Henderson v. The College of Physicians and Surgeons of Ontario

[Indexed as: Henderson v. College of Physicians and Surgeons of Ontario]

65 O.R. (3d) 146

[2003] O.J. No. 2213

Docket No. C38019

Court of Appeal for Ontario

Weiler, Rosenberg and Armstrong JJ.A.

June 5, 2003

Professions -- Physicians and surgeons -- Discipline -- Registrar of College of Physicians and Surgeons not having jurisdiction to refer new allegations of professional misconduct and incompetence of member after discipline hearing has already commenced against member.

The Complaints Committee of the appellant College referred to the Discipline Committee allegations of professional misconduct made by S, a former patient, against the respondent physician. S alleged that the respondent had begun a sexual relationship with her when he was her doctor. The Notice of Hearing was subsequently amended later to include a new allegation that the respondent failed to maintain the standard of practice of the profession relating to his care of S. The discipline hearing began and the respondent pleaded not guilty. During an adjournment, the appellant received a new complaint from another former patient, H, who made her complaint after reading a newspaper account of the discipline hearing. The Complaints Committee referred the allegations relating to H to the Discipline Committee. The Registrar of the College signed the newly amended Notice of Hearing, omitting certain allegations of failure to maintain the standard of practice of the profession that had been made in the previous notice, and including the allegations of H in an appendix. The Discipline Committee decided to accept the Amended Notice of Hearing. The respondent applied for judicial review of that decision. The Divisional Court quashed the Amended Notice of Hearing, holding that the Registrar had no power to alter the nature of ongoing proceedings before a panel of the Discipline Committee. The College appealed.

Held, the appeal should be dismissed.

Professional discipline legislation should be strictly complied with and strictly construed by the courts. The legislature has made it clear in s. 40 of the Health Professions Procedural Code (Regulated Health Professions Act, 1991, S.O. 1991, c. 18, Schedule 2) that amendments after the hearing has commenced are to be made by the panel seized with the case and are limited to correcting errors or omissions of a minor or clerical nature. What was involved in this case was the joinder of two complaints rather than the amendment of an existing Notice of Hearing. The complaints of S and H, and the allegations of professional misconduct and incompetence derived from them, involved distinct and separate offences. The College did not follow the procedure set out in s. 38(1) of the Code. The chair of the Discipline Committee did not select the panel to hold a hearing into the allegations involving H. Rather, that process was short circuited by the presentation of a newly Amended Notice of Hearing signed by the Registrar. The procedure adopted also offended s. 8 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, which provides that where the good character, propriety of conduct or competence of a party is an issue in a proceeding, the party is entitled to be furnished with reasonable information of allegations of this kind before the hearing. The respondent was entitled to be provided with the particulars of H's complaint before the hearing began. That this information was not known to the College before the beginning of the hearing did not relieve it of its obligation under s. 8. While the result in cases such as this is that the College will be unable to proceed with new allegations of professional misconduct where it cannot fulfil its s. 8 obligation, this is as it should be. In [page147] balancing the College's interest in prosecuting and punishing acts of professional misconduct and the physician's interest in a fair hearing when his or her professional life is at stake, the scale must tip in favour of the physician.

APPEAL from an order of the Divisional Court (Pardu, MacKenzie and Cameron JJ.), [2001] O.J. No. 5137, 155 O.A.C. 72 quashing an Amended Notice of Hearing in disciplinary proceedings.

