Lee v. College of Physicians and Surgeons

66 O.R. (3d) 592

[2003] O.J. No. 3382

Court File No. 610/01

Ontario Superior Court of Justice

Divisional Court

Blair, R.S.J., Brockenshire and Somers JJ.

August 26, 2003

Administrative law -- Duty to act fairly -- Duty to give reasons -- Administrative tribunals having duty to give reasons for their decisions -- Doctor accused of sexually abusing patient -- Discipline Committee dismissing application for production of notes and records of psychologist who treated complainant -- Panel breaching duty of fairness to doctor by failing to give adequate reasons for its decision.

Administrative law -- Production of documents -- Doctor accused of sexually abusing patient -- Doctor bringing application at disciplinary hearing for production of notes and records of psychologist who treated complainant -- Complainant's reliability and credibility being central issue at hearing -- Doctor adducing evidence on application which clearly indicated that notes and records would be relevant to that issue -- Discipline Committee dismissing application on ground that it lacked jurisdiction -- Panel also finding that requirements of first stage of process governing production of third party records had not been met -- Appeal allowed -- Panel breaching duty of fairness to doctor by failing to give adequate reasons for its decision -- Panel's decision inexplicable.

The appellant doctor was charged with sexually abusing a patient. The complainant first revealed her allegations of sexual abuse during therapy sessions with a psychologist, Y. Y's notes and records had been produced in concurrent civil proceedings between the appellant and the complainant, but proved to be illegible, and Y was not prepared to have them transcribed. Defence counsel brought a preliminary motion before the Discipline Committee seeking an order that Y transcribe her notes. The Committee refused on the basis that it lacked jurisdiction to make such an order. Defence counsel then brought a further motion, returnable at the start of the hearing, for production of Y's notes and records. The motion was supported by affidavits of a psychologist and psychiatrist, both of whom swore that Y's notes would be critical in assessing the questions of the complainant's memory, reliability and credibility, and a third affidavit from a psychiatrist who had examined the complainant's medical records and who opined that the history included traits and suggestions of a histrionic personality [page593] disorder. The practice of the Discipline Committee was to apply the decision of the Supreme Court of Canada in R. v. O'Connor to such motions for production. The motion was dismissed. The Panel stated"We are of the view that we do not have the jurisdiction to make the type of order requested", and went on to state that, while it was not necessary to decide the issue, they were not satisfied that the requirements of the first stage of the process governing production of third party records had been met so as to permit disclosure of the documents and review by the Panel. The appellant was convicted. The sentence imposed was a reprimand, the revocation of his Certificate of Registration, and an order for payment of expenses and costs. The appellant appealed.

Held, the appeal should be allowed.

The credibility and reliability of the complainant's evidence was the central issue at the hearing. No explanation was given for the Panel's ruling that it lacked jurisdiction to make the order sought. Possibly, the Panel thought that the application was a repetition of the previous motion, which the Panel had dismissed on jurisdictional grounds. The earlier motion for a mandatory order directing Y to transcribe her notes was fundamentally, and jurisdictionally, different from this O'Connor application. The principal test at the first stage of an O'Connor type inquiry is "likely relevance". The Panel had before it affidavits by two psychiatrists and a psychologist, who swore that in their opinion a legible version of Y's notes was vitally important in assessing psychiatric issues relevant to the complainant's reliability and her ability to accurately perceive and report events. The Panel should have obtained and examined the notes and records of Y, who was present with her records, so that it could form an informed opinion as to whether or not it contained anything relevant to the issues before it, and then sought submissions of counsel on whether such relevance outweighed the complainant's privacy interests. The lack of reasons given by the Panel for its decision made it impossible to know what motivated the Panel to come to the opposite conclusion. One aspect of the duty of fairness is the duty to give reasons. That obligation applies to administrative tribunals. In addition to the requirements under many statutes, the obligation of a tribunal to give reasons now exists in the common law. The Panel's decision that it lacked jurisdiction was incorrect. Its decision that the requirements of the first stage of the O'Connor process had not been satisfied was inexplicable. The decision of the Panel denied the appellant natural justice and procedural fairness.

APPEAL from a decision of the Discipline Committee of the College of Physicians and Surgeons.

