Doe v. College of Physicians and Surgeons, 2021 ONSC 7550
CITATION: Doe v. College of Physicians and Surgeons, 2021 ONSC 7550
DIVISIONAL COURT FILE NO.: 506/20
DATE: 20211116
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Jane Doe, Applicant
AND: College of Physicians and surgeons of ontario, Respondent
BEFORE: D.L. Corbett J.
COUNSEL: Colin Johnstone and Amanda Smallwood, for the Applicant Sayran Sulevani, for the Respondent Shahana Kar, for A.G. Ontario
HEARD at Toronto: February 17, 2021
ENDORSEMENT
D.L. Corbett J.
[1] The applicant moves for a stay, a publication ban, and related relief.
[2] I ordered an interim publication ban pending hearing of this motion and gave directions on February 17, 2021 (2021 ONSC 1424) on the basis of the principles set out by Kristjanson J. in A.P. v. L.K., 2019 ONSC 4031.
[3] I heard the motion on March 5, 2021. On March 24, 2021, I issued the following decision:
The court is backed up and will not be able to provide reasons on the motion in the near future. The court provides the parties with its bottom-line disposition to facilitate exchange of materials and uploading of materials to Caselines:
The request for a stay order is dismissed.
The request for a sealing order is dismissed.
The request for use of pseudonyms "Jane Doe" and "John Doe" for the applicant and the applicant's spouse, and a non-publication order respecting information tending to identify the applicant or her spouse or the applicant's children (aside from publication of information by the respondent in accordance with its statutory public reporting requirements) are granted.
The request for redaction of records referencing the applicant's status as a victim of sexual assault and her personal medical records is granted.
If the parties have difficulty implementing these directions they may seek further direction from the court; the parties may serve materials and not upload them to CaseLines pending agreement between them about proper implementation of these directions or further direction from the court in this regard.
[4] I now provide my reasons for the decision released March 24, 2021.
Background
[5] The applicant is a physician against whom a complaint was made by hospital staff for words said to them by the applicant. The Inquiries, Complaints and Reports Committee (“ICRC”) did not refer the complaints to a Discipline Panel of the College of Physicians and Surgeons, but did require the physician to attend in person to be cautioned for her “unacceptable and unprofessional” communications with hospital staff.
[6] The applicant seeks judicial review from the ICRC decision on the basis that (a) the ICRC had no jurisdiction to make findings of professional misconduct; (b) the ICRC erred in failing to consider and apply the Human Rights Code and the Charter of Rights and Freedoms in coming to its decision; and (c) the decision was unreasonable and unsupported by the record before the ICRC.
Request for a Stay Is Denied
[7] The focus for the motion for a stay was on the respondent’s report of the proceedings against the applicant, which is publicly available on the web site of the respondent CPSO.
[8] The test for a stay is derived from RJR MacDonald:
(i) is there a serious issue to be tried on the application?
(ii) will the applicant suffer irreparable harm if the stay is not granted?
(iii) does the balance of convenience favour granting the stay?
[9] In respect to the merits, the application strikes me as weak. The ICRC is empowered to impose administrative requirements in cases of misconduct that are not so serious as to require a hearing before the Discipline Panel. I accept that there is an argument that the ICRC may be restricted in the language it uses to express its conclusions, but if the application was allowed only to this extent it is hard to see a basis for not upholding the balance of the decision, including the disposition. This court defers to factual findings of the ICRC. The words uttered by the applicant to staff – even understood in the context alleged by the applicant – were very concerning. However, I accept that the merits threshold is low on the first stage of the RJR MacDonald analysis, and I am satisfied that the application meets this low threshold.
[10] I do not accept that the applicant has shown that she will suffer irreparable harm if the stay is not granted. The applicant’s theory seems to be that her privacy interests are seriously impacted by public disclosure of these matters. The Legislature has directed the College to be transparent in its processes. Many professional discipline cases arise in a context of personal adversity for the responding professional. Disclosure of that personal adversity may serve to dull the sting of findings of professional shortcomings, but at the price of public disclosure of those personal circumstances – which are raised by the responding professional in explanation or mitigation.
[11] Counsel for the CPSO advises that it is the CPSO’s practice to indicate on its web site when a discipline event is under appeal or review in this court. That information tells a reader that the matter is still disputed. If the application succeeds to the point that the findings against the applicant are set aside, then the report on the web site will be removed.
[12] The applicant argues that she is already experiencing harm in the form of reputational damage and embarrassment, and this experience will not be undone if she is eventually vindicated. In my view this argument cannot prevail. In a great many cases – whether criminal, family, civil litigation, or administrative proceedings, findings are made that cause parties to feel reputational damage and embarrassment. They are found to have acted badly (sometimes very badly). They are not believed. Their conduct may be criticized. Such harm is corrected by the vindication one receives on appeal or review, and the transitory upset one experiences is a normal and inevitable consequence of a public litigation process: it is not irreparable harm within the meaning of the test for a stay.
[13] I do not consider the balance of convenience to tilt particularly strongly in this case, but on balance I find it favours denying a stay. The CPSO has a general policy of reporting ICRC decisions of this kind on its web site once the decisions are rendered. That policy, of general application, is based on balancing the interests of transparency and public accountability with fairness to physicians, interests established by the Legislature. By analogy to other professional regulatory contexts, the point at which a decision is made by a professional regulator is a sensible and appropriate time in the overall process for the disposition to be made available to the public. I see nothing about the circumstances of this case to take it out of the course of general application. This tilts the balance against a stay: professional discipline decisions are reported publicly at this stage in the process, and there is nothing about this case to take it out of this principle of general application.
[14] The applicant has not met the second and third branches of the test for a stay and therefore the request for a stay is denied.
Request for a Sealing Order is Denied
[15] With respect, this case does not come close to meeting the test for a sealing order in respect to the entire case. As is reflected in the Dagenais/Mentuck test, and as has been confirmed recently in Sherman, the starting position for analysis is the “open court principle”. Only in a narrow range of circumstances will it be appropriate to keep an entire file from public view.
[16] The applicant argues that a negative review on a web site called RateMDs has exposed her reputation to harm and caused her embarrassment. A negative discipline decision can be expected to have reputational consequences. That is a consequence of an open and transparent discipline process. It does not constitute the sort of prejudice that can displace the strong presumption that court proceedings will be open to the public.
Anonymization and Limited Redactions Are Granted
[17] The court is satisfied that, for the purposes of the appeal, it is appropriate to redact certain personal information pertaining to the appellant, including her personal medical record and her status as a victim of a sexual assault. The CPSO “does not oppose carefully tailored orders in this proceeding for non-publication and anonymization” and acknowledges that this court will continue a publication ban issued by the Discipline Committee in a proceeding in this court from the decision in respect to which the publication ban was made below (See: Maini v. HPARB, 2021 ONSC 5750 (Div. Ct.).
[18] Paragraphs 3 and 4 of my disposition on March 24, 2021 are consistent with CPSO’s position and protects the privacy interests of the appellant in a manner that is co-extensive with the publication ban made by the Discipline Committee below.
Costs
[19] There shall be no order as to costs.
D.L. Corbett J.
Date: November 16, 2021