation of frequently complex administrative schemes have or will develop a considerable degree of expertise or field sensitivity to the imperatives and nuances of the legislative regime”. . . In short, deference requires respect for the legislative choices to leave some matters in the hands of administrative decision makers, for the processes and determinations that draw on particular expertise and experiences, and for the different roles of the courts and administrative bodies within the Canadian constitutional system.
47A witness’ evidence must be assessed from the perspectives of credibility and reliability. Credibility relates to a witness’ veracity whereas reliability concerns the accuracy of the testimony.6
48The standard of review of the analysis of credibility is generally reasonableness. Findings of credibility may be set aside where a panel made a palpable and overriding error that affected its assessment of the facts.7 Wholly inadequate credibility findings may be an error of law that attracts less deference.8 Where an appellate court finds the credibility assessment unreasonable, the entire decision will be unreasonable if credibility is of central importance.9
49The reasonableness standard, and therefore deference, applies where a tribunal is interpreting its home statute.10 However, where the tribunal is engaged in a question of law that is of “central importance to the legal system . . . and outside the . . . specialized area of expertise” of the administrative decision maker, the correctness standard applies.11
50The standard of review of a penalty decision is generally reasonableness.12 However a penalty determination will be overturned where the decision-maker has made either an error in principle or administered an unfit penalty.13
Issues
51The Appellant and Respondent frame the issues differently. For purposes of this appeal, we address the following issues:
(a) was the Committee’s decision on liability reasonable taking the following into account:
(i) the Committee’s assessment of the credibility and reliability of all of the witnesses and
(ii) the rule in Browne v. Dunn 14?
(b) was the Committee’s decision correct that the May 30, 2017 amendments to the RHPA and the Code had retrospective effect?
(c) was the Committee’s decision on penalty reasonable taking into account:
(i) all of the factors applicable to decisions as to revocation and
(ii) the Committee’s conclusion that the Appellant is required to post security for funding for counselling in the absence of an evidentiary foundation that the complainant seeks counselling?
Analysis: Liability Decision
Assessment of Credibility and Reliability of Witnesses
52The Committee summarized and analyzed the evidence of Patient B and provided four examples of her evidence that led to the conclusion that her evidence was not reliable. That was a reasonable and appropriate analysis and demonstrates that the Committee was aware of the analysis required.
53The Committee summarized and analyzed the evidence of Patient A and Patient C, and, with respect to each patient, the Committee identified the evidence on which it relied and why it did so.
54Counsel noted on page 23, as quoted above at paragraph 16, that the Committee indicated that it would “have more to say” about the Appellant’s credibility but the Committee failed to do so. Counsel for the Appellant asserts that the Committee’s failure to provide any assessment of the Appellant’s credibility renders its decision unreasonable. Counsel also takes the position that this was a case that required a detailed analysis of the honesty and reliability of all of the witnesses and that the failure on the part of the Committee to analyze the evidence of the Appellant was an error of law.
55It is the case that there is no specific analysis of the honesty and reliability of the Appellant’s evidence. However, a review of the reasons demonstrates the basis upon which the Committee found his evidence neither credible nor reliable.
56At pages 18 to 22, the Committee summarized the Appellant’s evidence, and noted that he had denied each of the specific allegations. The summary of his evidence demonstrates the Committee’s understanding of the stark differences between the evidence of Patients A and C on the one hand and the evidence of the Appellant on the other hand.
57There were three key issues that the Committee was required to resolve.
58The first is a contradiction between the evidence of touching by Patient C and the evidence of the Appellant. On this issue, not only did the Appellant deny that it had occurred, but during the hearing, in an effort to explain how it could not happen as described by Patient C, using one of his lawyers as a patient, he demonstrated to the Committee what he typically wore and what would be in the pockets of his lab coat, and how he routinely performed injections. At page 29, the Committee held as follows:
With respect to the allegation of sexualized touching, Dr. Lee’s explanation and demonstration with respect to the manner in which he routinely gives trigger point injections did not preclude the possibility that he engaged in physical contact with Patient C in the manner which she described in her testimony, which the Committee accepted. The Committee did not find relevant whether Dr. Lee routinely wears a lab coat, or has keys or a cell phone in his pocket. If the suggestion was that Patient C was mistaken with respect to what she felt (a suggestion which was never put to her directly), this is inconsistent with Patient C’s evidence that she was certain of what she felt and that she believed Dr. Lee’s touching of her in this manner was intentional. The Committee did also not find relevant the variation in their respective heights and the distance he said he routinely stands away from patients when giving an injection, as that did not account for where he stood at this time on this day.
