CITATION: Torgerson v. Health Professions Appeal and Review Board, 2021 ONSC 7416

DIVISIONAL COURT FILE NO.: 214/19

DATE: 20211215

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

PERELL, LOCOCO and MATHESON, JJ.

BETWEEN:

DR. CORY TORGERSON

Applicant

– and –

HEALTH PROFESSIONS APPEAL AND REVIEW BOARD, COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO and H.G.

Respondents

William S. O’Hara and Anna Morrish, for the Applicant

Morgana Kellythorne, for the Respondent College of Physicians and Surgeons of Ontario

David P. Jacobs for the Respondent, Health Professions Appeal and Review Board

No one appearing for H.G.

HEARD: at Toronto (by videoconference) November 8, 2021

BY THE COURT:

REASONS FOR DECISION

[1] The Applicant Dr. Cory Torgerson seeks judicial review of a decision of the Respondent Health Professions Appeal and Review Board dated December 31, 2018 (the “Review Board decision”). In its decision, the Review Board confirmed a decision of the Inquiries, Complaints, and Reports Committee of the Respondent College of Physicians and Surgeons of Ontario dated November 13, 2017 (the “Complaints Committee decision”). The complaint had been made by the Respondent H.G., who was one of Dr. Torgerson’s patients. Although permitted to do so, H.G. did not participate in this Application.

[2] The Complaints Committee decided that it was unable to determine what happened in the key events between H.G. and the Applicant that were the subject of the complaint. The Complaints Committee concluded that the complaint should not be referred to a disciplinary hearing. However, the Complaints Committee required that the Applicant be cautioned with respect to maintaining boundaries with patients and required that the Applicant complete a Specified Continuing Education and Remediation Program (“SCERP”) regarding doctor and patient interpersonal boundaries. The Review Board confirmed this decision, concluding that the Complaints Committee did an adequate investigation and reached a reasonable decision.

[3] The Applicant submits that the Review Board decision was unreasonable. The Applicant submits that the Complaints Committee’s investigation was inadequate and that the Complaints Committee decision fell outside the range of possible acceptable outcomes that are defensible in respect of the facts and law. The Applicant further submits that the summary of the Complaints Committee decision, published on the College of Physicians and Surgeons of Ontario’s (“College”) online register, amounted to a sanction and was therefore outside the Complaints Committee’s jurisdiction.

[4] For the reasons that follow, this Application is dismissed.

Background

[5] The Applicant is an experienced otolaryngologist and facial plastic surgeon who practices in Toronto, Ontario. In 2016, H.G. became a patient of the Applicant. The Applicant performed a mini-facelift surgery on H.G., which was medically successful. H.G. was pleased with the outcome of her surgery.

[6] In the several months following the surgery, H.G. attended for follow up appointments at the Applicant’s clinic.

[7] In March 2017, H.G. contacted the College by telephone to report concerns about the Applicant. She followed up with a written complaint and College investigators followed up by interviewing H.G. In her telephone communications, formal complaint, and interviews, she put forward the following account:

• The complaint arose out of an incident that occurred in fall 2016 at which the Applicant hugged H.G. She said that the Applicant sometimes gave her a “‘professional hug” but that this time it was different; it was a “tight hug,” one that one would give to a “significant other” and she found it painful.

• She said that she had been under the impression that the Applicant was gay, but that the tight hug and a chance encounter with the Applicant’s wife and son at a later office visit and a photo of a boy on the Applicant’s Instagram page changed her view. She sometimes checked the Applicant’s social networks to see what he was doing.

• She said that because she had thought the Applicant was gay, she was slow to react to the one hug that she felt was inappropriate.

• She said that after the incident, the Applicant seemed uncomfortable during a hug with her, keeping his hands stretched out in front of him. She said that he pointed at her breast on another occasion. She also perceived him as “icy”. She said that, wanting to make him more comfortable, she continued to hug him.

• She said that these incidents changed her relationship with the Applicant, which deteriorated. She decided to talk to him about the hug during an appointment in March 2017. He denied the incident, raised his voice, and called in a staff member. She then spoke with the staff member in private.

[8] The Applicant responded that he had never hugged H.G. or any other patient in an inappropriate manner. However, he said that there were certainly times when patients such as H.G. would initiate a hug because they were happy with the results of their treatment. He said that he will often try to do some other friendly gesture to avoid a hug.

