Li v. College of Physicians and Surgeons of Ontario

91 O.R. (3d) 630

Ontario Superior Court of Justice,

Divisional Court,

Brockenshire, Lederman and Swinton JJ.

July 28, 2008

Professions -- Physicians and surgeons -- Discipline -- Penalties -- Section 51(2)3 of Health Professions Procedure Code permitting Discipline Committee to impose conditions on member's certificate of registration for "indefinite" period of time -- "Indefinite" not meaning "permanent" -- Committee not having power to impose permanent [page631] condition restricting doctor's practice to male patients -- Regulated Health Professions Act, 1991, S.O. 1991, c. 18, Sch. 2, s. 51(2).

The appellant was found guilty of disgraceful, dishonourable and unprofessional conduct after conducting a breast examination on a patient while standing behind her. The Discipline Committee of the respondent College imposed, among other terms, a condition on the appellant's certificate of registration permanently restricting his practice to male patients. The appellant appealed that condition.

Held, the appeal should be allowed.

Section 51(2)3 of the Health Professions Procedure Code (Schedule 2 of the Regulated Health Professions Act) permits the Discipline Committee to impose conditions and limitations on a member's certificate of registration for a specified or "indefinite" period of time. "Indefinite" in s. 51(2)3 does not mean "permanent". The Committee's interpretation of s. 51(2)3 was incorrect. It had no jurisdiction to order that the limitation on the appellant's certificate of registration be permanent.

APPEAL from a penalty imposed by the Discipline Committee of the College of Physicians and Surgeons of Ontario.

Cases referred to Dunsmuir v. New Brunswick, [2008] S.C.J. No. 9, 2008 SCC 9, 329 N.B.R. (2d) 1, 64 C.C.E.L. (3d) 1, 164 A.C.W.S. (3d) 727, EYB 2008-130674, J.E. 2008-547, [2008] CLLC Â220-020, 170 L.A.C. (4th) 1, 372 N.R. 1, 69 Imm. L.R. (3d) 1, 291 D.L.R. (4th) 577, 69 Admin. L.R. (4th) 1 Statutes referred to Regulated Health Professions Act, 1991, S.O. 1991, c. 18, Sch. 2, ss. 51 [as am.], (2) [as am.], (3), (4), 70, 72 [as am.]

Christopher A. Wayland, for appellant. Shaun O'Brien, for respondent.

The judgment of the court was delivered by

LEDERMAN J.: --

Nature of the Proceeding

[1] The appellant, Dr. Heung-Wing Li ("Dr. Li") appeals from the penalty imposed by the Discipline Committee (the "Committee") of the College of Physicians and Surgeons of Ontario (the "College") on October 2, 2006. The Committee imposed, amongst other terms, a condition on Dr. Li's Certificate of Registration, restricting his practice to male patients only.

[2] By way of a subsequent clarification on April 17, 2007, given at the request of the parties, the Committee indicated that the term, condition and limitation restricting Dr. Li's practice to [page632] male patients was to be permanent. In other words, the Committee purported to preclude Dr. Li from ever applying to lift or vary this restriction, regardless of any future change in circumstances. It is against this aspect of the Committee's order that Dr. Li appeals.

Grounds for Appeal

[3] Dr. Li submits that under s. 51(2)3 of the Health Professions Procedural Code ("HPPC"), being Schedule 2 of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (the "Act"), the Committee has jurisdiction to impose terms, conditions and limitations on a member's certificate of registration for either a "specified or indefinite period of time". He submits that "indefinite" does not mean "permanent" and that the Committee did not have jurisdiction to impose a term, condition and limitation for a permanent period of time, as was done here.

[4] Alternatively, Dr. Li submits that the imposition of a permanent restriction was unreasonably harsh and unfit in light of penalties imposed in similar and more serious cases, and that the penalty failed to take into account the expert evidence called at the penalty hearing to the effect that the appellant would not pose a danger to the public if allowed to return to general practice. Moreover, Dr. Li submits that, given the acquittals on the more serious sexual abuse counts, it was unreasonable for the Committee to conclude that Dr. Li can be trusted to examine men, but not women.

