CITATION: Valair v. Stoddart, 2016 ONSC 2896
DIVISIONAL COURT FILE NO.: 2100/15
DATE: 20160429
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
DAMBROT, C. HORKINS and ARRELL JJ.
BETWEEN:
Glenda Valair
Applicant
– and –
Karen Leigh Stoddart and Health Professions Appeal and Review Board
Respondents
David Yazbeck and Morgan Rowe, for the Applicant
Brooke Smith, for the Respondent Stoddart
David P. Jacobs and Steven Bosnick, for the Respondent Health Professions Appeal and Review Board
HEARD: April 27, 2016
M. Dambrot J.:
[1] The applicant is a Royal Canadian Mounted Police (“RCMP”) officer who has been diagnosed with adjustment disorder with mixed anxiety and depressed mood and has been off work since January 2007. The respondent Dr. Stoddart was a family physician who worked part-time for the RCMP as an Occupational Health Services Officer (“HSO”). On November 2, 2011, Dr. Stoddart reclassified the applicant’s health status in her RCMP medical profile. On February 22, 2012, Dr. Stoddart confirmed the alteration of the applicant’s status.
[2] The applicant filed a complaint with the College of Physicians and Surgeons (“College”), arguing that Dr. Stoddart had failed to consult Cst. Valair’s caregivers and acted arbitrarily in changing her profile. After conducting an investigation, the Inquiries, Complaints and Reports Committee of the College (“ICRC”) decided to take no further action on the complaint.
[3] The applicant then brought a review of the ICRC’s decision to the Health Professions Appeal and Review Board (“HPARB” and “Board”). The HPARB upheld the decision of the ICRC. The applicant brings this application for judicial review from the decision of the HPARB.
Background
Cst. Valair’s Medical and Employment History
[4] The applicant became an RCMP officer in 1978. The applicant was off work commencing May 8, 2005 as a result of a gunshot wound to her right thigh that she suffered when she accidentally discharged her firearm. She returned to work for a period of time but in December 2006, Ms. Valair suffered muscle spasms as a result of the injury to her thigh, fell and broke her ankle, and was off work again. In January 2007, the applicant was diagnosed with adjustment disorder with mixed anxiety and chronic depressed mood. Both her family physician and her psychologist concluded that she was not fit to return to work at that time, and began treatment with psychotherapy and pharmacological intervention. As a result, she has been off duty since January 2007, on indefinite sick leave. She has remained under the care of her physician and her psychologist ever since. Her psychologist has observed little progress in her condition since 2007, and has remained of the view that the applicant is not capable of returning to work. He has expressed this view in a series of reports, as recently as October 16, 2012.
[5] In 2001, long before the gunshot wound, Cst. Valair filed a complaint with the Canadian Human Rights Commission alleging discrimination and harassment on the basis of sex.
The RCMP Health Services Manual and the Role of an Occupational Health Services Officer
[6] As I have noted, Dr. Stoddart worked part-time as an HSO. The responsibility of an HSO is to ensure that members as well as civilian employees of the RCMP are not placed in an occupational environment that might threaten their physical or mental health as a result of any medical limitations they may have. In order to communicate these medical limitations to the employer, members are placed in medical categories, namely: visual, colour vision, hearing, geographical and occupational. Placement in the first three categories is determined on the basis of medical testing. Placement in the last two categories is based primarily on information from the member’s treating physician in the community. Members are asked to provide documentation from their physician to substantiate their medical limitations. The role of the HSO is to review the information provided by the member and assign the appropriate limitations.
[7] The medical categories I mentioned are found in the RCMP Health Services Manual administered by the Human Resources Management Services of the RCMP. Among other things, the manual includes health and safety categories for members, including members who suffer from medical conditions that may impact on the safety of the members and others in the workplace. Among the medical categories in the manual are: (1) I.2.d. 04, which applies to members who suffer from a condition incompatible with the safe performance of police work; and (2) 1.2.f. 06, which applies to members not considered employable by the RCMP in any capacity because of physical or mental conditions.
