Gore et al. v. College of Physicians and Surgeons of Ontario

Gore et al. v. College of Physicians and Surgeons of Ontario Liberman v. College of Physicians and Surgeons of Ontario Judah v. College of Physicians and Surgeons of Ontario [Indexed as: Gore v. College of Physicians and Surgeons of Ontario]

92 O.R. (3d) 195

Ontario Superior Court of Justice,

Divisional Court,

Lederman, Kitely and Swinton JJ.

September 26, 2008

Administrative law -- Judicial review -- Doctors bringing application for judicial review of decision of Registrar of College of Physicians and Surgeons to appoint investigators on ground that Registrar did not have reasonable and probable grounds to believe that applicants had committed act of professional misconduct or were incompetent -- Application dismissed as premature.

Professions -- Physicians and surgeons -- Investigators appointed pursuant to s. 75 of Health Professions Procedural Code having power to compel observation of surgery conducted by investigated physician -- Investigators having power to compel investigated physician to submit to interview -- Health Professions Procedural Code, S.O. 1991, c. 18, Sch. 2, s. 75.

Three of the applicants were general practitioners who performed cosmetic surgery and the fourth was an anaesthetist who worked with physicians who performed cosmetic surgery. Investigations involving two of the applicants were initiated as a result of a systemic review of the practices of general practitioners who perform cosmetic surgery. Investigations involving the other two applicants were initiated as a result of a patient's death. The applicants brought applications for judicial review in which they questioned the scope of the powers of an investigator appointed under s. 75 of the Health Professions Procedural Code. Specifically, they submitted that an investigator does not have the power to compel observation of surgery conducted by the investigated physician or to compel a physician to submit to an interview. Two of the applicants also attacked the decision of the Registrar to appoint investigators on the basis that the Registrar did not have reasonable and probable grounds to believe that those applicants had committed an act of professional misconduct or were incompetent.

Held, the applications should be dismissed.

College investigators have the power to require observation of surgery conducted by a member under investigation. Section 76(1) of the Code provides that an investigator "may inquire into and examine the practice of the member to be investigated, and has, for the purposes of the investigation, all the powers of a commission under Part II of the Public Inquiries Act". An inquiry into and examination of a member's medical practice reasonably includes observation of the member's treatment of patients in circumstances where there is a concern about the member's competence that requires observation of a member. Refusal to permit an observation of clinical practice in those circumstances constitutes obstruction of the investigator, contrary to s. 76(3) of the Code.

An investigator appointed pursuant to s. 75 of the Code has the power to compel a physician to submit to an interview. Section 7 of the [page196] Public Inquiries Act, R.S.O. 1990, c. P.41 permits a commission to summon witnesses to give evidence. It is the incorporation of Part II of the PIA that permits the investigator to compel the physician to provide information during the course of an investigation. The investigation and the ultimate hearing of a complaint are part of a regulatory process, not a criminal proceeding. The primary purpose for obtaining information is to ensure appropriate regulation of the medical profession in the public interest. It would be premature to grant any of the applicants a declaration that any information they might reveal was protected against use in a subsequent proceeding, including any disciplinary proceedings, by use and derivative use immunity. The issue of whether and how that information might be used should be made in the context of an actual proceeding in which a party sought to make use of the information.

The application for judicial review of the Registrar's decision respecting reasonable and probable grounds was premature. Absent exceptional circumstances, administrative proceedings should not be fragmented. No exceptional circumstances existed.

APPLICATIONS for judicial review.