[9] The Applicant said that when H.G. mentioned the tight hug at a March 2017 appointment he had no idea what she was talking about. He said he kept calm and the staff member immediately became part of the conversation. He said he had not engaged in other inappropriate behaviour toward H.G. and had not raised his voice at the March 2017 appointment.

[10] The College’s investigator interviewed the Applicant’s staff member, and she provided a statement. Her statement was consistent with the Applicant’s account. She said that at the March 2017 appointment H.G. may have “misinterpreted” the Applicant’s behaviour. She said that the Applicant had a great fashion sense and complimented people on their shoes and clothing, and he might have been looking at H.G.’s clothing for that reason rather than looking or gesturing at her chest.

[11] The staff member did not recall seeing H.G. hug the Applicant, but she said that it happens. The staff member said that while she has not seen the Applicant initiate a hug, often patients “really go for it” in reaching to hug him because they are so emotional and thankful. She said that she had never seen the Applicant initiate a hug.

[12] At the relevant time, the College had a policy in place – College Policy #4-08: Maintaining Appropriate Boundaries and Preventing Sexual Abuse. That policy provided guidelines to ensure proper boundaries within the physician-patient relationship. Physicians were advised to “avoid physical contact with a patient (except what is required to perform medically necessary examinations)”, to “[a]void any behaviour or remarks that may be interpreted as sexual by a patient” and to “[l]earn to control the therapeutic setting and to detect possible erosions in boundaries.”

Complaints Committee decision

[13] In October 2017, a panel of the Complaints Committee considered the complaint. The panel was comprised of four physicians and a public member. The panel reviewed the investigator’s report and the information gathered in the investigation. The panel reviewed H.G.’s complaint and the Applicant’s response, and the staff member’s statement, H.G.’s medical records and information from the Ontario Health Insurance Plan. The panel also had the Applicant’s history with the College and College Policy #4-08.

[14] On November 13, 2017, the Complaints Committee released a written decision. The panel found that H.G.’s main concerns were the hug that was different from other hugs, the gesture pointing at her breast on another occasion, and that the Applicant had denied her concerns and yelled at her at their last visit.

[15] In the Complaints Committee decision, the panel indicated that it had reviewed all the information from the investigation and noted that the Complaints Committee does not hear live testimony or test evidence under oath. The panel stated that, as a result, it was unable to determine what happened between H.G. and the Applicant.

[16] The Complaints Committee concluded that there should be no referral to a disciplinary hearing. It reasoned that the seriousness of the allegations would have justified a referral. However, other factors militated against a referral, including the following: (a) H.G.’s account was difficult to follow; (b) her description of the hug without detail about what made it different other (than the perceived length and strength of the hug); (c) the possibility that the Applicant’s hug had accidentally caused her physical pain; (d) that it was difficult to understand why H.G. was upset to see the Applicant’s family at the clinic; and (e) the Applicant’s gestures were open to interpretation and were not, in and of themselves, a form a sexual abuse. Further, there was no reasonable prospect of a misconduct finding regarding the hug, and H.G.’s other concerns would be difficult to prove. The panel also noted an absence of complaints against the Applicant for similar misconduct.

[17] Nevertheless, the panel was concerned by the Applicant’s sense of boundaries with patients. There was evidence that he accepted hugs, which could be misinterpreted. The panel noted the above College Policy about maintaining appropriate boundaries with patients. There was also evidence that the Applicant commented on patients’ clothing, which could lead to misinterpretation and the blurring of boundaries. The panel also noted the need to be careful on social media, given that H.G. had obtained information about the Applicant’s family from his Instagram page. The Applicant had also previously been required to complete a SCERP due to privacy concerns about his communications with patients by e-mail.

[18] The Complaints Committee decision required that the Applicant attend at the College to be cautioned with respect to maintaining boundaries with patients and complete a SCERP. The SCERP included completing a course entitled “Understanding Boundaries and Managing Risks Inherent in the Doctor-Patient Relationship” and engaging in self-directed learning on boundaries with patients.

[19] A summary of the Complaints Committee decision was published on the College’s online register as part of the Applicant’s profile.

Review Board decision

[20] In November 2017, the Applicant sought a review of the Complaints Committee’s decision by the Review Board. Under s. 33(1) of the Health Professions Procedural Code (the “Code”) being Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (the “RHPA”), the Review Board reviews the adequacy of the investigation, the reasonableness of the Complaints Committee’s decision, or both.

