PUBLICATION BAN:
Pursuant to the endorsement of Corbett J. in Doe v. College of Physicians and Surgeons, 2021 ONSC 7550, no one shall publish information tending to identify the Applicant or her family members, excepting the Respondent acting pursuant to its statutory public reporting requirement.
CITATION: Doe v. College of Physicians and Surgeons of Ontario, 2022 ONSC 2920
DIVISIONAL COURT FILE NO.: DC-20-506-JR
DATE: May 16, 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Swinton, Backhouse and Mandhane JJ.
BETWEEN:
JANE DOE
Applicant
– and –
THE College of Physicians and surgeons OF ONTARIO
Respondent
Colin Johnston and Brianne Westland, for the Applicant
Ruth Ainsworth, for the Respondent
HEARD at Toronto (by videoconference): April 28, 2022
Mandhane J.:
OVERVIEW
[1] Jane Doe (“the Doctor”) is a physician who practiced obstetrics and gynecology at a hospital in Ontario. On February 7, 2019, she attended her unit and began her shift. While complaining to co-workers about her ongoing workplace dispute with the hospital, the Doctor became extremely agitated, saying that everyone who ever crossed her would “pay.” She also admitted telling her colleagues that her husband had told her that “he could now understand how people could bring a gun to work and go postal” (“the Conduct”).
[2] A nursing student who witnessed the Conduct immediately reported to supervisors feeling frightened and unsafe. The Doctor’s other colleagues perceived the Conduct to be loud, profane, and threatening. The hospital Chief of Staff reported the incident to the College of Physicians and Surgeons of Ontario (“the College”), which commenced its investigation on February 8, 2019 (“the Investigation”).
[3] As part of the Investigation, the Doctor acknowledged that she should not have engaged in the Conduct, that she got carried away with her emotions, and that she was speaking loudly. To further explain her behaviour, the Doctor submitted two expert psychiatric assessments which established that she did not pose a risk of harm to anyone, and which outlined the potential impact of her 2008 diagnosis of post-traumatic stress disorder (“PTSD”) on her Conduct.
[4] In its written decision dated August 14, 2020 (“Decision”), the College’s Inquiries, Complaints and Reports Committee (“Committee”) found that the Doctor engaged in “inappropriate and unprofessional conduct” and determined that a “caution in person on professional communications” was the appropriate remedy (the “Caution”). The Committee did not make any other remedial orders because the Doctor had already taken an effective communications course.
[5] The Doctor was cautioned in person, by way of Zoom, on September 30, 2020. Despite its jurisdiction to refer a matter to a Discipline Committee or for capacity proceedings, the Committee did neither. The Caution was effectively the end of the Investigation. There was no restriction or limitation on the Doctor’s certificate of registration.
[6] By mandatory requirement of statute, a “Summary” of the Committee’s Decision was posted to the College’s “Register” of physicians, which is a public, searchable, online database: s. 23(2)(7) of the Health Professions Procedural Code (“Code”), being Sched. 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18; Article 49(1)(21), College of Physicians and Surgeons of Ontario General By-law (March 3, 2022) (“General By-law”).
[7] The Doctor now seeks an order quashing the Committee’s Decision and removing reference to it from the Register. The Doctor says that the Committee exceeded its jurisdiction, that it did not properly weigh the information before it, and that it did not respect her equality rights under the Charter of Rights and Freedoms.
[8] The College argues that the Decision was reasonable: the Committee considered the Doctor’s mental health disabilities and made a reasonable remedial order. The College says that it would have been unreasonable for the Committee to take no steps upon receipt of the Investigation report or to refer the Doctor for capacity proceedings.
[9] The College notes that publication of the Summary is a legal requirement over which the Committee had no discretion such that judicial review is neither available nor appropriate.
ISSUE
[10] The only issue before this panel is whether the Committee’s Decision to impose the Caution was reasonable in light of the Doctor’s mental health disability: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1 at paras. 16, 23-32.
SHORT CONCLUSION
[11] The application for judicial review is dismissed.
