COURT FILE NO.: 29/04
DATE: 20060313
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
o’driscoll, jennings and wilson jj.
B E T W E E N:
DR. GERALD DIXON SMITH
Appellant
- and -
THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO
Respondent
Y.M. Song, for the Appellant
P.F. Band, for the Respondent
HEARD at Toronto: January 23, 2006
O’DRISCOLL J.:
I. Nature of Proceedings
[1] The Appellant, now sixty-five (65) years of age, appeals to this court under the provisions of s. 70(1) of the Health Professions Procedural Code (Code), being Schedule 2 of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18. It states:
s. 70(1) A party to proceedings….before a panel of the Discipline Committee… other than a hearing of an application under s. 72(1), may appeal from the decision of the ….panel to the Divisional Court.
(2) An appeal under ss. (1) may be made on questions of law or fact or both,
(3) In an appeal under ss. (1), the court has all the powers of the panel that dealt with the matter….
[2] A Notice of Hearing, dated October 18, 2000, was issued by the Discipline Committee of the College of Physicians and Surgeons of Ontario (Committee) and directed to the Appellant. It alleged:
…that Dr. Gerald Dixon Smith (“Dr. Smith”), a member of the College, has committed an act of professional misconduct:
under clause 51(1)(b.1) of the Health Professions Procedural Code, which is Schedule 2 to the Regulated Health Professions Act, 1991 (the “Code”), in that he has sexually abused patients;
under paragraph 26.28 of Ontario Regulation 577/75 as amended, R.O. 1975 (“O. Reg. 577/75”) and under paragraph 27.29 of Ontario Regulation 448, R.R.O. 1980 (“O. Reg. 448”), in that he engaged in sexual impropriety with a patient;
under paragraph 26.20 of O.Reg. 577/75 and paragraph 27.21 of O. Reg. 448, in that he failed to maintain the standard of practice of the profession;
under subsection 34(3) of the Medical Act, R.S.O. 1970, as amended, in that he has been guilty, in the opinion of the Discipline Committee, of misconduct in a professional respect or of conduct unbecoming a medical practitioner; and
under subsection 1(1)33 of O. Reg. 856/93, under paragraph 26.31 of O. Reg. 577/75 and under paragraph 27.32 of O. Reg. 448, in that he engaged in conduct or an act relevant to the practice of medicine that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional.
[3] The College also alleged that the Appellant was incompetent.
[4] The Appellant denied all allegations.
[5] Before the Committee, the Appellant was represented by counsel, the College was represented by counsel and the Committee had independent counsel.
[6] At the hearings of the Committee, the College called six (6) witnesses: J.H., S.B., M.P., three (3) female complainants, all former patients of the Appellant, and S.R. and L.S., two (2) females, also former patients of the Appellant, who gave similar fact evidence. As well, the College called an expert witness, Dr. Dorothy Haswell.
[7] The defence called Dr. Smith, who denied all allegations. The defence also called the Appellant’s secretary, Gail Chambers, B.M. (a former patient) and an expert witness, Dr. Anthony Carr, psychiatrist.
[8] On March 24 and 25, 2003, during the Committee hearing, counsel for the College advised the Committee that S.R. and L.S., each a former patient of the Appellant, had contacted his office after reading in the Ottawa newspapers about the ongoing disciplinary hearing. Counsel for the College sought leave to call these two (2) women to give “similar act evidence”. After an adjournment, the Committee held a voir dire at which time both S.R. and L.S. testified and, after hearing submissions, their evidence was ruled to be admissible. Counsel for Dr. Smith did not call any evidence on the similar fact voir dire.
[9] In its written reasons (2.5 pages), dated June 27, 1993, the Committee said, in part:
…..The Committee is satisfied, however, that the proposed evidence of S.R. and L.S. meets the threshold of being reasonably capable of belief, for the purpose of assessing its admissibility.