59As that excerpt demonstrates, the Committee was well aware of the differences in their evidence. The Committee accepted the evidence of Patient C and found that the demonstration evidence as to the Appellant’s usual practice did not account for where he stood “at this time on this day”. In other words, the Committee specifically rejected the evidence of the Appellant and explained why it accepted the evidence of Patient C.
60In that excerpt, the Committee observed that the suggestion that she was mistaken was never put to Patient C directly. As counsel for the Appellant pointed out, the issue had been raised in cross-examination. The examination-in-chief of Patient C on that point started at page 20 of the transcript and the cross-examination (including differential heights of Patient C and the Appellant) started on page 45. Patient C was questioned in detail as to how she said the events had occurred. She was asked about what appeared to be differences between her evidence in examination-in-chief and the written statement she had given to the investigator of the College. She rejected counsel’s hypothetical that the touching had been accidental and repeated her evidence that the touching had been intentional. As the cross-examination continued, Patient C became more emphatic about how the events occurred, insisted that it was not accidental and that she was sure it was intentional because of the way he reacted when she reprimanded him.
61The concept that it was accidental was put to Patient C at page 57:
Q. Okay. Well – and, you will agree with me, [Patient C], just again generally speaking that, assuming hypothetically it was accidental and you raised it with Dr. Lee, that he could become flustered because he was embarrassed?
A. I agree that that could happen, hypothetically. But, that is not what happened.
62The Appellant takes the position that the Committee’s error in misapprehending the evidence that was put to Patient C affected the assessment of her credibility. The Appellant asserts that the conclusion by the Committee on this evidence demonstrates a failure to properly assess Patient C’s evidence and the Appellant’s denial evidence.
63We do not agree. It is the case that the Committee wrote that the suggestion had not been put to her. The transcript indicates that the suggestion of mistake was not put to her but the suggestion of accidental touching was put to her. The upshot of her evidence on that point was vehement denial of accident, which had the effect of strengthening her evidence. Indeed, having read the transcript of the cross-examination particularly on this point, it is clear that the conclusion reached by the Committee on this evidence was supported by the evidence and the reference to mistake, as opposed to accident, is not material.
64The second key issue was the motivation of Patients A and C. In cross-examination of Patients A and C, counsel suggested that each was unhappy with the Appellant because he had tapered the amount of drugs he was administering. In his evidence, the Appellant said that when he tapered the amount of drugs he was administering each of them appeared to be disgruntled, creating the inference that their evidence was motivated by retaliation. As indicated above in relation to Patient A, the Committee accepted her evidence that she understood she needed to taper the drugs and that it was medically necessary. As indicated above in relation to Patient C, the Committee accepted similar evidence from Patient C. In the face of that evidence, it was reasonable for the Committee to reject the Appellant’s evidence that was based on speculation.
65The third key issue was whether the evidence of Patients A and C was reliable. In the Appellant’s evidence and in cross-examination of the patients, it was suggested that each had clinical reasons to not be able to accurately recall events. Patient A had consulted the Appellant from 2008 to 2011. Patient C had consulted the Appellant from April 2008 to June 2012 and she testified that the single event of rubbing had occurred roughly in the middle of that period or 2010. As indicated above in relation to Patient A, and in relation to Patient C, the Committee explained its reasoning for concluding that neither experienced memory loss in respect to the events in issue. That conclusion was supported by the evidence. It was reasonable for the Committee to reject the Appellant’s evidence on that point.
66In addition to those three key issues, we have the following observations with respect to the analysis of the Committee.
67The Committee accepted Patient A’s explanation for not reporting the event because the explanation made common sense.
68The Committee noted the Appellant’s evidence about office management:
(a) Between 2008 and 2012, he worked three days a week in Pickering and two days a week in Mississauga. In 2012, he closed his Pickering office because he felt “overstretched”. [page 17]
(b) “I do understand my medical documentation as very scarce and the legibility is of concern.” [page 19]
(c) The Appellant confirmed that he worked 21 to 30 hours in Pickering per week and saw over 151 patients. He also saw another 101 to 150 patients in Mississauga. In total, he would see about 250 patients every week. [page 21]
(d) When asked if it was fair to say that Dr. Lee could not possibly recall most individual patient encounters, he answered, “except the ones that came frequently over a period of time.” [page 21]
(e) With respect to the office practice of sign-in sheets for patient visits, Dr. Lee testified that he did have an appointment book. However, he testified, many patients came unannounced and they would sign a sign-in sheet in the waiting room. Dr. Lee was shown photocopies of three sign-in sheets from his office dated May 19, 2009, June 12, 2009, and August 6, 2010. Dr. Lee agreed that these sign-in sheets confirmed there were at least 75 patients seen on each day and that he would be balancing both scheduled appointments and unannounced visits. [page 21]
(f) Dr. Lee confirmed that he was so busy that he did not record which body part he was injecting each day. Hundreds of patient encounters would have only the date stamped, and he would scribble the initials of the areas injected.” [page 22]
69The Committee noted in respect of Patient C that her observations regarding the way the Appellant ran his office were consistent with what the Appellant acknowledged and that he had a “chaotic office environment.”