[12] The Committee’s Decision to Caution the Doctor was reasonable, even in light of her mental health disability. The Decision was within the Committee’s jurisdiction, was appropriately remedial, and did not constitute prima facie discrimination.
analysis
[13] The Doctor attacks the Decision on three grounds. First, she argues that the Committee effectively disciplined her under the guise of a caution, thereby exceeding its jurisdiction. Second, she says that the Committee’s factual finding that she engaged in “inappropriate or unprofessional conduct” was unreasonable and overly punitive given the information before it about her PTSD. Finally, she says that the Committee’s Decision did not adequately balance her substantive equality rights against the College’s statutory mandate to regulate its members in the public interest.
[14] Based on the information before the Committee, the Doctor says that the only reasonable course would have been to take no further steps, or to have referred the matter for capacity proceedings.
Did the Committee exceed its jurisdiction?
[15] The Doctor argues that the Committee’s finding that she “engaged with staff in an inappropriate and unprofessional matter” was effectively a finding of professional misconduct that was outside of the Committee’s jurisdiction: Code, at ss. 36(1), 38(1) and 51(1).
[16] I disagree. The Caution was well within the Committee’s jurisdiction under s. 26(1) of the Code. Upon receipt of the Registrar’s Investigation report on August 14, 2020, the Committee had the authority to do the following:
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:
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.
Refer the member to a panel of the Inquiries, Complaints and Reports Committee under section 58 for incapacity proceedings.
Require the member to appear before a panel of the Inquiries, Complaints and Reports Committee to be cautioned.
Take action it considers appropriate that is not inconsistent with the health profession Act, this Code, the regulations or by-laws.
(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.
[17] The parties agree that only a Discipline Committee can make a finding of professional misconduct. Here, the Doctor seeks to recast the Committee’s factual finding of “unprofessional communication” into a legal finding of professional misconduct. This argument must fail as it is not borne out by the Committee’s reasoning in the Decision.
[18] The relevant portions of the Decision state as follows (with emphasis added):
• The Respondent provided an explanation for what occurred, including a detailed account of the events leading up to that date, the environment at the time, and her state of mind. While this information has assisted the Committee in appreciating the difficult and complex scenario in which the behavior in issue occurred, it does not change the fact that the Respondent engaged with staff in an inappropriate and unprofessional manner, which had a significant impact on those involved. While the behavior was not deemed criminal by the police, it was unprofessional. Such behavior cannot be justified and is unacceptable regardless of the context in which it occurred.
• The Committee acknowledges that the Respondent has reflected a great deal on this incident, and, in the course of another College proceeding, undertook to complete the Saegis course, Effective Team Interactions. Had the Respondent not engaged in this education, the Committee would have sought further remediation relating to her communications.
• Based on all of the above, the Committee is satisfied that the appropriate disposition is to require the Respondent to attend at the College to be cautioned in person with respect to ensuring professional communications.
• A caution in person arises when the Committee is concerned about an aspect of a physician’s practice, and believes that the physician would benefit from direction provided in person about the issues raised. It is also intended to protect the public interest, and a summary of the decision will appear on the College’s public register. At the Respondent’s attendance at the College, Committee members will provide direction about steps the Committee believes the Respondent must take in order to avoid future difficulties.
[19] Clearly, in stating that the Doctor’s conduct was “unprofessional”, the Committee was simply providing a factual basis for requiring her to appear for the Caution. The Committee did not issue any declarations or orders, did not purport to make any findings of professional misconduct, and did not refer this matter to the Discipline Committee.
[20] The case law is clear that a caution is an educational and remedial measure intended to prevent the physician from having a similar experience in the future and to protect the public: Geris v. Ontario College of Pharmacists, 2020 ONSC 7437 (Div. Ct.), at paras. 33-35 and 41.The remedial nature of a caution pursuant to s. 26(1) of the Code is obvious when one considers that a Discipline Committee, after making a finding of “professional misconduct”, can go as far as revoking the member’s certificate of registration: Code, at s. 51(2).
[21] The fact that a summary of the Decision is posted on the Register and may negatively impact the Doctor’s reputation does not convert the Caution into a finding of professional misconduct or a penalty: Longman v. Ontario College of Pharmacists, 2021 ONSC 1610 (Div. Ct.), at para. 45. The 2017 publication requirement was implemented to bring more public transparency to the self-regulation process; it did not change the remedial purpose of a caution: Longman, at para. 45.
