Fagbemigun v. College of Physicians and Surgeons of Ontario, 2023 ONSC 2642

CITATION: Fagbemigun v. College of Physicians and Surgeons of Ontario, 2023 ONSC 2642

DIVISIONAL COURT FILE NO.: 387/22 (Toronto)

DATE: 2023-05-01

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Backhouse, Baltman and Schabas JJ.

BETWEEN:

Dr. Ayokyunle Fagbemigun

Appellant

• and -

College of Physicians and Surgeons of Ontario

Respondent

COUNSEL:

Paul Slansky, for the Appellant

Amy Block, for the Respondent

HEARD at Toronto: April 24, 2023, by video conference

REASONS FOR JUDGMENT

Baltman J.

Overview

[1] The Appellant is a family physician who has been practicing in Etobicoke since 2013. He worked in a clinic where he was the only physician. The practice was high volume and open six days a week. His wife managed the clinic and they employed a receptionist. Like all physicians in Ontario, his practice was governed by the College of Physicians and Surgeons of Ontario (the “College”).

[2] In September 2018, after being alerted to possible billing improprieties, the College began an investigation into the Appellant’s practice. They conducted a search of the Appellant’s offices and seized numerous records.

[3] After finding the seized records were admissible at a pre-hearing motion, the Ontario Physicians and Surgeons Discipline Tribunal (the “Tribunal”) conducted a five-day hearing to determine whether the Appellant had engaged in professional misconduct. The Tribunal found the Appellant was not credible and his evidence was unreliable. On the strength of the College’s evidence, they concluded that the Appellant had billed the Ontario Health Insurance Plan (“OHIP”) for thousands of tests and procedures that he did not provide or that were not properly billable. The Tribunal further found that the Appellant improperly received fees for referring patients to a cardiac clinic, Hart Medical Services (“Hart Medical”). Finally, the Tribunal found that the Appellant failed to uphold the standard of practice of the profession by conducting medically unnecessary tests and maintaining grossly inaccurate patient records in an effort to make it appear as though the tests were justified. Based on these findings, the Tribunal determined that the Appellant had engaged in professional misconduct (the “Misconduct Decision”).

[4] On this appeal, the Appellant challenges three decisions of the Tribunal. The first decision, dated May 17, 2021, dismissed a pre-hearing motion to exclude evidence pursuant to ss. 8 and 24(2) of the Charter (the “Charter Decision”). The second is the Misconduct Decision described above, dated March 21, 2022. The third decision, dated June 9, 2022, ordered several penalties, including the revocation of the Appellant’s Certificate of Registration, effectively shutting down his medical practice (the “Penalty Decision”).

[5] The College maintains that the Tribunal made no error in determining whether the record seizure violated the Appellant’s Charter rights, or in deciding that the Appellant had engaged in professional misconduct, or in assessing the appropriate penalty.

[6] For the reasons below, the appeal is dismissed.

Factual Background

The College conducts an investigation

[7] The College initiated an investigation into the Appellant’s practice on the basis of information received from Medavie Blue Cross (“Blue Cross”), which provides health benefits coverage outside of OHIP. Blue Cross reported that it was unable to substantiate hundreds of claims submitted by the Appellant and was seeking thousands of dollars in reimbursement. In response, a College investigator prepared a package for the Registrar to consider whether there were reasonable and probable grounds (“RPG”) to believe that the Appellant had engaged in professional misconduct or was incompetent. The package included the complaint and materials from Blue Cross, as well as a memo from the College investigator requesting an Appointment of Investigators under s. 75(1)(a) of the Health Professionals Procedural Code, being Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (the “Code”). Specifically, the investigator requested an investigation into whether the Appellant:

1. Falsified or fabricated medical records for the purpose of supporting billing claims;
2. Ordered and/or provided diagnostic services for reasons other than medical necessity, and
3. Billed for medical services that were not rendered or that were not medically necessary.

[8] The Registrar determined that there were RPG under s. 75(1)(a) and signed the Appointment of Investigators on October 1, 2018. The appointment conferred all the powers of ss. 76-78 of the Code on the investigators. Under s. 76(2), an investigator may conduct an unannounced inspection of a member’s place of practice and “may examine anything found there that is relevant to the investigation”.

[9] Pursuant to that appointment, on December 10, 2018, College investigators conducted an unannounced inspection of the Appellant’s place of practice. During the inspection, the investigators came across spreadsheets listing patients who had received cardiac diagnostic services and booking sheets from Hart Medical Services, which provides cardiac diagnostic tests (the “Hart Medical documents”).

