Matheson v. College of Physicians and Surgeons of Ontario, 2021 ONSC 7597
CITATION: Matheson v. College of Physicians and Surgeons of Ontario, 2021 ONSC 7597
DIVISIONAL COURT FILE NO.: 382/21
DATE: 20211124
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
King, Favreau and Nishikawa JJ.
BETWEEN:
Dr. Jeffrey Matheson
Applicant
– and –
The College of Physicians and Surgeons of Ontario (the Inquiries Complaints and Reports Committee)
Respondent
Rocco Galati, for the Applicant
Elisabeth Widner and Kirk Maijala, for the Respondent
HEARD at Toronto (by videoconference): October 27, 2021
WARNING: By court order made October 12, 2021, there shall be no publication of personal information identifying patients contained in the court file
REASONS FOR DECISION
Favreau J.
Introduction
[1] Dr. Jeffrey Matheson brings an application for judicial review of a decision of the Inquiries Complaints and Reports Committee (the “Committee”) of the College of Physicians and Surgeons of Ontario (the “College”) suspending his certificate of registration as of April 28, 2021. The Committee’s decision was based on its finding that Dr. Matheson breached an undertaking to comply with standards published by the Ministry of Health during the COVID-19 pandemic, including a specific undertaking to wear surgical/procedural masks at all times while at work. The Committee found that Dr. Matheson breached his undertaking by removing his mask for the duration of a patient examination.
[2] Dr. Matheson argues that the decision was procedurally unfair and unreasonable. He argues that he was not given sufficient time to respond to the proposed suspension and that the Committee made improper findings of fact in reaching the conclusion that he failed to comply with the undertaking.
[3] For the reasons below, I find that the process followed by the Committee was procedurally fair and the decision was reasonable. The application is therefore dismissed.
Statutory scheme
[4] Section 3(1) of the Health Professions Procedural Code under the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (the “Code”), sets out the College’s objectives, which include regulating the profession and governing members of the profession. Section 3(2) provides that, in carrying out its duties, the College has a duty to “protect the public interest”.
[5] Under the Code, the Committee investigates complaints made to the College about its members.
[6] After conducting an investigation, section 26(1) of the Code gives the Committee the power to do a number of things, including referring the complaint to the Discipline Committee for a hearing.
[7] In addition, section 25.4(1) of the Code gives the Committee the power to make various interim orders, including an order suspending a member’s registration on an interim basis if the member’s conduct “exposes or is likely to expose the member’s patients to harm or injury”.
[8] Section 25.4(3) provides that, if an order is made suspending a member’s registration, “the matter shall be investigated and prosecuted expeditiously”.
[9] In addition, section 25.4(6) provides that the Committee cannot make an order for an interim suspicion unless specified notice requirements are met:
(6) No order shall be made under subsection (1) unless the member has been given,
(a) notice of the intention to make the order;
(b) at least 14 days to make written submissions to the Committee; and
(c) a copy of the provisions of this section.
Background facts
[10] Dr. Matheson has been practicing as a physician in Ontario since 1992.
March 3, 2021 Undertaking
[11] On February 9, 2021, the College received a complaint from one of Dr. Matheson’s patients about events that occurred the previous day. The patient stated that she had an appointment with Dr. Matheson on February 8, 2021. She said that Dr. Matheson did not wear a mask during the appointment and advised her that she did not need to wear a mask. The patient also complained that Dr. Matheson made negative comments about COVID vaccines and that his staff members were not wearing their masks properly.
[12] The Committee commenced an investigation and notified Dr. Matheson that it was considering making an order for the interim suspension of his registration.
[13] On March 3, 2021, while represented by counsel, Dr. Matheson gave an undertaking that was meant to avoid the need for an interim suspension. The undertaking provided as follows:
(a) I, Dr. Matheson, undertake to restrict my practice as follows:
(i) I will abide by the Ministry of Health’s Operational Requirements for Health Sector Restart Health Sector Restart (http://www.health.gov.on.ca/pro/programs/publichealth/coronoavirus/docs/operational_requirements_health_sector.pdf) as amended from time to time and while in effect, including but not limited to:
wearing personal protective equipment, specifically including a surgical/procedure mask, at all times while at work; and
ensuring that my staff wear personal protective equipment, specifically including a surgical/procedure mask, at all times while at work. [Emphasis added.]