Hryciuk v. Ontario (Lieutenant Governor) (1996), 1996 4013 (ON CA), 31 O.R. (3d) 1, 139 D.L.R. (4th) 577 (C.A.) [Leave to appeal to S.C.C. refused (1997), 223 N.R. 222n], revg (1994), 1994 10547 (ON SC), 18 O.R. (3d) 695, 115 D.L.R. (4th) 227 (Div. Ct.) (sub nom. Hryciuk v. Ontario (Commission of Inquiry into Removal from Office)), consd Other cases referred to Bechamp v. Manitoba Assn. of Registered Nurses (1994), 1994 10973 (MB CA), 95 Man. R. (2d) 81, 115 D.L.R. (4th) 287, 70 W.A.C. 81 (C.A.), revg (1993), 1993 9379 (MB QB), 90 Man. R. (2d) 111, 109 D.L.R. (4th) 399 (Q.B.); Boodoosingh v. College of Physicians and Surgeons of Ontario (1993), 1993 8655 (ON CA), 12 O.R. (3d) 707n (C.A.) [Leave to appeal to S.C.C. refused (1993), 164 N.R. 402n], affg (1990), 73 O.R. (2d) 478, 39 O.A.C. 51 (Div. Ct.); C. (K.) v. College of Physical Therapists (Alberta) (1999), 1999 ABCA 253, 72 Alta. L.R. (3d) 77, [1999] 12 W.W.R. 339 (C.A.); Gardner v. Law Society of British Columbia (1991), 1991 1157 (BC CA), 61 B.C.L.R. (2d) 219, 86 D.L.R. (4th) 334 (C.A.), affg (1990), 1990 409 (BC SC), 46 B.C.L.R. (2d) 122 (S.C.); Matheson and College of Nurses of Ontario (Re) (1980), 1980 2716 (ON CA), 28 O.R. (2d) 611, 111 D.L.R. (3d) 179 (C.A.), affg (1979), 1980 1614 (ON CA), 27 O.R. (2d) 632, 107 D.L.R. (3d) 430 (Div. Ct.); Piller v. Association of Ontario Land Surveyors, 2002 44996 (ON CA), [2002] O.J. No. 2343 (QL), 160 O.A.C. 333, 43 Admin. L.R. (2d) 151 (C.A.); Stoangi and Law Society of Upper Canada (Re) (1978), 1978 1381 (ON SC), 22 O.R. (2d) 274, 93 D.L.R. (3d) 204 (S.C.) Statutes referred to Courts of Justice Act, R.S.O. 1990, c. C.43 Legal Profession Act, 1990, S.S. 1990-91, c. L-10.1, s. 51(3) Regulated Health Professions Act, 1991, S.O. 1991, c. 18, Sched. 2 "Health Professions Procedural Code", ss. 25, 26(2), 38(1), 40 Statutory Powers Procedures Act, R.S.O. 1990, c. S.22, s. 8 Authorities referred to Langan, P. St. J., Maxwell on the Interpretation of Statutes, 12th ed. (London: Sweet & Maxwell, 1969)

Michael Barrack and Sarah Maywood, for applicant (respondent). Lisa Brownstone, for respondent (appellant).

The judgment of the court was delivered by

ARMSTRONG J.A.: --

Background

[1] The issue raised in this appeal is whether the Registrar of the College of Physicians and Surgeons (the "College") has the jurisdiction to refer new allegations of professional misconduct [page148] and incompetence of a member of the College to the Discipline Committee after a discipline hearing has already commenced against the member.

[2] The procedural history is important in this case in order to appreciate the context in which the Registrar signed a newly Amended Notice of Hearing containing the new allegations.

[3] On April 19, 2000, the Complaints Committee of the College referred to the Discipline Committee allegations of professional misconduct made by Ms. S. against Dr. Henderson. Ms. S., a former patient of Dr. Henderson, alleged that Dr. Henderson had begun a sexual relationship with her when he was her doctor.

[4] On June 26, 2001, the College amended the Notice of Hearing to include a new allegation that Dr. Henderson failed to maintain the standard of practice of the profession relating to his care of Ms. S. The discipline hearing commenced on August 7, 2001. Dr. Henderson pleaded not guilty to the charges in the Notice of Hearing. Following the arraignment, the word "patients" was amended to the singular "patient" in the Notice of Hearing.

[5] The hearing continued for four days and was adjourned at the conclusion of the evidence of Ms. S. on August 10, 2001 to be resumed on October 22, 2001.

[6] On September 6, 2001, a College investigator advised counsel for Dr. Henderson that the College had received a new complaint from another former patient, Ms. H., who made her complaint to the College after reading a newspaper account of the discipline hearing.

[7] After reviewing the new complaint, the Complaints Committee referred the allegations relating to Ms. H. to the Discipline Committee on October 11, 2001. On October 12, 2001, the Interim Registrar of the College signed the newly Amended Notice of Hearing. In the newly Amended Notice of Hearing, the Registrar omitted certain allegations of failure to maintain the standard of practice of the profession that had been in the previous notice. The body of the new notice was otherwise identical to the previous notice and was not changed to take into account the allegations of Ms. H. It referred only to Appendix A, which contained the particulars of the allegations of the original complainant, Ms. S. Although the body of the Notice made no reference to the particulars of the allegations of Ms. H., an Appendix B was added to the Notice containing the allegations of Ms. H. I assume the failure to refer to Appendix B in the body of the Notice of Hearing was an oversight which is of no moment in this appeal.