[21] There was a hearing before a panel of the Review Board. Counsel to the Applicant submitted that, among other things, it was inappropriate for a physician to tell a patient not to hug them when a patient initiates a hug and that the direction that a physician should not accept or give a hug from a patient contradicts the notion of compassion. Counsel further submitted that the required caution and SCERP were unreasonable because the Complaints Committee had been unable to conclude exactly what had transpired between H.G. and the Applicant. Counsel submitted that the decision of the Complaints Committee was a heavy disposition, which was career destroying because it was recorded on the public register on the College website. Counsel submitted that the decision was not within the range of reasonable outcomes based on the information before the Complaints Committee.

[22] Counsel for H.G. submitted that the decision was reasonable and was based on information that was either undisputed or had come from the Applicant himself. Counsel further submitted that the then changed practice of the College that cautions and SCERPs are noted on the public register makes no difference to how the Review Board should approach the reasonableness of the Complaints Committee decision.

[23] The above submissions were based upon the fact that there was a summary posted online, not its contents. No party submitted the actual summary to the Review Board for its consideration.

[24] On December 31, 2018, the three-member panel of the Review Board confirmed the Complaints Committee’s decision. The panel found that the Complaints Committee’s investigation was adequate. The panel noted that the Complaints Committee performs a screening function and that an adequate investigation need only secure the information needed to make an informed decision. In this case, there was sufficient information. The panel noted that there was no new information before it that, had the Applicant been interviewed, might reasonably be expected to have affected the Committee’s decision.

[25] The panel further concluded that it was reasonable for the Complaints Committee not to refer the matter to discipline but to be concerned about the Applicant’s boundaries. The panel noted that the Applicant admitted to accepting hugs. The panel noted that the staff member stated that the Applicant sometimes complimented patient’s shoes and clothing. In response to the Applicant’s position that it would be inappropriate to resile from a show of gratitude, the panel noted that College Policy #4-08 cautions against non-clinical physical touching by a physician of a patient because the touching may be open to misinterpretation.

[26] The panel found that the Complaints Committee’s concerns regarding the Applicant’s sense of boundaries was reasonably supported by information before it. The panel further found that, despite the Complaints Committee declining to refer the matter to a disciplinary hearing, it was open to the Complaints Committee to find that the Applicant’s conduct was a concern that justified the decision it made.

[27] The panel stated that the Complaints Committee decision was cumulative, arising as a result of ongoing related concerns, which were associated with privacy concerns and social media. The panel noted that while a caution and a SCERP are serious outcomes for a physician, including the fact that they appear on the public register, they are not sanctions but rather advisory, educative, and remedial, and regardless, the College’s public interest mandate takes priority.

[28] The Review Board decision therefore confirmed the Complaints Committee decision.

[29] In April 2019, the Applicant commenced this Application for Judicial Review of the Review Board decision, requesting that it be quashed and set aside. In his factum before this court, the Applicant further requests that the Complaints Committee decision be quashed and set aside, including the sanction and the online publication of what he described as a “factually deficient” summary of the Complaints Committee decision.

Issues

[30] The Applicant submits that the Review Board made three errors, as follows:

(1) the Review Board erred in law in finding that the Complaints Committee’s investigation was adequate because insufficient information was garnered for the Complaints Committee to fully consider the complaint;

(2) the Review Board erred in law in finding that Complaints Committee decision was reasonable because the Complaints Committee decision fell outside the range of possible acceptable outcomes that are defensible in respect of the facts and law; and,

(3) the Review Board erred in law in finding that the summary of the Complaints Committee decision, published on the College’s online register without proper context, was not a sanction.

[31] The Respondents disagree, submitting that the Review Board decision was reasonable. With respect to the summary published on the online register, the Respondents also submit that the summary did not form part of the Complaints Committee decision and it was not under review by the Review Board. Further, the College submits that s. 23(13.1) of the Code offers another avenue through which a member can complain, to the Registrar of the College, about an incorrect summary.

Standard of Review

[32] There is no issue on this Application that the standard of review of the Review Board decision is reasonableness, as formulated by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov.[^1] A reasonableness review entails a sensitive and respectful, but robust, evaluation of administrative decisions.[^2]

[33] Reasonableness is concerned with the existence of justification, transparency, and intelligibility within the decision-making process as well as with whether the decision falls within a range of possible, acceptable outcomes that are defensible in respect of the facts and law.[^3]

[34] The burden is on the Applicant to show that the Review Board’s decision is unreasonable. Before a decision can be set aside on this basis, the reviewing court must be satisfied that there are sufficiently serious shortcomings in the decision that it cannot be said to exhibit the requisite degree of justification, intelligibility, and transparency.[^4]