Second complaint and investigation
[14] On March 17, 2021, the College received a complaint from another patient about Dr. Matheson. This patient complained about Dr. Matheson’s conduct during three appointments, including one that took place after he signed the undertaking. After receiving the complaint, the College interviewed the patient on March 22, 2021.
[15] In her original complaint and interview, the patient complained about the following conduct:
a. The patient attended an appointment on August 17, 2020. Dr. Matheson came to the reception to get the patient. At the time, he only held a mask over his face. As they were walking to his office, Dr. Matheson removed the mask from his face and told the patient she could remove her mask. He also told her that masks would not help with COVID-19.
b. The patient attended another appointment on November 20, 2020. Dr. Matheson again arrived at reception holding the mask over his face. As they walked to the examination room, Dr. Matheson again took his mask off and told the patient she could remove her mask. He also told the patient that COVID-19 was a media conspiracy.
c. The patient attended another appointment on March 15, 2021, which was less than two weeks after Dr. Matheson signed the undertaking. This time Dr. Matheson wore his mask properly when he arrived at reception, however he removed it in the examination room. He then made comments about masks causing lung cancer and that he thought parents should send their children to school without a mask.
[16] On March 26, 2021, two College inspectors attended Dr. Matheson’s office. They both prepared reports. The reports describe the signage and set up of the office as they relate to COVID-19 requirements. The reports also summarize interviews with Dr. Matheson and a staff member who stated that Dr. Matheson complies with the March 3, 2021 undertaking, including by wearing a mask except when changing it.
[17] On April 1, 2021, the Committee gave Dr. Matheson notice pursuant to section 25.4 of the Code that it was considering making an interim order suspending or imposing terms on his licence. The notice included the following documents and information:
a. A copy of the patient’s complaint letter and a transcript from the College’s interview with her conducted on March 22, 2021;
b. Relevant government directives addressed to health care providers in relation to COVID-19 protocols;
c. The College’s COVID-19 FAQs for physicians; and
d. A copy of the undertaking signed by Dr. Matheson.
[18] In its notice, the Committee gave Dr. Matheson until April 15, 2021 to respond.
[19] By letter dated April 3, 2021, Dr. Matheson’s lawyer asked for 60 days to respond stating that 14 days was not enough time. The Committee refused this request.
[20] On April 15, 2021, Dr. Matheson’s lawyer wrote to the College and asked for an extension to April 22, 2021. The College granted this request.
[21] Dr. Matheson’s counsel provided his response to the notice in a letter dated April 19, 2021. In his response, Dr. Matheson stated generally that he follows COVID-19 protocols and guidance, but he did not deny the specific allegations made by the patient that he did not wear a mask in the examination room. He also did not deny that he made the statements the patient claimed he made about COVID-19 and masks. In fact, he provided numerous links to websites and articles that purport to support those statements. Dr. Matheson’s April 19, 2021 submission is discussed in more detail in the analysis section below.
Committee’s decision
[22] In a decision dated April 27, 2021, the Committee issued an order suspending Dr. Matheson’s registration pursuant to section 25.4 of the Code.
[23] In its decision, the Committee reviewed the information it had received from the patient, the reports from the inspectors who attended Dr. Matheson’s office and Dr. Matheson’s submissions. The Committee then explained its rationale for making an interim suspension as follows:
• In lieu of making an order under section 25.4 of the Code the College accepted a signed undertaking from the Respondent, effective March 3, 2021, in which the Respondent agreed as follows:
[Text from undertaking.]
• In the March 2021 complaint, the patient indicated to the College that the Respondent did not wear a mask for the duration of her appointment on March 15, 2021. Specifically, the patient indicated that upon entering the examination room, the respondent immediately removed his mask and remained unmasked for the duration of the encounter with her.
• The information the patient provided to the College indicates that the Respondent breached his undertaking to always wear PPE for the duration of any in-person patient encounters. In his April 19 submission, the Respondent did not dispute the facts the patient brought to the College’s attention in the March 2021 complaint.