Cases referred to

Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193, 243 N.R. 22; Gray v. Ontario (Disability Support Program, Director) (2002), 2002 7805 (ON CA), 59 O.R. (3d) 364, 212 D.L.R. (4th) 353 (C.A.); London (City) v. Ayerswood Development Corporation, 2002 3225 (ON CA), [2002] O.J. No. 4859, 167 O.A.C. 120 (C.A.); Ontario Public Service Employees Union and R. in Right of Ontario (Re) (1984), 1984 2204 (ON SC), 45 O.R. (2d) 70, 2 O.A.C. 351, 5 D.L.R. (4th) 651 (Div. Ct.) (sub nom. Ontario Public Service Employees Union and Ministry of Correctional Services (Re)); R. v. Batte (2000), 2000 5751 (ON CA), 49 O.R. (3d) 321, 145 C.C.C. (3d) 449, 34 C.R. (5th) 197, [2000] O.J. No. 2184 (QL) (C.A.); R. v. Braich, [2002] 1 S.C.R. 903, 2002 SCC 27, 210 D.L.R. (4th) 635, 285 N.R. 162, 162 C.C.C. (3d) 324, 50 C.R. (5th) 92, [2002] S.C.J. No. 29 (QL); R. v. Brown (2002), 2002 41599 (ON CA), 61 O.R. (3d) 619, 170 C.C.C. (3d) 37, 7 C.R. (6th) 129, [2002] O.J. No. 3882 (C.A.); R. v. Burns, 1994 127 (SCC), [1994] 1 S.C.R. 656, 89 C.C.C. (3d) 193, 29 C.R. (4th) 113 (sub nom. R. v. B. (R.H.)); R. v. Mills, 1999 637 (SCC), [1999] 3 S.C.R. 668, 75 Alta. L.R. (3d) 1, 180 D.L.R. (4th) 1, 248 N.R. 101, [2000] 2 W.W.R. 180, 69 C.R.R. (2d) 1, 139 C.C.C. (3d) 321, 28 C.R. (5th) 207 (sub nom. R. v. M. (B.J.), Mills v. Canada (Attorney General)); [page594] R. v. O'Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411, 130 D.L.R. (4th) 235, 191 N.R. 1, [1996] 2 W.W.R. 153, 33 C.R.R. (2d) 1, 103 C.C.C. (3d) 1, 44 C.R. (4th) 1 (sub nom. R. v. O'Connor (No. 2)); R. v. Robert Lee, unreported; Sheppard v. R., [2002] 1 S.C.R. 869, 2002 SCC 26, 211 Nfld. & P.E.I.R. 50, 210 D.L.R. (4th) 608, 284 N.R. 342, 633 A.P.R. 50, 162 C.C.C. (3d) 298, 50 C.R. (5th) 68, [2002] S.C.J. No. 30 (QL) (sub nom. R. v. Sheppard (C.))

Statutes referred to

Regulated Health Professions Act, 1991, S.O. 1991, c. 18, Sched. 2, s. 70(3)

Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s. 12

Counsel

David M. Porter and Sara J. Erskine, for appellant.

Debbie Calderwood, for respondent.

Judgment

The judgment of the court was delivered by

[1] BROCKENSHIRE J.: -- This is an appeal from the conviction of the appellant by a Panel of the Discipline Committee of the College of Physicians and Surgeons of Ontario on August 24, 2001. On April 19, 2002, after submissions, the sentence imposed was a reprimand, the revocation of Dr. Lee's Certificate of Registration, and an order for payment of expenses and costs. The Panel was aware that in another case, a constitutional challenge has been launched against s. 51.5 of the applicable Code of Conduct (the zero tolerance provision) but indicated that regardless of the outcome of such challenge, in its view the appropriate penalty would be the revocation of registration as imposed.

[2] The charge of which Dr. Lee was found guilty was one of sexually abusing a patient.

[3] Dr. Lee obtained his M.D. in 1980. Since 1986, he was with a walk-in clinic and was pursuing his interest in psychotherapy, hypnotherapy and stress management. In 1996, he published a book dealing with these subjects, and with how to overcome emotional issues.