[35] The reasonableness of a tribunal’s decision is assessed in in light of the legal and factual constraints that bear on the decision.[^5] A decision will be unreasonable if the conclusion reached cannot follow from the chain of analysis, or if it is not possible to understand the decision maker’s reasoning on a critical point from the reasons, in conjunction with the record.[^6]

[36] Any alleged flaws or shortcomings must be more than merely superficial or peripheral to the merits of the decision. It would be improper for a reviewing court to overturn an administrative decision simply because its reasoning exhibits a minor misstep. Instead, the court must be satisfied that any shortcomings or flaws relied on by the party challenging the decision are sufficiently central or significant to render the decision unreasonable.[^7]

Legislative Regime

The Complaints Committee

[37] The Complaints Committee is a statutory committee of the College that screens complaints and reports of the College’s Registrar’s investigations. It is established pursuant to s. 10 of the Code. The Complaints Committee’s powers in disposing of investigations are set out in s. 26 of the Code, which states as follows:

What a panel may do

26. (1) A panel, after investigating a complaint or considering a report, considering the submissions of the member and making reasonable efforts to consider all records and documents it considers relevant to the complaint or the report, may do any one or more of the following:

27. Refer a specified allegation of the member’s professional misconduct or incompetence to the Discipline Committee if the allegation is related to the complaint or the report.

28. Refer the member to a panel of the Inquiries, Complaints and Reports Committee under section 58 for incapacity proceedings.

29. Require the member to appear before a panel of the Inquiries, Complaints and Reports Committee to be cautioned.

30. Take action it considers appropriate that is not inconsistent with the health profession Act, this Code, the regulations or by-laws.

Prior decisions

(2) A panel of the Inquiries, Complaints and Reports Committee shall, when investigating a complaint or considering a report currently before it, consider all of its available prior decisions involving the member, including decisions made when that committee was known as the Complaints Committee, and all available prior decisions involving the member of the Discipline Committee, the Fitness to Practise Committee and the Executive Committee, unless the decision was to take no further action under subsection (5).

Quality assurance

(3) In exercising its powers under paragraph 4 of subsection (1), the panel may not refer the matter to the Quality Assurance Committee but may require a member to complete a specified continuing education or remediation program.

(4) If the panel considers a complaint to be frivolous, vexatious, made in bad faith, moot or otherwise an abuse of process, it shall give the complainant and the member notice that it intends to take no action with respect to the complaint and that the complainant and the member have a right to make written submissions within 30 days after receiving the notice.

(5) If the panel is satisfied, after considering the written submissions of the complainant and the member, that a complaint was frivolous, vexatious, made in bad faith, moot or otherwise an abuse of process, the panel shall not take action with respect to the complaint.

[Emphasis added.]

[38] In King v. Gannage,[^8] at para. 21, Justice Swinton described the role of the Complaints Committee as follows:

The [Complaints Committee] plays an important role in screening complaints and reports and deciding whether further action is necessary. Subsection 26(1) of the Code sets out the powers of the [Complaints Committee] panel. After investigating a complaint or considering a report, the panel must consider the member’s submissions and make “reasonable efforts to consider all records and documents it considers relevant to the complaint or the report”. It then has a broad discretion to decide whether to refer a specified allegation of a member’s professional misconduct to the Discipline Committee; take some other remedial action, such as a caution or the member’s attendance at a remedial program; or take any action it considers is not inconsistent with the health professions Act, the Code, the regulations or by-laws.

The Publication of Complaints Committee Decisions

[39] In 2017, pursuant s. 11 of to the Protecting Patients Act, 2017,[^9] the Code was amended to require colleges of the regulated health professions to provide the public with greater access to information in respect of complaints and discipline processes. As of the Complaints Committee decision, s. 23 of the Code required that the College maintain a register containing the following information:

Register

23 (1) The Registrar shall maintain a register.

Contents of register

(2) The register shall contain the following:

1. Each member’s name, business address and business telephone number, and, if applicable, the name of every health profession corporation of which the member is a shareholder.

2. A notation of every caution that a member has received from a panel of the Inquiries, Complaints and Reports Committee under paragraph 3 of subsection 26 (1), and any specified continuing education or remedial programs required by a panel of the Inquiries, Complaints and Reports Committee using its powers under paragraph 4 of subsection 26 (1).