70The Committee did not specifically conclude that the Appellant was so busy with such a high volume of patients for whom he was providing similar treatment in two offices between 2008 and 2012 that his evidence in 2017 was not reliable. However that inference of lack of reliability is apparent.
71The Committee listed the criteria often used to assess credibility and reliability and distinguished between those concepts. The Committee reviewed the evidence of Patient B and gave appropriate reasons for not finding her evidence reliable. The Committee reviewed the evidence of Patient A and of Patient C and compared that with the evidence of the Appellant and rejected the evidence of the Appellant. The conclusions about the credibility and reliability of the evidence of Patient A and Patient C are founded in the evidence. Having found the evidence of Patient A and Patient C credible and reliable, the Committee’s conclusion that the evidence of the Appellant was irreconcilable was reasonable.
72In Stefanov v. College of Massage Therapists of Ontario15 the Divisional Court held that to support a finding of professional misconduct the balance of probabilities requires that proof be “clear and convincing and based upon cogent evidence” and that that was particularly important in a case of sexual abuse because it is one of the most significant and serious findings that can be made against a member. The Court noted that given the consequences of such a finding, the Committee is required to act with care and caution in assessing and weighing all the evidence and the evidence must be of such a quality and quantity to justify a finding of sexual abuse. In that case the Court held that the “pathway to [the Panel’s] conclusion was incomplete, not transparent and unintelligible.”
73In Neinstein16 the Court of Appeal expressed similar views about the analysis required. The Court pointed out at paragraph 79 that there was exactly one sentence about Mr. Neinstein’s evidence, namely that without reservation the member denied all of the allegations and that there was no analysis of his evidence or of his witnesses. At paragraph 83, the Court held that the reasons of the Hearing Panel relating to the complainants were a combination of generic generalities, unexplained conclusory observations, material omissions and uncertainty as to the legal principles applied to the credibility analysis.
74In this case, the pathway to the Committee’s conclusions was complete, transparent and intelligible. The findings as to credibility and reliability of Patient A and Patient C were not conclusory or generic. A finding that one party is credible may be conclusive where the other party’s evidence is irreconcilable with the evidence of the party found to be credible.17 The Committee took into account the denials of the Appellant, not in isolation, but in contrast to the strength and cogency of the evidence of Patient A and Patient C.
75In a perfect world, the Committee might have specifically found that the Appellant’s evidence was neither credible nor reliable. Committees such as this one do not exist in a perfect world. As the Supreme Court held in Canada Post Corp. v. Public Service Alliance of Canada,18 “perfection is not the standard”. The basis upon which the Committee rejected the evidence of the Appellant is apparent.
The Rule in Browne v. Dunn
76As indicated above, counsel for the College did not conduct a cross-examination with respect to each of the allegations that the Appellant had denied in his examination-in-chief. The Appellant asserts that the basic proposition in Browne v. Dunn is that, for evidence to be used in closing submissions to challenge a witness’ credibility, it must first be put to that witness during his or her examination. And if that does not occur, trial fairness is violated, and little if any weight should be accorded to the impugned evidence.19 The Appellant takes the position that the failure of the Committee to address in its reasons that he had not been cross-examined on the central issues and the implications of that on the assessment of the credibility and reliability of his evidence was an error of law.
77Counsel for the College is not required to cross-examine on all or any of the evidence of the physician. Advocates make strategic decisions about how to present the evidence.
78The rule in Browne v. Dunn is rooted in the principle of trial fairness. The Appellant does not suggest that there was a trial fairness issue per se, in the sense that he was unaware of the allegations against him. He had the opportunity to explain fully in his examination-in-chief. There was no re-examination. The Appellant knew that his evidence was in stark contrast to the evidence of each of the patients. He knew that the Committee would be required to make an assessment of the credibility and reliability of the witnesses. As the Court of Appeal held in R. v. Quansah, at para. 82:
Where the confrontation is general, known to the witness and the witness’s view on the contradictory matter is apparent, there is no need for confrontation and no unfairness to the witness in any failure to do so.