[8] The placement of a member in one or the other of these two categories carries significance for the member. A member in the 04 category is considered employable, but is not subject to operational call out. A member in the 06 category is not considered employable in any category at that time.
[9] I note that Cst. Valair submitted to the HPARB that while a member is in category 06 they can be fired. However there is nothing in the Record of Proceedings to support this submission, and no finding in respect of it. We are not in a position to take it into account. In any event this consideration can have no effect on the outcome of this application.
The New Directive
[10] In September 2011, the RCMP Headquarters Employee/Management Relations Officer issued a directive to all HSO’s, including Dr. Stoddart, concerning the administrative categories assigned to Headquarters members who were off work on medical leave. In the past, any member who was on long term sick leave, that is for longer than 30 days, was temporarily placed in the 04 category. This was found to be misleading. It suggested that such members might be fit for administrative duties when in fact they were not. Pursuant to the Directive, any person on medical leave of longer than 30 days would now be temporarily placed in the 06 category “unless the medical evidence provided by the treating physician and reviewed by the HSO indicated otherwise.”
[11] This change corrected the concern that an 04 designation for persons on long term sick leave was misleading. It also put the National Headquarters Occupational Health and Safety Services categorizations into conformity with other regions across Canada and with RCMP policy as outlined in the Health Services Manual.
[12] As a result of the Directive, National Headquarters HSO’s were instructed to review all of their current Off Duty Sick (“ODS”) files and convert the 04’s to 06’s where the member had been off work on medical leave for more than 30 days. All members who fit the new criteria for an 06 designation were contacted, informed of the policy change and offered an appointment with an HSO to discuss the change. The category change was a temporary one, and could be reversed at any time with the support of the treating physician.
[13] It is noteworthy that when a member is placed in the 06 category, their situation must be reassessed no later than six months after the designation, and earlier if their situation changes.
Dr. Stoddart’s Interaction with Cst. Valair
[14] Cst. Valair’s case was assigned to Dr. Stoddart when she first arrived at the RCMP in June 2011. She reviewed the file, and noted that Cst. Valair had been off duty sick for an extended period of time and that medical certificates explained her illness and supported extending her sick leave to October 1, 2011. A subsequent medical certificate supported indefinite sick leave. Supporting documentation in the form of psychological progress notes from her psychologist and evaluation of disability questionnaires completed by her general practitioner helped Dr. Stoddart to understand Cst. Valair’s need to be off duty sick. As a result, she supported the recommendation. She did not contact Cst. Valair’s physician because she did not question the diagnosis or the need for her to be on sick leave. She did not examine Cst. Valair because she was not her treating physician.
[15] After receiving the new Directive, Dr. Stoddart asked Cst. Valair’s Disability Case Manager (“DCM”) to contact Ms. Valair, explain the new directive to her and invite her for an appointment with Dr. Stoddart to discuss the matter further. On October 31, 2011, the DCM contacted Cst. Valair by telephone and did what she had been directed to do. Cst. Valair declined an appointment with Dr. Stoddart at that time.
[16] On November 2, 2011, following a review of the most recent medical information available from Cst. Valair’s treating physicians, Dr. Stoddart assigned Cst. Valair a temporary medical classification of “06-unfit all duties.” Dr. Stoddart’s review included Cst. Valair’s psychologist’s progress reports to date and her physician’s medical certificates completed in 2011, all of which supported an extension of Cst. Valair’s sick leave. In particular, the most recent medical certificate dated September 18, 2011 stated that Cst. Valair was unfit for duty on an ongoing and indefinite basis.
[17] I note as well that the medical form completed by Cst. Valair’s physician on this and all earlier occasions gave the certifying physician several choices with respect to the question of fitness to work. The physician was required to check one of several boxes next to the words: fit for police work; unfit for duty; fit for duty with restrictions; and progressive return to work. In each case the physician checked the “unfit for duty” box.