3. A notation of every matter that has been referred by the Inquiries, Complaints and Reports Committee to the Discipline Committee under section 26 and that has not been finally resolved, including the date of the referral and the status of the hearing before a panel of the Discipline Committee, until the matter has been resolved.

4. A copy of the specified allegations against a member for every matter that has been referred by the Inquiries, Complaints and Reports Committee to the Discipline Committee under section 26 and that has not been finally resolved.

5. Every result of a disciplinary or incapacity proceeding.

6. A notation and synopsis of any acknowledgements and undertakings in relation to matters involving allegations of professional misconduct or incompetence before the Inquiries, Complaints and Reports Committee or the Discipline Committee that a member has entered into with the College and that are in effect.

7. A notation of every finding of professional negligence or malpractice, which may or may not relate to the member’s suitability to practise, made against the member, unless the finding is reversed on appeal.

8. Information that a panel of the Registration Committee, Discipline Committee or Fitness to Practise Committee specifies shall be included.

9. Where findings of the Discipline Committee are appealed, a notation that they are under appeal, until the appeal is finally disposed of.

10. Information that is required to be kept in the register in accordance with regulations made pursuant to clause 43 (1) (t) of the Regulated Health Professions Act, 1991.

11. Information that is required to be kept in the register in accordance with the by-laws.

Access to information by the public

(5) All of the information required by paragraphs 1 to 19 of subsection (2) and all information designated as public in the by-laws shall, subject to subsections (6), (7), (8), (9) and (11), be made available to an individual during normal business hours, and shall be posted on the College’s website within a reasonable amount of time of the Registrar having received the information and in a manner that is accessible to the public or in any other manner and form specified by the Minister.

[40] The College General By-law also provides as follows:

Content of Register Entries

49. (1) In addition to the information required under subsection 23(2) of the Health Professions Procedural Code, the register shall contain the following information with respect to each member:

50. In respect of a decision of the Inquiries, Complaints and Reports Committee that includes a disposition of a caution-in-person, if the complaint that led to the decision, or, in a case where there is no complaint, the first appointment of investigators in the file, is dated on or after January 1, 2015, a summary of that decision, and, where applicable, a notation that the decision has been appealed or reviewed.

51. Where a decision referred to in paragraph 21 above is overturned on appeal or review, the summary shall be removed from the register.

52. In respect of a decision of the Inquiries, Complaints and Reports Committee that includes a disposition of a Specified Continuing Education or Remediation Program (“SCERP”), if the complaint that led to the decision, or, in a case where there is no complaint, the first appointment of investigators in the file is dated on or after January 1, 2015, a summary of that decision, including the elements of the SCERP, and, where applicable, a notation that the decision has been appealed or reviewed.

53. In respect of the elements of a SCERP referred to in paragraph 23 above, a notation that all of the elements have been completed, when so done.

[Emphasis added.]

[41] The Code provides a mechanism to correct certain information on the register:

Correction of information

23 (13.1) The Registrar shall correct any information contained in the register that is required by paragraph 12 of subsection (2) or that is both required by paragraph 19 of subsection (2) and designated as subject to this subsection in a regulation made under clause 43 (1) (t) of the Regulated Health Professions Act, 1991, where a member demonstrates, to the satisfaction of the Registrar, that the information contained in the register is incomplete or inaccurate and where the member provides the Registrar with the information that is necessary to enable the Registrar to correct the incomplete or inaccurate information.

[42] As is contemplated by s. 23(13.1), the regulation Information Prescribed under Subsection 23(2) of the Health Professions Procedural Code, O. Reg. 261/18 designates that certain information is subject to the above section:

1. (1) The following information, if known to the College, is prescribed information to be contained in a College’s register for the purposes of paragraph 19 of subsection 23 (2) of the Code and is designated as information subject to subsection 23 (13.1) of the Health Professions Procedural Code in Schedule 2 to the Act:

2. If there has been a finding of guilt against a member under the Criminal Code (Canada) or the Controlled Drugs and Substances Act (Canada) and if none of the conditions in subsection (2) have been satisfied, […]

3. With respect to a member, any currently existing conditions of release following a charge for an offence under the Criminal Code (Canada) or the Controlled Drugs and Substances Act (Canada) or subsequent to a finding of guilt and pending appeal or any variations to those conditions.

4. If a member has been charged with an offence under the Criminal Code (Canada) or the Controlled Drugs and Substances Act (Canada) and the charge is outstanding, […]

5. If a member has been the subject of a disciplinary finding or a finding of professional misconduct or incompetence by another regulatory or licensing authority in any jurisdiction, […]

6. If a member is currently licenced or registered to practice another profession in Ontario or a profession in another jurisdiction, the fact of that licensure or registration.

