Shamess v. College of Physicians and Surgeons of Ontario, 2020 ONSC 4108
CITATION: Shamess v. College of Physicians and Surgeons of Ontario, 2020 ONSC 4108
DIVISIONAL COURT FILE NO.: 384/19
DATE: 20200706
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett, Penny and Favreau JJ.
BETWEEN:
Dr. Brian Albert Shamess
Appellant
– and –
The College of Physicians and Surgeons of Ontario
Respondent
Matthew P. Sammon and Nilou Nezhat, for the Appellant
Ruth Ainsworth, for the Respondent
HEARD at Toronto: in writing on June 26, 2020
ENDORSEMENT
[1] Dr. Brian Albert Shamess appeals a decision of a Panel of the Discipline Committee of the College of Physicians and Surgeons of Ontario made June 11, 2019, in which the Discipline Committee made a finding of professional misconduct against him. Dr. Shamess also appeals the Discipline Committee’s penalty decision dated September 24, 2020.
[2] The College concedes that the Discipline Committee made an error and consents to the appeal. We agree and allow the appeal for the following brief reasons.
[3] In its Notice of Hearing, the College alleged that Dr. Shamess had engaged in the sexual abuse of a patient and disgraceful, dishonourable or unprofessional conduct. The Notice of Hearing was based on allegations that Dr. Shamess engaged in inappropriate sexual and physical contact with a patient and that he made inappropriate comments to the patient.
[4] In its decision, the Discipline Committee found that the allegations of sexual abuse and inappropriate comments were unfounded. Specifically, the Discipline Committee found that Dr. Shamess’s evidence of what occurred during the examination at issue was credible, while the patient’s evidence was not credible.
[5] However, the Discipline Committee went on to find that Dr. Shamess should have conducted the examination in a manner that had more regard for the patient’s privacy concerns. These allegations were neither set out in the Notice of Hearing nor raised at the hearing.
[6] The Discipline Committee nevertheless went on to make a finding of professional misconduct against Dr. Shamess on the basis that he had a “professional obligation to conduct this examination in a way that was more respectful of [the patient’s] privacy”.
[7] One of the Panel members dissented, finding that Dr. Shamess did not commit any professional misconduct.
[8] In its penalty decision, the Discipline Committee imposed a penalty of reprimand and costs of $5,090.
[9] Dr. Shamess argues that the Discipline Committee did not have the jurisdiction to find that he committed professional misconduct by failing to have regard to the patient’s privacy because this was not one of the allegations in the Notice of Hearing. Dr. Shamess also argues that the Discipline Committee’s decision was procedurally unfair because he did not have notice of the issue of the patient’s privacy interest and did not have an opportunity to address it at the hearing.
[10] The College concedes that the decision should be set aside because Dr. Shamess did not have notice of the theory of liability on which the finding of professional misconduct was made and that he did not have an opportunity to present a defence against this finding.
[11] In Ontario (College of Physicians and Surgeons of Ontario) v. Kunytetz, 2019 ONSC 4300, at para. 105, this Court found that it was unreasonable and procedurally unfair for the Discipline Committee to make a finding of professional misconduct based on allegations that were not included in the Notice of Hearing and a theory of liability not pursued by the College at the hearing.
[12] The same thing happened in this case. We agree with both parties that it was not open to the Discipline Committee to make the finding of professional misconduct against Dr. Shamess based on the patient’s privacy concerns when this was not an issue raised in the Notice of Hearing or pursued by the College at the hearing.
[13] Accordingly, the appeal is allowed and the liability and penalty decisions are both quashed.
[14] As agreed by the parties, no costs are awarded.
[15] The parties included a draft order in pdf format in the materials filed on the application. The draft order requires amendments reflecting the names of the judges on this panel and the date of the order. This endorsement has the authority of a signed order as of the date it is released to the parties. A formal order can be taken out with the Registrar when normal court operations resume unless the parties require a signed order prior to then, in which case a corrected word version of the order can be sent to the court electronically.
for D.L. Corbett J.
Penny J.
Favreau J.
Released: July 6, 2020
Shamess v. College of Physicians and Surgeons of Ontario
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett, Penny and Favreau JJ.
BETWEEN:
Dr. Brian Albert Shamess
Appellant
– and –
The College of Physicians and Surgeons of Ontario
Respondent
ENDORSEMENT
Released: July 6, 2020