CITATION: College of Physicians and Surgeons of Ontario v. Dr. Kayilasanathan, 2019 ONSC 4350
COURT FILE NO.: DC-18-657-00
DATE: 20190718
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
M.G.J. Quigley, Conway and Favreau, JJ.
B E T W E E N :
THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO
Respondent
– and –
DR. SUGANTHAN KAYILASANATHAN
Appellant
Lisa Brownstone and Ruth Ainsworth for the Respondent
Jaan E. Lilles and Andrea Wheeler for the Appellant
HEARD at Toronto: July 4, 2019
PUBLICATION BAN
In the matter of the College of Physicians and Surgeons of Ontario and Dr. Kayilasanathan, the Discipline Committee ordered a ban on the publication, including broadcasting, of the names and identifying information of any of the witnesses, under subsection 47(1) of the Health Professions Procedural Code, which is Schedule 2 to the Regulated Health Professions Act, 1991.
REASONS FOR DECISION
BY THE COURT:
[1] At the conclusion of the hearing on July 4, 2019, we advised the parties that the appeal was dismissed with reasons to follow. These are the reasons.
[2] The Appellant, Dr. Suganthan Kayilasanathan, appeals the Decision of the Discipline Committee of the College of Physicians and Surgeons of Ontario, dated September 21, 2018, and the Penalty Decision of the Committee, dated January 29, 2019.
[3] The Committee found that the Appellant committed an act of professional misconduct under paragraph 51(1)(b.l) of the Health Professions Procedural Code (the “Code”)[^1] by engaging in sexual abuse of a patient, Ms. A, and by engaging in unprofessional conduct under paragraph 1(1)33 of Ontario Regulation 856/93 (“O. Reg. 856/93”).[^2]
[4] Having found that the Appellant committed an act of professional misconduct, the Committee revoked the Appellant's certification of registration as a physician and ordered costs against him in the amount of $46,220.00.
[5] The Appellant appeals to this Court seeking an Order setting aside both the Decision of the Committee and the Penalty Decision. The Appellant also challenges a decision of the Committee not to quash a summons issued to Ms. A.
Background
Relationship between the Appellant and Ms. A
[6] At the relevant time, the Appellant was a family physician practicing in Toronto. He and Ms. A knew each other socially.
[7] On Saturday, December 4, 2010, the Appellant, Ms. A and a mutual friend spent time together at a downtown club, after which they went to a nearby condominium owned by the Appellant's brother. Ms. A was scheduled to write community college exams on December 6 and 8, 2010. When she said that she wanted to go home, the mutual friend suggested that the Appellant could write her a medical note excusing her from the exams. Ms. A then stayed at the condominium and fell asleep. When Ms. A woke up on Sunday, the Appellant gave her the address to his clinic.
[8] On December 6, 2010, Ms. A attended the clinic early in the morning. The Appellant prepared a medical record of the visit that stated that Ms. A presented with a complaint of asthma exacerbation, that she had fever and chills, that she was not able to write her exams on December 6th and 8th, that she was to take medication as directed and that she was to return a week later or as needed if the symptoms got worse. During the medical examination, the Appellant listened to Ms. A's chest. He also gave Ms. A a note excusing her from her college exams and he submitted a claim to OHIP for an intermediate assessment, for which he was paid $33.10.
[9] The Appellant and Ms. A texted each other after the visit. On December 8, 2010, the Appellant picked up Ms. A from her home and drove her to an inn in Mississauga. While they were at the inn, over the night of December 8 to December 9, 2010, the Appellant and Ms. A had sexual intercourse and oral sex.
[10] Ms. A returned to the Appellant's clinic on December 13, 2010. While she was there, Ms. A asked the Appellant about a rash she thought she got from the sexual encounter, and she also requested that the Appellant give her a note excusing her from writing another upcoming exam. The Appellant prepared a medical record of this visit which stated that Ms. A complained of an ongoing cough and wheezing, that she was still unable to study or write exams, that she was to take various medications and that she was to return to the clinic or attend emergency if the symptoms worsened. The Appellant wrote another note excusing Ms. A from her exams and again billed OHIP for an intermediate assessment.
[11] The Appellant and Ms. A saw each other again once sometime in February 2011, after which they did not have any further contact.