[18] From November 3, 2011 to February 17, 2012, Dr. Stoddart made repeated efforts to communicate with Cst. Valair, to no avail. Finally, on February 22, 2012, the date that Dr. Stoddart confirmed the alteration of the applicant’s status, she wrote to Cst. Valair’s counsel, reminded him that the last medical report for Cst. Valair indicated that she was unfit for all duties indefinitely, and advised him that if he could provide her with updated medical information for Cst. Valair, she would be happy to review it. No updated medical information was forthcoming.
Cst. Valair’s Complaint to the College of Physicians and Surgeons
[19] On March 30, 2012, Cst. Valair filed a complaint with the College of Physicians and Surgeons (“CPSO” and “College”). After reciting the history of the matter from her perspective she clarified that her specific complaint against Dr. Stoddart was the following:
I am very concerned about Dr. Stoddart’s actions in regards to my employment and care. Changing my medical profile without consulting with any of my caregivers and arbitrarily deciding that I could not work for the RCMP in all and any capacity was devastating …
[20] The CPSO investigated Cst. Valair’s complaint. A CPSO investigator interviewed Cst. Valair, and confirmed that her complaint was that Dr. Stoddart had arbitrarily changed her status from 04 to 06. The investigator offered to contact Dr. Stoddart and seek clarification regarding the information she used as the basis for her opinion, but Cst. Valair declined.
[21] On April 24, 2012, Cst. Valair confirmed in writing that her concerns with respect to Dr. Stoddart were that she:
• failed to examine Cst. Valair
• failed to obtain information from Cst. Valair or her health care providers
• arbitrarily changed Cst. Valair’s status from 04 to 06
• erroneously concluded that Cst. Valair was not fit for duty as a police officer in a variety of capacities, and not fit for participation in training and core competency testing in a variety of areas
The Role of the Inquiries, Complaints and Reports Committee
[22] Regulated health professionals, including physicians, are governed by the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (“RHPA”). The College of Physicians and Surgeons of Ontario is responsible for the regulation of the medical profession in Ontario, and caries out this function pursuant to the RHPA, the Health Professions Procedural Code (“the Code”) being Schedule 2 to the RHPA and the Medicine Act, 1991, S.O. 1991, c. 30.
[23] The ICRC was established by the College pursuant to s. 10 of the Code. It has primary responsibility for considering complaints from the public and determining the appropriate action to be taken in respect of each such complaint. Pursuant to s. 26(1) of the Code, after investigating a complaint and considering submissions, the ICRC may make a number of dispositions, including: referring the matter to the Discipline Committee; requiring a member to appear before it to be cautioned; and taking the action it considers appropriate, including no further action.
The Decision of the Inquiries, Complaints and Reports Committee
[24] Cst. Valair’s complaint was reviewed by a five-member panel of the ICRC. In its decision of April 17, 2013, the ICRC determined that the appropriate disposition was to take no further action. In its reasons, it addressed each of the specific areas of concern raised by Cst. Valair. In particular, the ICRC concluded:
Failure to personally examine Cst. Valair:
• In her role as an HSO for the RCMP, Dr. Stoddart was not required to perform a physical examination of Cst. Valair. It was sufficient, for the purposes of the review she was tasked with, for Dr. Stoddart to review documentation only.
Failure to obtain information from Cst. Valair or her health care providers:
• Dr. Stoddart performed a reasonable review of Cst. Valair’s medical information, including reports from Cst. Valair’s physician and psychologist who had both concluded that she was unfit to work and who both supported her continued sick leave.
• Cst. Valair did not provide Dr. Stoddart with any information from her caregivers that supported her return to work.
Arbitrarily changed Cst. Valair’s status:
• The change of status was initiated by the RCMP, and was administrative in nature.
Erroneously concluded that Cst. Valair was not fit for duty in a variety of capacities:
• Cst. Valair’s doctor and psychologist have both reported, based on assessments, that Cst. Valair is unfit to return to work.
• Cst. Valair has not provided Dr. Stoddart with any information to support a different conclusion.