[22] Indeed, the Committee had no discretion when it came to the Register: Code, at s. 23(2)7; General By-Law, at Article 49(1)21. The Registrar alone determines the content and has the sole discretion to amend or remove the summary from the Register: Code, at s. 23.
Was the Decision unreasonable based on the information before the Committee?
[23] Reasonable decisions are internally coherent and link the relevant evidence and law to the conclusions reached: Vavilov, at paras. 102-106. Here, the Doctor argues that the Committee’s factual finding that she engaged in “inappropriate or unprofessional conduct” was unreasonable given the information that linked her Conduct with her PTSD.
[24] The College, in defending the reasonableness of the Decision, says that the impact of the Doctor’s Conduct on her colleagues warranted a finding of “unprofessional communications” and the Caution.
[25] The Committee considered extensive information from the Registrar’s Investigation. The Committee had information from the police who attended on the scene, staff witnesses, the Doctor’s professional colleagues, hospital administration, the Doctor, and two expert psychiatrists. It also had contextual information about the hospital’s concurrent workplace investigation into the Doctor, and her prior disciplinary history with the College.
[26] The Committee summarized the relevant Information as follows (with emphasis added):
• The conduct in issue took place within a much broader context of other difficulties and issues between the Hospital and the Respondent which dated back several years.
• In responding to the incident, the Respondent explained that at the time of the incident in issue, she felt ostracized and unsupported by her colleagues, and it seemed to her as if she was being held to a different standard. She advised that she was devastated by the suspension of her CS [Caesarian-Section] privileges and was under significant stress. The Respondent stated that when she spoke with the nurses, she was upset, and she discussed her frustration with what had occurred and how she felt she had been treated unfairly. She acknowledged that she should not have engaged in this conversation with the nurses (who she felt were being supportive and even encouraging her to vent), and that she “got carried away in [her] emotions” and was probably speaking loudly. She did not recall the exact words she used but stated that she meant to indicate that she intended to set the record straight with a strong defence. She admitted saying, “my husband said that he could now understand how people could bring a gun to work and go postal”. She said she did not intend to make the statement in a threatening fashion, and it did not appear to her that anyone was alarmed by the statement. She indicated that she now regrets making the comment, and she is embarrassed and remorseful and deeply sorry for causing any alarm.
• The Respondent’s counsel provided a forensic psychiatry assessment from March 2019 which found that the Respondent posed no physical risk to any individual or group and stated that although the comments the Respondent made were inappropriate, there was no intention to cause harm. An independent medical examination by a psychiatrist specializing in occupational psychiatry in October 2019 reached similar conclusions. Both reports indicate that the Respondent suffers from post-traumatic stress disorder (PTSD) relating to a workplace sexual assault by a colleague. The Respondent’s counsel explained how the Respondent’s accusations about the colleague (and her involvement in Disciplinary proceedings against the colleague) precipitated a significant deterioration in the work environment and with departmental and Hospital leadership. He maintained that the Respondent did not do or say anything that a reasonable person would regard as presenting a genuine risk of violence. Rather, in the incident in issue, she confided to nursing colleagues in a moment of crisis when she was in a state of emotional distress.
• While the Respondent took issue with the manner in which nursing staff reported the encounter in issue, the general content of the Respondent’s language and its perceived threatening nature was consistently reported by the three members of the nursing staff involved in the incident. The Respondent provided a less threatening recollection of her comments, but acknowledged relaying the comment by her husband, and on reflection, she has accepted that her statements and behavior were inappropriate and ill-advised.
[27] As will be discussed in detail below, overall, I find that the Committee’s Decision was reasonable based on the relevant professional standards, the conflicting information about the Doctor’s mental health disabilities, and the overwhelming evidence that the Doctor acted in anger and frustration over her ongoing workplace dispute with the hospital.
The relevant professional standards
[28] The College persuasively argues that protecting the public interest and maintaining public confidence in self-regulation requires that the College take appropriate steps to ensure that all physicians maintain professional standards of communication, regardless of their personal situation.