• When a physician has signed an undertaking with the College, the College relies on the physician to regard this undertaking with utmost seriousness and to educate themselves with respect to its scope, conditions and limitations. The Respondent failed to comply with the terms set out in his undertaking with the College. Failure to fully comply with an undertaking undermines the public’s confidence that the College is capable of regulating the profession in the public interest.
• The Respondent’s breach of his undertaking with the College leads the Committee to be concerned about the Respondent’s governability. Ungovernability can have a negative impact on patient safety. The Respondent’s conduct, in refusing to abide by an undertaking that is intended to ensure that he observes COVID-19 safety protocols during in-person patient encounters, potentially exposes his patients to harm or injury.
• The Respondent indicated that he was forced to sign the undertaking with the College under duress. He indicated that the CMPA counsel who was representing him at the time was not acting in his best interests. The Respondent provided no information in his submission to support this claim. The Respondent never sought to vary the undertaking with the College.
• The College provides physicians with a minimum of 14 days to respond to a notice of intent to impose an interim order. The Respondent’s counsel raised concerns that this was not sufficient time for the Respondent to respond and the College should have allowed the Respondent 14 business days to respond. The College is obliged to proceed in an expeditious manner when considering whether to impose terms, conditions or limitations on a physician’s practice under section 25.4 of the Code.
• With his submission to the College, the Respondent provided copious materials and links to materials to support his beliefs about masks, lockdowns, vaccines and etcetera. The Committee is not seeking to address the merits of the information the Respondent submitted. The basis of the Order is the Respondent’s breach of his undertaking with the College.
The Committee is aware that any order imposed should not exceed what is necessary to protect patients from harm. Given the Committee’s grave concerns about the Respondent’s governability, and the evidence of likely exposure to harm or injury that this poses to patients, the Committee is satisfied that this Order is necessary to protect patients.
[24] The matter was referred to the College’s Discipline Committee for a hearing. During the hearing of this application, counsel for the College advised that there is a case conference scheduled for the beginning of December to set a schedule for the hearing of the disciplinary proceedings.
Application for judicial review
[25] Dr. Matheson commenced an application for judicial review on May 10, 2021. The notice of application for review includes a request for various declaratory relief about Dr. Matheson’s right to freedom of expression under the Charter
[26] However, in his factum, Dr. Matheson only seeks to quash the suspension of his registration on grounds unrelated to the Charter arguments. During the hearing, Dr. Matheson’s counsel confirmed that he is only pursuing the remedy and arguments set out in his factum.
[27] Dr. Matheson argues that the decision was procedurally unfair because the Committee only gave him 14 days to respond to the complaint and because it failed to respond to and consider all the submissions he made in his response to the notice. Dr. Matheson also argues that the decision was unreasonable because the Committee failed to consider relevant evidence, it improperly made findings of fact and credibility, it failed to consider the proper criteria for making a finding of ungovernability and it imposed the most draconian rather than the least restrictive order.
Issue of prematurity
[28] In the normal course, the Divisional Court does not intervene in ongoing administrative proceedings unless there are exceptional circumstances: Bannis v. The Ontario College of Pharmacists, 2020 ONSC 6115, at para. 9.
[29] In this case, the College did not take the position that the application for judicial review is premature. I note that this is consistent with this Court’s jurisprudence in cases such as Dua v. College of Veterinarians of Ontario, 2021 ONSC 6917, where the Court refused to dismiss an application for judicial review on the basis of prematurity in the context of the interim suspension of a veterinarian’s licence. In that case, the Court held that the application was not premature because the applicant would be prevented from practicing for the foreseeable future and, as held at para. 18, “there is no alternate internal remedy available to [the applicant] to appeal or review the order in question”.
Standard of review
[30] There is no dispute between the parties that the standard of review applicable to the substance of the decision is reasonableness.