Disciplinary proceedings and the Decisions
[12] Ms. A disclosed the sexual encounter with the Appellant to another physician, Dr. Mohamed, a few months later. Dr. Mohamed reported Ms. A's allegations to the College of Physicians and Surgeons of Ontario on March 8, 2011 in compliance with the mandatory reporting obligations under sections 85.1 and 85.3 of the Code. Ms. A did not consent to Dr. Mohamed disclosing her name, and therefore the report did not identify her.
[13] After receiving the complaint, the College compelled Dr. Mohamed to provide Ms. A's name. The College then obtained information from Ms. A about her encounters with the Appellant. (The circumstances under which the College obtained information from Ms. A are addressed in more detail later in this decision.)
[14] The College then initiated disciplinary proceedings against the Appellant, alleging that he had engaged in the sexual abuse of a patient contrary to section 51(1)(b.1) of the Code and that he had engaged in disgraceful, dishonourable and unprofessional conduct contrary to section 1(1)33 of O. Reg. 856/93. The College referred the matter to a panel of the Committee on April 20, 2016.
[15] Ms. A was summoned to testify at the hearing before the Committee. At the beginning of the hearing, she brought a motion to quash the summons on the grounds of abuse of process. The Committee dismissed the motion in a decision dated February 2, 2018.
[16] The hearing then proceeded, and the College called as witnesses Ms. A, Dr. Mohamed and a general manager at the inn where the sexual encounter allegedly occurred. On consent, the evidence also included the medical records from Ms. A's two visits to the clinic, the OHIP records from those visits and records from the inn.
[17] The Committee released its decision on September 21, 2018. The Committee found that the Appellant and Ms. A were in a physician-patient relationship at the time of the sexual encounter. On that basis, the Committee found that the Appellant engaged in the sexual abuse of a patient and that he engaged in disgraceful, dishonourable and unprofessional conduct.
[18] The Committee released its penalty decision on January 29, 2019. The Committee revoked the Appellant's certificate of registration and ordered the Appellant to pay the College's costs in the amount of $46,220.00. The Committee held that even if revocation had not been mandatory under section 51(5) of the Code, it would have revoked the Appellant's certificate in this case given the nature and "aggravating circumstances" of the misconduct.
Legislative Scheme
[19] Section 51(1)(b.1) of the Code provides that a member of the College commits an act of professional misconduct if the "member has sexually abused a patient".
[20] Section 1(3) of the Code defines "sexual abuse" broadly as including an array of sexual contact with a patient:
"sexual abuse" of a patient by a member means,
(a) sexual intercourse or other forms of physical sexual relations between the member and the patient,
(b) touching, of a sexual nature, of the patient by the member, or
(c) behaviour or remarks of a sexual nature by the member towards the patient.
[21] In order for the Committee to find that a physician sexually abused a patient pursuant to section 51(1)(b.1) of the Code, a finding that there was a physician-patient relationship at the time of the sexual encounter is sufficient; the patient's consent is irrelevant.[^3]
[22] Section 51(5) of the Code provides that, if a panel of the Committee finds that the sexual abuse of a patient included sexual intercourse, amongst other sexual acts, revocation of the member's registration is mandatory.
[23] Section 1(1)33 of O. Reg. 856/93 provides that members commit an act of professional misconduct when they engage in:
An act or omission relevant to the practice of medicine that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional.
Jurisdiction and Standard of Review
[24] Subsection 70(1) of the Code provides that a party to a proceeding before a panel of the Discipline Committee may appeal from the decision or order to this Court.
[25] The parties agree that the applicable standard of review to the Committee's findings in this case is reasonableness.
[26] Pursuant to Dunsmuir v. New Brunswick[^4], the decision of an administrative decision maker is reasonable if it is justified, transparent and intelligible, and if it "falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law".
Issue 1: Whether the finding that the Appellant and Ms. A were in a physician-patient relationship at the time they had sexual relations was reasonable
[27] The Appellant argues that the Committee's Decision of September 21, 2018, finding that he engaged in the sexual abuse of a patient, is unreasonable on three grounds:
a. The Committee's finding that the Appellant and Ms. A were in a physician-patient relationship was not supported by the evidence, in particular Ms. A's evidence;
b. There was no basis for the Committee to make an adverse inference based on the Appellant's failure to testify; and
c. The Committee's finding about the timing of the sexual relationship between the Appellant and Ms. A was not supported by clear and cogent evidence.