[29] The Committee had before it the professional standards relevant to workplace communications: College Policy Statement #3-16, “Physician behavior in the professional environment” (May 2016), at p. 3 (“Policy Statement”). The Policy Statement links maintenance of appropriate standards of professional communication with protecting the public interest, stating at p. 2:
Physicians are expected to act in a respectful, courteous and civil manner towards their patients, colleagues and others involved in the provision of health care. Doing so fosters an atmosphere of trust, shared accountability and collaboration, and is an essential component to upholding the values and principles of medical professionalism. Conversely, behavior that is unprofessional and/or disruptive undermines medical professionalism and the trust of the public. Literature shows that these behaviors can negatively impact both the delivery of quality health care, and patient safety and outcomes by eroding the effective communication and collaboration that underpinned good medical practice.
[30] Disruptive behaviours “undermine the culture of safety” because they pose a threat to patients and outcomes by inhibiting the collegiality and collaboration essential to teamwork, impeding communication, undermining morale, and inhibiting compliance with an implementation of new practices: Policy Statement, p. 4. The Policy Statement defines “disruptive behavior” as occurring when: “the use of inappropriate words, or actions and inactions, by a physician interferes with his or her ability to collaborate, or may interfere with, the delivery of quality health care or the safety or perceived safety of others”: p. 2. Disruptive behavior may be a pattern of incidents or a single unacceptable act, and the gravity of the behavior will depend on its nature, context, and consequences: p. 2.
[31] The Policy Statement makes clear, at p. 4, that: “While there may be myriad reasons for disruptive behavior, whether personal, professional, or situational, physicians are nevertheless expected to demonstrate professional behaviour at all times.” This clear expectation makes imminent sense given the stressful environment in which physicians work, and their fiduciary obligations to their patients and the public.
[32] The Policy Statement effectively creates a positive duty on physicians to obtain appropriate treatment and to request the necessary workplace accommodations to allow them to meet their professional responsibilities in relation to professional communication and disruptive behaviour. The Policy Statement states that physicians must obtain appropriate “assistance” if they are “unable to control the behavior” on their own: p. 3. The Policy Statement specifically directs members to access confidential supports and resources provided by the Ontario Medical Association.
[33] Given the relevant professional standards, the Committee's factual finding that the Doctor engaged in unprofessional communications with staff was reasonable. The Doctor’s behaviour here was unprofessional on its face. The Doctor lost her temper and positively referenced using guns in the workplace. The Conduct took place in the context of a hospital workplace, and while the Doctor was actively caring for patients. Her colleagues were afraid; police attended at the hospital. There was a level of chaos in the unit that evening that would have been palpable to staff and patients alike, and that was not consistent with the provision of “quality health care.”
[34] The Doctor herself admitted that the Conduct took place in the context of strained workplace relationships that were causing her significant emotional distress.
[35] The Decision to caution the Doctor was also reasonable given the clear requirement in the Policy Statement that physicians proactively address the symptoms associated with their mental health disability to avoid unprofessional and disruptive conduct. Here, while the Doctor acknowledged that she was diagnosed with PTSD in 2008 and that she was under severe emotional stress in the days leading up to the Conduct, she adduced no information regarding the steps she was taking to deal with her worsening mental and emotional state. There was no information before the Committee from her treating psychiatrist. There was no information that she was engaged in counselling or therapy to address the trauma associated with her past experience of sexual violence. The Doctor herself told her assessing psychiatrist, Dr. Aleem, that she was generally resistant to psychiatric medications because she felt they “numbed her emotions.”
[36] The Doctor also did not produce any information about seeking or obtaining workplace accommodations related to her mental health disability prior to the Conduct occurring. Indeed, throughout the hospital’s contemporaneous competence investigation in February 2019, the Doctor maintained that she should have full hospital privileges, without any limitations on her surgery privileges, for example. Dr. Gojer’s report was prepared in response to the hospital’s investigation and clearly supports a finding that the Doctor did not believe that her PTSD was a workplace issue leading up to or immediately after the Conduct.
[37] The finding that the Doctor had engaged in unprofessional communication was reasonable because it was supported by the relevant professional standards and the totality of the information before the Committee about the overall context for the Conduct.
The expert information
[38] I reject the Doctor’s argument that the Committee's decision effectively “denounced” a mentally ill person for unprofessional conduct that resulted from her disability. This argument is not supported by the information before the Committee.