[31] As held in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, the guiding principles for deciding whether a decision is reasonable include the following:
a. Reasonableness is concerned with justification, transparency and intelligibility. A decision is unreasonable if it is internally incoherent or if it is untenable having regard to the relevant factual and legal constraints.
b. The party challenging the decision has the burden of showing that it is unreasonable. A court should not set aside a decision based on minor flaws or peripheral shortcomings. To justify a finding of unreasonableness, the flaws or shortcomings must be sufficiently central or significant to the merits of the decision.
c. The role of the court is to review the decision and not to decide the issue afresh. The focus of the reasonableness inquiry is therefore on the decision making process and the outcome.
d. It is not the role of a reviewing court to re-weigh the evidence and make factual findings. Absent exceptional circumstances, a reviewing court should not interfere with a tribunal’s factual findings.
[32] No standard of review applies to the issue of procedural fairness. Rather, as held in Vavilov, at para. 77, the court is to apply the factors in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, to determine the level of procedural fairness required in the circumstances of the case and whether it was met.
The decision was procedurally fair
[33] Dr. Matheson argues that the decision was procedurally unfair because he was given insufficient time to respond to the proposal to suspend his certificate of registration and because the Committee gave insufficient reasons for its decision.
[34] In my view, there was no procedural unfairness in this case.
No denial of procedural fairness in imposing a 14-day deadline for submissions
[35] Dr. Matheson argues that the Committee’s process was unfair because he was only given 14 days to respond to the notice of proposal to suspend his registration. I accept the College’s argument that this deadline was not procedurally unfair.
[36] As reviewed above, section 25.4(6)(b) of the Code requires the Committee to give a member “at least 14 days to make written submissions” before making an interim order. The 14 day deadline imposed in this case complies with the minimum time prescribed by the Code. The issue is therefore whether the Committee’s decision not to extend the minimum deadline was procedurally unfair in the circumstances of this case.
[37] The Committee addresses this in its decision. It states that, when Dr. Matheson’s requested 60 days, he did not provide any explanation for needing more time other than making a general statement that 14 days was not enough time. In addition, when the deadline arrived and Dr. Matheson asked for a few more days, the Committee granted this request.
[38] In his argument before us, Dr. Matheson’s counsel argued that he required more time for submissions in order to obtain expert evidence. However, expert evidence is irrelevant to the core issue raised by the Committee in its notice. The Committee gave notice to Dr. Matheson that it was concerned he was not complying with his undertaking of March 3, 2021, including his undertaking to wear a mask at all time, which necessarily includes when meeting with patients. By that point in time, the issue of whether the undertaking was unreasonable or whether the standards imposed in the directives referred to in the undertaking were improper was irrelevant. In any event, and more significantly, in his communications with the College about needing more time, Dr. Matheson’s lawyer did not say that he needed more time because of the need for expert evidence. Applications for judicial review are to be decided on the record before the decision maker at the time the decision was made. Based on the information available to the Committee at the time the request for an extension was made, it was not procedurally unfair for the College to require that submissions be made within 14 days.
[39] Dr. Matheson also argues that the Committee’s imposition of the 14-day deadline is contrary to the Supreme Court of Canada’s decision in Lavallee, Rackel & Heintz v. Canada (Attorney General); White, Ottenheimer & Baker v. Canada (Attorney General); R. v. Fink, 2002 SCC 61. In that case, the Court considered the constitutional validity of a provision of the Criminal Code, R.S.C. 1985, c. C-45, that required defendants making claims of solicitor client privilege over seized documents to make those submissions within fourteen days. The issue in this case is completely different. Dr. Matheson does not challenge the constitutional validity of section 25.4(6)(b) of the Code. Rather, he claims that the Committee’s decision not to extend the deadline, which it has the discretion to do, was procedurally unfair.
[40] In my view, there was no procedural unfairness in this case. When considering whether to extend the 14-day minimum period for submissions, the College is not only concerned with fairness to its members, but also with the public interest. In this case, the College had information that Dr. Matheson was not complying with a requirement that he wear a mask when seeing patients. This was not only contrary to his undertaking but contrary to basic public health advice and directives. In the circumstances, the College had to balance Dr. Matheson’s interests against the public interest. In the absence of any compelling reason for extending the deadline other than the stated need for more time, there was no procedural unfairness.