Moreover, the Committee concluded that the probative value of the proposed evidence and the inferences to be drawn therefrom outweighed any prejudice to the member likely to be created from the introduction of the evidence at the hearing (subject to one exception, set out below). The proposed evidence, if ultimately accepted, is sufficiently similar to the alleged conduct forming the basis of the allegations against the member that it would be contrary to common sense to suggest that the common characteristics were due to mere coincidence.
In coming to this conclusion, the Committee was mindful of its obligations to focus on the evidence as it is directed to the alleged incidents giving rise to the allegations of professional misconduct, not to the general character of the member. The Committee is satisfied that it can appropriately focus on the ultimate evidentiary value, if any, of the proposed evidence.
The Committee, however, concluded that the evidence of L.S. concerning the alleged incident during which Dr. Smith is said to have engaged in a sexual act with her after administering an injection that rendered her unconscious ought not to be admitted. This alleged act is sufficiently dissimilar to the other allegations, and likely to be unduly prejudicial to the member if admitted, given its character. The Committee has therefore decided not to admit this portion of the proposed evidence.
In reaching its conclusion on the admissibility of the proposed similar act evidence, the Committee was mindful of the potential impact of the media reports on the proposed evidence. However, there was no evidence of actual “collusion” or tailoring based on the media reports, and the Committee concluded that this was a matter to go to the weight ultimately to be accorded to the proposed evidence.
[10] After hearing all of the evidence and submissions, the Committee reserved its decision.
[11] On September 26, 2003, the Committee announced its decision and found Dr. Smith had committed acts of professional misconduct as set out in allegations 2, 3, and 5 of the Notice of Hearing and found that he had not committed allegations 1 and 4.
[12] The Committee did not find Dr. Smith to be incompetent.
[13] On December 1, 2003, the Committee released thirty-one (31) pages of written reasons setting out why it reached its conclusions. The Committee’s reasons referred to and analyzed the evidence of each and every witness and explained what evidence or exhibit it accepted as credible in whole, in part or not at all. The Committee’s reasons then matched its evidentiary findings to the five (5) allegations of professional misconduct and decided what, in law, the College had proved and what, in law, it had not proved.
[14] On December 12, 2003, the Committee heard evidence and submissions as to penalty. It reserved its decision.
[15] On January 20, 2004, the Committee released eight (8) pages of written reasons as to the penalty imposed, namely:
(i) the Appellant’s certificate of registration to practice medicine in Ontario was to be revoked forthwith, and
(ii) the Appellant was to appear before the Committee to be reprimanded and the reprimand was to be filed on the public register.
[16] The Committee’s reasons of January 20, 2004 as to penalty invited written submissions as to costs.
[17] On March 22, 2004, the Committee released three (3) pages of written reasons awarding costs to the College under s. 53.1 of the Code and stated:
…the Committee orders and directs that Dr. Smith pay, within 30 days of the date of this order, the College’s partial costs of the hearing, fixed in the amount of $30,000.
[18] The Appellant, in his own name, filed:
Notice of Appeal, dated January 21, 2004,
Amended Notice of Appeal, dated January 22, 2004,
“Further Amended Notice of Appeal”, dated April 20, 2004, and
A “Third Further Amended Notice of Appeal”, dated March 10, 2005, was filed by the Appellant’s solicitors.
[19] The Appellant appeals the Committee’s:
(i) Decision that allegations 2, 3 and 5 have been proven, and
(ii) The penalty of revocation of Dr. Smith’s certificate of registration to practice medicine in Ontario, and
(iii) The costs award.
II. Standard of Review
[20] Although s. 70 of the Code grants the Appellant an appeal on questions of law or fact or both, the hearing before the Divisional Court is not a trial de novo.
[21] The standard of review to be applied by the Divisional Court is one of reasonableness.
[22] In College of Physicians and Surgeons of British Columbia v. Dr. Q., 2003 SCC 19, [2003] 1 S.C.R. 226 at paras. [16], [20], [21] and [36], (Dr. Q.) and in Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247 at para. [27] (Ryan), the Court held that where “reasonableness” is the standard of review, the first reviewing court must not interfere unless the applicant or appellant has positively shown that the decision was unreasonable.