[39] The Committee considered information from the Doctor’s two experts: Dr. Gojer’s report dated March 2019, and Dr. Aleem’s report dated October 2019. The experts both noted that the Doctor was diagnosed with PTSD and Generalized Anxiety Disorder in 2008, but that she did not have a history of major mental illness. She continued to be under the care of a treating psychiatrist at the time of the Conduct.
[40] Both experts agreed that the Doctor did not pose a risk of physical harm to staff at the hospital. It was also clear to both experts that, at the time of the Conduct, the Doctor was “angry” and “frustrated” about her workplace issues, and felt “alienated, isolated and ostracized by her colleagues.” Neither expert suggested that the Doctor lacked the requisite capacity to understand the nature and consequences of her Conduct.
[41] The experts gave conflicting opinions about the extent to which the Doctor’s PTSD impacted her Conduct on February 7, 2019. Dr. Gojer unequivocally stated that the Doctor’s PTSD was “in the past” and that the “depression and anxiety symptoms associated with her past PTSD were not a prominent feature in the time leading up to the loss of her privileges on February 5, 2019.” He specifically stated that the Doctor “was coping with no major mental illness in the time period just before the comments were made.” He said that the Doctor’s inappropriate comments had to be understood “as occurring in the context of negative experiences” in the workplace that had created “sadness and frustration” and related “physical and emotional exhaustion.”
[42] Dr. Aleem also opined that the Conduct was properly understood as having occurred “in a context of longstanding interpersonal difficulties” in the workplace that were ongoing since 2006. However, unlike Dr. Gojer, Dr. Aleem went on to outline the “possible impact” of the Doctor’s PTSD on her Conduct. She said that the Doctor’s behaviour was “likely” part of a more global dysregulation and disinhibition consistent with PTSD symptoms of impulsivity, recklessness, and mistrust. She opined that the Doctor’s heightened reactivity, lability, and her perception of being mistreated in the workplace, “likely” significantly contributed to the staff’s perception of a threat.
[43] There was no information before the Committee that the Doctor lacked the capacity to appreciate the nature and consequences of her actions, or that she was in a state of active mental illness at the time of the Conduct. Had the police not been called, the Doctor’s intention was to continue her shift at the hospital. The Doctor herself never suggested to police or College investigators that her conduct was the result of her PTSD or another acute mental illness.
[44] Overall, the Committee accurately reflected the expert information in its findings about the overall context for properly assessing the Doctor’s Conduct. It reflected on the Doctor’s stressful workplace issues, her diagnosis of PTSD, and the fact that she was in a state of emotional distress at the time of the Conduct. It accepted that the Conduct took place in a “difficult and complex scenario”, but found nonetheless that it was “unjustified and inappropriate.” This was a reasonable finding based on the expert information before it and the relevant professional standards. Finally, I note that the Committee did not engage in stereotypical reasoning about people with mental health disabilities. Despite her chronic mental health disability, the Committee did not find that the Doctor posed a risk to public safety, did not refer the matter to the Discipline Committee, nor refer the matter for capacity proceedings. The Committee was careful to weigh the subjective fears of the Doctor’s colleagues against the Doctor’s information that she did not intend any harm. They were careful to distinguish between the Doctor’s diagnosis and her Conduct.
The remedy ordered
[45] The Doctor says that the Committee's decision to issue the Caution was overly punitive considering her mental health disability. She says that the only reasonable course of action would have been for the Committee to take no further steps as a result of the Investigation or to refer the matter for a capacity hearing. (I note that the Doctor did not request such a referral in her submissions to the Committee.)
[46] Given the applicable and unequivocal wording of the Policy Statement, it was reasonable for the Committee to impose the Caution. The fact that a health professional has a mental health disability does not grant them immunity from professional regulatory proceedings, whether remedial or disciplinary. The fact that a member has a disability does not oblige the College to lower its professional standards; rather, physicians must proactively obtain proper treatment and pursue workplace accommodations to allow them to meet the standards.
[47] In short, in the professional regulatory context, while information of a chronic mental health disability may assist in explaining why the impugned conduct occurred, it will generally not remove individual responsibility for the conduct: Law Society of Upper Canada v. Adams, 2018 ONLSTH 20, at para. 53. Even in the disciplinary context, “it is a rare case in which stress, anxiety and mental illness will furnish a complete defence to allegations of professional misconduct” (emphasis omitted): Law Society of Upper Canada v. Vanessa Andrea Vader, 2013 ONLSHP 8, at para. 28, citing Law Society of Upper Canada v. Thomas John Simpson, 2008 ONLSHP 62, at para. 16.