• Dr. Stoddart has attempted to accommodate Cst. Valair’s request to return to work by asking her in writing to meet with her and provide her with input on the tasks she would be comfortable performing, but Cst. Valair has neither replied nor arranged to meet with her.
[25] Based on these conclusions, the ICRC determined that the appropriate disposition was to take no further action.
The Role of the Health Professions Appeal and Review Board
[26] The Board is an administrative tribunal that oversees the colleges of various self-governing health professions. Amongst its functions, pursuant to s. 29(2) of the Code, is reviewing decisions of panels of the inquiries, complaints and reports committees of regulated health professions, including the ICRC.
The Decision of the Health Professions Appeal and Review Board
[27] At the request of Cst. Valair, the decision of the ICRC was reviewed by the HPARB. The HPARB reviewed the decision of the ICRC on a standard of reasonableness, and in a decision issued on February 10, 2015, concluded that the decision was reasonable and confirmed the decision of the ICRC to take no further action.
[28] The Board considered the four complaints raised by Cst. Valair before the ICRC under two headings. I will refer to each of these in turn.
Failure to conduct an examination and obtain additional information:
[29] Under this heading, Cst. Valair argued that Dr. Stoddart changed her medical category at the request of the RCMP. By doing this without performing a medical assessment or obtaining additional information from Cst. Valair and her treating physicians, Dr. Stoddart failed to act in accordance with her professional obligations. She further argued that there were no changes in her medical condition to trigger a change in her categorization.
[30] The Board concluded that it was not convinced that it was insufficient for Dr. Stoddart to conduct a documentation review for the task she was asked to undertake, and that the ICRC’s decision in this regard was not unreasonable. Further, the Board concluded that the Record supports the ICRC’s decision that within her role as HSO, Dr. Stoddart did not have to conduct a physical examination of Cst. Valair prior to determining whether or not she should be moved from category 04 to category 06 on November 2, 2011.
[31] With respect to the complaint that Dr. Stoddart should have obtained additional documents, the Board noted that Cst. Valair’s physician and her psychologist provided numerous documents from 2008 to 2011 indicating that Cst. Valair was unfit for duty over a series of time periods extending to October 8, 2011, was not capable of returning to work throughout the period from 2008 to 2011 and that her probable return date was unknown. Finally, in a detailed progress report dated October 6, 2011, her physician wrote that her adjustment disorder with mixed anxiety and chronic depressed mood continued, and that barriers remained to optimal progress. The Board further noted that Dr. Stoddart had access to multiple psychological reports and other documents made in 2011 that all supported extension of Cst. Valair’s sick leave.
[32] The Board concluded that the information in the Record supported the Committee’s conclusion that Dr. Stoddart performed a reasonable review of Cst. Valair’s medical record, obviously implying that there was no need to obtain additional information.
Erroneously concluded that Cst. Valair was not fit for duty and arbitrarily changed Cst. Valair’s status:
[33] Cst. Valair argued that Dr. Stoddart altered her medical profile on the basis of a directive of her employer and not based on her medical training. She further argues that her status should not have been changed without a change in her medical condition, based on medical evidence.
[34] The Board agreed that the distinction between 04 and 06 is significant, because a member categorized as an 04 is not subject to operational call out, while an 06 is temporarily considered not to be employable by the RCMP in any capacity. However it noted that Cst. Valair declined an opportunity to meet with Dr. Stoddart to discuss the new directive and its impact, and despite the onus on her to provide monthly updates of her medical information and condition, she did not send additional medical information to her employer at this time.
[35] The Board held that in reaching its decision to take no action on this complaint, the ICRC considered Dr. Stoddart’s role, her mandate to review the files of members on long-term leave pursuant to the new Directive, the medical information she had on hand and the process she followed to reassess Cst. Valair’s categorization. The Board concluded that the Record supports a finding that Dr. Stoddart did not erroneously conclude that Cst. Valair was unfit for duty and that she did not arbitrarily change her status.
[36] As a result, the Board concluded that the decision of the ICRC was reasonable and confirmed that decision.