[28] In our view, none of these arguments supports a finding that the Decision was unreasonable.
Existence of a physician-patient relationship
[29] The Appellant argues that the Committee's finding that he was in a physician-patient relationship was unreasonable because the Committee placed undue weight on the contents of the records from Ms. A's visits to the clinic while disregarding Ms. A's evidence about the purpose of the visits and what occurred at the clinic. The Appellant argues that it was clear from Ms. A's evidence that he never provided her with any medical treatment, and that the sole purpose of the clinic visits was for her to obtain notes excusing her from her college exams because she was not prepared for the exams, and not for medical reasons.
[30] We reject this argument.
[31] The Committee found that the Appellant had commenced a physician-patient relationship with Ms. A on December 6, 2010, and that the clinical relationship continued until at least the follow-up visit on December 13, 2010. In making this determination, it is evident that the Committee considered Ms. A's evidence together with the medical records, OHIP records and medical notes addressed to Ms. A's college, and found that they supported a finding that the Appellant and Ms. A were in physician-patient relationship. This finding is reasonable and supported by all the evidence at the hearing.
[32] In considering whether the Appellant and Ms. A were in a physician-patient relationship, the College relied on some of the factors enumerated in Redhead, Re[^5], which are non-exhaustive and include the following:
• Whether the professional had a patient file for the patient, including history, physical examination, diagnosis, plan of management, prognosis, diagnostic imaging reports, and a written record of treatments;
• Whether there were OHIP billing records for services provided by the professional to the patient;
• The number and nature of treatments received by the complainant from the professional and the location in which these treatments were received;
• Whether the professional prescribed medication to the complainant under his or her signature.
[33] Based on its review of the evidence, the Committee found that the following considerations supported finding a physician-patient relationship:
(i) Dr. Kayilasanathan had a patient file for Ms. A, which included on December 6, 2010, a detailed description of a history, physical examination, diagnosis, and plan of management, and direction for a follow-up return to the clinic in one week or “prn”, that is, as needed going forward;
(ii) Dr. Kayilasanathan's patient file for Ms. A provided for the follow-up appointment on December 13, 2010 also included a detailed description of the history, physical examination, and diagnosis, a plan of management, and a follow up, a clear indication of continuing medical care;
(iii) Dr. Kayilasanathan billed OHIP for an intermediate assessment for each of the two visits, December 6 and December 13, 2010, for specified services provided to Ms. A; and
(iv) There is a notation on the clinic's medical record for Ms. A. identifying Ms. A as the patient.
[34] The Committee also found that the notes excusing Ms. A from writing her exams supported finding the existence of a physician-patient relationship:
A medical note is similar conceptually to a prescription for medication; it is understood to be issued by a physician on the basis of his or her professional judgment after an assessment of a patient and to be relied on by the intended recipient. The recipients of medical notes, such as employers and organizations, including community college administrators in this case, are expected to respect the recommendations and directions made by a physician. This is an example of the special authority granted to physicians.
[35] Ultimately, based on its review of all of the evidence, the Committee concluded that the Appellant and Ms. A were in a physician-patient relationship:
The Committee concludes that Dr. Kayilasanathan, by his actions in requesting Ms A to attend at his clinic, taking a history and conducting examinations, assessing Ms A as a patient and making a diagnosis and treatment plan, creating a medical record which included a plan for a return visit, billing OHIP and providing to Ms A medical notes excusing her because of illness from college examinations, established a doctor-patient relationship with her on December 6, 2010, which continued through to the follow-up appointment on December 13, 2010.
[36] The Appellant argues that it was unreasonable for the Committee to rely on the medical records, because they were contradicted by Ms. A's direct evidence that she and the Appellant were not in a physician-patient relationship, and that she only attended the clinic to obtain notes to excuse her from writing her college exams. However, the Committee did consider Ms. A's evidence of her intentions, both as a matter of law and also when assessing her credibility.
[37] As a matter of law, referring to this Court's decision in Sliwin v. College of Physicians and Surgeons of Ontario[^6], the Committee properly held that Ms. A's views on whether or not she and the Appellant were in a physician-patient relationship are irrelevant. As held in Sliwin, it is up to the Committee to make that determination based on the totality of the circumstances.