[4] The complainant is a woman, married for 20 years with two teenage children and working. She started seeing Dr. Lee in June of 1994, for grief counselling, stress management and marriage counselling. One of her problems was an affair with a co-worker. It is common ground that she was distraught, emotional, conflicted and confused. She attended regular therapy sessions with Dr. Lee until the fall of 1995, when she started seeing a psychologist, Ms Yablo. The basic tenor of the complaint was of repeated hugs, caresses, sexual touching and two acts of fellatio. Dr. Lee denied all of this except for some "supportive hugs", and he [page595] alleged the complainant once grabbed his genitals, which she denied. All of the alleged incidents would have taken place in the private office of Dr. Lee. An assessment of the credibility and reliability of the evidence of the complainant was obviously critical at the hearing.

[5] Counsel for the appellant raised several grounds of appeal. Without dismissing the others, in my view it is only necessary to deal with one of them.

[6] The complainant first revealed her allegations of sexual abuse to Ms Yablo during the course of her therapy sessions. Defence counsel for Dr. Lee sought production of Ms Yablo's notes and records. While they existed, and were apparently voluminous, and had been produced in concurrent civil proceedings between the complainant and the doctor, in which an order had issued granting relief from the implied undertaking rule so that the doctor could use the records at the discipline hearing, the records proved to be illegible and Ms Yablo was not prepared to have them transcribed.

[7] Defence counsel brought a preliminary motion before the Discipline Committee seeking an order that Ms Yablo transcribe her notes. That was refused, on the simple basis that the Committee lacked jurisdiction to make such an order. Defence counsel then brought a further motion, returnable at the start of the hearing, for production of Ms Yablo's notes, and subpoenaed her and her notes and records. The motion was supported by affidavits from a psychiatrist and a psychologist, both of whom swore that Ms Yablo's notes would be critical in assessing the questions of the complainant's memory, reliability and credibility, and a third affidavit from a psychiatrist who had examined the medical records of the complainant and who opined the history included "traits and suggestions of a personality disorder, particularly but not exclusively histrionic personality disorder, conversion reactions and indications of somatization, which raise concerns regarding her ability to accurately perceive and report events".

[8] The practice of the Discipline Committee has been to apply the Supreme Court of Canada decisions of R. v. O'Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411, 103 C.C.C. (3d) 1, and R. v. Mills, 1999 637 (SCC), [1999] 3 S.C.R. 668, 139 C.C.C. (3d) 321, to such motions for production. This was accepted by all counsel before us and before the Panel.

[9] There was, of course, the obvious problem for the Panel of what to do with illegible records, but counsel for the doctor provided particulars, through the affidavit of Norma M. Priday, of a procedure adopted by Madam Justice Chapnik when she was faced with a similar problem in a criminal case of R. v. Robert Lee (unreported, referred to in an affidavit filed as Tab 8, appellant's [page596] authorities). That was a sexual assault case. An O'Connor motion was made before her, and she was unable to read the records of one physician. She simply subpoenaed the physician to attend at court, where in the absence of everyone except the doctor, the judge and a court reporter, the doctor was required to read his records aloud while the court reporter made a record. The transcript was prepared which could be considered by the judge, and released in whole or in part to the defence and Crown if the O'Connor motion was successful. In that particular case, Madam Justice Chapnik released the transcript first to the independent counsel for the complainant who decided not to continue with the trial.

[10] The transcript of the hearing shows that from p. 1-6 to p. 1-107, the Panel received submissions from defence counsel, the prosecutor, and counsel for the College, on matters of issue estoppel, the propriety of the interesting solution adopted by Madam Justice Chapnik, the jurisdiction of an administrative tribunal, the legal tests laid down in the decisions in the Supreme Court of Canada in O'Connor and in Mills, and in the Ontario Court of Appeal in R. v. Batte (2000), 2000 5751 (ON CA), 49 O.R. (3d) 321, [2000] O.J. No. 2184 (QL) (C.A.). A quite detailed discussion followed concerning the strengths and weaknesses of the affidavit evidence filed by the three experts in support of the defence submission, as well as a review of other documentary and prosecution evidence already available, in support of the prosecutor's position that no further production was needed to make full answer in defence.

[11] The Panel adjourned for lunch, and after lunch the chairperson of the Panel delivered the decision of the Panel, which I quote as follows:

The Panel has considered the evidence and the submissions presented by the defence and prosecution and advice of our counsel.

We have decided the motion should be dismissed.

We are of the view that we do not have the jurisdiction to make the type of order requested.

While it is not necessary for us to decide the issue, based on the record before us, we are not satisfied that the requirements of the first stage of the process governing production of third party records as outlined in cases have been met so as to permit disclosure of the documents and review by this Panel.