Cases referred to Henderson v. College of Physicians and Surgeons of Ontario (2003), 2003 10566 (ON CA), 65 O.R. (3d) 146, [2003] O.J. No. 2213, 228 D.L.R. (4th) 598, 172 O.A.C. 337, 123 A.C.W.S. (3d) 588 (C.A.); Rioux and College of Nurses of Ontario (Re) (1986), 1986 2842 (ON SC), 54 O.R. (2d) 407, [1986] O.J. No. 213, 14 O.A.C. 308, 11 C.C.E.L. 25, 36 A.C.W.S. (2d) 163 (Div. Ct.); Starr v. Houlden, 1990 112 (SCC), [1990] 1 S.C.R. 1366, [1990] S.C.J. No. 30, 68 D.L.R. (4th) 641, 110 N.R. 81, J.E. 90-610, 41 O.A.C. 161, 55 C.C.C. (3d) 472, 20 A.C.W.S. (3d) 354, 9 W.C.B. (2d) 727, distd Krop v. College of Physicians and Surgeons of Ontario, 2002 53258 (ON SCDC), [2002] O.J. No. 308, 156 O.A.C. 77, 111 A.C.W.S. (3d) 616 (Div. Ct.), consd Other cases referred to A. v. Ontario Securities Commission, 2006 14414 (ON SC), [2006] O.J. No. 1768, 141 C.R.R. (2d) 79, 147 A.C.W.S. (3d) 1083 (S.C.J.); Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43, 2002 SCC 42, 212 D.L.R. (4th) 1, 287 N.R. 248, [2002] 5 W.W.R. 1, J.E. 2002-775, 166 B.C.A.C. 1, 100 B.C.L.R. (3d) 1, 18 C.P.R. (4th) 289, 93 C.R.R. (2d) 189, REJB 2002-30904, 113 A.C.W.S. (3d) 52; British Columbia Securities Commission v. Branch, 1995 142 (SCC), [1995] 2 S.C.R. 3, [1995] S.C.J. No. 32, 123 D.L.R. (4th) 462, 180 N.R. 241, [1995] 5 W.W.R. 129, J.E. 95-848, 4 B.C.L.R. (3d) 1, 97 C.C.C. (3d) 505, 7 C.C.L.S. 1, 38 C.R. (4th) 133, 27 C.R.R. (2d) 189, 54 A.C.W.S. (3d) 662, 27 W.C.B. (2d) 442; Canada (Attorney General) v. Mossop, 1993 164 (SCC), [1993] 1 S.C.R. 554, [1993] S.C.J. No. 20, 100 D.L.R. (4th) 658, 149 N.R. 1, J.E. 93-444, 13 Admin. L.R. (2d) 1, 46 C.C.E.L. 1, 93 CLLC Â17,006 at 16041, 38 A.C.W.S. (3d) 772, 90 di 163; 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, 95 L.C.R. 65; Lala v. College of Physiotherapists of Ontario, [2003] O.J. No. 5062, 127 A.C.W.S. (3d) 589 (Div. Ct.); Mussani v. College of Physicians and Surgeons of Ontario (2004), 2004 48653 (ON CA), 74 O.R. (3d) 1, [2004] O.J. No. 5176, 248 D.L.R. (4th) 632, 193 O.A.C. 23, 22 Admin. L.R. (4th) 53, 125 C.R.R. (2d) 340, 136 A.C.W.S. (3d) 156 (C.A.); Ontario College of Art v. Ontario (Human Rights Commission) (1993), 1993 3430 (ON SCDC), 11 O.R. (3d) 798, [1993] O.J. No. 61, 99 D.L.R. (4th) 738, 63 O.A.C. 393, 37 A.C.W.S. (3d) 1106 (Div. Ct.); Ontario (Securities Commission) v. Biscotti, [1988] O.J. No. 1115, 40 B.L.R. 160, 11 A.C.W.S. (3d) 1 (H.C.J.); Pharmascience Inc. v. Binet, [2006] 2 S.C.R. 513, [2006] S.C.J. No. 48, 2006 SCC 48, 273 D.L.R. (4th) 193, 353 N.R. 343, J.E. 2006-2096, 151 A.C.W.S. (3d) 717, EYB 2006-110506; [page197] R. v. Wigglesworth, 1987 41 (SCC), [1987] 2 S.C.R. 541, [1987] S.C.J. No. 71, 45 D.L.R. (4th) 235, 81 N.R. 161, [1988] 1 W.W.R. 193, 24 O.A.C. 321, 61 Sask. R. 105, 28 Admin. L.R. 294, 37 C.C.C. (3d) 385, 60 C.R. (3d) 193, 32 C.R.R. 219, 3 W.C.B. (2d) 130; Sutherland v. College of Physicians and Surgeons of Ontario, 2007 51785 (ON SCDC), [2007] O.J. No. 4694, 162 A.C.W.S. (3d) 685, 232 O.A.C. 1 (Div. Ct.); Taliano v. College of Physicians and Surgeons of Ontario, [2007] O.J. No. 3159, 228 O.A.C. 118 (Div. Ct.) Statutes referred to Canadian Charter of Rights and Freedoms, ss. 7, 8 Public Inquiries Act, R.S.O. 1990, c. P.41, Part II, ss. 7(1), 9 Regulated Health Professions Act, 1991, S.O. 1991, c. 18 Rules and Regulations referred to Health Professions Procedural Code, S.O. 1991, c. 18, Sch. 2, ss. 3(1), (2), 25, 26 [as am.], 27, 75, 76, 77 [as am.], 78, 82, 83, (1), 83.1(5) [as am.], (6) [as am.]

Andrew B. Matheson and Lisa J. Bonin, for applicants (Stanley Gore, Padma Jain and Ehsan Khan). Nina Bombier and Dena N. Varah, for applicant (Bruce Allen Liberman). Nina Bombier and Dena N. Varah, for applicant (Eli Judah). Paul Schabas, Lisa Brownstone and Lisa Spiegel, for respondent (College of Physicians and Surgeons of Ontario).