Court's Jurisdiction and Standard of Review

[5] The Divisional Court has jurisdiction pursuant to s. 70 of the HPPC to hear an appeal from a decision of the Discipline Committee on questions of law or fact or both.

[6] Although, generally, the standard of review for fitness of penalty is reasonableness, the Supreme Court of Canada in Dunsmuir v. New Brunswick, [2008] S.C.J. No. 9, 2008 SCC 9 stated, at para. 50, that the standard of correctness must be maintained for jurisdictional and some other questions of law. The Discipline Committee is a creature of statute and the penalties that it is authorized to impose are limited to what is set out in s. 51 of the HPPC. As the Act and the HPPC govern 21 health professions, it is of central importance that the issue of interpretation of s. 51 of the HPPC be consistent and correct with respect to a Discipline Committee's authority to order permanent terms and conditions. [page633]

[7] Accordingly, on the first ground of appeal, the standard of review is correctness and on the second ground of appeal, the standard of review is reasonableness.

Background Facts

[8] Dr. Li is a physician who carried on general practice. In 1999, the College received a complaint against Dr. Li from one of his female patients, J.L., about the manner in which Dr. Li conducted a breast examination on her. The complaint arose after J.L. attended Dr. Li's clinic for an allergy shot, and at that time, enquired about the result of a biopsy done on a lump found in her left breast. A breast examination had previously been conducted by another physician as well as a specialist. Dr. Li advised J.L. that the biopsy was inconclusive and asked if she wanted him to conduct a breast examination. J.L. answered affirmatively.

[9] Dr. Li performed the examination with J.L. standing with her back to him and by placing one hand on each breast. At the hearing before the Committee panel, Dr. Li admitted that he knew that this method of conducting a breast examination was not approved by the College and fell below the standard of care. He maintained that he sometimes uses this method because he believes it can be effective in detecting breast lumps, especially where, as here, the patient had already been examined from the front.

[10] J.L. also complained to the police and a criminal charge was laid. As a result of the ensuing publicity, three more complainants came forward. Dr. Li was tried criminally for four counts of sexual assault. Ultimately, he was acquitted on all counts.

[11] The College initially decided to proceed against Dr. Li in respect of the allegations of all four complainants, and ultimately proceeded with the allegations relating to three of them.

[12] The College alleged that in respect of each complainant, the appellant had committed the most serious professional offences known to law, namely sexual abuse and sexual impropriety. The College also alleged that the appellant failed to maintain the standard of practice and engaged in disgraceful, dishonourable and unprofessional conduct in respect of each of the complainants.

[13] Dr. Li was completely exonerated in respect of all allegations relating to two of the three complainants.

[14] With respect to J.L., the Committee found that the allegation of sexual abuse was not proven and acquitted him of sexual abuse in respect of J.L. However, consistent with Dr. Li's admission to that effect, it found that the examination conducted by [page634] Dr. Li fell below the standard of practice. The Committee convicted Dr. Li of failing to maintain the standard of practice and of disgraceful, dishonourable and unprofessional conduct.

[15] In making submissions on penalty, the College noted that, in 1996, Dr. Li had pled guilty for failing to maintain the standards of practice. Dr. Li acknowledged at that time that he had performed a breast examination from behind. The College's sanction included a three-month suspension and a requirement that Dr. Li attend a course on breast examination. Dr. Li completed this course before his encounter with J.L. The College submitted this as evidence that Dr. Li was ungovernable and sought a revocation of Dr. Li's certificate of registration.

[16] The defence called as witnesses two mental health professionals who had assessed Dr. Li. Both agreed that group treatment was an appropriate form of therapy for Dr. Li and considered Dr. Li to have a low risk of recidivism.