79The fact that the Committee did not accept the evidence of the Appellant was, no doubt, disappointing. But no unfairness resulted from the absence of cross-examination on the central issues.
Conclusion on the Liability Decision
80As the Supreme Court held in Newfoundland and Labrador Nurses’ Union v. Her Majesty The Queen,20 the articulation of the reasons and the outcome on liability attract deference. Read as a whole, the reasons of the Committee are supported by the evidence. The decision falls within the range of acceptable outcomes.
Analysis: Penalty Decision
Was the decision that the Protecting Patients Act, 2017 had retrospective effect correct?
81As indicated above, the court must apply a reasonableness standard of review when the issue concerns the tribunal’s interpretation of its home statute. The College takes the position that the Protecting Patients Act, 2017 is the Committee’s home statute. We do not agree.
82In this case, the issue is whether an amendment to the Code has retrospective effect. That is a pure question of law that requires jurisprudential analysis that is not within the Committee’s normal purview and that has broad impact affecting all health professions in Ontario.21 As indicated above, the standard of review is correctness.
83This appeal was heard on January 21, 2019 with counsel indicated above. On January 22 and 23, 2019, this panel heard another appeal with different counsel.22 Counsel on that appeal observed the submissions on January 21. Each appeal engaged the retrospectivity issue, but in connection with a different aspect of the amended Code. During submissions on this appeal, counsel for the Appellant indicated he intended to rely on the submissions as to retrospectivity that he expected would be made in the second appeal. Counsel for the College took the position that only the submissions heard in this appeal were relevant.
84The amendment to the Code that is at issue in this appeal came into force on May 30, 2017 and was enacted by the Protecting Patients Act, 2017.23 Prior to May 30, 2017, the Committee had the authority to direct the Registrar to impose specified terms, conditions and limitations on the member’s certificate of registration.24 As of May 30, 2017, the Committee was prohibited from making “any order directing the Registrar to impose any gender-based terms, conditions or limitations on a member’s certificate of registration.”
85The Committee noted that the College had taken the position that the amendment removing the penalty option of gender-based terms, conditions or limitations, should apply retrospectively because the amendment was procedural in nature and had been put in place to protect the public.
86On penalty, the Appellant asked the Committee to impose a term, condition and limitation that he be required to have a chaperone only for female patients for two years, which would have continued the interim order dated October 14, 2015.
87The Committee noted that the Appellant made the following submissions. First, a condition with respect to gender-based restriction was available because of the presumption against statutes operating retrospectively. Second, the amendment was substantive, because it “fundamentally changed the manner in which an individual is to be treated in relation to past conduct”. Third, the public protection exception to retrospective application must be construed narrowly and therefore should apply. Fourth, if the Committee found that that amendment was retrospective, the appropriate disposition was to require the Appellant to see all patients in the presence of a chaperone for two years.
88The decision of the Committee at page 12 is as follows:
The College’s central function is to govern the profession to ensure protection of the public. The Committee is persuaded that a retrospective application of the RHPA amendments, which prohibit the imposition of gender-based terms, conditions and limitations, is appropriate. The Committee finds that the amendment to the RHPA specifying that the Committee cannot impose gender-based terms, conditions or limitations is aimed at protecting the public. The legislature’s intention is reflected in the title of the amending legislation, Protecting Patients Act, 2017.
In any event, even if the amendments did not have retrospective application, the Committee would not have ordered that Dr. Lee be permitted to continue with a practice monitor for all female patients, as requested by Dr. Lee. As discussed below, the Committee is of the view that given the nature of the misconduct in this case, revocation is the appropriate penalty.
Conclusion on retrospectivity
89Although counsel made submissions on the issue of retrospectivity, we conclude that we need not consider them in detail for the following reasons.
90First, the Protecting Patients Act, 2017 is the short title of Bill 87 “An Act to implement health measures and measures relating to seniors by enacting, amending or repealing various statutes”. Bill 87 has schedules attached indicating that six statutes were to be amended, including the RHPA. The Committee did not address the submissions made by the parties. In a matter that is not within its normal purview that has broad impact affecting many health professions, the Committee failed to address key aspects of the retrospectivity analysis. The decision of the Committee, based solely on the short title of the amending statute, particularly where the short title bears almost no relationship to the amendments to the five other statutes listed in the schedules is not reasonable and an error of law.
91Second, it appears from the brief reference in the decision that the Committee considered only whether the gender-based terms were eliminated by Bill 87. The broader and more appropriate analysis is whether all of the amendments effected by Bill 87 had retrospective effect. That analysis is more usefully undertaken in the case of Ontario (College of Physicians and Surgeons of Ontario) v. Kunynetz.