The judgment of the court was delivered by

KITELEY AND SWINTON JJ.: --

Introduction

[1] Three applications for judicial review commenced against the College of Physicians and Surgeons of Ontario (the "College") were heard together. Common to all three applications is the interpretation of ss. 75 and 76 of the Health Professions Procedural Code (the "Code"), being Schedule 2 of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (the "Act") -- specifically, the power of an investigator appointed by the College to compel observation of medical procedures and to require a member to be interviewed. In the Gore/Jain application, an additional challenge was raised with respect to the decision of the Registrar to appoint investigators pursuant to s. 75(a), on the basis that the Registrar did not have reasonable and probable grounds to believe that either Dr. Gore or Dr. Jain had committed an act of professional misconduct or was incompetent. The application on behalf of Dr. Ehsan Khan was withdrawn. [page198]

[2] For reasons that follow, the applications for judicial review are dismissed.

Factual Background

[3] Three of the applicants are general practitioners who perform cosmetic surgery, while one is an anaesthetist who works with physicians who perform cosmetic and oral surgical procedures outside a hospital setting. Investigations involving two of the general practitioners, Dr. Jain and Dr. Gore, were initiated as a result of a systemic review of the practices of general practitioners performing cosmetic surgery. The investigations involving one of the general practitioners, Dr. Judah, and the anaesthetist, Dr. Liberman, were initiated as a result of the death of a patient. The investigations will be summarized in chronological order after the regulatory framework is set out.

The regulatory framework

[4] The College is the self-regulating body for the medical profession in Ontario. It regulates the practice of medicine to protect and serve the public interest. Pursuant to s. 3(1) of the Code, it has a number of objects:

1. To regulate the practice of the profession and to govern the members in accordance with the health profession Act, this Code and the Regulated Health Professions Act, 1991 and the regulations and by-laws.
2. To develop, establish and maintain standards of qualification for persons to be issued certificates of registration.
3. To develop, establish and maintain programs and standards of practice to assure the quality of the practice of the profession.
4. To develop, establish and maintain standards of knowledge and skill and programs to promote continuing competence among the members. In carrying out its objects, the College has a duty to serve and protect the public interest (see Code, s. 3(2)).

[5] Under the Code, the College has the responsibility to investigate possible professional misconduct by or incompetence of its members (see ss. 25 and 75). Most investigations conducted by the College begin with a complaint from a member of the public respecting a physician. In these cases, the Complaints Committee is responsible for investigating and disposing of the complaint (Code, ss. 25-27).

[6] If the Registrar has reasonable and probable grounds to believe that a member has committed an act of professional misconduct or is incompetent, the Registrar can appoint investigators to conduct an investigation, provided that the Executive [page199] Committee approves of the appointment (Code, s. 75(a)). Generally, the Registrar appoints more than one investigator.

[7] The Registrar may also appoint an investigator where the Complaints Committee has received a written complaint about a member and has requested the Registrar to conduct an investigation (s. 75(c)).

[8] Investigators have the power to "inquire into and examine the practice of the member to be investigated" (s. 76(1)). They also have specific powers to enter into members' places of practice, examine things found there, summon evidence, make copies of documents, remove original items from the member's place of practice and apply for and obtain a warrant to search a place that is not a member's place of practice (ss. 76-78).

Dr. Judah

[9] Dr. Judah is a general practitioner who has held a certificate of registration authorizing independent practice with the College since 1988. He has not completed a formal surgical residency or certification process. He has practised cosmetic surgery exclusively since 1999 and performs a wide range of procedures.

[10] In December 2006, a patient of Dr. Judah's died two days after he had performed on her an abdominal panniculectomy (removal of hanging fat and skin) and liposuction. In April 2007, the College received a letter from the Office of the Chief Coroner advising that his investigation made him suspicious that there might be an issue around the quality of care provided to the patient prior to her death. According to the coroner's Investigative Statement, the pre-operative assessment of the patient, anaesthesia and surgery were all performed by Dr. Judah.

[11] In June 2007, the Registrar formed a belief on reasonable and probable grounds that Dr. Judah had committed an act of professional misconduct or was incompetent. With the approval of the Executive Committee, the Registrar appointed investigators under s. 75(a) of the Code. Dr. Judah was notified.

[12] The investigators obtained charts from Dr. Judah's clinic. Correspondence was exchanged between the College and Dr. Judah's counsel on matters that are not relevant to this application. Dr. Judah was informed that the Registrar's investigation would include an observation component by the physician investigator and another investigator. Dr. Judah took the position that the College did not have the authority under the Code to require an observation component.