The Committee’s reasons were sufficient
[41] Dr. Matheson argues that the Committee’s reasons were insufficient because they do not address the arguments made in his submissions. In particular, he argues that the reasons fail to address his statements that he did comply with the March 3, 2021 undertaking and his submission that there is credible scientific research that supports his position that the standards in the undertaking are not necessary or may even be harmful. The submissions include a multiple page list of the resources Dr. Matheson relies on for this position.
[42] In my view, the Committee’s reasons were sufficient and did not breach Dr. Matheson’s right to procedural fairness.
[43] As held in Vavilov, at para. 91, a “reviewing court must bear in mind that the written reasons given by an administrative body must not be assessed against a standard of perfection. That the reasons given for a decision ‘do not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred’ is not a basis to set the decision aside…” As held by this Court in Mitelman v. College of Veterinarians of Ontario, 2020 ONSC 3039, at para. 29, “[i]f the court can discern the ‘why’ of the decision from the record and whatever reasons have been given, it must not intervene on the basis of the reasons’ adequacy or sufficiency”.
[44] In this case, the Committee’s reasons clearly set out the basis for the decision. The Committee explains its finding that Dr. Matheson breached his undertaking and that this leads to its the conclusion that he ungovernable, and that a suspension of his registration is therefore appropriate. In addition, while the Committee does not review the lengthy list of articles and websites Dr. Matheson refers to in his submissions, the Committee acknowledges those resources and explains that they are irrelevant because the decision is based on Dr. Matheson’s failure to comply with his undertaking and not the validity of the undertaking.
[45] In the circumstances, I see no reason to find that the Committee’s reasons are inadequate. Dr. Matheson’s complaints about the reasons really go to whether the substance of the decision is reasonable which is addressed below.
The decision was reasonable
[46] Dr. Matheson argues that the decision was unreasonable for several reasons:
a. The Committee failed to consider relevant evidence;
b. The Committee committed jurisdictional errors by making findings of fact and credibility;
c. The Committee found that Dr. Matheson was ungovernable without giving him prior notice and without considering the requirements for making such a finding; and
d. The Committee failed to impose the least restrictive order and instead imposed the most draconian penalty.
[47] In my view, none of the arguments made by Dr. Matheson are persuasive. The Committee’s decision was reasonable in the sense that it is intelligible, internally coherent and based on the record available to the Committee.
The Committee did not fail to consider relevant evidence
[48] Dr. Matheson argues that the decision is not reasonable because the Committee failed to consider his submission and the evidence that he complied with the undertaking.
[49] In my view, based on the information available to the Committee, its conclusion that Dr. Matheson was not complying with his undertaking to wear a mask in the presence of patients was reasonable.
[50] The notice the Committee sent to Dr. Matheson on April 1, 2021 notifying him that it was considering suspending his registration included a copy of the patient’s email setting out her complaint and a transcript from the interview with the patient. The email and the transcript made clear that the patient was complaining about Dr. Matheson’s failure to wear a mask on three separate visits, including the March 15, 2021 visit that occurred soon after he signed the undertaking. In her email, the patient described what occurred at the March 15, 2021 visit in the form of bullet points. In her first bullet point, she states “Upon entering the exam room he immediately removed his mask”. The patient also complained about statements made by Dr. Matheson during the visits, including respecting his views on masks.
[51] The submission Dr. Matheson’s lawyer made in response to the Committee’s notice is 55 pages long. The submission does not directly address the patient’s complaint nor does it explicitly state that Dr. Matheson wore his mask during the March 15, 2021 appointment. Instead, he makes very general statements about his compliance with the undertaking and COVID directives. The relevant portions of the submission are below:
Dr. Matheson’s Wearing of Masks and the March 2, 2021 Undertaking
Dr. Matheson’s practice has been following all COVID-19 precautions.
Dr. Matheson follows the following protocols, as confirmed by the College investigators:
(a) All Staff and doctors wear personal protective equipment;
(b) Staff conduct the required COVID screen tests for all patients;
(c) The clinic prominently displays the required signage required by Dr. Matheson;
(d) The clinic uses plexiglass and has reduced capacity to accommodate social distancing;
(e) The is ample sanitation stations around the clinic;
(f) Staff and doctors take precautions to sanitize frequently themselves and the clinic’s surfaces.