[10] The investigators also obtained images of all the computers in the clinic. Some of the data that was extracted from the computer in the Appellant’s private office was later found to contain personal correspondence and financial information.

[11] During the investigation, the College also obtained OHIP billing records that revealed high volumes of point-of-care testing and diagnostic tests, such as ear syringing/curetting, urinalysis, urine drugs screens (“UDS”), pregnancy tests and nerve conduction studies using Diabetic Peripheral Neuropathy Check (“DPN Check”) devices. As part of its investigation, the College interviewed the Appellant on two occasions. During both interviews, the Appellant said that he obtained all point-of-care tests and other supplies from Medical Mart. This information was subsequently confirmed in writing by his lawyer.

[12] As part of its investigation the College obtained 40 of the Appellant’s patient charts. The charts were selected to obtain a sample of the Appellant’s practice with respect to point-of-care testing and cardiac diagnostic testing that were identified as issues in the investigation. The College retained Dr. Linda Klapwyk, a family physician practicing in Toronto, to review the charts selected and provide her opinion as to whether the services rendered or referred by the Appellant were medically necessary and met the standard of practice of the profession.

[13] The Appellant, together with his legal counsel, attended an interview with the College investigator and Dr. Klapwyk. During the interview, the Appellant volunteered to the College representatives that Hart Medical paid him a referral fee of $20 per patient, in exchange for office space. This practice ended when somebody told him “it is not appropriate”.

The Tribunal partially grants the Appellant’s pre-hearing Charter motion to exclude evidence obtained in the inspection

[14] Through his counsel, the Appellant brought a pre-hearing motion to exclude the evidence obtained pursuant to the inspection on December 10, 2018, including personal information that had been seized from his office computer and the Hart Medical documents. He also sought to exclude the admissions he made during the interviews, regarding referral fees from Hart Medical, as derivative evidence. The Appellant argued the search of his office was unlawful in that it violated his s. 8 Charter rights, and the interviews were connected to that breach. The Appellant did not seek to exclude OHIP records or purchase orders. The sole relief sought was the exclusion of certain pieces of evidence obtained in the inspection pursuant to s. 24(2) of the Charter.

[15] The Tribunal found the retrieval of personal information off the Appellant’s computer was unauthorized, and the admission of such evidence would bring the administration of justice into disrepute: Charter Decision, at paras. 33 and 108. In contrast, the Tribunal determined there were RPG to seize the Hart Medical documents based on the allegation that the Appellant ordered diagnostic tests for improper reasons. While it was not a violation of s. 8 in its own right, the Tribunal found the seizure of the documents was sufficiently connected to the Charter breach in respect of the personal information on the Appellant’s computer. The Appellant’s admissions about the referral fees during the interviews, however, were not sufficiently connected, whether causally, contextually or temporally. The Tribunal concluded that admitting the Hart Medical documents would not bring the administration of justice into disrepute: Charter Decision, at paras. 64, 86-93 and 109. In the result, the Tribunal admitted the Hart Medical documents and the investigative interviews but excluded the personal information from the Appellant’s computer.

The Tribunal finds the Appellant engaged in professional misconduct

[16] The Appellant was self-represented during the discipline hearing.

[17] After the five-day hearing, the Tribunal concluded that the College had proven the allegations against the Appellant and that his conduct was motivated by personal financial gain at the expense of his patients’ care and the public health care system. The Tribunal made the following findings:

1. The Appellant’s billing claims for certain point-of-care services were unsubstantiated.

[18] The College’s evidence demonstrated a vast discrepancy between the amounts the Appellant billed to OHIP for certain services and the actual quantity of supplies purchased from Medical Mart to complete those services. For example, the evidence showed that the Appellant submitted over 14,000 claims for ear syringing/curetting, but purchased only 100 curettes and 180 tips from Medical Mart.

[19] The Appellant claimed for the first time in the hearing that he had purchased supplies from elsewhere. In support of his explanations for the discrepancy, the Appellant adduced a general ledger purporting to list all medical supplies that he allegedly purchased at various pharmacies (the “Ledger”). There were no itemized invoices to go along with the Ledger. The one invoice the Appellant adduced from a source other than Medical Mart indicated orders that were not reflected in the Ledger. The Tribunal found the Appellant’s explanations untruthful and the supporting documentation unreliable. It concluded the Appellant had billed for tests he did not conduct.