[13] In March 2008, the College issued a summons pursuant to s. 76(1) of the Code directing Dr. Judah to attend for questioning by the appointed investigators. That provision provides: [page200]

76(1) An investigator may inquire into and examine the practice of the member to be investigated and has, for the purposes of the investigation, all the powers of a commission under Part II of the Public Inquiries Act.

[14] Part II of the Public Inquiries Act, R.S.O. 1990, c. P.41 (the "PIA") contains a summons provision in s. 7(1) in the following terms:

7(1) A commission may require any person by summons, (a) to give evidence on oath or affirmation at an inquiry; or (b) to produce in evidence at an inquiry such documents and things as the commission may specify,

relevant to the subject-matter of the inquiry and not inadmissible in evidence at the inquiry under section 11.

[15] Dr. Judah refused to obey the summons.

Dr. Jain and Dr. Gore

[16] In April 2007, the College's governing body (the "Council") directed staff to take various measures to address the proliferation of cosmetic procedures being performed in facilities by numerous physicians in Ontario. In September 2007, a patient who had undergone liposuction performed at a private cosmetic facility died, prompting the College to advance more quickly than it had anticipated to address the issues outlined by Council. In the period following the patient's death, the College sought detailed information from its members about which cosmetic procedures were being performed, in which facilities, by which members and with what training. To obtain that information, the College developed a Mandatory Questionnaire for Physicians Performing Cosmetic Procedures (the "Mandatory Questionnaire").

[17] In October 2007, the Mandatory Questionnaire was sent to approximately 400 physician members whom the College believed might be performing cosmetic procedures. An additional 200 Mandatory Questionnaires were sent to physicians who advised the College that they were performing such procedures. When the Mandatory Questionnaires were returned, College staff analyzed them with respect to the physician's training, the procedures being performed and the facilities in which the procedures were performed.

[18] The questionnaire included a table that identified 70 procedures. The 41 procedures in the "A" category were considered to be "high risk" because they are invasive procedures that carry significant morbidity and mortality risks. They also require careful patient selection and the ability to handle post-surgical complications. Physicians performing these invasive [page201] procedures without formal specialty training and at unaccredited facilities were considered to have high-risk practices. The 29 procedures in the "B" category were less risky.

[19] Counsel for the respondent noted that both Dr. Gore and Dr. Jain reported that 61--80 per cent of their time was spent doing cosmetic procedures. Dr. Jain performed hundreds of the A-list procedures each year. Dr. Gore's practice was concentrated on infusion lipolysis, a term he created and a procedure he had developed that consists of subcutaneous infusion of local anaesthetic into a patient who is awake, followed by blunt dissection of skin from subcutaneous tissue with a fine cannula. He performed over 200 such procedures each year. Neither Dr. Gore nor Dr. Jain worked with other physicians. Neither had training that was recognized by the College as authoritative. Both worked in unaccredited (albeit lawful) facilities. While there was some issue about whether Dr. Gore and Dr. Jain had an obligation to report to the College a change in scope of practice, the College was of the view that spending 60 to 80 per cent of their time on cosmetic procedures was outside the scope of their designated "general practice".

[20] As a result of the analysis of the Mandatory Questionnaires, the Registrar stated a belief on reasonable and probable grounds that Dr. Jain had committed an act of professional misconduct or was incompetent and requested that the Executive Committee of the College approve his appointment of investigators pursuant to s. 75(a) to investigate the practice of Dr. Jain. The Executive Committee approved the appointment. Dr. Jain was notified of the appointment of investigators.

[21] Dr. Jain's counsel asked for the information that had been relied on to support the Registrar's reasonable and probable grounds. It was provided. The Registrar requested that Dr. Jain undertake to immediately cease practising all cosmetic surgical procedures. Dr. Jain refused to provide the undertaking.

[22] The College asked that Dr. Jain submit to an interview and to observation of her surgical practice by the s. 75 investigators. Dr. Jain took the position that the investigators appointed pursuant to s. 75 of the Code did not have the power to compel her to be interviewed, nor to observe surgical procedures.

[23] The College issued a summons pursuant to s. 76(1) of the Code and immediately commenced an application in the Superior Court to enforce its summons.

[24] The same approach was taken with respect to Dr. Gore: the Registrar stated a belief on reasonable and probable grounds that Dr. Gore had committed an act of professional misconduct or was incompetent; his request that the Executive Committee approve the appointment of investigators pursuant to s. 75(a) [page202] was approved; Dr. Gore was notified; and his counsel asked for the information on which the belief had been formed, which was provided. The Registrar requested that Dr. Gore undertake to immediately cease practising all cosmetic surgical procedures and asked that Dr. Gore submit to an interview and to observation of his surgical practice by its s. 75 investigators. Dr. Gore declined to give the undertaking. He took the position that the investigators had no power to compel him to be interviewed, nor to observe surgical procedures. The College issued a summons and advised of its intention to commence an application to enforce the summons.