[17] In the result, the Committee concluded that revocation would not be appropriate. However, it held that a serious penalty was warranted, stating:

Dr. Li committed a single act after knowing of the College's disapproval of this specific conduct and had sanctioned him. These facts raised serious concerns as to his governability, as well as the clear need for protection of the public. The penalty should be considerably stronger than the three month suspension and period of education imposed on Dr. Li in 1996.

[18] The Committee panel ordered that Dr. Li be reprimanded; be suspended for 24 months; that he complete the College's Boundaries Course; that he continue in his therapy program as long as his doctor recommends that it is necessary; that he be restricted as a surgical assistant for at least one year; that upon completion of the Boundaries Course and therapy, Dr. Li may continue as a surgical assistant; alternatively, upon Dr. Li's written request, the Registrar may impose a term restricting Dr. Li's general practice to male patients only.

[19] When clarification was sought from the Committee, the Committee panel made it clear that the restriction on Dr. Li's certificate to male patients only was to be permanent and that it intended that Dr. Li never be permitted to apply to vary the restriction on his certificate of registration limiting his practice to male patients. The Committee stated that this permanent restriction was justified due to Dr. Li's "failure to respond to the previous disciplinary and education actions of the College" and because Dr. Li "cannot be trusted to examine female patients properly" and because this permanent restriction was warranted for the purposes of "specific and general deterrence". [page635]

Does the Discipline Committee Have Jurisdiction to Place a Permanent Term, Condition or Limitation on a Member's Certificate of Registration?

[20] Section 51 of the HPPC reads as follows:

Orders

(2) If a panel finds a member has committed an act of professional misconduct, it may make an order doing any one or more of the following: 1. Directing the Registrar to revoke the member's certificate of registration. 2. Directing the Registrar to suspend the member's certificate of registration for a specified period of time. 3. Directing the Registrar to impose specified terms, conditions and limitations on the member's certificate of registration for a specified or indefinite period of time. 4. Requiring the member to appear before the panel to be reprimanded. 5. Requiring the member to pay a fine of not more than $35,000 to the Minister of Finance. 5.1 If the act of professional misconduct was the sexual abuse of a patient, requiring the member to reimburse the College for funding provided for that patient under the program required under section 85.7. 5.2 If the panel makes an order under paragraph 5.1, requiring the member to post security acceptable to the College to guarantee the payment of any amounts the member may be required to reimburse under the order under paragraph 5.1.

Idem

(3) In making an order under paragraph 2 or 3 of subsection (2), a panel may specify criteria to be satisfied for the removal of a suspension or the removal of terms, conditions and limitations imposed on a member's certificate of registration.

Suspension of order

(4) A panel may suspend the effect of an order made under subsection (2) for a specified period and on specified conditions.

[21] Dr. Li submits that s. 51 provides the Committee with jurisdiction to impose a term, condition and limitation on a member's certificate of registration, and only for a definite or indefinite period of time, but it has no jurisdiction to impose a term, condition and limitation that is of permanent duration. Dr. Li submits that the word "permanent" does not appear in s. 51 and the word "indefinite" does not mean permanent. [page636]

[22] The College submits that the proper interpretation of the phrase "indefinite period of time" in s. 51(2)3 of the HPPC must be read in the entire context of the HPPC considering the scheme and object of the enactment. It points out that, unlike s. 72 of the HPPC whereby a person, whose certificate of registration has been revoked or suspended, may at a later time seek reinstatement, there is no similar statutory or regulatory right given to a member, in the absence of an express authorization by the Committee panel, to seek a variation or removal of a term condition and limitation. Under s. 51(3) of the HPPC, a panel may specify criteria to be satisfied for the removal of terms, conditions and limitations imposed on a member's certificate of registration. The College argues that by virtue of this provision there is no requirement that a Committee panel specify criteria for the removal of a term, condition and limitation, because the authority given is only that the panel may (but need not) specify criteria for its removal. Accordingly, the College submits that because here no criteria have been specified for removal of the term, condition and limitation, and the penalty order is silent as to any possible future variation, then that term, condition and limitation must be permanent. The College further submits that the Discipline Committee, absent criteria for removal under s. 51(3) in the original panel order, has no jurisdiction to subsequently vary its own orders imposing terms, conditions and limitations, as it is functus officio.