The Application for Judicial Review
[37] Cst. Valair brought this application for judicial review of the decision of the HPARB on the following grounds:
The HPARB failed to consider or address the argument that Dr. Stoddart breached her professional obligations when she followed the directions of the RCMP and failed to exercise her own medical expertise.
The HPARB erred in relying on Dr. Stoddart’s role as an HSO and her mandate from the RCMP when assessing whether she had met her professional obligations.
The HPARB failed to have regard to the human rights implications of Dr. Stoddart’s actions.
The Position of the Applicant
[38] The applicant says that the finding of the ICRC that Dr. Stoddart’s re-categorization of the applicant’s status was administrative in nature rather than medical was the central assumption underlying its conclusion that Dr. Stoddart did not breach her professional obligations. The applicant argues that the HPARB rejected the Committee’s conclusion that Dr. Stoddart’s actions were administrative, when it said that the alteration of the applicant’s medical category represented a significant modification. As a result, she says that having made this determination, it was not open to the Board to conclude that the ICRC’s analysis was reasonable and supportable, and its decision is plainly unreasonable. The HPARB ought instead to have re-evaluated the ICRC’s analysis in light of this new factual finding.
[39] The applicant also argues that the ICRC and the Board failed to address her argument that Dr. Stoddart had rendered a medical judgment that was inappropriately influenced by the direction of the RCMP, thereby lowering the standard of conduct applicable to a physician employed by the RCMP.
[40] In oral argument, the applicant added a new argument. She said that it was unreasonable for Dr. Stoddart to classify the applicant as unfit for work when she was aware that Cst. Valair’s psychologist had said in some of his reports that her continued involvement in adversarial relations with her employer is a chronic source of frustration for her, and is a barrier to the possibility of her returning to work.
The Position of the Respondents
[41] It is sufficient to say that both respondents disagree with the applicant’s arguments and submit that the decision of the HPARB was reasonable.
The Standard of Review
[42] The parties all agree that the standard of review of reasonableness applies to decisions of the HPARB. However the applicant argues the range of acceptable outcomes for decisions of the HPARB is narrow, and is constrained by the Regulated Health Professions Act, the Health Professions Procedure Code, the statutory definition of “professional misconduct” in the Medicine Act and the obligations on self-regulating professions. The applicant argues that when a decision of the HPARB fails to abide by these constraints, this court’s intervention is warranted.
[43] To the contrary the respondent Board argues that the range of acceptable outcomes for decisions of the Board is broad, not narrow. The Board is a specialized expert tribunal that oversees a number of self-governing health professions and is entitled to considerable deference in its deliberations, not only with respect to its determinations of facts but also as to its dispositions. (See Hefzi-Yekta v. Health Professions Appeal and Review Board, 2012 ONSC 6981 (Div. Ct.); Riad v. Ontario, 2012 ONSC 2728, 292 O.A.C. 337 (Div. Ct.); Sigesmund v. Royal College of Dental Surgeons, [2003] O.J. No. 1806 (Div. Ct.))
[44] The position of Dr. Stoddart is to the same effect.
[45] I am content to say that I fully endorse the position of the respondent Board set out above. It reflects the decisions of this Court in an unbroken chain of cases over several years. While the Board is of course constrained in its decisions by the applicable legislation, its application of that legislation to the facts before it and its disposition in any given case still attracts considerable deference.
Analysis
[46] I will say immediately that I consider the decision of the HPARB to be reasonable. But I will begin my discussion by addressing the issues raised by the applicant.
[47] The applicant’s first argument is that in rejecting the central assumption of the ICRC’s decision that Dr. Stoddart’s action was administrative rather than medical, it was not open to the Board to conclude that the ICRC’s analysis was reasonable and supportable. It ought instead to have re-evaluated the ICRC’s analysis in light of its own factual finding.
[48] This argument fails. It begins with misconceptions about both the decision of the ICRC and that of the Board. These misconceptions are fatal.