Dr. Liberman

[25] In September 2007, a patient died after undergoing liposuction by a family physician at a clinic. Dr. Liberman was the attending anaesthetist. In October 2007, the deceased patient's sister and brother-in-law complained to the College about the physician and the anaesthetist. As a result of the investigation into the complaint, the Registrar formed the belief on reasonable and probable grounds that Dr. Liberman committed an act of professional misconduct or was incompetent. With the approval of the Executive Committee, the Registrar appointed investigators.

[26] Dr. Liberman was informed of the appointment of investigators. The College initially indicated that it intended to observe Dr. Liberman in his practice, but no longer seeks to do so. After Dr. Liberman declined to be interviewed, the College issued a summons. Dr. Liberman has indicated that he is not required to comply with the summons.

Scope of the investigations

[27] Typically, physician investigators conduct a chart review. However, the evidence filed on behalf of the College indicates that the "optimal investigation" may also include observation by physician investigators because direct observation produces an evaluation with a high degree of validity and reliability and allows for a wider scope of evaluation than chart review alone. Observation is particularly important in surgery because it permits assessment of the physician's skills, competence and confidence; the decisiveness and manner in which the physician makes decisions, adjusts instruments and uses assistants; the facility and equipment used; the flow of patients and staff and interaction with medical colleagues and support staff, which strongly influence the physician's clinical performance; and the manner in which a physician deals with complications. The evidence notes that surgical [page203] residents are directly observed for thousands of hours during their many years of training. The Registrar asserted that limited observation will be helpful, in that it will provide a base level of information and may assist in formulating or focusing interview questions.

[28] The Registrar reported that a physician usually agrees to be interviewed, with or without counsel. The physician investigator asks questions relevant to the formulation of his opinion about the care or conduct of the member. Counsel may object to questions which they feel are improper.

[29] The evidence filed on behalf of the College indicates that the "optimal investigation" should include an interview component because interviews help inform the overall assessment of a physician's competence; they are extremely useful follow-up tools to chart review and observation; the oral format leads to other questions that cannot be scripted in advance; and assessment of how quickly and thoroughly a response is provided, under some pressure, is an important component of the evaluation. The Registrar noted that oral examinations are an accepted part of medical training and evaluation.

[30] At the conclusion of the investigation, a report will be made to the Executive Committee if the investigators were appointed under s. 75(a), or to the Complaints Committee if appointed under s. 75(c). The appropriate Committee may decide to refer specified allegations of professional misconduct or incompetence to the Discipline Committee for adjudication. It may also decide to take no action, pursue an incapacity investigation, bring the matter to the attention of the Quality Assurance Committee, or ask the physician to enter into an undertaking to address identified deficiencies.

Issues in these Applications

[31] The following issues arise in these applications: (1) Do the powers of an investigator appointed pursuant to s. 75 of the Code include the power to compel observation of surgery conducted by the investigated physician? (2) Does an investigator appointed pursuant to s. 75 of the Code have the power to compel a physician to submit to an interview? (3) Was the decision of the Registrar that he had reasonable and probable grounds with respect to Dr. Jain and Dr. Gore reasonable? [page204] (4) Should the application for judicial review of the Registrar's decision respecting reasonable and probable grounds be dismissed as premature?

Analysis

[32] The College asserts that s. 76, which permits an investigator to "inquire into and examine the practice of the member to be investigated" and "to enter at any reasonable time the place of practice of the member, and [to] examine anything found there that is relevant to the investigation", provides a power to compel observation of surgeries and to compel an interview with the physician. The College also argues that members have a common-law duty, as well as a statutory duty, to co-operate with the College.

[33] The applicants submit that this is an unreasonable interpretation of the statute. They submit that physicians are not compelled by statute to participate in or otherwise co-operate with investigations. They are simply prohibited from obstructing any investigation or concealing or destroying relevant information. Because the investigation is conducted in a punitive context, the physician is entitled to procedural fairness, including protection against self-incrimination.

[34] As the College is a creature of statute, it derives all of its power and authority to govern physicians from the governing legislation. As a creature of statute, the College must find its powers in legislation.

Issue #1: Do the powers of an investigator appointed pursuant to s. 75 of the Code include the power to compel observation of surgery conducted by the investigated physician?

[35] The Supreme Court of Canada has repeatedly endorsed the modern principle of statutory interpretation as follows:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. (Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2000] 2 S.C.R. 559, [2002] S.C.J. No. 43, at para. 26)

[36] When one considers the ordinary meaning of "inquire into and examine the practice" in s. 76 of the Code, it would appear that the investigator has the power to observe a member in his or her practice. According to Webster's Desk Dictionary of the English Language (1990 Edition, based on the Random House Dictionary, Classic Edition, 1983), "inquire" is defined as "to seek [page205] to learn by asking"; "to seek information by questioning"; "to make investigation". "Examine" means "to look over carefully in order to find or learn about; to test the knowledge or qualifications of a person, as by questions". "Practice" is defined as "habitual or customary performance"; "to pursue a profession". Therefore, an examination of a surgical practice could include observation of surgical procedures.

