COURT FILE NO.: 121/07
DATE: 20071218
SUPERIOR COURT OF JUSTICE - ONTARIO
(DIVISIONAL COURT)
RE: DR. HENRY JAKUBOVIC
- and –
THE HEALTH PROFESSIONS APPEAL AND REVIEW BOARD,
THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO and
SLAWOMIR PRZECZEK
BEFORE: JENNINGS, SANDERSON AND SWINTON JJ.
HEARD AT TORONTO: December 14, 2007
COUNSEL: Jaan Lilles, for the Applicant, Dr. Henry Jakubovic
David Jacobs, for the Respondent, Health Professions Appeal and Review Board
E N D O R S E M E N T
[1] This is an application for judicial review of a decision of the Health Professions Appeal and Review Board, holding that the Complaints Committee of the College of Physicians and Surgeons’ decision to take no further action on the complaint of Mr. Przeczek was unreasonable, and returning the matter to the Committee for reconsideration.
[2] The essence of the complaint in the complainant’s letter received by the College on June 9, 2005, was that the doctor examined him only briefly before telling him that he did not have a skin disease and that nothing could be done for him and suggesting that the complainant should receive psychiatric counsel.
[3] In its reasons, the Committee correctly set out the complaint and characterized it as being a failure to carry out an adequate examination. At paragraph 21 of its Reasons, the Board stated the core of the complaint to be, whether or not the applicant was treated appropriately and respectfully in his appointment with Dr. Jakubovic.
[4] The Board found that the Committee’s decision was unreasonable in not addressing this aspect of the complaint. That notwithstanding, the Board then went on and said at paragraph 25 of its Reasons:
- The Committee found that the Respondent’s charting of the Applicant’s anxiety and distress supported the Respondent’s opinion that a psychiatric referral was warranted. While such signs might support a psychiatric referral, in the Board’s view, other factors must also weigh into a decision for such a referral.
[5] The Board then discussed other factors, which in its opinion, ought to have been considered in determining whether a psychiatric referral was warranted, including:
• “in some cultures there is a social stigma attached”,
• “inclusion of a psychiatric referral in a person’s medical history might affect future assessments by health care professionals”.
[6] As an additional ground for finding the Committee’s decision to be unreasonable, the Board found the Committee failed to consider these factors enumerated by it. The Board accordingly returned the matter to the Committee for reconsideration in light of the Board’s comments in paragraphs 20-29 of its Decision.
[7] Section 33(1) of the Regulated Health Professions Procedural Code directs the Board as follows:
33(1) In a review, the Board shall consider either or both of,
(a) the adequacy of the investigation conducted; or
(b) the reasonableness of the decision.
[8] In applying a reasonableness standard to its review, the Board should have been guided by the decision of the Supreme Court in Zenner v. Prince Edward Island College of Optometrists, 2005 SCC 77, [2005] S.C.J. No. 80. The Court in that case summarized the test as follows (at para. 43):
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 to the conclusion it reached. If any of the reasons used to support the conclusion are tenable in the sense that they can stand scrutiny, then the decision is not unreasonable and a reviewing court must not interfere. This means that a decision may satisfy the reasonableness standard if it is supported by a tenable explanation even though the reviewing court itself may not have reached the same conclusion.
[9] In our opinion, the Board failed to ask itself the required question – whether the decision of the Committee was reasonable, meaning, can it be supported by the evidence on the record before it? Instead, the Board simply stated its opinion that the decision was unreasonable without any analysis of the record before the Committee. In doing so, it reached a patently unreasonable decision.
[10] There was ample evidence before the Committee to support its decision that Dr. Jakubovic exercised his clinical judgment in a reasonable fashion including his recommendation that there be a psychiatric referral.
[11] Rather than applying the standard of reasonableness to its review of the Committee’s decision, the Board substituted its view of what the Committee should have considered in determining whether a psychiatric referral was warranted. That view was based upon anecdotal theories, not on the record before the Committee or before the Board.
[12] Counsel for the Board submitted that the Committee acted unreasonably in failing to consider the central core of the complaint that the doctor behaved in an unprofessional, uncaring and perfunctory manner during his only meeting with the complainant.
[13] We disagree. In its Reasons at page 4, the Committee dealt with that aspect of the complaint, specifically referring to how the complainant felt, how he was treated by the doctor making him feel unwelcome and burdened and to his “unprofessional conduct and indifferent approach” contributing to the complainant’s depression.
[14] In our opinion, the Committee had regard to the gravamen of the complaint in arriving at its conclusions on page 4 of its Reasons, and its decision was a reasonable one.
[15] This application for judicial review is granted. The decision of the Board is set aside and the decision of the Committee is confirmed.
[16] No costs being demanded, there will be no order as to costs.
JENNINGS J.
SANDERSON J.
SWINTON J.
DATE: December 18, 2007