2. The Appellant improperly billed for nerve conduction studies.

[20] As with the point-of-care services, there was a large discrepancy between the supplies purchased and the billings for nerve conduction studies. The Tribunal rejected the Appellant’s evidence, raised for the first time at the hearing, that he purchased biosensors from another physician as there was no documentary evidence to support that assertion: Misconduct Decision, at paras. 36-39.

[21] In any event, the College produced compelling evidence that showed the device the Appellant used for the nerve conduction studies, the Diabetic Peripheral Neuropathy (DPN) Check, is not covered under the OHIP Schedule of Benefits. Based on the Schedule of Benefits, the Tribunal concluded that the Appellant billed OHIP for nerve conduction studies he knew or ought to have known were ineligible: Misconduct Decision, at paras. 40-43.

3. The Appellant took referral fees from Hart Medical.

[22] The Tribunal found that the Appellant received referral fees from Hart Medical, thus creating the appearance of a conflict of interest that members of the profession would reasonably regard as disgraceful, dishonourable or unprofessional. In reaching this conclusion, it relied upon the Hart Medical documents and the Appellant’s admissions during the interviews: Misconduct Decision, at paras. 46-52.

[23] At the hearing, the Appellant resiled from his admissions, claiming he was stressed in the College interviews. He also relied on hearsay evidence from Tammy Singh, the owner of Hart Medical, who spoke to a College investigator over the phone and told him that the office space was rented for a fee based on hours of use. In rejecting her evidence, the Tribunal noted that Ms. Singh “had good reason not to admit paying referral fees, as it would have suggested Hart Medical and perhaps its physicians acted improperly”: Misconduct Decision, at paras. 50-51.

4. The Appellant failed to maintain the standard of practice of the profession.

[24] At the hearing, Dr. Klapwyk was qualified to give expert opinion evidence in respect of the standard of practice of the profession in family medicine and OHIP billing. Based on her review of the 40 patient charts, she opined that there was a consistent pattern of ordering tests, referrals and investigations where they were not medically indicated and that this exposed patients to potential harm. The charts lacked supporting documentation and contained template answers that were often contradicted by other information in the chart: Misconduct Decision, at paras. 54-62.

[25] Under cross-examination Dr. Klapwyk’s opinion was not altered, and the Appellant did not call any expert opinion evidence to support his assertion that the impugned testing was clinically indicated: Misconduct Decision, at paras. 63-65. The Tribunal concluded that, in light of its finding about the referral fees and Dr. Klapwyk’s opinion evidence, it was more likely than not that the Appellant’s intention was to increase his income rather than provide medical care in the patient’s interest. As such, he failed to maintain the standard of practice of the profession: Misconduct Decision, at para. 66.

The Tribunal revokes the Appellant’s Certificate of Registration

[26] After determining the Appellant had engaged in professional misconduct, the Tribunal imposed a series of penalties, including an order revoking the Appellant’s Certificate of Registration. In reaching this decision, the Tribunal did not receive any evidence from the Appellant regarding his personal circumstances: Penalty Decision, at paras. 22-23 and 30.

Issues Raised on this Appeal

[27] The following issues are raised on this appeal:

1. Should the Tribunal have excluded the Hart Medical documents and the Appellant’s admissions about the referral fees pursuant to ss. 8 and 24(2) of the Charter?
2. Did the Tribunal improperly rely on opinion evidence?
3. Did the Tribunal err by placing no weight on the Ledger?
4. Did the Tribunal fail to assist a self-represented litigant?
5. Is the penalty unfit?

Jurisdiction and Standard of Review

[28] Pursuant to s. 70 of the Code, the Court has jurisdiction to hear statutory appeals from disciplinary proceedings of the College on questions of law, fact or both. The Court has all the powers of the panel that dealt with the matter.

[29] As a statutory appeal, this matter is to be decided on appellate standards, i.e., correctness in relation to an error of law, and palpable and overriding error with respect to findings of fact and of mixed fact and law (absent an extricable question of law): Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R 653, at para. 37.

[30] Palpable and overriding error is a highly deferential standard that recognizes the expertise and competence of the trier: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 12-14. It is not the role of appellate courts to second-guess the weight assigned to items of evidence by the trier: Housen, at para. 23. In particular, the fact that an alternative factual finding could be reached based on a different attribution of weight by an appellate court does not mean that a palpable and overriding error has been made: Salomon v. Matte-Thompson, 2019 SCC 14, [2019] 1 S.C.R. 729, at para. 33.