The Review Board

[43] A member of the College who is the subject of a complaint may request a review of a Complaints Committee decision under s. 29(2) of the Code. The Applicant and H.G. were the parties to the review. Section 33 of the Code sets out the scope of the review and powers of the Review Board in its review:

Conduct of review

33 (1) In a review, the Board shall consider either or both of,

(a) the adequacy of the investigation conducted; or

(b) the reasonableness of the decision.

Procedure

(2) In conducting a review, the Board,

(a) shall give the party requesting the review an opportunity to comment on the matters set out in clauses (1) (a) and (b) and the other party an opportunity to respond to those comments;

(b) may require the College to send a representative;

(c) may question the parties and the representative of the College;

(d) may permit the parties to make representations with respect to issues raised by any questions asked under clause (c); and

(e) shall not allow the parties or the representative of the College to question each other.

Powers of Board

35 (1) After conducting a review of a decision, the Board may do any one or more of the following:

1. Confirm all or part of the decision.

2. Make recommendations the Board considers appropriate to the Inquiries, Complaints and Reports Committee.

3. Require the Inquiries, Complaints and Reports Committee to do anything the Committee or a panel may do under the health profession Act and this Code except to request the Registrar to conduct an investigation.

Issue 1: Was the Investigation Adequate?

[44] The Applicant submits that the Review Board erred in finding that the Complaints Committee investigation was adequate. The Applicant submits that the investigation ought to have included steps to resolve the factual issues noted by the Complaints Committee, specifically that H.G.’s evidence was difficult to follow and the panel was unable to say with clarity what happened. The Applicant submits that the investigation ought to have included an interview of him and of H.G., ought to have included an investigation of the nature of his clinic as a “therapeutic environment”, ought to have explored H.G.’s focus on whether the Applicant was gay and ought not to have put any weight on H.G.’s reference to his social media without an investigation of his social media pages.

[45] With respect to the disputed events, the Applicant is essentially arguing that the investigation should have resolved the factual questions about what transpired between H.G. and him. However, as was noted by the Review Board, the Complaints Committee’s role is to perform a screening function. In order to do so, s. 26(1) of the Code requires that the Complaints Committee make “reasonable efforts” to consider the records and documents that it considers relevant to the complaint. It is not required to examine all records and documents, conduct interviews, hear testimony, or make findings of credibility.

[46] As noted by the Review Board, the Complaints Committee received the following information as a result of the investigation:

• the complaint (as set out in a note of the initial telephone call, the letter of complaint and later correspondence);

• a transcript of the investigator’s interview with H.G.;

• information from H.G.’s family physician;

• the letter of response from the Applicant;

• information from the Applicant’s staff member including a transcript of her interview;

• the Applicant’s records regarding H.G.;

• H.G.’s OHIP records;

• the College Practice Guide; and

• College Policy #4-08.

[47] As observed by the Review Board, in this case the investigator took the extra steps of interviewing H.G. and the Applicant’s staff member. The Complaints Committee therefore had documents setting out the recollection of all three possible witnesses to the main events complained of, specifically the accounts of H.G., the Applicant and the staff member. The Complaints Committee had the Applicant’s account of what he did, and did not, happen. The Committee’s screening function did not extend to resolving the credibility dispute in this case.

[48] With respect to the nature of the Applicant’s clinic, the Applicant submits that there ought to have been an investigation into the clinic’s therapeutic nature, suggesting that this would show that hugging was appropriate. The Applicant relies on Applicant v. K.S.,[^10] , a Review Board decision regarding an occupational therapist working at a care facility. At para. 40 of that decision, the Review Board noted that hugging appeared to be part of the therapeutic environment at the care facility. However, the Review Board still confirmed the Complaints Committee decision that had suggested that the applicant reflect on how hugging may be perceived by clients.

[49] In contrast to the above case, here the Review Board was considering a Complaints Committee decision about a physician for whom there was specific guidance, in a College policy, about boundaries with patients. Further, the Complaints Committee had the Applicant and staff member’s statements about why and how the Applicant received hugs from patients in his clinic.

[50] With respect to the Applicant’s social media, it was not disputed that there were family photos posted on his Instagram. Neither the Complaints Committee nor the Review Board relied on any adverse assumptions about other content.