[38] In assessing Ms. A's credibility, the Committee considered the potential discrepancies between the medical records and Ms. A's evidence. The Committee ultimately found that, even if the medical records were not entirely accurate, it was satisfied that Ms. A attended the clinic, gave a medical history, was examined by the Appellant and obtained medical notes excusing her from writing her exams. Each of these findings was supported by Ms. A's evidence. The medical history made reference to a history of asthma, which Ms. A confirmed was accurate. Ms. A testified that, during the December 6th appointment, she told the Appellant that he should listen to her chest to make it look real, which he did. The Appellant gave Ms. A medical notes on December 6th and December 13th.
[39] Essentially, the Appellant is arguing that, because Ms. A did not attend the clinic due to an illness, but only for the purpose of getting notes excusing her from writing her exams, the Committee's finding that there was a physician-patient relationship is unreasonable. However, in making its finding, we are satisfied that the Committee had regard to all of the evidence and circumstances, including Ms. A's evidence. The Committee's finding on the existence of a physician-patient relationship is a question of mixed fact and law squarely within its expertise. The finding is supported by the record and falls well within the range of reasonable outcomes.
The Committee was entitled to draw an adverse inference from the Appellant's decision not to testify
[40] The Appellant argues that the Committee was not entitled to draw an adverse inference from his failure to testify, because the College had not made out a prima facie case.
[41] We disagree.
[42] In its decision, the Committee explicitly found that the College had established a prima facie case of sexual abuse "based on the medical records and OHIP billings for Ms. A's two clinic visits (December 6 and 13, 2010), the hotel record from the evening of the sexual encounter (December 8, 2010), and the testimony of Ms. A regarding these events".
[43] Having found a prima facie case, the Committee was entitled to draw an adverse inference from the Appellant's failure to testify. In doing so, the Committee listed a number of areas of evidence where it inferred from the Appellant's silence that he had no contrary evidence to offer. For example, the Committee found that it was the Appellant, and not an unauthorized member of the clinic staff, who billed OHIP for Ms. A's two clinic visits.
[44] Having found that a prima facie case was made out on the entirety of the documentary and other evidence presented by the College, it was open to the Committee to draw an adverse inference from the absence of the Appellant's testimony. That determination is entitled to deference given the Committee's expertise and experience in disciplinary matters involving allegations of sexual abuse.[^7] In any event, in our view, it is clear that the Committee's finding of a physician-patient relationship was well supported by all of the other evidence at the hearing, and that the adverse inference was not required for the final outcome.
The evidence supports the finding that the sexual encounter occurred between the two clinic visits
[45] The Appellant argues that the Committee's finding that his sexual encounter with Ms. A occurred on December 8 and 9, 2010 is not based on clear and cogent evidence. Specifically, he points to aspects of Ms. A's cross-examination in which she said that she was uncertain about the specific date of the encounter.
[46] Again, we disagree.
[47] The Committee did not just base its finding that the encounter occurred between the two visits on Ms. A's evidence. Rather, the Committee considered Ms. A's evidence, in combination with other evidence, including the inn's records.
[48] For example, she testified that the hotel was an "inn" of some kind, and that the hotel room was on the first floor with a view of the parking lot, which is an accurate description of the room the Appellant rented on the night of December 8, 2010. In addition, she testified that one of the reasons she returned to the clinic a second time was to question the Appellant about a rash in her groin area she developed after having sexual intercourse with him.
[49] In our view, the Committee reasonably concluded from all of the evidence, and not just Ms. A's evidence, that the sexual encounter occurred between the two clinic visits. That conclusion was available and reasonable, based on all of the evidence.
Issue 2: Whether the Committee's decision not to quash the summons was reasonable
[50] The Appellant submits that the Committee's decision not to quash the summons requiring Ms. A to testify before the Committee was not reasonable.
Factual Background re Summons
[51] As noted above, in March 2011, Ms. A told another doctor at the clinic, Dr. Mohamed, about her sexual encounter with the Appellant in December 2010. Dr. Mohamed reported Ms. A's allegations to the College pursuant to the mandatory reporting obligations under sections 85.1 and 85.3 of the Code. Dr. Mohamed did not include Ms. A's name in the mandatory report, as Ms. A had not given her consent to do so.