[31] A penalty imposed by a regulatory tribunal will be overturned only if it is shown that the tribunal made an error in principle or that the penalty was “clearly unfit”. To be clearly unfit, the penalty must be disproportionate or fall outside the range of penalties imposed in other cases: Mitelman v. College of Veterinarians of Ontario, 2020 ONSC 3039 (Div. Ct.), at para. 18.

Issue #1: Should the Tribunal have excluded the Hart Medical documents and the Appellant’s admissions about the referral fees pursuant to ss. 8 and 24(2) of the Charter?

[32] I note at the outset that this ground of appeal relates to only one of the Tribunal’s findings of professional misconduct: that the Appellant collected referral fees from Hart Medical. This argument does not affect the central finding that the Appellant defrauded OHIP. That said, for the following reasons, the argument fails in any case.

[33] The Appellant’s submissions on this issue rely on the Court of Appeal’s analysis of the constitutional validity of ss. 75(1)(a) and 76(1) in College of Physicians and Surgeons of Ontario v. Sazant, 2012 ONCA 727, 113 O.R. (3d) 420. There the Court held that the College’s investigatory powers are constrained by the requirement to have RPG for believing a member committed an act of professional misconduct or is incompetent. RPG is not only a prerequisite for the Appointment of Investigators under s. 75(1)(a), but it also defines the scope of what may be reasonably and constitutionally subject to the College’s search and seizure powers under s. 76(1) once an investigation is authorized.

[34] The Appellant submits the Tribunal erred on the pre-hearing Charter motion in two ways. First, it placed the onus on the Appellant to prove the search was unjustified, when in fact it was the College’s burden to prove it was justified.

[35] The Appellant’s submission relies on an inapt analogy to warrantless searches in the criminal context. In any event, the College adduced ample evidence demonstrating that obtaining the Hart Medical documents was authorized and reasonable. This included evidence from three investigators who attended the office inspection, including the lead investigator who prepared the RPG package and led the inspection.

[36] Second, the Appellant argues that the Appointment of Investigators lacked the constitutionally mandated description of RPG described in Sazant to authorize the seizure of the Hart Medical documents. I disagree. As the Court of Appeal made clear in Sazant, the authorized scope of the investigation must be determined in consideration of the entirety of the materials reviewed by the Registrar. In this case, the material before the Registrar included a memo from the Investigator requesting an investigation into whether the Appellant “ordered and/or provided diagnostic services for reasons other than medical necessity.” Referring patients for cardiac testing – diagnostic tests – in exchange for a fee is clearly relevant to an investigation into whether the Appellant ordered or provided diagnostic services for reasons other than medical necessity. Consequently, there were RPG to investigate the referrals for cardiac testing.

[37] I would add that the Tribunal’s finding is consistent with an established line of authority providing that statutory investigative powers given to regulated health colleges must be interpreted in a broad and purposive manner, consistent with their obligation to regulate professions in the public interest: Pharmascience Inc. v. Binet, 2006 SCC 48, [2006] 2 S.C.R. 513, at paras. 36-37; Gore v. College of Physicians and Surgeons of Ontario, 2009 ONCA 546, 96 O.R. (3d) 241, at paras. 17 and 29; Beitel v. The College of Physicians and Surgeons, 2013 ONSC 4658 (Div. Ct.), at para. 42; Sazant, at para. 99.

[38] The Appellant’s third complaint is, assuming he is correct in identifying a s. 8 breach with respect to the Hart Medical documents, the Tribunal erred in failing to exclude them pursuant to s. 24(2) of the Charter. He argues that, by extension, the statements about the referral fees were derivative of the breach in seizing the Hart Medical documents and should have been excluded.

[39] I disagree, for two reasons. First, the Tribunal made no palpable or overriding error in finding that the statements the Appellant made regarding the referral fees were not temporally, contextually or causally connected to the seizure of the Hart Medical documents to be considered derivative evidence. The subject of the Hart Medical documents was never raised during either interview. While the College investigator asked about lease arrangements, the subject of cardiac referral fees did not arise until the Appellant, on his own initiative, brought it up.