[51] The Review Board’s conclusion that the investigation was adequate followed from its chain of analysis, was internally consistent and was transparent. The decision falls within a range of possible, acceptable outcomes that are defensible in respect of the facts and law. The Applicant has not shown that the Review Board decision about the adequacy of the investigation was unreasonable.

Issue 2: Was the Decision to Confirm Reasonable?

[52] The Applicant submits that the Review Board’s decision to confirm the Complaints Committee decision to issue a caution and require a SCERP was unreasonable. The Applicant submits that the complaint should have been dismissed as frivolous, vexatious and an abuse of process. The Applicant further challenges the evidence and other material relied upon, submitting that it does not support the imposition of a caution and SCERP.

[53] It does not appear that the Applicant raised the argument that the complaint was frivolous, vexatious or an abuse of process before the Complaints Committee or the Review Board. The Applicant ought to have done so to raise the issue now.

[54] Further, there is a high threshold to meet for a finding that a complaint is frivolous, vexatious or an abuse of process. It must clearly have no merit, seek to re-litigate a claim already decided or be brought for an improper purpose.[^11]

[55] The Applicant relies on H.G.’s comments about his sexual orientation, on the fact that she only complained about the hug after she learned that he was not gay, and on the uncontested evidence that H.G. continued to hug the Applicant after the incident complained of. The Applicant also submits that the Complaints Committee ought not to have relied on what it observed was H.G.’s inconclusive evidence.

[56] These matters do not show, as suggested by the Applicant, that H.G. had an improper motive to bring her complaint. H.G.’s complaint arose from her interactions with the Applicant relating to her care as his patient and gave rise to admissions by the Applicant about hugging H.G. and other patients, albeit on their initiative.

[57] The Applicant submits that the Review Board decision was unreasonable even if H.G. did not have an improper motive. The Applicant’s submission incorporates his objections to the adequacy of the investigation, which are addressed above.

[58] The Applicant submits that the inconclusive evidence about the hug does not justify the imposition of a caution or a SCERP. However, that decision was not based on the disputed events. It was based on other information in the record including the Applicant’s admissions about accepting hugs from patients and his staff member’s account of how he compliments people on their clothing and appearance.

[59] The Applicant notes that his staff member was speaking about “people” not “patients” but given her role in the Applicant’s office, it was not unreasonable for the Complaints Committee or the Review Board to infer that her comments applied to patients.

[60] The Complaints Committee considered the Applicant’s account of his practice and the College Policy that provides guidance to physicians regarding non-clinical physical touching that is open to misinterpretation. The Complaints Committee found that there was the potential for misinterpretation. The Review Board held that the Complaints Committee’s concern regarding the Applicant’s sense of boundaries with patients was based upon findings that were supported by the record.

[61] The Applicant notes that the College Policy does not forbid physical contact. That does not detract from the Policy’s role as guidance, which could be and was considered by the Review Board and the Complaints Committee.

[62] The Applicant further submits that his own practice of minimizing contact with grateful patients was sufficient to provide a remedy, and the caution and SCERP were not required. Yet it was open to the Complaints Committee to reach a different conclusion on the record before it and it did so.

[63] The Applicant also challenged the use of a prior decision involving him. Subsection 26(2) of the Code expressly required that the Complaints Committee consider all available prior decisions about the Applicant. The Complaints Committee did so, finding that there was no history of similar complaints about the Applicant but that there was a prior matter regarding privacy concerns when communicating with patients by email. The Review Board noted that the Complaints Committee was bound to consider the conduct history and that the decision to caution and require a SCERP was a cumulative disposition.

[64] Accordingly, we do not agree with the Applicant’s submissions that the Review Committee’s decision to confirm was unreasonable. Once again, the decision falls within a range of possible, acceptable outcomes that are defensible in respect of the facts and law.

[65] The Applicant further submitted that the decision is unreasonable because it amounts to a sanction, which is addressed below.

Issue 3: Is the Publication of a Decision Summary a Sanction?

[66] The Applicant submits that the summary published on the College’s online register is misleading, amounts to a sanction, and is therefore outside the Complaints Committee’s jurisdiction.

[67] The summary does not form part of the proceedings before the Complaints Committee, nor is it part of the Complaints Committee decision. It is a consequence of the Complaints Committee decision and is required under ss. 49(1)(21) and (23) of the College’s General By-Law. Further, it is the obligation of the Registrar of the College, not the Complaints Committee, to have a summary prepared and posted online. The record before us does not show that either the Complaints Committee or the Review Board is responsible for the contents of the summary.

