COURT FILE NO.: 691/01

DATE: 20031001

SUPERIOR COURT OF JUSTICE - ONTARIO

(Divisional Court)

RE: DR. SAUL MARKMAN Appellant

- and -

THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO Respondent

BEFORE: McRAE, GRAVELY & JENNINGS JJ.

COUNSEL: Charles Beall, for the Appellant Vicki White, for the Respondent

HEARD: October 1, 2003

E N D O R S E M E N T

McRAE J.:

[1] The appellant, a medical doctor, was charged with four allegations of professional misconduct, together with an allegation of incompetence.

[2] At the outset of the hearing, he pleaded guilty to failure to maintain the standard of practice of the profession and to the allegation of failure to maintain the required records.

[3] The two remaining allegations of misconduct were not proceeded with.

[4] With respect to the allegation of incompetence, the appellant, through his counsel, admitted that there was sufficient evidence that the Committee was justified in making a finding of incompetence on the basis of lack of knowledge.

[5] Counsel did not agree that the appellant lacked skill or judgment or disregarded the welfare of patients.

[6] This restricted admission was not acceptable to the Committee or its counsel. A full hearing was then commenced which required nine sitting days between October, 2000 and June, 2001.

[7] On April 30, 2001, the chairperson of the Committee found as follows:

The Committee accepts your plea of guilty of professional misconduct in clause 1 of the regulation under the Medicine Act in that you failed to maintain the standard of practise of the profession, and in clause 3, under the regulation in that contravening the regulations under the Medicine Act by failing to maintain the records required under Part 5 of Ontario Regulation 241/94.

And the Committee finds you guilty of the allegation of incompetence in that in your professional care of patients, you displayed a lack of knowledge and judgment of a nature that demonstrates that you are unfit to continue in practise or that your practise should be restricted. This is the finding of the Committee. We are prepared to hear submissions for penalty.

Then the following dialogue took place:

MR. BEALL: Would you read, Mr. Chairman, please, the third finding?

THE CHAIRPERSON: The Committee finds Dr. Markman guilty of the allegation of incompetence in that his professional care of patients displayed a lack of knowledge and judgment of a nature that demonstrates that he is unfit to continue to practise, or that his practise should be restricted.

MR. BEALL: That’s fine. Thank you. I wanted to make sure I heard that. I propose – I have some evidence with respect to the issue of penalty that I would like to call. I’m not able to do it at the present time because the scope of what I put before you for the determination of penalty very much depended on what finding you made with respect to the issue of incompetence.

So, what I would like to do, I expect that I have about a day’s worth of evidence, and it’s going to take me about two or three weeks to organize it and put it all together.

MR. PERRIER: If I may, just so I’m clear on the Committee’s findings, the allegations on the issue of incompetence, I just want to make sure I understand the Committee’s findings, were that he displayed a lack of knowledge, skill or judgment, or disregard for the welfare of the patients.

Can I just be notified by the Committee if you’re not making a finding of a disregard for the welfare of the patients?

THE CHAIRPERSON: We are not making a finding on the disregard for the welfare of the patients.

MR. PERRIER: Okay.

THE CHAIRPERSON: It was just lack of knowledge and judgment of a nature that demonstrates that he is unfit to continue in practise or that his practise should be restricted.

[8] Approximately fourteen months later, in June of 2002, the Committee released its Decision and Reasons for Decision.

[9] Therein, the Committee found:

The Committee found on the uncontroverted evidence of the College expert Dr. Judson, that Dr. Markman’s treatment of his patients displayed a lack of knowledge and judgment of a nature, and disregard for the welfare of patients to an extent that demonstrates that he is unfit to continue to practice or that his practice should be restricted i.e. that Dr. Markman was incompetent.

[10] This important finding that he had a disregard for the welfare of his patients is a finding which was specifically rejected by the Committee in the judgment delivered April 30, 2001.

[11] There is serious question about what penalty would have been imposed if the Committee had sentenced him on the basis of the correct finding as delivered on April 30, 2001.

[12] It seems unlikely that the penalty would have been a revocation of his licence which is reserved for the most serious cases.

[13] The College of Physicians and Surgeons is a self-governing body. Members of the profession are, by reason of their knowledge, training and skill, in the best position to judge the conduct of their peers.

[14] The Supreme Court has held that a court should defer to such a body rendering decisions within the scope of its expertise and should not interfere unless clearly warranted. Pearlman v. Manitoba Law Society Judicial Committee, [1991] 2 S.C.R. 869, at 888 and Pezim v. British Columbia (Superintendent of Brokers) (1994), 114 D.L.R. (4th) 385 at pp. 404 and 406.

[15] In our view, the obvious error here calls for judicial intervention.

[16] In the circumstances of this case and having regard to the guidelines of the College, the revocation of his registration is set aside and a suspension of one year is substituted.

[17] With respect to the cost award of $63,235 against the appellant, it appears to us that the Committee founded this award on a wrong basis. They came to conclusions which were, in part, unwarranted.

[18] Considering the result of this appeal and all of the other circumstances as outlined in the reasons of the Committee, the cost award is reduced from $63,235 to $10,000.

[19] Counsel, if unable to agree on costs of the appeal, are invited to make written submissions within thirty days.

McRAE, J.

GRAVELY, J.

JENNINGS, J.

DATE: 20031001