[12] The argument raised before us related to fairness of the hearing. This is a branch of the general area of denial of natural justice. In London (City) v. Ayerswood Development Corporation, 2002 3225 (ON CA), [2002] O.J. No. 4859, 167 O.A.C. 120 (C.A.), at para. 10, our Court of Appeal said that: [page597]

When considering an allegation of a denial of natural justice, a court need not engage in an assessment of the appropriate standard of review. Rather, the court is required to evaluate whether the rules of procedural fairness or the duty of fairness have been adhered to. The court does this by assessing the specific circumstances giving rise to the allegation and by determining what procedure and safeguards were required in those circumstances in order to comply with the duty to act fairly.

[13] The transcript of the hearing reveals that a good deal of the argument before the Panel was over whether what was being sought was what had been denied before -- an order for the transcription of Ms Yablo's notes. That had been denied before on jurisdictional grounds. As no explanation was given by the Panel that it lacked jurisdiction now, it may be that the Panel simply accepted the prosecution's submission, that this was a repetition of the previous application.

[14] In my view, the earlier application, for a mandatory order directing Ms Yablo to transcribe her notes, was fundamentally different, and jurisdictionally different, from this application. The Panel is a statutory tribunal, without inherent jurisdiction, and limited by the provisions of its governing statute and regulations. Not only is there nothing in the statute or regulations authorizing a mandatory order of that sort, the rules of procedure of the Discipline Committee specifically provide that "a summons for the production of documents that are not in the possession of a party shall not require the production of any documents before the commencement of the hearing" (Rule 7.03(1)).

[15] Here however, the hearing had commenced. Ms Yablo was present with her records, having been duly summonsed to give evidence at the hearing, pursuant to s. 12(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22. The first order of business was the O'Connor application. The practice of the Discipline Committee was to entertain and deal with O'Connor applications, following the law and procedure of the criminal courts. That was not disputed by the prosecution counsel or the counsel for the Discipline Committee. The particular subject of this O'Connor application was the notes and records of Ms Yablo in relation to her treatment of the complainant. There is no question in my mind that the Panel had the jurisdiction to swear in and hear from Ms Yablo.

[16] The Panel had been provided with the information on how Madam Justice Chapnik had dealt with the problem of illegible records, by in effect having a recalcitrant doctor attend, be sworn, and then dictate his notes before her and the court reporter, in the absence of counsel and the parties, so that legible copies of [page598] the records could be produced. Here, the Panel was in the position of having before it not only counsel for the defence and prosecution, but also counsel for the Discipline Committee, who could provide independent legal advice and assistance. It may well have been that the Panel could have decided to create a variant from the process adapted by Madam Justice Chapnik, perhaps utilizing its independent counsel, in order to obtain a copy of the notes and records suitable for perusal, while at the same time preserving the confidentiality of those documents until a decision could be reached on the O'Connor application. However, since the hearing was now commenced, it was up to the Panel, and within its jurisdiction, to conduct the hearing so that fairness to all of the parties, including the witness, Ms Yablo, could be achieved.

[17] The Panel added, in its very brief decision, that while it was not necessary for them to decide it, in view of their jurisdictional finding, they were ". . . not satisfied that the requirements of the first stage of the process governing production of third party records as outlined in cases have been met . . .".

[18] The transcript shows, in 100 or so pages of submissions by counsel, that counsel agreed that the principal test at the first stage of an O'Connor type inquiry was "likely relevance". The Panel had before it affidavits by two psychiatrists and a psychologist, who swore that in their opinion a legible version of Ms Yablo's notes was vitally important in assessing psychiatric issues relevant to the complainant's reliability and her ability to accurately perceive and report events. One indicated that the complainant may be suffering from a histrionic personality disorder. The defence argued that this was very relevant to the credibility of the complainant, and was not contradicted by any of the prosecution evidence. The prosecution's position was that the defence was going on a fishing expedition, the complainant's treating psychiatrist had not reached the same conclusion, there was a high privacy interest in records of this kind, and the records of Ms Yablo were not needed for Dr. Lee to make a full answer and defence. The prosecutor had no evidence to tender in opposition to the evidence filed by the defence.