[68] There is no question that the Complaints Committee had the jurisdiction to require the caution and the SCERP. There is no issue of jurisdiction with respect to the Complaints Committee decision itself.

[69] The submissions before this court focus mainly on the content of the summary. However, those issues were not raised before the Review Board. In the Review Board hearing, the issue was the publication of the summary online, not the contents of the summary (which was not in the record before the Review Board).

[70] The Review Board acknowledged that a caution and a SCERP are serious outcomes for a physician, including because they appear on the public register. The Review Board concluded that the impact on the Applicant’s business does not override the College’s public interest mandate and duty to protect the public interest and reduce the risk of future harm. The Review Board did not find that it was a sanction imposed by the Complaints Committee.

[71] Further, this court has previously held that the publication of cautions and required remediation on the public register does not transform them into sanctions.[^12] “Cautions and educational directions are remedial in nature and not sanctions or penalties. They are meant to improve the Member’s practice and benefit the public they serve by avoiding future concerns.”[^13]

[72] Moving to the content of the summary, the Applicant submits that it contains unfounded allegations of inappropriate physical conduct, omits the Complaints Committee’s finding that it was “unable to determine with certainty what occurred” and omits the findings that R.G.’s evidence was inconsistent and challenging to follow.

[73] It may be that a summary, particularly one containing disputed allegations of sexual abuse, could be unfair. However, this summary was not submitted to the Review Board for its consideration when it conducted its review. In these circumstances, the Review Board decision is not made unreasonable by the content of the summary.

[74] The College raised the possibility of corrections to these summaries being sought using the process in s. 23(13.1) of the Code. However, that subsection only requires corrections for certain information and does not appear to apply in this case. Further, if it did apply, it would ordinarily be premature to pursue judicial review before seeking a remedy under that process.

Conclusion on Issues 2 and 3

[75] Bearing in mind all of the issues raised by the Applicant, we are not persuaded that the Review Board decision was unreasonable.

[76] The Review Board’s conclusion that the Complaints Committee decision was reasonable followed from its chain of analysis, was internally consistent and was transparent. The Review Board decision falls within a range of possible, acceptable outcomes that are defensible in respect of the facts and law.

Orders

[77] For the above reasons, this Application for Judicial Review is dismissed.

[78] The parties have agreed about the quantum of costs to the successful party, as between the Applicant and the College. We award the College costs in the agreed amount of $6,000 all inclusive. There shall be no costs for or against the Review Board.

Perell J.

Lococo J.

Matheson J.

Released: December 15, 2021

CITATION: Torgerson v. Health Professionals Appeal and Review Board, 2021 ONSC 7416

DIVISIONAL COURT FILE NO.: 214/19

DATE: 20211215

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

PERELL, LOCOCO, and MATHESON, JJ.

BETWEEN:

DR. CORY TORGERSON

Applicant

– and –

HEALTH PROFESSIONALS APPEAL AND REVIEW BOARD, COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO and H.G.

Respondents

REASONS FOR DECISION

Released: December 15, 2021

[^1]: 2019 SCC 65. See Geris v. Ontario College of Pharmacists, 2020 ONSC 7437 (Div. Ct), at para. 15.

[^2]: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 12.

[^3]: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 86; Dunsmuir v. New Brunswick, 2008 SCC 9 at para 47.

[^4]: Geris v. Ontario College of Pharmacists, 2020 ONSC 7437 at para. 15.

[^5]: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 105.

[^6]: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at paras. 102-103.

[^7]: Geris v. Ontario College of Pharmacists, 2020 ONSC 7437 at para. 15; Canada (Minister of Citizenship) v. Vavilov, 2019 SCC 65 at para. 100.

[^8]: 2020 ONSC 7967 (Div. Ct.)

[^9]: S.O. 2017, c. 11, Schedule 5.

[^10]: 2017 31597.

[^11]: Catford v. The Health Professions Appeal and Review Board, 2017 ONSC 7411 at paras. 24-26 (Div. Ct.).

[^12]: Longman v. Ontario College of Pharmacists, 2021 ONSC 1610 (Div. Ct.), at paras. 44-45.

[^13]: Longman, at para. 44; citing Banner v. College of Physicians and Surgeons of Ontario, 2012 ONSC 5547 at para. 11; Fielden v. Health Professions Appeal and Review Board, 2013 ONSC 4261 (Div. Ct.) at para. 10; see also, Geris v. Ontario College of Pharmacists, 2020 ONSC 7437, at paras. 33-35.