DATE: 20010228

DOCKET: C34529

COURT OF APPEAL FOR ONTARIO

RE: DR. BISNAUTH JAGOO (Respondent) –and– THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO (Appellant)

BEFORE: MORDEN, WEILER and FELDMAN JJ.A.

COUNSEL: Susan Chapman and Shaun Nakatsuru, for the appellant

Harry Underwood, for the respondent

HEARD: February 16, 2001

On appeal from the order of the Divisional Court (Madam Justice Jean L. MacFarland, Mr. Justice Michael R. Meehan and Mr. Justice Lawrence C. Kozak) dated March 13, 2000.

O R A L E N D O R S E M E N T

[1] A majority of the Discipline Committee of the College of Physicians and Surgeons (“the Committee”) found Dr. Bisnauth Jagoo (“the Doctor”) guilty of professional misconduct in that he failed to maintain the standard of practice of the profession in his examination of three complainants and engaged in sexual impropriety with two of the three complainants.

[2] The Doctor appealed and the Divisional Court set aside the decision of the Committee. We agree with the decision of the Divisional Court. It did not, as the appellant submits, set aside the Committee’s decision because of mere deficiencies in its reasons but, rather, because the Committee made errors in its apprehension of the evidence which went to he root of its findings of credibility on which the case turned.

[3] Credibility was central to the issue before the Committee and it is obvious that the evidence of collusion had an important bearing on that issue. The evidence of the close relationship between the complainants, the timing of their complaints and the fact that, in a statement one of the complainants gave to the police, it was evident that the complainants had discussed their complaints among themselves, ought to have been addressed by the Committee. Instead, the Committee dismissed the submissions of the defence on this point as a theory for which there was no evidence. The fact that the Committee dealt with the evidence of each complainant separately and did not consider it as similar fact evidence does not address the problem.

[4] The Committee accepted that the complainants had discussed their complaints with each other. In dealing with “the defence” submission that K.C. may have influenced the evidence of the other two complainants, the Committee, as we have noted, said that they “failed to find evidence to support the above theories”. This conclusion must have been based on a failure to consider, or a misapprehension of, relevant evidence, which also included that K.C. denied falsely that the other complainants had discussed with her the details of their stories and the fact that J.H.’s allegations changed following her letter of complaint to come into line with K.C.’s allegations.

[5] Further, the Committee’s decision on credibility appeared to have been based principally on the sincerity and demeanour of the complainants while giving evidence and because they recalled detail not matched by the Doctor. With respect to the latter, if the Committee had in mind that the doctor had to recall what occurred from his clinical notes, it did not fully appreciate the evidence because it was his evidence that the visits were routine. More importantly, as the Divisional Court said, in paragraphs 6 to 8 of its reasons, the Committee clearly misapprehended important evidence relating to the credibility of K.C. and J.H.

[6] Based on the errors made by the Committee, the Divisional Court set aside its decision. We are advised that the issue of a rehearing was never raised before the Divisional Court. It has, however, been raised before us. The record discloses evidence which, if properly apprehended, was capable of supporting a finding of professional misconduct. We are of the opinion that the appropriate disposition is an order for a rehearing.

[7] There was evidence presented at the Doctor’s penalty hearing that he is terminally ill. While we shall order a new hearing, in light of this evidence and the fact that the Doctor has substantially closed his practice, the College may wish to exercise its discretion not to proceed.

[8] The Divisional Court ordered the College to pay the costs of the hearing before the Committee. The Committee of the College has no power to order costs of the hearing in favour of the Doctor unless a finding is made that the proceedings should never have been instituted. As the Divisional Court did not make that finding, no order as to costs before the Committee should have been made. The Doctor is entitled to the costs of the hearing before the Divisional Court. Before this court, because success was divided, there should be no costs of the appeal, including the costs of the leave motion.

[9] In the result, the appeal is allowed, without costs, to the extent of adding to the order of the Divisional Court an order for a rehearing and deleting from it the direction that the College pay the costs of the hearing before the Committee.

Signed: “J.W. Morden J.A.”

“K.M. Weiler J.A.”

“K. Feldman J.A.”