[23] At paras. [55]-[56] of Ryan, the Court said:
[55] A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere (see Southam, at para. 56). This means that a decision may satisfy the reasonableness standard if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling (see Southam, at para. 79).
[56] This does not mean that every element of the reasoning given must independently pass a test for reasonableness. The question is rather whether the reasons, taken as a whole, are tenable as support for the decision. At all times, a court applying a standard of reasonableness must assess the basic adequacy of a reasoned decision remembering that the issue under review does not compel one specific result. Moreover, a reviewing court should not seize on one or more mistakes or elements of the decision which do not affect the decision as a whole.
[24] In giving the judgment of the court in Ryan, Iacobucci J. said that courts must resist the temptation to determine whether or not a tribunal was “correct” when reviewing the Committee’s decision on the standard of reasonableness.
[25] As pointed out in Dr. Q. at para. [38] and in R. v. College of Physicians and Surgeons and Mohan (1993), 1993 8626 (ON SC), 16 O.R. (3d) 62, 69 (Ont. C.A.), curial deference is accorded not only to the Committee’s expertise, but also to its superior position in seeing and hearing the witnesses and its experience in such hearings. A reviewing court must always be cautious about interfering with conclusions of fact and credibility because the Committee had the opportunity to assess the demeanour of the witness while testifying. The courts have been clear that findings of credibility are the purview of the Committee hearing the matter and should not be disturbed on appeal. In Dr. Q., the Chief Justice of Canada said:
[38] …Assessments of credibility are quintessentially questions of fact. The relative advantage enjoyed by the Committee, who heard the viva voce evidence, must be respected.
[26] As for the appeal against penalty, the Supreme Court of Canada stated in Ryan, at para. [31], that a Discipline Committee has “greater expertise than courts in the choice of sanctions for breaches of professional standards”. Each panel of the Committee includes members of the medical profession who are uniquely qualified, by virtue of their knowledge, training and skill, to appreciate the severity of professional misconduct and appropriate sanctions for one of their peers. Here, the panel of the Committee had three (3) medical doctors and two (2) lay persons. The Committee has relative experience in determining sanctions for professional misconduct. Given such qualifications for judgment and discipline of fellow members, the decisions and penalties of professional discipline committees ought not to be lightly disturbed.
[27] When assessing penalty, this court’s role is to ask whether the penalty is unreasonable having regard to all the circumstances. The penalty should not be disturbed unless there is an error in principle. See: Re Takahashi and College of Physicians and Surgeons of Ontario (1979), 26 O.R. (2d) 363, 364 (Div. Ct.) per Robins J.
III. The Admission of the “similar fact” evidence of S.R. and L.S.
[28] In her factum and before us, counsel for the Appellant states:
[28] …Having admitted LS’ evidence, the Committee then proceeded to ignore it completely in the rest of its Decision on liability. For this reason, the appellant does not appeal from the Committee’s decision to admit LS’ evidence.
[29] Counsel for the Appellant submits in her factum and before us that:
[29] The Committee’s decision to admit SR’s evidence as similar fact evidence is so untenable that it must be set aside on this appeal.
[30] The Committee’s decision to admit the similar fact evidence in June 2003 was made by the Committee approximately one (1) year after the Supreme Court of Canada had released its decision on similar fact evidence in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, per Binnie J., for the Court. Counsel for the Appellant alleges that although the Committee went through the motions of weighing the prejudicial effect of the evidence against its probative value, it failed to determine its probative value as a condition precedent to its admissibility.