[19] In view of the foregoing, I cannot understand the cryptic conclusion of the Panel. I would have thought that the defence affidavits would have amply satisfied the requirements of the first stage of O'Connor and the later decisions of Mills and Batte. I would further have thought that in fairness, the Panel should have obtained and examined the notes and records of Ms Yablo so that it could form an informed opinion as to whether or not it contained anything relevant to the issues before it, and then sought submissions of counsel on whether such relevance outweighed the privacy [page599] interests of the complainant. The lack of reasons given by the Panel for its decision makes it impossible to know what motivated the Panel to come to the opposite conclusion.

[20] It has been repeatedly said that one aspect of the duty of fairness is the duty to give reasons. There have been several decisions of the Supreme Court of Canada, moving from R. v. Burns, 1994 127 (SCC), [1994] 1 S.C.R. 656, 89 C.C.C. (3d) 193 to Sheppard v. R., [2002] 1 S.C.R. 869, 2002 SCC 26 and R. v. Braich, [2002] 1 S.C.R. 903, 2002 SCC 27 that are summarized in R. v. Brown (2002), 2002 41599 (ON CA), 61 O.R. (3d) 619, 170 C.C.C. (3d) 37 (C.A.). These are all decisions in criminal cases. However the obligation to provide reasons also applies in relation to administrative tribunals. See for instance Ontario Public Service Employees Union and R. in Right of Ontario (Re) (1984), 1984 2204 (ON SC), 45 O.R. (2d) 70, 5 D.L.R. (4th) 651 (Div. Ct.) and also Gray v. Ontario (Disability Support Program, Director) (2002), 2002 7805 (ON CA), 59 O.R. (3d) 364, 212 D.L.R. (4th) 353 (C.A.).

[21] In addition to the requirements under many statutes, the obligation of a tribunal to give reasons now exists in the common law. In Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193, the Supreme Court of Canada dealt with the judicial review of the decision of an Immigration officer who refused an application for permission, on humanitarian grounds, to remain in Canada. The court discussed the duty of fairness, observing that requirements could vary with the circumstances, including how closely the nature of the tribunal process resembled the judicial process, the statute within which it was operating, and, at pp. 838-39 S.C.R., p. 212 D.L.R., the importance of the decision to the party:

The more important the decision is to the lives of those affected and the greater its impact on that person or those persons, the more stringent the procedural protections that will be mandated. This was expressed, for example, by Dickson J. (as he then was) in Kane v. Board of Governors of the University of British Columbia, 1980 10 (SCC), [1980] 1 S.C.R. 1105 at p. 1113, p. 110 D.L.R. (3d) 311:

A high standard of justice is required when the right to continue in one's profession or employment is at stake . . . A disciplinary suspension can have grave and permanent consequences upon a professional career.

The court went on to consider the role of reasons in the fairness analysis, reviewing previous authorities and concluding, at p. 847 S.C.R., p. 219 D.L.R.:

In my opinion, it is now appropriate to recognize that, in certain circumstances, the duty of procedural fairness will require the provision of a [page600] written explanation for a decision. The strong arguments demonstrating the advantages of written reasons suggest that, in cases such as this where the decision has important significance for the individual, when there is a statutory right of appeal, or in other circumstances, some form of reasons should be required. . . . . It would be unfair for a person subject to a decision such as this one which is so critical to their future not to be told why the result was reached.

[22] The Panel decision, quoted above at para. 11, gives no explanation of how they concluded they had no jurisdiction to deal with the application. In my view, the decision reached was incorrect. Likewise, the Panel decision gives no explanation of how they concluded that the requirements of the first stage of the O'Connor process had not been satisfied. In my view, the conclusion is inexplicable. I conclude that the decision of the Panel denied the appellant natural justice and procedural fairness.

[23] I would allow the appeal and order a new hearing, pursuant to s. 70(3) of the Health Professions Procedural Code [Regulated Health Professions Act, S.O. 1991, c. 18, Sched. 2] before a differently constituted Panel of the Discipline Committee of the College of Physicians and Surgeons of Ontario.

[24] Pursuant to the agreement reached by counsel, the appellant shall have his costs of this appeal fixed in the amount of $7,500. The earlier requirement of the Discipline Panel that had Dr. Lee pay costs fixed in the amount of $10,000 and security to reimburse the College for funding for any therapy necessary for the complainant is to be deleted, pursuant to the same agreement by counsel.

Appeal allowed.