[52] On receiving the complaint, the College compelled Dr. Mohamed to provide Ms. A's name pursuant to its investigatory powers under sections 75 and 76 of the Code. The College attempted to contact Ms. A during the spring and summer of 2011 and, on July 28, 2011, issued a Summons to Witness under the Public Inquiries Act, 2009[^8]. Ms. A attended the inquiry on August 15, 2011 and provided details of her encounters with the Appellant. The College contacted Ms. A again in October 2014 to seek further information.
[53] On April 20, 2016, the College released its decision to refer the matter to a panel of the Committee. In March 2017, the College contacted Ms. A to notify her that a hearing before the Committee was scheduled for November 2017 and that she would be required to testify. Ms. A informed the College that she did not want to be involved in the legal proceeding.
[54] On October 27, 2017 the College served Ms. A with a Summons to Witness (the "Summons"). Ms. A did not attend the November hearing due to a back injury. The College brought an application in the Superior Court of Justice to enforce the Summons under rule 14.05(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The College also sought an order for a bench warrant for her arrest pursuant to s. 12(4) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22.
[55] Ms. A retained a lawyer and brought a motion to quash the Summons. The motion proceeded on November 20 and 21, 2017. The Appellant's counsel attended but took no position on the issue of whether the Summons should be quashed.
[56] Counsel for Ms. A agreed that the Summons had been properly served. Counsel further agreed that Ms. A's evidence was highly relevant. The sole issue on the motion was whether the Summons should be quashed as an abuse of process. Ms. A's position was that she was not a complainant in the proceeding, had not consented to the disclosure of her identity to the College, and did not wish to participate or testify in the proceedings against the Appellant.
[57] On February 2, 2018, the Committee issued lengthy reasons concluding that the issuance of the Summons was not an abuse of process and denying Ms. A's motion to quash. Ms. A. did not seek to challenge the decision by way of judicial review. She subsequently attended and testified at the hearing.
[58] The Committee held that the College was entitled to obtain Ms. A's name from Dr. Mohamed and to issue the Summons pursuant to its broad investigatory powers in s. 76 of the Code. It found that the use of these s. 76 powers did not conflict with or override the patient protection in s. 85.3(4) of the Code. The Committee analyzed the evidence of Ms. A and the reasons for her reluctance to testify, including a previous threat received from a friend of the Appellant and her fear of personal embarrassment if these matters became public. It noted that there was no evidence that Ms. A would be re-traumatized by having to confront the Appellant.
[59] The Committee reviewed the College's conduct in the investigation. Further, the Committee also considered and was satisfied that the College considered each instance of an unwilling witness carefully by taking into account the unique circumstances of that case.
[60] The Committee balanced Ms. A's personal concerns against the public interest that would be served if she testified. It determined, taking into account the circumstances of this case, that the public interest in requiring Ms. A to testify outweighed any interest she might have in remaining anonymous.
[61] The Committee considered the public policy issues at play in this case and expressed its concern that depriving the College of its ability to fully investigate and prosecute serious sex abuse allegations based on a mandatory report from a physician "would risk rendering the mandatory reporting requirement by health care professionals toothless in eradicating sexual abuse". The Committee further added that if victims of alleged sex abuse were permitted always to remain unidentified, the College would become the repository of any number of anonymous allegations against an individual physician, but would not have the ability to do anything other than note that a pattern of allegations was developing. The Committee stated that it did not believe that such a scenario was intended by the legislation or would serve the public interest.
Standing
[62] The first issue to consider is whether the Appellant has standing to challenge the Committee's decision to deny Ms. A's motion to quash the Summons. The Committee did not address this issue in its decision because the Appellant did not take a position on the motion. However, on appeal, the College argues that the Appellant does not have standing because his privacy interests are not at stake. The Appellant argues that he has standing because he is entitled to challenge any evidentiary ruling made by the Committee in the context of the disciplinary proceedings. In our view, he does not.
[63] The basis for Ms. A's motion to quash the Summons as an abuse of process was that the Summons violated her wish to remain anonymous and not to testify at the hearing. The interests at stake were clearly those of Ms. A, not those of the Appellant. This was not a case where the relevance of the potential witness' evidence was at issue, in which case the Appellant may have had an interest in the issue on the motion. In this case, although the Appellant had an interest in the ultimate outcome of the disciplinary proceeding against him, it was only Ms. A's interests that were engaged on the motion.