[31] Counsel for the College in his factum and before us submits that the Committee’s finding that SR’s evidence was probative was based on ample cogent evidence of similarities:
• All of Dr. Smith’s conduct occurred in the context of psychotherapy;
• Much of the improper conduct occurred in Dr. Smith’s office;
• All of the patients were women
• All of the patients were vulnerable, and this was known to Dr. Smith;
• JH and SR had low self-esteem;
• JH and SR both fell in love with Dr. Smith;
• Dr. Smith requested that JH refrain from wearing make-up because “he had a wife at home”;
• Because SR was wearing “too much make-up”, Dr. Smith suggested that they have sex in the apartment living room;
• Dr. Smith asked JH to remove her dress to show him her figure;
• Dr. Smith asked SR to lift her skirt to show him her panties;
• Dr. Smith spontaneously undid his pants and solicited fellatio from JH and SR;
• JH and SR did not like to perform fellatio;
• Dr. Smith received fellatio from JH and SR;
• Dr. Smith had sexual intercourse with JH and SR;
• Dr. Smith made himself available to JH, SR and LS in the event of crisis; and
• Dr. Smith had sexual intercourse with JH and SR after each contacted him in desperation.
[32] There is no doubt that the Committee was aware of the dictates of R. v. Handy and weighed the prejudicial effect of the evidence against its evidentiary value. The Committee was aware of “moral prejudice” and “reasoning prejudice” as set out in R. v. Handy. Here, unlike Handy, there was no jury. Here, there was no evidence of actual collusion or tailoring of evidence.
[33] SR testified about specific details not mentioned in any published newspaper articles: the “exotic panties”, the description of Dr. Smith’s living room with children’s toys, the incident in the park and the dry skin on Dr. Smith’s penis.
[34] In his factum and before us, counsel for the College also pointed out that, although SR was cross-examined on the fact that she had read newspaper clippings about the Committee’s hearing, she was not cross-examined on the issue of concoction.
[35] Dr. Smith’s position throughout was total denial that he had done anything untoward as alleged by the three (3) complainants. The similar fact evidence was tendered to explain why the complainants should be believed when each testified that Dr. Smith proceeded and acted as each alleged.
[36] In Handy, the Court said:
[27] The contest over the admissibility of similar fact evidence is all about inferences, i.e., when do they arise? What are they intended to prove? By what process of reasoning do they prove it? How strong is the proof they provide? When are they so unfair as to be excluded on the grounds of judicial policy and the presumption of innocence? The answers to these questions have proven so controversial as to create what Lord Hailsham described as a “pitted battlefield”: Director of Public Prosecutions v. Boardman, [1975] A.C. 421 (H.L.), at p. 445.
[90] On the facts of B. (C.R.) [1990 142 (SCC), [1990] 1 S.C.R. 717], the majority concluded that the accused was shown to have a situation specific propensity to abuse sexually children to whom he stood in parental relationship, and there was a close match between the “distinct and particular” propensity demonstrated in the similar fact evidence and the misconduct alleged in the charge, although even the majority considered the admissibility to be “borderline” (p. 739). Similar fact evidence is sometimes said to demonstrate a “system” or “modus operandi”, but in essence the idea of “modus operandi” or “system” is simply the observed pattern of propensity operating in a closely defined and circumscribed context.
[128] An alleged pattern of conduct may gain strength in the number of instances that compose it. The cogency of the similar act evidence in the “brides in the bathtub” case undoubtedly gathered strength from the fact the charge related to the third victim who had died under identical circumstances to her two predecessors: R. v. Smith (1915), 84 L.J.K.B. 2153.
[37] In Deital v. College of Physicians and Surgeons of Ontario, [1997] O.J. No. 1866 the majority of the Divisional Court held:
[309] Adding to the trend towards the reception of similar fact evidence is the decision of the Supreme Court of Canada in R. v. Litchfield, 1993 44 (SCC), [1993] 4 S.C.R. 333, a case in which a doctor was charged with 14 counts of sexual assault against his patients in his office during medical treatments. Iacobucci J. stated at page 40:
While this evidence could be characterized as evidence of similar acts or events, the evidence was not tendered solely to show that the respondent was a person of bad character or of a disposition likely to commit the alleged offenses. Rather, the evidence provided information highly relevant to understanding the context in which the alleged offenses occurred and shed light on the nature of the respondent’s relationship with his patients. The evidence going to the severed counts, if accepted by a jury, would also tend to show a distinct pattern of behaviour engaged in by the respondent. While the probative value of the complainant’s evidence with respect to the other complainant’s allegations is somewhat less than that described above, and the prejudicial effect higher, I would nonetheless find that the probative value outweighs the prejudicial effect.