[8] On October 15, 2001, counsel for Dr. Henderson advised counsel for the College that, in his view, the Discipline Committee's jurisdiction to amend a Notice of Hearing was limited to [page149] minor or clerical amendments and that the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 and its Schedule 2, Health Professions Procedural Code (the "Code") did not permit the prosecutor to bring a new complaint forward in mid-hearing. Counsel for Dr. Henderson advised that if the College intended to proceed with the new complaint on the continuation of the hearing, consideration would be given to seeking judicial review.

[9] Counsel for the College responded the next day. Her letter set out the College's position as follows:

I believe that there may be some misunderstanding. I do not believe that Mr. Perrier intends to move before the Discipline Committee to amend the Notice of Hearing. Rather, my understanding is that the Complaints Committee has referred further specified allegations of professional misconduct to the Discipline Committee, and the Interim Registrar incorporated this new referral administratively into a document called an Amended Notice of Hearing. Should it be your view that the allegations ought not be heard together, the appropriate step to take would be to bring a motion to sever the matters before the Discipline Committee. Should it be your view that you will need an adjournment of the hearing, you can discuss that with Mr. Perrier.

[10] Counsel for Dr. Henderson responded to the College's letter as follows:

I have not been able to find any authority in support of the College's position. If there is any authority, would you please refer me to it so that I can take instruction which may avoid unnecessary applications.

[11] On October 23, 2001, counsel for Dr. Henderson sought to quash the newly Amended Notice of Hearing before a single judge of the Divisional Court on the basis that it was a nullity created by the Registrar in the absence of statutory authority.

[12] Justice Then declined to decide the matter on the basis that the Discipline Committee should first rule on the matter, and therefore, the application to the Divisional Court was premature.

[13] The Discipline Committee reconvened on November 26, 2001, and counsel for Dr. Henderson challenged the Committee's jurisdiction to proceed with the newly Amended Notice of Hearing. The Committee decided to proceed and gave brief reasons which included:

We have decided to accept the Amended Notice of Hearing submitted on November 26, 2001 and to have the hearing continue on that basis. This Panel is not being asked to amend the Notice of Hearing and we have concluded that s. 40 of the Code does not apply in this case. The correct procedure has been followed by the College. The Complaints Committee has referred the new complaint to the Discipline Committee. The Registrar has acted, as he has authority to do, to include that new complaint in an Amended Notice of Hearing which has been tendered to this Panel. [page150]

The Panel has considered whether the acceptance of the Amended Notice of Hearing in any way prejudices Dr. Henderson or creates any impediment to his defense so as to result in any unfairness. No evidence was introduced to suggest prejudice or unfairness. In the circumstances of this case, the fact that certain witnesses have testified and have been cross-examined at this stage, in our view, does not prejudice Dr. Henderson or create unfairness. If appropriate, we will entertain a request to recall those witnesses in relation to any new matters raised by the amendment.

If there are any other concerns related to potential prejudice or unfairness then we invite counsel to bring these to our attention at this time so that we can determine whether they can be appropriately dealt with by an adjournment or in some other matter.

We have concluded that proceeding with the hearing based on the Amended Notice of Hearing is consistent with affording Dr. Henderson a fair hearing and with our obligation to the public, the College and Dr. Henderson to ensure that the hearing proceeds in a fair and appropriate manner.

[14] The Discipline Committee then adjourned the proceedings to permit counsel for Dr. Henderson to renew his application for judicial review. The Divisional Court, by order dated November 30, 2001, quashed the newly Amended Notice of Hearing and fixed costs of the application in favour of Dr. Henderson in the amount of $4,000. Pardu J. delivered the reasons for judgment of the court and stated inter alia [at paras. 5-9]:

The College did not move before the panel for an amendment of the Notice of Hearing. The panel of the Discipline Committee was performing an adjudicative function. The College plays many other roles; it regulates the medical profession, investigates wrongdoing and prosecutes misconduct. The Registrar of the College occupies a position akin to general manager of the College, an administrative role, and has no power to alter the nature of ongoing proceedings before a panel of the Discipline Committee. Interference with ongoing proceedings undermines the independence of the adjudicative tribunal.