[64] The Respondent submits that this case is analogous to those dealing with the issue of standing under the Canadian Charter of Rights and Freedoms. We agree. In R. v. Edwards[^9], the Supreme Court found that an accused had no standing to seek a remedy under s. 24(2) of the Charter for the violation of his girlfriend's s. 8 Charter right to be free from unreasonable search and seizure. The same principle applies here. The Appellant has no standing to object to the Summons as an abuse of process based solely on the alleged violation of Ms. A's privacy interests. The only person who could allege abuse of process on that basis was Ms. A.
[65] There is also an important policy consideration supporting our conclusion. If a physician has standing to quash a summons solely on the basis that it violates the privacy interests of the patient, the physician could seek to suppress the very evidence to be used against the physician at the disciplinary hearing. That would undermine the purpose and efficacy of the disciplinary process.
Was the Committee's Decision not to Quash the Summons Reasonable?
[66] Even if the Appellant has standing to appeal the Committee's decision not to quash the Summons, we consider the Committee's decision to be reasonable and there is no basis to interfere with it.
[67] The Committee determined that there was no statutory provision that restricted the College from using its investigatory powers under sections 75 and 76 of the Code to obtain Ms. A's name from Dr. Mohamed and to issue the Summons to her. This interpretation of the Code, the College's home statute, is entitled to deference and, in our view, was reasonable given the purpose and language of the legislative scheme and the case law that has consistently supported a broad interpretation of the College's investigatory powers.
[68] Section 76(1) of the Code provides that "[a]n investigator may inquire into and examine the practice of the member to be investigated and section 33 of the Public Inquiries Act, 2009 applies to that inquiry and examination." Section 33(3) of the Public Inquiries Act, 2009 empowers an investigator to "require any person by summons" to either give evidence, or to produce in evidence any documents or things specified by the investigator. Section 76(4) of the Code sets out that this section applies "despite any provision in any Act relating to the confidentiality of health records."
[69] Section 85.1 of the Code contains a mandatory reporting requirement when a member has reasonable grounds to believe that another member has sexually abused a patient. The contents of the report are subject to s. 85.3(4), which provides that the name of a patient must not be included in the report unless the patient consents in writing. After Ms. A refused to consent, the College sought and obtained Ms. A's name from Dr. Mohamed pursuant to its investigatory powers under sections 75 and 76 of the Code.
[70] The Committee observed that there was no conflict between the requirements of s. 85.3(4) and s. 76 of the Code. We agree. Section 85.3(4) restricts the reporting member from including the patient's name in the report without the patient's consent (Dr. Mohamed complied with this restriction). Once the mandatory report has been filed, however, there is nothing in the language of s. 76 that restricts the College from obtaining the name of the patient from the reporting member pursuant to its investigatory powers in s. 76.
[71] The Committee rejected Ms. A's submission that the language in s. 76(4) (the College's investigatory powers apply "despite any provision in any Act relating to the confidentiality of health records") should be read only as applying to other statutes and not to s. 85.3(4) of the Code. In our view, the Committee's rejection of Ms. A's narrow interpretation of s. 76 is consistent with the Court of Appeal's statement in College of Physicians and Surgeons of Ontario v. Sazant[^10] that s. 76(1) "should be given a broad and purposive interpretation to enable an investigator to carry out his or her duty to investigate. This in turn assists the College in its statutory mandate to properly regulate the profession and protect the public."
[72] The Committee recognized that sections 76 and 85.3(4) were designed to work in concert. In the first instance, the member is precluded from including the patient's name in a mandatory report without the patient's consent. If a mandatory report is filed that does not include the patient's name, at that point the College can determine whether to seek the name of the patient and issue a summons pursuant to its investigatory powers under s. 76. At this stage, and as the Committee noted, the College is required to balance the interests of a reluctant witness against the public interest in pursuing the disciplinary proceedings against the physician in question. The Committee was satisfied that the College considers the unique circumstances of a reluctant witness on a case by case basis.