92Third, we agree with the Appellant that even if the amendment retrospectively removed the gender based supervision, the alternative that was open to the Committee was to require the Appellant to see all patients in the presence of a chaperone.
Was the penalty decision of revocation reasonable?
93As indicated above, the Committee identified five factors relevant to determination of the appropriate penalty, namely public protection, maintaining the reputation and integrity of the profession and public confidence in the College’s ability to regulate the profession in the public interest, specific deterrence of the member, general deterrence of the profession and opportunity for rehabilitation of the member. The reasons indicate that the decision was based on these factors: multiple incidents over a long period in a clinical setting that constituted a significant breach of trust; the Appellant had taken advantage of two vulnerable patients; a practice monitor would send the wrong message and while it may protect the public, it would not meet the objective of maintaining the integrity of the profession and public confidence in the College; the nature and scope of the misconduct; general deterrence; and the need to send a clear message to patients.
94The Committee referred to the submissions by the Appellant summarizing prior cases. The Committee indicated at page 11 that it was “mindful that previous cases may be considered as a guide in determining the appropriate penalty, but each individual case is unique and the Committee is not bound by its prior decisions”. The Committee pointed out the following at page 11:
The Divisional Court recently held in Ontario (College of Physicians and Surgeons of Ontario) v. McIntyre, 2017 ONSC 116 and in Ontario (College of Physicians and Surgeons of Ontario) v. Peirovy, 2017 ONSC 136 that the Committee’s prior penalty ranges in cases of physician sexual abuse are out of step with present day society’s values and expectations. The Committee recognizes that changing societal values speak to a need for more serious penalties in cases such as this one. (Emphasis added)
95In Peirovy, the Committee held that the physician was found guilty of professional misconduct as a result of having sexually abused four female patients and had inappropriate conduct with respect to a fifth. In its decision dated July 17, 2015, the Committee imposed a penalty consisting of a six-month suspension and restrictions on his return to practice that included supervision during all encounters with female patients for a minimum of twelve months. In its decision, dated January 17, 2017, the Divisional Court allowed the appeal brought by the College on the basis that it had imposed an unfit penalty.
96In its decision dated May 3, 2018, the Court of Appeal allowed the appeal and restored the penalty imposed by the Committee. The majority of the Court held as follows, at paras. 56-59:
To be overturned by a reviewing court, the Discipline Committee must have made an error in principle or the penalty must be “clearly unfit”: Reid, at para. 99. The Supreme Court recently considered the meaning of similar phrases in the criminal context in R. c. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, noting that courts have used a variety of expressions to describe a sentence that reaches this threshold, including “demonstrably unfit”, “clearly unreasonable”, “clearly or manifestly excessive”, “clearly excessive or inadequate” or representing a “substantial and marked departure”. Wagner J. observed, at para. 53, that “all these expressions reflect the very high threshold that applies to appellate courts when determining whether they should intervene after reviewing the fitness of a sentence.” He concluded, at para. 54, that a sentence will be demonstrably unfit if it constitutes an unreasonable departure from the principle of proportionality.
A similarly high threshold applies in the administrative context. To be clearly unfit, the penalty must fall outside of the range of reasonableness. A reasonable penalty will be “guided by proportionality and an assessment of the range of appropriate penalties dependent upon the facts of each case, [and] guided by penalties imposed in other cases”: Reid, at para. 100.
The Discipline Committee considered a number of its previous decisions involving the sexual abuse of patients. The factual scenarios in those cases are, like the present case, disturbing. However, they show that the penalty imposed on Dr. Peirovy is in line with those that have been imposed in Ontario. In fact, a six-month suspension has been imposed for sexual misconduct more egregious than the misconduct at issue here: see C.P.S.O. v. Lee, [2009] O.C.P.S.D. No. 10; Rakem (Re), 2014 ONCPSD 25, [2014] O.C.P.S.C. No. 22. Only one decision in which a doctor’s licence was revoked was submitted to the Discipline Committee. C.P.S.O. v. Minnes, 2015 ONCPSD 3, [2015] O.C.P.S.D. No. 3 involved a physician’s attempted sexual assault of a 17-year-old female counsellor, a non-patient, at a summer camp where he was camp physician. The Discipline Committee noted that the horrific circumstances of the attempted sexual assault required no penalty short of revocation in that case, which bore little similarity to the present one.