[49] I begin with the decision of the ICRC. The applicant says that Dr. Stoddart characterized the nature of her review as administrative, and not medical in nature, and that the ICRC accepted this characterization. I find no support for this interpretation of the ICRC’s reasons. The ICRC recited the information provided to it by Dr. Stoddart in response to the complaint. She described “the temporary medical category of ‘06-unfit all duties’” as “an administrative tool used to communicate to the employer that the member is currently unable to work.” The ICRC neither adopted nor rejected this characterization. It merely made note of it.
[50] What the ICRC did say was that the change in Cst. Valair’s status was initiated by the RCMP, “and appears to be administrative in nature.” This is obviously correct. The RCMP, through its new Directive, initiated a review of the status of all persons on long term sick leave, including the status of Cst. Valair. This was unequivocally an administrative action, done to ensure that members on long term sick leave were properly categorized, consistent with national standards and national RCMP policy. But when Dr. Stoddart followed these instructions, she did not simply make the change. Instead she first undertook a review of Cst. Valair’s status. She made her own determination of the appropriate status for Cst. Valair, and neither she nor the ICRC described these actions as administrative, and not involving the exercise of clinical judgment.
[51] Dr. Stoddart did not characterize her re-categorization of Cst. Valair as administrative either explicitly in her information to the ICRC or implicitly in her handling of the matter. More importantly, the ICRC did not characterize her handling of the matter as administrative, or not involving any exercise of clinical judgment. On the contrary, the ICRC found, entirely reasonably, that Dr. Stoddart “performed a reasonable review of Cst. Valair’s medical information” prior to reclassifying her as an 06, and even then attempted to accommodate Cst. Valair.
[52] I move then to the applicant’s misconception of the reasons of the Board. The Board reviewed the definitions of 04 and 06 status. It noted that 06 status applies to an individual not considered employable by the RCMP. The Board then said that “… this definition is a significant modification as compared to the 04 status which indicates that ‘an 04 individual is not subject to operational call out.’”
[53] The applicant argues that this statement is a rejection of what she describes as the central assumption of the ICRC’s decision: that Dr. Stoddart’s action was administrative rather than medical. I observe that the Board’s comment is nothing more than a statement of the obvious: 04 status covers members who are not fit for operational duties but might be fit for administrative duties and 06 status covers members who are unemployable – unfit for any duties. This is precisely what the words of the two definitions mean. The distinction is significant. No one suggests otherwise, nor could they. I do not understand how this statement of the obvious can be seen, as the applicant suggests, as a rejection of the central assumption of the ICRC’s decision.
[54] More specifically, I fail to understand how a finding that a decision is significant would be inconsistent with characterizing it as administrative. Decisions concerning the management or direction of an office, business or, as here, an organization are generally labelled as administrative, although the word may not be susceptible of precise definition. Administrative decisions can and often do have profound consequences. I do not see how labelling the distinction between 04 and 06 status as significant undermines the decision of the ICRC, or the Board.
[55] In my view, an appropriate way of looking at what happened in this case is simply this. The RCMP directed HSO’s to classify members on sick leave in the National Capital Region in a manner consistent with the rest of the country and with RCMP policy. That decision could properly be labelled as administrative. But when Dr. Stoddart undertook the exercise in respect of Cst. Valair, in the view of both the ICRC and the Board, she exercised her own medical expertise and applied her medical judgment, and did so in a reasonable manner. In my view, this was an entirely reasonable conclusion that is owed deference by this Court.
[56] I would not give effect to this argument.
[57] The applicant’s second argument is that the ICRC and the Board failed to address Cst. Valair’s argument that Dr. Stoddart had rendered a medical judgment that was inappropriately influenced by the direction of the RCMP, thereby lowering the standard of conduct applicable to a physician employed by the RCMP.
[58] In my view, this argument also fails. It is important to recall how this argument was framed before the ICRC. Before both the ICRC and the Board, the applicant said that her concern was that Dr. Stoddart “arbitrarily changed Cst. Valair’s status from 04 to 06.” The applicant did not specifically submit that Dr. Stoddart was inappropriately influenced by the direction of the RCMP.