[73] The Committee reviewed the case law in which the broad investigatory powers of the College have been held in some instances to prevail over the competing individual interests of the patient. The Court of Appeal in Gore v. College of Physicians and Surgeons of Ontario[^11] recognized that these investigatory powers may intrude on the patient's confidentiality interests. The Committee also noted that the College's investigatory powers may, in some cases, supersede the interests of a patient who does not wish to cooperate with the investigation. For example, in Volochay v. College of Massage Therapists of Ontario[^12], the Court of Appeal held that the College was entitled to continue to investigate a complaint after the complainant had withdrawn it, stating:
First, I agree with the application judge that the College was entitled to continue to investigate S.D.'s complaint even though she had withdrawn it. The College has a statutory mandate to serve and protect the public interest. It need not stop an investigation because the complainant no longer wishes to proceed, especially where it believes that a member may have influenced the withdrawal of the complaint.
[74] We do not accept the Appellant's submission that the Committee's interpretation of the Code undermines the legislative scheme that protects a patient's confidentiality and autonomy. First, as noted, the Committee recognized that the case law has clearly established that there may be cases in which the College's overarching mandate to protect the public interest will prevail over the patient's individual interests. Second, the purpose of the sexual abuse provisions of the Code is not solely to protect patients and their autonomy, as the Appellant suggests. The purpose of the Code, as set out in s. 1.1, is "to encourage the reporting of such abuse...and, ultimately, to eradicate the sexual abuse of patients by members." These objectives must be read together with the fundamental duty and responsibility of the College to regulate the profession in the public interest. The Committee recognized these dual objectives in conducting its analysis.
[75] In this case, the Committee appropriately conducted the balancing exercise between the interests of Ms. A as a reluctant witness and the public interest in proceeding to a hearing against the Appellant on its merits. The Committee took into consideration the reasons for Ms. A's reluctance to testify, the conduct of the College in the investigation, and the public interest in proceeding to the disciplinary hearing against the Appellant. It concluded that Ms. A's personal interests were outweighed by the public interest in this case and that the issuance of the Summons was not an abuse of process. This was a discretionary finding based on the facts of this case.
[76] The Committee's decision not to quash the Summons fell within the range of acceptable outcomes that are defensible in respect of the facts and the law in this case. Its decision was reasonable and this ground of appeal must therefore fail.
Conclusion
[77] In our view, the Committee's decision was reasonable in all of the circumstances and, recognizing the deference it is due, there is no basis to interfere with the decision. The appeal is dismissed, with costs to the College that we fix, on consent, in the amount of $7,500.00 inclusive.
M.G.J. QUIGLEY J.
CONWAY J.
FAVREAU J.
RELEASED: JULY 18, 2019
CITATION: College of Physicians and Surgeons of Ontario v. Dr. Kayilasanathan, 2019 ONSC 4350
COURT FILE NO.: DC-18-657-00
DATE: 20190718
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
M.G.J. Quigley, Conway and Favreau, JJ.
B E T W E E N :
THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO
Respondent
– and –
DR. SUGANTHAN KAYILASANATHAN
Appellant
REASONS FOR DECISION
BY THE COURT
RELEASED: JULY 18, 2019
[^1]: The Code is Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c.18.
[^2]: O. Reg. 856/93 is made under the Medicine Act, 1991, S.O. 1991, c. 30.
[^3]: R.A.R. v. College of Physicians and Surgeons of Ontario (2006), 216 O.A.C. 357 (C.A.) at para. 25.
[^4]: 2008 SCC 9 at para. 47
[^5]: 2013 ONCPSD 18 at para. 76.
[^6]: 2017 ONSC 1947 (Div. Ct.), at para. 90.
[^7]: College of Physicians and Surgeons of Ontario v. McIntyre, 2017 ONSC 116 (Div. Ct.), leave to appeal to ONCA refused, July 7, 2017 (M47471), at paras. 34-35. See also Liberman v. College of Physicians and Surgeons of Ontario, 2013 ONSC 4066 at paras. 41-43.
[^8]: S.O. 2009, c. 33, Sched. 6.
[^9]: R v. Edwards, [1996] 1 S.C.R. 128 at paras. 30-34, 51 (cited recently with approval by the Supreme Court of Canada in R. v. Le, 2019 SCC 34 at paras. 218, 223).
[^10]: 2012 ONCA 727 at para. 99, leave to appeal refused, [2012] S.C.C.A. No. 549.
[^11]: 2009 ONCA 546 at para. 23.
[^12]: 2012 ONCA 541 at para. 46.