[310] Another case of significance is the unreported decision of Bartashunas v. Psychology Examiners [[1992], O.J. No. 1845] in which the Ontario Divisional Court upheld the admission of similar fact evidence in comparable circumstances. The court stated at page 5 of its judgment:
We appreciate that there are some factual dissimilarities between the conduct of the applicant with A.L. and J.M. particularly in terms of the nature and duration of the sexual relationship. However, as stated by McLachlin J. at p. 739 of R. v. C.R.B., supra, such dissimilarities are not necessarily fatal to the admissibility if it can be shown that the evidence shows a “pattern of similar behaviour suggesting the complainant’s evidence is true.” To paraphrase McLachlin J. in C.R.B. at p. 739, we are of the view that the nature and method of making sexual advances toward A.L. is similar to that employed by the applicant toward J.M. The applicant’s similar conduct toward both female clients constitutes evidence of a misuse of the applicant’s position as a psychologist to obtain sexual gratification and as such is probative evidence which demonstrates a pattern or system or design of similar behaviour suggesting the story of J.M. is true.
[311] The court then went on to conclude that in circumstances where credibility of the doctor and the complainants was in issue, the probative value of the similar fact evidence outweighed its prejudicial effect, and in the absence of collaboration, the evidence was admissible.
[38] In our view, the similar fact evidence was prima facie inadmissible. However, counsel for the College discharged the onus on the prosecution of establishing, on a balance of probabilities, that the probative value of the similar fact evidence outweighed its prejudicial effect. The Committee so found and admitted the evidence. In our view, the Committee’s decision to admit this evidence and the use it made of the evidence gives us no basis to intervene. Indeed, if the Committee was required to be correct on the admission of the similar fact evidence, I find that it was.
IV. The Committee’s Conclusions
[39] In its reasons for decision, the Committee reviewed, analyzed, compared and contrasted the evidence of each and every witness, including the Appellant. The Committee summed up this way:
The Committee found the three complainants, as well as the two similar act witnesses, to be very credible witnesses. They all gave their testimony in a direct and forthright manner. Their evidence was internally consistent, consistent with other known facts, and inherently plausible. Although each expressed a degree of anger towards Dr. Smith, there was no vindictive component to their testimony. All were consistently unshaken when subjected to vigourous and skillful cross-examination. In instances where JH and SR may not have had totally accurate or detailed memories of certain events surrounding their encounters with Dr. Smith, the Committee accepts the College’s position that this can be accounted for by the passage of over 20 years’ time, and should not diminish the general reliability of their evidence.
Dr. Smith vehemently denied any untoward behaviour in respect of any of the complainants, and specifically and emphatically denied any sexual relationships with them. Although he admitted to some personal disclosures and touching of a minor and reassuring nature, he did not accept that this represented any form of boundary violation. The Committee did note that nowhere in his records does he document any diagnoses of personality disorders for any of the complainants with the exception of JH. The Committee accepts the position of the College in this regard that this is a diagnostic construct made many years after the fact rather than at the time of treatment. Furthermore, it would appear self-serving in that the conclusion the defence wishes to be drawn from this is that patients with personality disorders are untruthful.
In his testimony, Dr. Smith agreed that strict boundaries are important and that it is the therapist’s responsibility to ensure that these are maintained. He accepted that maintenance of boundaries is even more important in patients who are victims of sexual abuse or with Borderline Personality Disorders, particularly with respect to the use of touch, which he agreed can be easily misinterpreted by vulnerable patients. And yet, he admitted that he insisted on sitting close to MP during their sessions, holding her hands and putting his arm around her shoulder, even though she clearly indicated that she was uncomfortable with this. With SB, he accepted that she directed him to go back to his chair when he maintained he simply put his arm around her shoulders to comfort her. He accepted that he hugged each of these two complainants regularly at the end of therapy sessions but it was “always at their request”. Both testified as to the significant discomfort this caused them. Dr. Smith’s own evidence was that each of MP and SB gave Dr. Smith specific notice of their discomfort at the time the interactions occurred.