Whatever the precise limits of the Discipline Committee panel's power to amend a Notice of Hearing, it is clear that the Registrar has no such power, once the hearing has begun. S. 40 of the Health Professions Procedural Code, schedule 2 to the Regulated Health Professions Act (99) S.O. c. 18 provides,

A panel may at any time permit a notice of hearing of allegations against a member to be amended to correct errors or omissions of a minor or clerical nature if it is of the opinion that it is just and equitable to do so and the panel may make any order it considers necessary to prevent prejudice to the member.

S. 8 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 requires that,

Where the good character, propriety of conduct or competence of a party is an issue in a proceeding, the party is entitled to be furnished prior to the hearing with reasonable information of any allegations with respect thereto. [emphasis in original judgment]

Even if new allegations could be added to a complaint before the panel of the Discipline Committee, it would be up to the panel to decide whether that [page151] could be done without unfairness to the physician. [Hryciuk v. Ontario (Lieutenant Governor) (1994), 1994 10547 (ON SC), 18 O.R. (3d) 695, 115 D.L.R. (4th) 227 (Div. Ct.); revd (1996), 1996 4013 (ON CA), 31 O.R. (3d) 1, 139 D.L.R. (4th) 577 (C.A.)]

The Respondent College argues that the physician was treated fairly, and that Notices of Hearing should not be treated with the formality and rigour associated with Statements of Claim, however fairness does not cure the absence of any statutory authority for the actions of the Registrar, and does not mitigate the long term risks to the impartiality and independence of the adjudicative tribunal, should an administrator be empowered to control any part of the proceedings before a panel.

The position of the College in this appeal

[15] Counsel for the College submitted that the Interim Registrar did not require express statutory authority to execute an amended Notice of Hearing after the hearing has started. She submitted that the Registrar's action was purely administrative. The College's Discipline Committee is the master of its own procedure and is entitled to accept an amended Notice of Hearing. Absent a demonstration of unfairness, there is no basis for the court to interfere.

[16] Counsel for the College further submitted that s. 8 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 and the common law requiring fairness and notice do not preclude adding allegations of professional misconduct once a hearing has started. In support of its position, counsel relied on the majority judgment of the Divisional Court in Hryciuk v. Ontario (1994), 1994 10547 (ON SC), 18 O.R. (3d) 695, 115 D.L.R. (4th) 227 (Div. Ct.), at p. 709 O.R., reversed on other grounds by this court at (1996), 1996 4013 (ON CA), 31 O.R. (3d) 1, 139 D.L.R. (4th) 577 (C.A.). I will have more to say about this issue below.

[17] Finally, counsel for the College submitted that s. 40 of the Code is irrelevant to the circumstances of the case at bar. Section 40 permits a panel of the Discipline Committee to amend a Notice of Hearing by correcting errors or omissions of a minor or clerical nature. Counsel observed that the amendments in this case were not made by the Discipline Committee.

The position of Dr. Henderson in this appeal

[18] Counsel for Dr. Henderson submitted that the Code does not confer any power on the Registrar to participate in discipline hearings, and in particular, it does not confer any power on the Registrar to amend a Notice of Hearing that is before a Discipline Committee.

[19] Counsel for Dr. Henderson argued that the power to amend a Notice of Hearing is limited by s. 40 of the Code to correcting errors and omissions of a clerical nature. In support of this submission, counsel submitted that other statutory schemes [page152] expressly grant a broader power of amendment to professional discipline committees. For example, the Saskatchewan Legal Profession Act, 1990, S.S. 1990-91, c. L-10.1, s. 51(3) enables the hearing committee to amend, add to or substitute the charge in the formal complaint where, during the course of the hearing, the evidence showed that the conduct of the member may warrant a charge that is different from or in addition to the original charge. Thus, if the legislature intended that there be a broader power to amend a Notice of Hearing during the course of a hearing, it would have expressly provided for it.

[20] Counsel for Dr. Henderson also relied upon a number of authorities which stand for the proposition that where a statute confers the power to regulate and discipline a member of a profession, the exercise of that power must be strictly complied with.

[21] During the course of oral argument, the counsel for Dr. Henderson submitted, apparently for the first time, that this is not an amendment case at all. He submitted that what has occurred here is the joinder of two complaints. For the Discipline Committee to have jurisdiction to hear the second complaint, it must have been expressly referred to the Discipline Committee in accordance with the Code.

