COURT FILE NO.: 23/03
DATE: 20040430
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
DR. HEUNG-WING LI
Applicant
- and -
THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO
Respondent
Christopher A. Wayland and Heather L. Meredith, for the Applicant
Vicki White, for the Respondent
HEARD: April 27, 2004
MacFarland J.
[1] This is a motion by Dr. Li for a stay of the decision of the Discipline Committee of the College of Physicians and Surgeons made December 19, 2002 to, inter alia, revoke his licence to practice medicine pending his appeal to this Court.
[2] On December 17th, 2002 the Committee found that Dr. Li had committed acts of professional misconduct. It then heard penalty submissions and on December 19, 2002 pronounced its penalty which included immediate revocation of his licence to practice medicine with written reasons to follow. Those written reasons were released May 23, 2003.
[3] An important factor for the Committee in determining the appropriate penalty was the earlier finding of another panel of the Discipline Committee in 1996 involving Dr. Li. In 1991 Dr. Li was charged under the Criminal Code with sexual offences; in June, 1992 he was acquitted of all charges.
[4] As a result, when the matter came before the Discipline Committee in 1996 it was on the agreement of counsel for both Dr. Li and the College that Dr. Li would plead guilty to professional misconduct for failing to maintain the standard of practice of the profession. Counsel for the prosecution acknowledged that the acts did not occur with any sexual intent or for the purpose of sexual gratification. The record in that case discloses that Dr. Li admitted that in three instances he conducted breast examinations in an inappropriate manner. Part of his penalty required that he take a course in how to properly conduct a breast examination and he did so.
[5] In 1998 and 1999 four more complaints came to the attention of the College.
[6] Again Dr. Li was charged criminally. In December 2001 he was acquitted on three of four counts of sexual assault and convicted on one count. In February, 2002 he was given a conditional sentence which included a term that he not practice medicine for 18 months. He appealed the conviction.
[7] In May 2002 a Discipline Committee of the College began to hear these complaints and as earlier set out, in December 2002 found Dr. Li had committed acts of professional misconduct and revoked his licence to practice medicine.
[8] Dr. Li in January 2003 appealed the findings of the Discipline Committee to this Court.
[9] In August, 2003 Dr. Li was petitioned into bankruptcy and remains undischarged.
[10] The record before me was deficient in many respects in my view. Much of the history was not contained in the record but provided by counsel for the applicant in submissions.
[11] Dr. Li is obliged to move for a stay because of the provisions of section 37 of the Health Professions Procedure Code, Schedule 2 to the Regulated Health Professions Act (1991), S.O. 1991, c.18 which provides:
Interim suspension
- (1) The Executive Committee may, subject to subsection (5), make an interim order directing the Registrar to suspend or impose terms, conditions or limitations on a member’s certificate of registration if,
(a) an allegation is referred to the Discipline Committee; and
(b) it is of the opinion that the conduct of the member exposes or is likely to expose his or her patients to harm or injury.
Panel’s order
(4) In a matter in which an order under subsection (1) was made, an order of a panel of the Discipline Committee directing the Registrar to revoke, suspend or impose conditions on a member’s certificate take effect immediately despite any appeal.
[12] By Order dated August 17, 1999 the Executive Committee of the College made an interim Order under this section which imposed terms, conditions and limitations on Dr. Li’s certificate of registration having referred the subject complaints to the Discipline Committee.
[13] In such circumstances subsection (4) of section 37 provides that where the Discipline Committee directs the Registrar to revoke the member’s certificate such order takes immediate effect despite any appeal. Hence the need on Dr. Li’s part to move for a stay before he may practice medicine pending this Court’s determination of his appeal.
[14] It is agreed that the appropriate test is that set out by the Supreme Court of Canada in RJR - MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311. The onus is on the applicant to establish there is a serious issue to be tried, that he will suffer irreparable harm if the Order is not granted and that the balance of convenience favours him.
[15] The College concedes there is a serious issue to be raised – the threshold for establishing such is low and all the applicant need do is satisfy the Court that the issue or issues raised are serious and not frivolous.
[16] In this respect counsel for the applicant relies heavily on the ground not yet part of the appeal but raised by way of an application to receive fresh evidence which will be heard by the panel when the appeal is heard September 20, 2004.