The Committee also took note of Dr. Smith’s response to questioning about the pornographic video. He indignantly rejected the suggestion that he might even own such a tape, let alone have it in his office. He went even further to state that he did not own any such tapes “either then or now”. When reminded of previous testimony in an earlier hearing where he admitted to having such tapes for his personal use, he modified his response to suggest that he was not referring to that time frame when he made his previous statement.
Having considered the evidence of the other witnesses, Dr. Smith’s own evidence, and the other established facts, the Committee found that Dr. Smith was not a credible witness and did not accept his evidence where it differed from that of the complainants and the similar act witnesses.
[40] The last quoted paragraph sums up the insurmountable hurdle faced by the Appellant – the Committee believed the three (3) complainants and two (2) similar fact witnesses and found the Appellant “not a credible witness”. The Committee accepted the evidence of the five (5) female former patients where it conflicted with the Appellant’s evidence.
[41] The factum of counsel for the College at para. [104] sets out a lengthy list of references to the Appellant’s evidence that, counsel for the College submits, justifies the panel’s reasonable finding that the Appellant’s testimony was not credible and was self-serving.
V. Conclusions of this Court
(a) On the merits of the appeal
[42] In our view, applying the principles earlier cited, the findings of the Committee are reasonable. The Appellant has not shown that the Committee’s decision was unreasonable as that terminology is explained in Ryan (supra). The Committee had an abundance of evidence before it, which it accepted, to show that the Appellant was guilty of professional misconduct as set out in allegations 2, 3 and 5.
[43] Even if the Committee erred in admitting the similar fact evidence of S.R., (counsel for the Appellant does not quarrel with the admission of the evidence of L.S. (see para. [28] of Appellant’s factum)), we would still hold that the conclusions reached by the Committee regarding allegations 2, 3 and 5 and the assessment of the evidence of J.H., S.R. and M.P. were reasonable.
[44] In our view, in the absence of the similar fact evidence, there was overwhelming evidence to support all of the findings made by the Committee and its decision would have necessarily been the same without the similar fact evidence. See: Khan v. The College of Physicians and Surgeons of Ontario (1992), 1992 2784 (ON CA), 9 O.R. (3d) 641, 675-6 (Ont. C.A.).
(b) On penalty
[45] At p. 29 of the reasons of December 1, 2003, the Committee said:
Both experts agreed that having sexual relations with patients is at the most egregious end of the spectrum of boundary violations and clearly falls below the standard of practice.
[46] In its reasons for penalty, dated March 22, 2004, the Committee said:
The Committee carefully considered the penalty submissions made by both parties. It accepts the College position that Dr. Smith’s conduct towards JH (involving intercourse and oral sex, including sex in Dr. Smith’s office during psychotherapy sessions) represents a very grave breach of professional trust and warrants severe sanction, having regard to the principles of specific and general deterrence and public protection. The Committee also accepts that the duration of the misconduct is a significant aggravating factor. As a physician practising psychotherapy or psychiatry, Dr. Smith was in a position of power over vulnerable patients. His behaviour towards JH, a vulnerable patient, was predatory and served only to satisfy his own gratification. He initiated sexual intercourse on an occasion where JH came to his office in desperation after she ran out of medication. Dr. Smith’s actions represented the most serious form of sexual misconduct. There can simply be no tolerance for such reprehensible behaviour.
Dr. Smith’s conduct toward SB and MP also demonstrated a pattern of inappropriate behaviour toward vulnerable patients. His conduct in respect of SB included certain sexual elements. The misconduct continued over a significant period of time and demonstrated that the matters in issue were not isolated incidents.
The Committee recognizes that Dr. Smith was fully entitled to deny the allegations and that this cannot be held against him when considering penalty. The Committee, however, noted the lack of insight demonstrated by Dr. Smith. Although he admitted to some personal disclosures and touching of a minor and reassuring nature, he did not recognize that these could even be viewed as boundary violations. In fact, he was indignant that his conduct should be represented as unprofessional in any way. The Committee concluded that Dr. Smith simply does not accept that boundaries in medical practice apply to him and that this would present a significant impediment to any successful rehabilitation.