[23] The College submits that this interpretation is also consistent with the College's primary purpose and duty to protect the public. It submits that in meeting this duty it has the wide discretion to impose appropriate terms, conditions and limitations on the certificate of registration of a member who has committed professional misconduct; and in some cases, particularly where the member has failed to respond to previous sanctions, it will be appropriate for a term, condition and limitation to be permanent.

[24] Alternatively, the College submits that a permanent term, condition and limitation would, in fact, be for a "specified" time in that a permanent term means a specified infinite time.

[25] In our view, the Discipline Committee erred in imposing a "permanent" term. The word "indefinite" does not mean "permanent", but rather means unspecified or undefined. Although some dictionaries have equated "indefinite" with "lasting", a clear distinction between "indefinite" and "permanent" is set out in Black's Law Dictionary (6th ed.) wherein it defines "indefinite" as follows:

Indefinite. Without fixed boundaries or distinguishing characteristics; not definite, determinate, or precise. Term is more synonymous with temporary than with permanent; indefinite contemplates that condition will end at [page637] unpredictable time, whereas 'permanent' does not contemplate that condition will cease to exist. (Emphasis added)

[26] More importantly, the word "indefinite" and the phrase "indefinite sentence" when used in the context of criminal punishment and penalties are generally not understood to mean "permanent". They are understood to mean for an unspecified or an undefined period of time and that an indefinite sentence of punishment may be varied at a later time.

[27] Common usage of the word "indefinite" is generally understood to mean that the state of affairs may be subject to change, but at some undefined or unspecified future date. By way of contrast, if a person asserts that a state of affairs is "permanent", that is normally understood to mean that the state of affairs is not susceptible to change at any time or for any reason whatsoever.

[28] Furthermore, when one considers the context or scheme of the HPPC as a whole, s. 51(2)3 should be read harmoniously with other provisions. In particular, under ss. 51(2)1 and 51(2)2, the Discipline Committee is empowered to revoke or suspend a member's certificate of registration. However, by virtue of s. 72 it is clear that suspension and even revocation -- the most serious penalty given in the most serious cases -- are not necessarily permanent. The member is entitled to apply for reinstatement after one year, or after five years in the case of revocation for sexual abuse. It would be incongruous to allow an opportunity to a member to seek reinstatement even after the most serious penalties, but permit a lesser term, condition and limitation to be permanent, regardless of whether any future change of circumstances (including the rehabilitation of the member) may render the original term no longer necessary or appropriate.

[29] It is true that, unlike s. 72, there is no express enactment to permit removal or a variation of a term, condition and limitation. However, this right is implicit in the word "indefinite" contained in s. 51(2)3 in that inherent in the concept of "indefinite" or unspecified period of time is the ability to bring an application to seek a variation.

[30] It is not for us to determine the circumstances in which a member may seek a variation of a term as that issue is not before us on this application.

Conclusion

[31] The Committee's interpretation of s. 51(2)3 was incorrect, as it had no jurisdiction to order that the term, condition [page638] and limitation on Dr. Li's certificate of registration be permanent. Therefore, it becomes unnecessary to consider whether such a permanent restriction results in an unfit penalty in the circumstances of this case.

[32] For these reasons, the appeal is allowed and an order will go setting aside that part of the order of the Committee dated April 17, 2007, imposing a permanent restriction on Dr. Li's certificate of registration.

[33] If the parties cannot otherwise agree as to costs, they may make written submissions delivered to the Registrar of the Divisional Court. Dr. Li's submissions should be made within 15 days and the College's submissions within 15 days thereafter with a further five days allowed for reply, if necessary, by Dr. Li.

Appeal allowed.