[17] The ground relates to the role played by Dr. Chart who was an expert and factual witness for the College. Dr. Chart testified on behalf of the College in respect of the training she had provided to Dr. Li pursuant to the direction of the Discipline Committee which dealt with the complaints against Dr. Li in 1996. There is some dispute between the parties as to whether her evidence was more than factual and there is no record of her evidence before me.
[18] In any event before the finding of misconduct and penalty was made in December 2002, Dr. Chart was appointed a member of the Discipline Committee and one or more of the members of the panel who dealt with Dr. Li’s case (in December 2002) were part of the whole Committee which approved Dr. Chart’s appointment. It is alleged that this conduct gives rise to a reasonable apprehension of bias.
[19] I move next to the ground of irreparable harm. The only evidence of irreparable harm is found in paragraph 14 of Sara Erskine’s affidavit sworn April 7, 2004 wherein she states:
I am advised by Dr. Li, and do verily believe, that the income from his medical practice was his primary source of income, and without the ability to practice medicine and see patients in the period of time pending the outcome of my (sic) appeal, he will suffer irreparable financial harm.
[20] Sara Erskine is an associate at McCarthy Tétrault, LLP, solicitors for Dr. Li. There is no affidavit from Dr. Li attesting to the nature of the harm he will suffer if a stay is not granted.
[21] His licence to practice has been suspended since the second interim Order of the Executive Committee of the College made January 22nd, 2002. This is the first time Dr. Li has moved for a stay which has now been in effect over two years. His appeal is five months away from hearing and a decision could well be reserved for several months thereafter.
[22] Counsel for Dr. Li insist that this evidence – the information and belief evidence of Sara Erskine is sufficient to satisfy the test. It is uncontradicted and was unchallenged by the College. Not to accept it, they submit, would be an error in law.
[23] I am not persuaded it would be. The only irreparable harm alleged is financial. I must consider on the whole of the evidence before me whether Dr. Li will suffer irreparable harm if a stay is not granted. I would have expected an affidavit from Dr. Li himself attesting to the nature of the harm he will suffer if a stay is not granted. The Court cannot speculate on such harm, the burden is on the applicant to satisfy on a balance of probabilities that such harm will occur to him and on this record I am not so persuaded.
[24] This case is not like the College of Physicians and Surgeons (Ontario) v. Porter February 19, 2003 decision of Lederman J. In that case the College had ordered a time limited suspension not a revocation of Dr. Porter’s licence and Dr. Porter filed an affidavit which set out the harm he would suffer were a stay not granted. The evidence in that case and in Kooner v. College of Physicians and Surgeons (Ontario) December 27, 2001 decision of Chapnik J. disclosed more than just financial harm. In my view there must be more.
[25] As for the balance of convenience, I must weigh the rights of the appellant against the risk to the public. The appellant submits that the Court could impose stringent terms on Dr. Li were a stay granted. It could require he see female patients only under supervision with a nurse present, or that he not be permitted to see female patients at all, that a sign could be posted in his office informing patients of his limited rights of practice and/or that the College could be authorized to send inspectors from time to time to check up on Dr. Li to ensure his compliance with any terms imposed.
[26] This is the second series of complaints against Dr. Li and they are very similar in nature to those made in 1996.
[27] As the result of those complaints Dr. Li was required to take training in the proper methodology of conducting a breast examination on a female patient. He was aware then of the concerns the College had about the way he had conducted such examinations in the past. He was taught the proper or accepted method of a clinical breast examination.
[28] At least one of the current complaints involves Dr. Li again conducting a breast examination in the manner the College had difficulty with in the earlier complaints. The purpose of the course was to teach Dr. Li accepted methodology with the expectation that he would follow the methodology in his practice and he did not. Further, his own evidence was that he had no intention of doing so, believing that his own method (of which the College disapproved) was superior. I have serious concerns that Dr. Li would not follow any imposed directions from the Court; he appears not to take direction from his governing professional body.
[29] In the circumstances, I am of the view that the balance of convenience favours the College.
[30] The motion for a stay is denied.
[31] Costs to the College fixed in the sum of $2,500.00.
MacFarland J.
Released: April 30, 2004
COURT FILE NO.: 23/03
DATE: 20040430
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
DR. HEUNG-WING LI
Applicant
- and -
THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO
Respondent
REASONS FOR JUDGMENT
MacFarland J.
Released: April 30, 2004