[59] The ICRC rejected this argument, concluding that while the change of status was initiated by the RCMP, Dr. Stoddart performed a reasonable review of Cst. Valair’s medical information before reclassifying her. In my view this adequately responds to the argument as it is now cast. One could hardly have expected the ICRC to anticipate the words now used by the applicant to formulate what is effectively the same argument.
[60] Before the Board, the applicant elaborated on her position and argued that Dr. Stoddart acted at the request of the RCMP and did so without performing a medical assessment. The Board concluded that the decision of the ICRC on this issue was reasonable. The Board stated that it was not convinced that Dr. Stoddart needed to do more than a documentary review to perform her task professionally. It further concluded that the record supports the ICRC’s finding that Dr. Stoddart did not arbitrarily change Cst. Valair’s status from category 04 to category 06.
[61] In oral argument, in support of the argument that Dr. Stoddart acted arbitrarily, the applicant submitted that Dr. Stoddart was not entitled to change the applicant’s medical status without first finding a change in her medical condition. This argument is unsound. If a member’s medical status has been misclassified, it is open to an HSO, upon reviewing the medical reports relating to the member, to reclassify the member’s status. That is what happened here.
[62] The ICRC and the Board adequately dealt with this branch of the applicant’s argument, and both decisions on this issue were reasonable.
[63] I turn finally to the applicant’s new argument. She says that it was unreasonable for Dr. Stoddart to classify the applicant as unfit for work when she was aware that Cst. Valair’s psychologist had said in some of his reports that her continued involvement in adversarial relations with her employer is a chronic source of frustration for her, and is a barrier to the possibility of her returning to work.
[64] This argument also fails. I note first of all that this argument was made neither to the ICRC nor to the Board. It is not open to the applicant to raise a new argument such as this one on judicial review. We are examining the reasonableness of the decision of the HPARB which in turn reviewed the reasonableness of the decision of the ICRC. Their decisions cannot become unreasonable on the basis of our adjudication of an argument not raised before them.
[65] In any event, even if we could consider the merits of this new argument, in my view it has none. First and foremost, it was the task of Dr. Stoddart to consider the fitness of the applicant to return to work on the day that she made her determination, not on some uncertain future date when an external obstacle to Cst. Valair’s mental well-being may finally be resolved. Second, even if it was open to Dr. Stoddart to consider this matter, she had no way of doing so. She could not know whether it was realistic to think at this late date that it was possible to resolve Cst. Valair’s dispute with the RCMP. Certainly it was no part of Dr. Stoddart’s professional responsibilities as a physician to conduct such an investigation. She was not the applicant’s employer.
[66] In the end, I am satisfied that the decision of the HPARB was entirely reasonable. Dr. Stoddart reviewed the status of the applicant as directed, and made a decision that was virtually compelled by the records supplied to the RCMP by the applicant’s physician and her psychologist. Dr. Stoddart offered an opportunity to the applicant to provide her with updated or additional medical information for her consideration prior to making a decision, but the applicant declined to provide any such information. This application must be dismissed.
Disposition
[67] The application is dismissed.
[68] When asked for its position respecting costs, the Board advised us that it did not seek costs. Dr. Stoddart asked for costs fixed in the approximate amount of $4,500. Counsel for the applicant agreed that costs should follow the event, and the amount sought by Dr. Stoddart was reasonable. We award costs to the respondent Dr. Stoddart, payable by the applicant, fixed in the amount of $4,500, all inclusive.
Dambrot J.
Horkins J.
Arrell J.
Released: April 29, 2016
CITATION: Valair v. Stoddart, 2016 ONSC 2896
DIVISIONAL COURT FILE NO.: 2100/15
DATE: 20160429
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
DAMBROT, C. HORKINS and ARRELL JJ.
BETWEEN:
Glenda Valair
Applicant
-and-
Karen Leigh Stoddart and Health Professions Appeal and Review Board
Respondents
REASONS FOR JUDGMENT
Released: April 29, 2016