The penalty imposed by the Discipline Committee was carefully tailored to the circumstances of this case, and fit comfortably within the range of penalties imposed in other similar or more serious cases of sexual abuse of patients. It was based on forensic psychiatric evidence accepted by the Discipline Committee as well as the evidence it heard during the liability phase. It also took into account the progress shown by Dr. Peirovy in addressing some of the concerns. Further, following the lodging of the complaints, Dr. Peirovy had practiced with supervision for about five years without any incident.
97The Court of Appeal then considered the four errors that the Divisional Court found that the Discipline Committee had made. The first was that the Divisional Court held that the Discipline Committee had improperly fettered its discretion by proceeding on the basis that “revocation of registration is reserved for egregious conduct or offenders with a high risk to re-offend.” The Court of Appeal held that the Discipline Committee had not fettered its discretion with respect to the penalty of revocation and observed the following, at paras. 64-65:
In this passage, the Discipline Committee was quite properly pointing out that revocation is sometimes “demanded” by egregious conduct alone. As it indicated in other parts of its reasons, however, it is tasked with arriving at a fair and just penalty that addresses all of the sentencing principles. Those principles include the paramount consideration of protection of the public, as well as maintenance of public confidence in the reputation and integrity of the profession, effective self-governance, general deterrence, specific deterrence, and the potential for the member’s rehabilitation. Proportionality is also an important consideration.
The Discipline Committee’s reasons as a whole make clear that it did not erroneously assume that revocation was available only in a narrowly constrained set of circumstances. Rather, it concluded that the suspension and practice restrictions imposed struck the most appropriate balance between the variety of sentencing principles at play in this case.
98The fourth error found by the Divisional Court was that the prior decisions considered by the Discipline Committee constituted “a litany of clearly unfit penalties”. At paragraph 80 the Court observed that “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”.
99In this case, in arriving at what the Committee concluded was an appropriate penalty, it appears that the decision of the Divisional Court in Peirovy had significant impact on the decision of the Committee. However, the Court of Appeal’s decision governs this appeal. The appeal as to penalty must be allowed on that ground alone.
100Furthermore, influenced by the reasoning in the Divisional Court in Peirovy, while the Committee made reference to the five criteria listed above, the Committee made the following errors in principle:
(a) failed to consider each of the criterion and failed to balance the evidence with respect to all of the criteria;
(b) did not consider the important criterion of proportionality; and
(c) rejected the criterion of consistency on the basis that the prior cases to which they were referred were “out of step with present day society’s values and expectations”.
101The first error is that the Committee looked at some of the individual criteria, but not all; and failed to balance the evidence with respect to all of the criteria. The Committee focused on the conduct of the Appellant and the need for specific deterrence. It rejected further supervision by a practice monitor even though it acknowledged that it might protect the public, which is considered the “paramount objective”. It dismissed as not relevant the Appellant’s prolonged compliance with restrictions, virtually without incident, both in the context of this case and in the context of the unrelated 2015 complaint. The Committee appropriately held that it was important to maintain the reputation and integrity of the profession and public confidence in the College’s ability to regulate the profession in the public interest. To do so, the Committee held that revocation would send a clear message to other victims of sexual abuse by physicians that reporting such behaviour is encouraged and will be taken seriously. But the Committee did not consider whether other penalties would accomplish the same objective. The Committee listed the five criteria, mentioned them in more or less detail, but focused on the nature of the conduct and did not balance all of the factors.
102The second error is the failure of the Committee to incorporate the element of proportionality into its analysis. That requires an analysis of the nature of the conduct and the Appellant’s blameworthiness.
103The findings of the Committee with respect to Patient A were that the Appellant engaged in sexual abuse by asking inappropriate and personal questions about her sex life and showing her a pornographic magazine. The findings were also that the Appellant engaged in disgraceful, dishonourable and unprofessional conduct by making remarks of a sexual nature which were the same as those that formed the basis of the sexual abuse finding. In addition, the Appellant’s disgraceful, dishonourable and unprofessional conduct consisted of asking Patient A to pay cash for prescriptions, asking her to fill a prescription for Flamazine for him and asking her to videotape another patient who was allegedly selling prescription drugs on the street.
104With respect to Patient C, the findings of the Committee were that the Appellant engaged in sexual abuse by rubbing his groin against her right hip while administering a trigger point injection and using sexually explicit and crude language when asking her personal questions about her sex life. The basis of the unprofessional conduct was asking questions in inappropriate language about her personal sex life which overlapped with the sexual abuse finding. The evidence of Patient C was that the touching incident happened once.