Dr. Matheson further has a compliance officer, named Gail Houghton, who works from Monday to Thursday at his clinic to ensure that his practice and clinic follow the appropriate guidelines. Gail confirmed to the investigators that the clinic, doctors and staff are in compliance with Dr. Matheson's undertaking and with practice directions.
Dr. Matheson is ensuring the safety of his patients.
Dr. Matheson was forced to sign an undertaking, under duress, by counsel who acted not in Dr. Matheson's best interests by representing both Dr. Matheson and the CMPA, and with whom Dr. Matheson lost confidence, which explains why he is represented by independent counsel outside of the questionable CMPA rubric of someone else "choosing" counsel of choice, a constitutional right, for a doctor, being prosecuted by the CPSO.
However, after signing the undertaking, Dr. Matheson, read and educated himself with respect to the avalanche of scientific evidence on dire dangers of masks, and their ineffectiveness, and what he read terrified him with respect to his own safety and the safety of his patients, some of which information is attached below. Dr. Matheson's fears were confirmed when the very masks his office had ordered pursuant to the undertaking were recalled by Health Canada. While Dr. Matheson is entitled to an exemption, both under the COVID Regulations, as well as s. 7 of the Charter, nonetheless he continues to mask in the common area(s) of his clinic.
Dr. Matheson has made his clinic a safe space for those patients who have exemptions from wearing masks. [Emphasis added.]
[52] For the most part, the balance of the submissions set out Dr. Matheson’s freedom of expression arguments, including a list of multiple articles and websites he claims support his views on COVID-19, including with respect to masks.
[53] Based on its review of the patient’s complaint that Dr. Matheson did not wear a mask during the March 15, 2021 visit and Dr. Matheson’s submissions, the Committee concluded that Dr. Matheson “did not dispute the facts the patient brought to the College’s attention in the March 2021 complaint”. Given the contents of the submission and the fact that Dr. Matheson did not in fact address the substance of the complaint, this conclusion is reasonable and supported by the record.
[54] Dr. Matheson submits that this conclusion was unreasonable because the submission stated generally that the doctors at the clinic wore personal protective equipment and specifically that Dr. Matheson wore a mask in the “common areas” of the clinic, which his counsel submits would include the examination room. Without debating the meaning of “common areas”, the Committee’s conclusion was reasonable. The College provided Dr. Matheson with the patient’s account of what occurred on March 15, 2021. Dr. Matheson never refuted that account and instead put forward generalities about compliance with his undertaking and various COVID-19 protocols. At most, the reference to wearing a mask in “common areas” was ambiguous. In the circumstances, the Committee’s conclusion that Dr. Matheson did not dispute the patient’s version of the facts was reasonable.
[55] Dr. Matheson also submits that the Committee’s finding that he did not comply with the undertaking ignores the findings of the investigators who attended his clinic following the complaint. He points out that the investigators did not find any lapses in his adherence to COVID-19 requirements and that the Committee failed to consider this in its decision. However, the Committee’s decision is not based on a general assessment of whether Dr. Matheson was complying with the undertaking. Rather, it is based on the specific concern that Dr. Matheson’s undertaking included a term about wearing masks. This was based on a prior complaint that he had not worn a mask when seeing patients. The Committee decided to suspend Dr. Matheson’s registration because he failed to comply with this aspect of the undertaking shortly after signing the undertaking. Dr. Matheson’s compliance with other aspects of the undertaking does not make the Committee’s decision unreasonable.
[56] Finally, Dr. Matheson relies on a letter his lawyer sent to the College after the Committee issued its decision on April 27, 2021. On April 29, 2021, a College investigator wrote to Dr. Matheson’s counsel advising that she was “currently preparing to return this matter to the Committee for final disposition. If you wish to provide any further submission on this matter, please do so by May 14, 2021.” In response, Dr. Matheson’s sent a letter dated May 8, 2021, primarily complaining that the Committee had failed to consider his prior submissions. The letter also stated that “Dr. Matheson categorically denies removing his mask during the March 15th, 2021 appointment with [the patient]”. Despite this being the key issue raised by the patient in her complaint, this was the first time Dr. Matheson directly addressed whether he wore a mask when examining the patient on March 15th. The record does not indicate whether or how the College responded to this correspondence. However, in my view, this late attempt to address the key issue does not make the Committee’s April 27, 2021 decision unreasonable.