[37] It is not enough, however, to consider the ordinary meaning of the words of the statute. One must also consider the relevant provisions in context, as well as the purpose of the legislation.

[38] The investigative provisions of the Code are found in a statute dealing with regulation of the medical profession. The primary purpose of the legislation is protection of the public, and the College, as the self-regulatory body for the medical profession, has a statutory duty to serve and protect the public interest (Code, s. 3(2)).

[39] The Supreme Court of Canada has emphasized the important responsibility for public protection imposed on self-regulating professions, stating in Pharmascience Inc. v. Binet, 2006 SCC 48, [2006] 2 S.C.R. 513, [2006] S.C.J. No. 48, at paras. 36 and 37:

The privilege of self-regulation therefore places the individuals responsible for enforcing professional discipline under an onerous obligation. The delegation of powers by the statute comes with the responsibility for providing adequate protection for the public. Finney [Finney v. Bureau du Québec, 2004 SCC 36, [2004] 2 S.C.R. 17, [2004] S.C.J. No. 31] confirms the importance of properly discharging this obligation and the seriousness of the consequences of failing to do so. . . . . .

In this context, it should be expected that individuals with not only the power, but also the duty, to inquire into a professional's conduct will have sufficiently effective means at their disposal to gather all information relevant to determining whether a complaint should be lodged. At issue in that case was the power of the syndic of the Ordre des pharmaciens of Quebec to request information and documents from third parties.

[40] In the context of medical practice, an inquiry into and examination of a member's practice reasonably includes observation of the member's treatment of patients in circumstances where there is a concern about the member's competence that requires observation of the member. Observation is particularly important in the case of surgery, where the practice is predominantly a manual one. As the affidavit evidence filed on behalf of the College indicates, the observation of surgical practice is an important tool to assess a physician's skill and competence, as well as his or her ability to deal with complications. [page206]

[41] Further guidance as to the scope of the powers in s. 76(1) is found in the words of s. 76(3) of the Code, which states that "no person shall obstruct an investigator or withhold or conceal from him or her or destroy anything that is relevant to the investigation". The College submits that this imposes a positive obligation on physicians to co-operate with investigators.

[42] The applicants submit that the language of s. 76 should be narrowly construed, because any action taken under it may affect the livelihood of the regulated individual (Rioux and College of Nurses of Ontario (Re) (1986), 1986 2842 (ON SC), 54 O.R. (2d) 407, [1986] O.J. No. 213 (Div. Ct.), at para. 31). They submit that the duty in s. 76(3) is not to obstruct, conceal or delay, but the subsection does not impose a duty to co-operate and participate.

[43] In our view, the Rioux case is of no assistance. It dealt with the power of a Registration Committee to alter conditions imposed on a nurse's certificate of registration without complying first with statutory procedures. It does not assist in the interpretation of s. 76 of the Code, and, indeed, Pharmascience, supra, indicates that the powers of the investigator should be interpreted in light of the public protection purpose of the Code.

[44] Although the affidavit evidence of the College indicates that it is unusual for an investigator to request the opportunity to observe medical treatment, there are circumstances where observation is necessary to evaluate the skill and competence of the physician. Refusal to permit an observation of clinical practice, in a case where the College has reasonable concerns about the member's conduct and competence, would, in our view, constitute obstruction of the investigator.

[45] The applicants submit that there is no obligation to perform surgery under observation or, indeed, to participate in an interview with the investigator, because of the different wording of ss. 76 and 82 of the Code. The latter provision deals with quality assurance and includes the explicit requirement in s. 82(1) of the Code that a physician co-operate with the Quality Assurance Committee. Section 82 provides:

82(1) Every member shall co-operate with the Quality Assurance Committee and with any assessor it appoints and in particular every member shall, (a) permit the assessor to enter and inspect the premises where the member practises; (b) permit the assessor to inspect the member's records of the care of patients; (c) give the Committee or the assessor the information in respect of the care of patients or in respect of the member's records of the [page207] care of patients the Committee or assessor requests in the form the Committee or assessor specifies; (d) confer with the Committee or the assessor if requested to do so by either of them; and (e) participate in a program designed to evaluate the knowledge, skill and judgment of the member, if requested to do so by the Committee.