[47] The Committee went on to state:
Sexual misconduct by physicians almost always occurs in private. The fact that he conducts himself appropriately with one patient offers little assurance that he will do the same with other vulnerable individuals who come under his care.
It is the Committee’s opinion that Dr. Smith is at risk to re-offend. In view of the grave and predatory misconduct, and the risk of re-offending, the Committee unanimously concluded that revocation of Dr. Smith’s certificate of registration to practise medicine was the only appropriate penalty.
Is the penalty reasonable in light of all the circumstances?
[48] The Committee found that the Appellant, a medical doctor who has taken the Hippocratic Oath and promised to help his patients, committed grave and predatory acts of sexual impropriety, including oral sex and sexual intercourse, and engaged in a pattern of serious boundary violations with three (3) vulnerable former female psychotherapy patients. He also engaged in similar conduct with the two (2) former female psychotherapy patients who gave similar fact evidence. Each one of these female patients was vulnerable and the Appellant knew it. Instead of treating these patients, he preyed on them.
[49] The Hippocratic Oath says, in part:
“I shall abstain from whatever is deleterious and mischievous…I shall abstain from the seduction of females….”.
[50] In our view, the penalty was reasonable when it was imposed on March 22, 2004, the penalty would be reasonable if imposed today and the penalty would have been reasonable if imposed in 1976 or on any date between 1976 and today.
[51] As stated for this court in 1979 by Robins J. in Re Takahashi (supra) at p. 364:
The committee in the proper discharge of its function is best able to assess the gravity of the conduct and its consequences to the public and the profession. Unless there is error in principle, unless the punishment clearly does not fit the crime, so to speak, a Court sitting in appeal ought not to disturb the penalty and substitute its judgment for that of the committee.
See also: Mussani v. College of Physicians and Surgeons, 2003 45308 (ON SCDC), [2003] O.J. No. 1956 (O.C.A.), paras. [112] and [113].
(c) On costs
[52] Section 53.1 of the Code (supra) states:
In an appropriate case, a panel may make an order requiring a member who the panel finds has committed an act of professional misconduct or finds to be incompetent to pay all or part of the following costs and expenses.
- The College’s costs and expenses incurred in conducting the hearing.
[53] Under Tariff A of the Rules of the College’s Discipline Committee, the College may claim a maximum of $3,650.00 to “conduct a day of hearing”. Here, the College claimed $30,000 in total. The maximum claim would have been $47,450 for thirteen (13) days of hearings on the merits and on penalty.
[54] The Committee said at p. 2 of its March 22, 2004 reasons:
…the Committee orders and directs that Dr. Smith pay, within 30 days of the date of this order, the College’s partial costs of the hearing, fixed in the amount of $30,000.
[55] All parties agree that the test regarding costs is “reasonableness”. In our view, in the circumstances of this case, the award of costs is reasonable.
VI. Result
[56] The appeal from the September 26, 2003 and December 1, 2003 findings that the Appellant committed the acts of professional misconduct as set out in allegations 2, 3 and 5 of the Notice of Hearing, dated October 18, 2000, is dismissed.
[57] The appeal of the penalty of revocation, imposed on January 20, 2004, is dismissed.
[58] The appeal from the costs award of $30,000 payable within thirty (30) days by the Appellant, as imposed by the Committee in its reasons, dated March 22, 2004, is dismissed.
VII. Costs of this Appeal
[59] If the parties are unable to agree as to the quantum of costs payable by the Appellant to the Respondent College, written submissions may be filed within twenty (20) days of the release of these reasons.
O’Driscoll J.
Jennings J.
Wilson J.
Released:
COURT FILE NO.: 29/04
DATE: 20060313
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
o’driscoll, jennings and wilson jj.
B E T W E E N:
GERALD DIXON SMITH
Appellant
- and -
THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO
Respondent
REASONS FOR JUDGMENT
O’Driscoll J.
Released: March 13, 2006