[22] Under the Code, there are five distinct steps which lead to allegations of professional misconduct or incompetence being placed before the Discipline Committee. If any one step is missed, then the Discipline Committee lacks jurisdiction to hear the matter. The five steps are:

(i) A complaint must be made in writing or recorded on tape, film, disk or other medium (s. 25(4)).

(ii) A panel of the Complaints Committee must investigate the complaint (s. 25(1)).

(iii) The Registrar must give the member notice of the complaint (s. 25(5)).

(iv) After investigating the complaint, a panel of the Complaints Committee may, inter alia, refer a specified allegation of professional misconduct or incompetence to the Discipline Committee (s. 26(2)).

(v) The chair of the Discipline Committee shall select a panel from among the members of the Committee to hold a hearing of the allegations of a member's professional misconduct or incompetence (s. 38(1)). [page153]

[23] Counsel for Dr. Henderson submitted that the first four steps appear to have been followed with respect to Ms. H.'s complaint. However, he submitted that the fifth step -- the selection of a panel of members of the Discipline Committee by the chairman was never taken. Instead, the Interim Registrar simply signed an amended Notice of Hearing and sent it to the panel already engaged in hearing the allegations related to the complaint of Ms. S.

[24] Counsel for Dr. Henderson also relied upon Hryciuk, supra, in support of his position. In that case, a judge was appointed, on the recommendation of the Judicial Council, to conduct an inquiry under the Courts of Justice Act, R.S.O. 1990, c. C.43 into certain allegations of misconduct of Judge Hryciuk involving sexual assault and remarks of a sexual nature. After Judge Hryciuk had completed his defence, three new complaints were heard by the inquiry judge. At the conclusion of the inquiry, the inquiry judge recommended that Judge Hryciuk be removed from office.

[25] This court held that the inquiry judge had no statutory authority to hear the new complaints. Abella J.A., in delivering the judgment of the court, stated at p. 13 O.R.:

The three new complaints heard by the inquiry judge after Judge Hryciuk had concluded his defence were not first made to, or investigated by, the Judicial Council. These complaints could not, therefore, be entertained by her. The language of the statute is unambiguous, and leaves no discretion to a judge conducting a s. 50 inquiry to hear new complaints not previously screened by the Judicial Council. Circumventing the statutory requirement that there be a prior vetting by the Judicial Council defeats the whole purpose of the legislative scheme and violates the mandatory nature of the two stage process set out in s. 46 of the Courts of Justice Act.

The inquiry judge had a specific, narrow mandate under the legislation: to conduct an inquiry, not into the general question of whether Judge Hryciuk should be removed, but into whether he should be removed because of these complaints referred to her by the judicial council, namely, the two complaints referred to in the Order in Council. By hearing three additional complaints, not so referred, she exceeded her jurisdiction.

(Emphasis added)

Analysis

[26] There is an abundance of judicial authority and academic commentary to the effect that professional discipline legislation should be strictly complied with and strictly construed by the courts. For example, see [page154] Gardner v. Law Society of British Columbia (1991), 1991 1157 (BC CA), 86 D.L.R. (4th) 334, 61 B.C.L.R. (2D) 219 (C.A.), C. (K.) v. College of Physical Therapists (Alberta) (1999), 1999 ABCA 253, 72 Alta. L.R. (3d) 77, [1999] 12 W.W.R. 339 (C.A.) at p. 88 Alta. L.R., Bechamp v. Manitoba Association of Registered Nurses (1994), 1994 10973 (MB CA), 115 D.L.R. (4th) 287, 70 W.A.C. 81 (Man. C.A.) at p. 288 D.L.R. and P. St. J. Langan, Maxwell on the Interpretation of Statutes, 12th ed. (London: Sweet and Maxwell, 1969) at p. 245.