[46] The applicants submit that these provisions demonstrate that an "assessment" is distinct from an investigation, and an assessment under the Quality Assurance Program carries with it certain protections. They submit that the College now seeks to submit them to an assessment without the protections that the Quality Assurance Program provides. For example, s. 83 provides that the Quality Assurance Committee and any assessor appointed by it, except in enumerated exceptions, shall not disclose to any other committee information that was given by the member or that relates to the member and was obtained under s. 82. Subsections 83.1(5) and (6) provide that a person cannot be compelled or permitted to disclose quality assurance information, and that information is not admissible in a proceeding.

[47] It is true, as the applicants submit, that an assessment is distinct from an investigation. However, the requirement that a member co-operate in s. 82 is not determinative of the scope of the investigator's powers in s. 76. The purposes of an assessment and an investigation are different and, as a consequence, the provisions governing each process are different.

[48] The College randomly selects hundreds of physicians each year for quality assessment of clinical practice. The primary aim is both evaluation and education. Therefore, physician co-operation with the process is necessary to achieve the aims of the program.

[49] In contrast, an investigation under s. 75(a) only occurs if information has been brought to the attention of the Registrar that gives him reasonable and probable grounds to believe that the member has committed an act of professional misconduct or is incompetent. The investigator appointed under s. 75(a) has wide-ranging powers to inquire into and examine the member's practice. Those powers are framed in broad and general terms in order to cover a wide range of circumstances.

[50] The applicants submit that if there is ambiguity in the language of s. 76(1), then the court should adopt the interpretation which is most in conformity with Canadian Charter of Rights and Freedoms values (Canada (Attorney General) v. Mossop, 1993 164 (SCC), [1993] 1 S.C.R. 554, [1993] S.C.J. No. 20, at para. 36). In our view, there [page208] is no ambiguity in the language of s. 76(1) and, therefore, it is not necessary to consider the argument made with respect to the values found in ss. 7 and 8 of the Charter.

[51] In our view, pursuant to s. 76 of the Code, the College investigators have the power to require observation of surgery conducted by the member under investigation.

Issue #2: Does an investigator appointed pursuant to s. 75 of the Code have the power to compel a physician to submit to an interview?

[52] The College submits that it has the power to require a physician to participate in an interview, relying on the Krop decision of this court. There the court stated that a member was obliged "to co-operate as the section required him to do", referring to the predecessor to ss. 75 and 76 of the Code, which contained similar wording (Krop v. College of Physicians and Surgeons of Ontario, 2002 53258 (ON SCDC), [2002] O.J. No. 308, 156 O.A.C. 77 (Div. Ct.), at para. 19). In our view, one cannot rely on this one sentence for the proposition that there is an obligation to participate in an interview, as the reasons state that the physician there "volunteered information" to the investigator (at para. 18).

[53] However, pursuant to s. 76(1), the investigator has, for the purposes of the investigation, "all the powers of a commission under Part II of the Public Inquiries Act, 1991". Section 7 of the PIA permits a commission to summon witnesses to give evidence. It is the incorporation of Part II of the PIA that permits the investigator to compel the physician to provide information during the course of an investigation.

[54] The applicants submit that a physician who is under investigation is not a compellable witness. Due to potential disciplinary proceedings, individuals like the applicants are at risk of self-incrimination if they speak with the investigators about the subject matter of the investigation.

[55] The applicants rely on the Court of Appeal's statement in Henderson v. College of Physicians and Surgeons of Ontario (2003), 2003 10566 (ON CA), 65 O.R. (3d) 146, [2003] O.J. No. 2213 (C.A.) that a discipline proceeding is quasi-criminal in nature (at para. 27). That case is distinguishable. There, the court held that the Registrar required express statutory authority to execute an amended Notice of Hearing to add new complaints after a discipline hearing had commenced. The issue was procedural fairness, not the powers of an investigator (see Mussani v. College of Physicians and Surgeons of Ontario (2004), 2004 48653 (ON CA), 74 O.R. (3d) 1, [2004] O.J. No. 5176 (C.A.), at paras. 90-91). [page209]

[56] The applicants argue that the sole purpose of the investigation is to gather evidence against them for use in future disciplinary proceedings. In fact, that is inaccurate: the purpose of an investigation is to gather information so that the Executive Committee or the Complaints Committee, as the case may be, can decide whether further steps should be taken or not, as well as the nature of those steps. One of the possible outcomes may be disciplinary proceedings, where a Discipline Committee will determine whether there has been professional misconduct or incompetence on the basis of the evidence before it. The investigators make no determination as to whether a member is guilty of misconduct or incompetence. That is the role of a Discipline Committee, should one be appointed.

[57] Moreover, the investigation and the ultimate hearing of a complaint are part of a regulatory process, not a criminal proceeding (R. v. Wigglesworth, 1987 41 (SCC), [1987] 2 S.C.R. 541, [1987] S.C.J. No. 71, 45 D.L.R. (4th) 235, at pp. 251-54 D.L.R.). The primary purpose for obtaining information is to ensure appropriate regulation of the medical profession in the public interest.