[40] Second, there is no palpable or overriding error in the Tribunal’s conclusion that the admission of the Hart Medical documents would not bring the administration of justice into disrepute. While the Appointment of Investigators lacked much of a description, there was a very detailed description in the Investigator’s memo, clearly setting out the scope of the investigation. The Hart Medical documents, which together showed patients being referred to Hart Medical in exchange for fees, were relevant to an authorized investigation into whether the Appellant provided services or referrals for reasons other than medical necessity. Thus, even if there was a breach in this case, it was not serious. Further, the impact on the Appellant was minimal. As a regulated health professional, he does not enjoy a high expectation of privacy in his business records. Finally, there is strong public interest in the adjudication of a hearing on its merits in the regulatory context, where the purpose is protection of the public. The Tribunal’s findings are owed deference and should not be interfered with in this case.

Issue #2: Did the Tribunal improperly rely on opinion evidence from Dr. Klapwyk?

[41] The Applicant claims Dr. Klapwyk lacked expertise in two areas in which she gave evidence: the DPN Check device that the Appellant used for nerve conduction studies, and her opinion about the Appellant’s point-of-care testing and ordering of diagnostic tests.

[42] I disagree. The Tribunal expressly considered the Appellant’s argument that Dr. Klapwyk’s evidence should be disregarded because she lacked adequate knowledge of the DPN Check device. He was given an opportunity to, and did in fact, cross-examine Dr. Klapwyk on her qualifications in respect of this evidence. The Tribunal decided to give her evidence weight because she had informed herself about the device and had requisite expertise in the underlying medical condition and physiology, which allowed her to proffer a reliable opinion. That included her view that, contrary to the Appellant’s assertion, the DPN Check device is not indicated for use in “back pain.” The Appellant advanced no expert evidence to suggest the device is in fact indicated for use in back pain. In any event, the decisive factor in the Tribunal’s determination that the Appellant had improperly billed for nerve conduction studies was the evidence that those studies were plainly ineligible under the OHIP Schedule of Benefits.

[43] Further, I disagree that Dr. Klapwyk’s opinion about the point-of-care tests is irrelevant because it was “only” based on her review of 40 charts. The scope of the investigation was to examine the Appellant’s point-of-care testing and ordering of diagnostic tests. Accordingly, the College selected charts where the Appellant billed for point-of-care tests or ordered cardiac diagnostic tests. There was no point in selecting charts where such tests were not performed or ordered.

Issue #3: Did the Tribunal err by placing no weight on the Ledger?

[44] The Tribunal gave the Ledger little weight, for good reasons, and made no palpable and overriding error. First, the Appellant did not have any itemized invoices to support the amounts set out. Second, the Ledger contradicted the answers that he gave during two interviews in the course of the investigation – with his lawyer present – to the effect that he purchased virtually all his medical supplies from Medical Mart. Third, several days after the second interview, the lead investigator wrote to the Appellant’s lawyer. The letter listed the relevant tests and procedures and information about each. Each ended with the statement “Ordered through Medical Mart.” The letter asked for confirmation that the information in the letter was correct. The lawyer wrote back to confirm the information was correct.

[45] This demonstrates that the problem was not, as Mr. Slansky repeatedly suggested in his submissions, that the Appellant was a “bad” or “sloppy” record keeper. Rather, he was out and out deceitful.

Issue #4: Did the Tribunal fail to assist a self-represented litigant?

[46] The Appellant submits the Tribunal failed to render proper assistance to the Appellant, who represented himself at the hearing. He points to the inconsistent approach to fact and expert witnesses and the failure to advise the Appellant that he should summon Ms. Singh to give her evidence and avoid the hearsay issue altogether.

[47] I disagree. The transcripts clearly demonstrate that the Tribunal patiently and carefully assisted the Appellant throughout the process. The contents of Ms. Singh’s statements were admitted through other witnesses. In any case, her evidence would not have displaced the weight of the Appellant’s admissions about the referral fees.

Issue #5: Is the penalty unfit?

[48] At the hearing the Appellant conceded that a lesser penalty would depend on this court accepting the Tribunal erred in some of its findings. As I find no such error, there is no basis to reduce the penalty. Indeed, given the compelling evidence that the Appellant intentionally billed OHIP for thousands of tests he did not provide, received kickbacks for referring patients to the Hart Medical clinic, and conducted unnecessary tests on numerous patients, the revocation of his license is unquestionably fit.

Conclusion

[49] The appeal is dismissed. In accordance with the agreement of counsel, the Appellant shall pay costs of $15,000 inclusive.

Baltman J.

I agree.

Backhouse J.

I agree.

Schabas J.

Released: May 1, 2023