105As indicated below, in deciding to order the Appellant to provide security for funding for counselling, at pages 17-18 of the penalty decision, the Committee considered the evidence of the impact on Patient A and Patient C but did not do so in the context of determining whether revocation or suspension was appropriate. That evidence of impact is also relevant to penalty. As indicated above, at page 23 of the liability decision, the Committee said it was struck by Patient C’s candid comment that, “I am not naïve” and her ability to call out the behaviour. The Committee accepted her evidence that she continued seeing the Appellant despite the incident of sexualized touching because it really didn’t bother her that much. The Committee noted that Patient C also testified that she felt Dr. Lee was a compassionate, sympathetic, and caring doctor and she candidly admitted that she did not feel threatened by Dr. Lee and she thought he was a good doctor.
106At page 17 of the penalty decision, the Committee referred to Patient A’s victim impact statement that showed the impact was as follows: lack of trust in medical professionals; loss of her relationship with her family doctor; not having a family doctor although she has significant health problems; and reliving the experience and being re-victimized.
107In arriving at the penalty of revocation, the Committee treated the conduct toward both patients and the impact on the patients as the same. It failed to consider the important differential impact, the fact that the more serious conduct of touching Patient C had little impact on her, and the fact that the findings with respect to the allegations involving language overlapped.
108The third error is that the Committee rejected all of the prior cases to which counsel had referred because they had been decided more than five years earlier and because the Divisional Court in Peirovy had signalled that prior penalty ranges in cases of physician sexual abuse were out of step with present day society’s values and expectations. As the Court of Appeal in Peirovy has held, it is important in establishing a penalty that there be consistency with prior decisions.
109Before the Committee and in this court, the Appellant relied on several prior decisions.25 In each of them, the conduct was comparable to or more serious than the conduct in this case, yet in each of them, the penalty was suspension not revocation. Furthermore, the impact on the victim(s) was more serious.
110In this case, the penalty was not carefully tailored to the circumstances of the case; was not consistent with prior decisions; and was not proportionate. The evidence did not support revocation. The Committee made an error in principle in imposing revocation and in so doing, ordered an unfit penalty which must be quashed.
Was the decision as to posting security for funding counselling reasonable?
111Pursuant to s. 51(2)5.1 and 5.2 of the Code, the Committee has the authority to provide funding for therapy or counselling resulting from sexual abuse. Pursuant to s. 85.7 of the Code, the College can advance up to a maximum of $16,060 for such therapy or counselling and the Appellant could be required to post security to reimburse the College if the victim sought therapy or counselling. In this case, the Committee ordered the Appellant to post security in the amount of $32,120, being the maximum amount for two patients. The issue is whether the Committee was required to have an evidentiary basis for making such a finding.
112The Committee made a finding on page 18 that counselling should be made available to Patient A “so that she can address the impact of the abuse and, hopefully, regain trust in the medical profession and access the medical care she needs.” That finding was reasonable given her evidence in the hearing and in the victim impact statement.
113The Committee did not make a finding with respect to Patient C yet made the order for both patients. Furthermore, the Committee ignored the evidence of Patient C that she was not bothered by any of the Appellant’s conduct. On her evidence, she expressed no need for or interest in therapy or counselling.
114The College takes the position that evidence of future request for therapy or counselling is not required while the Appellant takes the position that there must be some evidentiary foundation. Both counsel made reference to Sliwin.
115In that case, the allegations were that at various times between 1992 and 2008, the complainant was an employee, a patient and in an intimate relationship with the physician. The Committee ordered him to post security to reimburse the College up to the then maximum amount of $16,000. On appeal, the Divisional Court vacated that order and held as follows, at para. 144:
The evidence of the complainant is that no exploitation occurred and that the sexual relationship was consensual. Moreover, the complainant sought to withdraw the charge of sexual abuse. Further there is no evidence before the court that since 2008 when her relationship with the appellant terminated to the date of the argument of the appeal before this court that the complainant has sought or received therapy or counselling for sexual abuse at the hands of the appellant or of any desire on the part of the complainant to do so in the future. In my view it is unreasonable in the circumstances of this case to provide for such a contingency on an indefinite basis, when all the evidence that is available leads to the conclusion that the contingency will not arise.
116We agree with that approach. The decision to order the Appellant to reimburse the College for counselling for Patient C is not grounded in any evidence, is speculative and therefore is not within a range of reasonable outcomes.
117The Committee did not allocate as between Patient A and Patient C. However, the inference to be drawn is that the Committee contemplated the maximum then available for each patient, or $16,060. The common sense approach is to divide the amount ordered in half.
Conclusion as to penalty decision
118The Appellant does not challenge the decision of the Committee that he be reprimanded or that he pay costs.