[58] As a result, a case such as Starr v. Houlden, 1990 112 (SCC), [1990] 1 S.C.R. 1366, [1990] S.C.J. No. 30 is distinguishable, since it dealt with the constitutional invalidity of a provincial inquiry into specific criminal activity (at para. 43).

[59] The words of s. 7 of the PIA and of s. 76(1) of the Code do not exclude the physician under investigation from being questioned by the investigators. Courts have consistently held under other similar statutes that members must comply with a summons issued by their regulators or their regulators' agents (British Columbia Securities Commission v. Branch, 1995 142 (SCC), [1995] 2 S.C.R. 3, [1995] S.C.J. No. 32; Ontario (Securities Commission) v. Biscotti, [1988] O.J. No. 1115, 40 B.L.R. 160 (H.C.J.), at pp. 4 and 10 (QL); A. v. Ontario Securities Commission, 2006 14414 (ON SC), [2006] O.J. No. 1768, 141 C.R.R. (2d) 79 (S.C.J.), at paras. 43-44, 53, 58 and 59).

[60] Even in the context of a public inquiry, an individual may be compelled to testify, although the result may be the revelation of inculpatory information. In such circumstances, s. 9 of the PIA provides protection against subsequent use of the testimony. It reads:

9(1) A witness at an inquiry shall be deemed to have objected to answer any question asked him or her upon the ground that his or her answer may tend to criminate the witness or may tend to establish his or her liability to civil proceedings at the instance of the Crown or of any person, and no answer given by a witness at an inquiry shall be used or be receivable in evidence against him or her in any trial or other proceedings against him or her thereafter taking place, other than a prosecution for perjury in giving such evidence. [page210]

[61] Therefore, the College investigators have the power to compel a physician to answer questions put by investigators, given the incorporation of Part II of the PIA in s. 76(1) of the Code.

[62] Given the conclusion we have reached on this issue, Doctors Judah and Liberman seek a declaration that any information they may reveal is protected against use in a subsequent proceeding, including any disciplinary proceedings, by use and derivative use immunity.

[63] In our view, it is premature to give such a declaration. The issue of whether and how that information may be used subsequently is appropriately made in the context of an actual proceeding in which a party seeks to make use of the information.

Issue #3: Was the decision of the Registrar that he had reasonable and probable grounds with respect to Dr. Jain and Dr. Gore reasonable?

Issue #4: Should the application for judicial review of the Registrar's decision respecting reasonable and probable grounds be dismissed as premature?

[64] Counsel agree that the standard of review of the Registrar's decision is reasonableness, given that he is exercising a discretionary power (Dunsmuir v. New Brunswick, [2008] S.C.J. No. 9, 2008 SCC 9, at para. 53).

[65] However, before considering whether the decision should be reviewed, it is necessary to consider the College's submission that an application for judicial review on this ground is premature.

[66] Judicial review is a discretionary remedy, and this court has held in a number of cases, that absent exceptional circumstances, administrative proceedings should not be fragmented. Therefore, applications for judicial review should not be determined until there is a full record and the administrative proceeding has come to an end (Ontario College of Art v. Ontario (Human Rights Commission) (1993), 1993 3430 (ON SCDC), 11 O.R. (3d) 798, [1993] O.J. No. 61 (Div. Ct.), at pp. 799-800 O.R.; Taliano v. College of Physicians and Surgeons of Ontario, [2007] O.J. No. 3159, 228 O.A.C. 118 (Div. Ct.), at paras. 2 and 5).

[67] In Sutherland v. College of Physicians and Surgeons of Ontario, 2007 51785 (ON SCDC), [2007] O.J. No. 4694, 162 A.C.W.S. (3d) 685 (Div. Ct.), this court held that an application for judicial review of a Registrar's reasonable and probable grounds decision was premature, as the matter could and should be raised before the Discipline Committee (at para. 5). See, also, Lala v. College of Physiotherapists of Ontario, [2003] O.J. No. 5062, 127 A.C.W.S. (3d) 589 (Div. Ct.), at paras. 2-3. [page211]

[68] In the Gore and Jain cases, the matters are at a very preliminary stage -- namely, an investigation has begun into their practices. If the allegations are ultimately referred to the Discipline Committee, they will have the right to a full hearing. As there are no exceptional circumstances arising in this application for judicial review, we would dismiss the challenge to the Registrar's decision on the grounds of prematurity.

Conclusion

[69] The applications for judicial review are dismissed. If counsel are unable to agree on costs, written submissions shall be provided by the College within 30 days of release of these reasons and by the applicants within 15 days thereafter.

Applications dismissed.