[27] The underlying policy of the approach of strict construction of professional discipline statutes is based on the theory that the consequences for a person who is subject to the discipline process of his or her professional body carry potentially grave consequences, including the loss of one's livelihood. The ultimate penalty of disbarment or erasure is often referred to as a professional death penalty. Given such consequences, the accused is entitled to have his or her professional regulator strictly adhere to the express provisions of its legislative mandate. Indeed, more than one case has referred to professional discipline proceedings as quasi criminal in nature. See Piller v. Association of Ontario Land Surveyors, 2002 44996 (ON CA), [2002] O.J. No. 2343 (QL), 160 O.A.C. 333 (C.A.) per Cronk J.A. (concurring) at para. 59; Boodoosingh v. College of Physicians and Surgeons of Ontario (1990), 73 O.R. (2d) 478, 39 O.A.C. 51 (Div. Ct.) at pp. 479-80 O.R. (Div. Ct.), affirmed (1993), 1993 8655 (ON CA), 12 O.R. (3d) 707n, leave to appeal to S.C.C. refused (1993), 15 O.R. (3d) xvi, 164 N.R. 402n; Re Matheson and College of Nurses of Ontario (1979), 1980 1614 (ON CA), 27 O.R. (2d) 632, 107 D.L.R. (3d) 430 (Div. Ct.) at pp. 633-34 O.R., p. 432 D.L.R. and Re Stoangi and Law Society of Upper Canada (1978), 1978 1381 (ON SC), 22 O.R. (2d) 274, 93 D.L.R. (3d) 204 (H.C.J.) at p. 277 O.R., p. 207 D.L.R.

[28] Accordingly, I do not accept the position of counsel for the College that the Registrar did not require express statutory authority to execute an amended Notice of Hearing after the hearing has commenced. In my view, the legislature has made it clear in s. 40 of the Code that amendments after the hearing has commenced are to be made by the panel seized with the case and are limited to correcting errors or omissions of a minor or clerical nature.

[29] I accept the submission of counsel for Dr. Henderson that what was involved in this case was joinder rather than the amendment of an existing Notice of Hearing. The complaints of Ms. S. and Ms. H., and the allegations of professional misconduct and incompetence derived from them, involved distinct and separate offences. The joinder of the allegations of Ms. H. with those of Ms. S. involved much more than the amendment of the original Notice of Hearing. [page155]

[30] The College did not follow the procedure set out in s. 38(1) of the Code. The chair of the Discipline Committee did not select the panel to hold a hearing into the allegations involving Ms. H. Rather, that process appears to have been short circuited by the presentation of a newly Amended Notice of Hearing signed by the Interim Registrar. Counsel for the College argued that the original selection of the panel to hear the case against Dr. Henderson, involving the allegations of Ms. S., was sufficient to satisfy the requirements of s. 38(1). I disagree. Based on the authorities cited above, including this court's decision in Hryciuk, this is a case which calls for strict compliance with the express terms of the statute.

[31] Finally, it is my view that the procedure adopted in this case offends the provisions of s. 8 of the Statutory Powers Procedure Act, which provides:

8. Where the good character, propriety of conduct or competence of a party is an issue in a proceeding, the party is entitled to be furnished prior to the hearing with reasonable information of any allegations with respect thereto.

[32] Counsel for the College, as already indicated, argued that s. 8 does not prevent the adding of allegations of professional misconduct after a hearing has commenced. I do not read the majority of the Divisional Court in Hryciuk as assisting the position advanced by the College. The passage relied upon by counsel for the College at p. 709 O.R. raises the question of whether s. 8 precludes evidence that comes to light in the course of a hearing as opposed to raising new complaints after a hearing has commenced. That issue is not before us in this appeal.

[33] In my view, Dr. Henderson was clearly entitled to be provided with the particulars of the complaint of Ms. H. before the hearing commenced. The fact that such information was not known to the College prior to the start of the hearing does not relieve it of its obligation under s. 8. I appreciate that the result in cases such as this is that the College will be unable to fulfil its s. 8 obligation and therefore will not be able to proceed with new allegations of professional misconduct or incompetence in a hearing which has commenced. This is as it should be. In balancing the interest of the College in prosecuting and punishing acts of professional misconduct and the interest of a physician to a fair hearing when his or her professional life is at stake, the scale must tip in favour of the physician. This is one of those cases. The College made it clear at the outset of the case that it would be seeking the revocation of Dr. Henderson's licence.

[34] I agree with the Divisional Court that the Discipline Committee's conclusion that the physician was treated with fairness [page156] does not cure the absence of statutory authority for the actions of the Registrar.

Conclusion

[35] In the result, I would dismiss the appeal on the merits.

Costs

[36] The College appealed the costs order against it in the Divisional Court. In view of the fact that the case raises an issue of some public importance concerning the authority of the Registrar of the College, I would set aside the costs order of the Divisional Court. On the application for leave to appeal to this court, the panel which granted leave referred the costs of that application to us. As to the costs of the appeal, counsel for Dr. Henderson suggested that each side should bear its own costs. I would therefore make no order as to costs of either the application for leave to appeal or the appeal.

Appeal dismissed.