119With respect to the penalty of revocation, that decision reflects an error in principle, is unfit, and is not within a range of reasonable outcomes. With respect to the order for security for therapy or counselling for Patient C, there is no evidentiary basis and it is therefore not within a range of reasonable outcomes.
120Counsel agreed that if this court sets aside the penalty of revocation, that the court should send it back to the Discipline Committee for reconsideration with directions26. The Appellant asked that a different Committee be constituted for that purpose while the College took the position it should return to the existing Committee. We see no justification for requiring a Committee of five new members to review the entire record in order to decide the remaining details of penalty.
ORDER TO GO AS FOLLOWS:
121The appeal from the decision dated January 18, 2017 as to liability is dismissed.
122The appeal from the decision dated November 2, 2017 as to penalty is allowed. The issue of penalty is to be heard and decided by the Discipline Committee with the same members as the original Discipline Committee with the following directions:
(a) the amendments to the Code as a result of the Protecting Patients Act, 2017 do not apply;
(b) the Committee should be guided by the decision of the Court of Appeal in Peirovy;
(c) revocation is not a fit penalty;
(d) in deciding what is a fit penalty, the Committee shall take into consideration:
(i) the criteria of: public protection, maintaining the reputation and integrity of the profession and public confidence in the College’s ability to regulate the profession in the public interest; specific deterrence of the member; general deterrence of the profession, opportunity for rehabilitation of the member;
(ii) how the evidence with respect to each individual criterion is balanced with all of the other criteria;
(iii) the principle that the penalty must be proportionate to the nature of the conduct and the impact on the victim(s);
(iv) the principle of consistency in penalty.
123The appeal from the penalty decision dated November 2, 2017 to require the Appellant to reimburse the College for funding provided to Patients A and C is allowed in that the Appellant is required to provide security only with respect to Patient A; and he shall post an irrevocable letter of credit or other security acceptable to the College to guarantee payment of such amount within thirty (30) days of the date of this order, in the amount of $16,060.00.
124Counsel having agreed, there will be no costs of this appeal.
Kiteley J.
Del Frate J.
Rady J.
Released: July 19, 2019
Footnotes
- Ontario (College of Physicians and Surgeons of Ontario) v. Lee, 2017 ONCPSD 2.
- Ontario (College of Physicians and Surgeons of Ontario) v. Lee, 2017 ONCPSD 46.
- S.O. 2017, c. 11.
- 2017 ONSC 1947.
- 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47.
- Karkanis v. College of Physicians and Surgeons, 2014 ONSC 7018 (Div. Ct.), at para. 52.
- Noriega v. College of Physicians and Surgeons of Ontario, 2016 ONSC 924 (Div. Ct.), at paras. 6, 59.
- Law Society of Upper Canada v. Neinstein, 2010 ONCA 193, at para. 94.
- Neinstein, at para. 74.
- Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2018 SCC 31, [2018] 2 S.C.R. 230, at paras. 27-29; Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654, at para 39.
- Dunsmuir, at para. 55.
- Kalin v. Ontario College of Teachers (2005), 75 O.R. (3d) 523 (Div. Ct.), at para. 7.
- Reid v. College of Chiropractors of Ontario, 2016 ONSC 1041 (Div. Ct.), at para. 127.
- (1893), 1893 65 (FOREP), 6 R. 67 (U.K.H.L.)
- 2016 ONSC 848 (Div. Ct.), at para. 62.
- Neinstein, at para. 77.
- F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at para. 86.
- 2010 FCA 56, [2011] 2 F.C.R. 221.
- R. v. Quansah, 2015 ONCA 237, 125 O.R. (3d) 81, at para. 131; Ontario (College of Physicians and Surgeons) v. Gale, 2013 ONCPSD 42, at p. 46.
- 2011 SCC 62, [2011] 3 S.C.R. 708.
- Kalin v. Ontario College of Teachers, at para. 8.
- Ontario (College of Physicians and Surgeons of Ontario) v. Kunynetz, under reserve.
- 2017 S.O. 2017, c. 11.
- Code, 2. 51(2)3
- including: Ontario (College of Physicians and Surgeons of Ontario) v. Marks, 2012 ONCPSD 13; Ontario (College of Physicians and Surgeons of Ontario) v. Muhammad, 2013 ONCPSD 23; Ontario (College of Physicians and Surgeons of Ontario) v. Maharajh, 2013 ONCPSD 37; Ontario (College of Physicians and Surgeons of Ontario) v. Rakem, 2014 ONCPSD 25; Ontario (College of Physicians and Surgeons of Ontario v. Yaghini, 2017 ONCPSD 29.
- Horri v. The College of Physicians and Surgeons, 2018 ONSC 3193