The Committee did not commit a jurisdictional error by making findings of fact or credibility
[57] Dr. Matheson argues that the Committee was not permitted to make any findings of fact or credibility with respect to the issue of whether he breached his undertaking.
[58] This argument is inconsistent with this court’s prior case law on the issue of whether the Committee can make findings of fact when making an order pursuant to section 25.4 of the Code. For example, as held in Kadri v. College of Physicians and Surgeons of Ontario, 2020 ONSC 5882, at para. 46, besides its “screening role”, the “ICRC is also charged with the responsibility of making interim orders during the complaint and investigation process where a physician’s conduct exposes or is likely to expose patients to harm. In order to carry out that role, it must engage in a fact-finding process to determine if patients have been exposed or are likely to be exposed to harm.”
[59] The decisions Dr. Matheson relies on in support of his argument that the Committee made impermissible findings of fact and credibility are not decisions dealing with circumstances where the Committee was deciding whether to exercise its authority to make an interim order under section 25.4 of the Code. In order to decide whether to make an interim order on the basis of risk of harm, the Committee necessarily has to make some findings of fact and those findings must be supported by the information it obtains.
[60] In my view, the Committee did not make any findings of credibility in its decision of April 27, 2021. Dr. Matheson had not denied the patient’s version of events nor had he presented an alternative version of the events. Rather, the College made a finding of fact that was open to it based on the evidence provided by the patient in her complaint email and during her interview. This evidence supported the Committee’s finding that Dr. Matheson posed a risk of harm.
The Committee provided an adequate explanation for its finding that Dr. Matheson is ungovernable
[61] Dr. Matheson argues that the Committee made an improper finding that he is ungovernable. He argues that this is a term of art and that the Committee could only make this finding if it was satisfied that Dr. Matheson had a long history of non-compliance with his regulatory obligations.
[62] I disagree. The use of the term “ungovernable” in the Committee’s decision must be looked at in context. The Committee did not decide that Dr. Matheson’s registration should be permanently revoked. Rather, the Committee decided to suspend his registration pending a full hearing before the Discipline Committee. In this context, the Committee’s use of the word “ungovernable” is meant to convey that he cannot be counted on to comply with his undertaking to wear a mask when meeting with patients. In other words, it supports the Committee’s conclusion that less restrictive measures would not be effective to protect the public pending a hearing before the Discipline Committee.
An interim suspension was reasonable in the circumstances
[63] Dr. Matheson argues that the Committee’s decision to impose an interim suspension was not reasonable because it is not the least restrictive measure.
[64] I see no merit to this argument.
[65] In its decision, the Committee considered the issue of whether there was a less restrictive measure that it could impose on Dr. Matheson. As referred to above, in its concluding paragraph, the Committee stated that “[g]iven the Committee’s grave concerns about the Respondent’s governability, and the evidence of likely exposure to harm or injury that this poses to patients, the Committee is satisfied that this Order is necessary to protect patients”.
[66] The Committee’s conclusion was based on its finding that Dr. Matheson did not wear a mask when meeting with the patient, despite the undertaking he gave to do so less than two weeks earlier. It was also based on the public health information about the importance of masks to reduce the risk of exposure to COVID-19.
Conclusion
[67] For the reasons above, the application for judicial review is dismissed.
[68] As agreed between the parties, Dr. Matheson is to pay the College costs in the all inclusive amount of $7,500. Costs are to be paid within 30 days.
Favreau J.
I agree _______________________________
King J.
I agree _______________________________
Nishikawa J.
Released: November 24, 2021
CITATION: Matheson v. College of Physicians and Surgeons of Ontario, 2021 ONSC 7597
DIVISIONAL COURT FILE NO.: 382/21
DATE: 20211124
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
King, Favreau and Nishikawa JJ.
BETWEEN:
Dr. Jeffrey Matheson
Applicant
– and –
The College of Physicians and Surgeons of Ontario (the Inquiries Complaints and Reports Committee)
Respondent
REASONS FOR decision
Favreau J.
Released: November 24, 2021