[48] Essentially, the reviewing court must consider the overall moral blameworthiness of the professional when determining the reasonableness of a disciplinary penalty imposed by the administrative decision-maker. The decision in Stuart v. British Columbia College of Teachers, 2005 BCSC 645, 254 D.L.R. (4th) 154, illustrates one end of the spectrum: the teacher had no moral blameworthiness (or mens rea) for his conduct because he did not have active control over his behaviour due to side-effects associated with his psychiatric medication. The proceedings were dismissed.
[49] Similarly, in Vader, the decision-maker found that the member’s mental illness was a complete defence to a finding of professional misconduct for failing to respond to communications from the regulator. The member was so mentally ill that she was unable to get out of bed, pay her bills, leave her apartment, or communicate with others.
[50] Here, the Doctor was not referred to disciplinary proceedings. The Committee considered the Doctor's diagnosed mental health disability and her emotional state to be mitigating factors when determining the appropriate remedy. This is consistent with the College’s approach in the disciplinary context, where information about a member’s mental health disability goes to remedy: College of Physicians and Surgeons of Ontario v. Khan, 2020 ONCPSD 24, pp. 10-11; College of Physicians and Surgeons of Ontario v. Gill, 2016 ONCPSD 49, pp. 3 and 9.
[51] Overall, the Committee’s Decision reflected an ameliorative approach that was entirely reasonable based on the record before it, including in relation to the Doctor’s overall responsibility for the Conduct. This is clearly not a situation like Stuart or Vader. The Doctor herself acknowledged that her Conduct was inappropriate and that she regretted it.
[52] The Decision to issue the Caution is also consistent with the expert information before the Committee. Specifically, Dr. Gojer recommended an apology to staff, while Dr. Aleem recommended that the Doctor consider taking a professional communication course. While both experts recommended ongoing psychiatric treatment, the parties agree that the Committee did not have the jurisdiction to order the Doctor to undergo any specified treatment.
[53] Finally, I strongly reject the Doctor’s argument that any finding of unprofessionalism that is “linked to” a member’s chronic mental health disability must be referred for a competence hearing. Such a blanket approach would reflect a stereotypical view of the capacities and needs of people with such disabilities.
[54] In this case, given that the Doctor has always maintained that she was able to provide sound care to her patients despite symptoms associated with her PTSD, there was no basis for suggesting that the Committee ought to have pursued an incapacity inquiry in this matter.
Did the Decision properly balance the Doctor’s Charter rights?
[55] My role on judicial review is to determine whether the Decision was reasonable. Where Charter rights are engaged, an administrative tribunal must consider whether the regulatory response, here the Caution, is proportionate given the competing interests at play. To determine proportionality, the Committee had to consider the College’s public protection mandate, on the one hand, and the Doctor’s right to substantive equality, on the other: Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 S.C.R. 613, at para. 3; Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395, at para. 4.
[56] According to the Supreme Court of Canada in Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33, [2018] 2 S.C.R. 453, at para. 30, “The Doré/Loyola framework is concerned with ensuring that Charter protections are upheld to the fullest extent possible given the statutory objectives within a particular administrative context.”
[57] Here, the Doctor does not attack the professional regulatory scheme as discriminating against physicians with mental health disabilities, whether directly or through “adverse impact.” She has never challenged the constitutionality of the College’s investigative powers, the Committee process, the available remedies, nor the mandatory requirement that the Registrar publish a summary on the College website.
[58] Instead, the Doctor argues that the Committee’s Decision to impose the Caution was discriminatory because her PTSD was part of the overall context for her Conduct. She submits that the College’s statutory objective of maintaining high standards of professional communication in the workplace was not sufficiently important to override her right to substantive equality as a person with a mental health disability.
[59] The constitutional issue was raised for the first time before this panel. It was not raised explicitly in the Doctor’s submissions to the Committee and thus not explicitly discussed in the Committee’s reasons. I agree with the College that fairness dictates that my assessment of the Committee’s treatment of any Charter issues must be substantive rather than formulaic.
The statutory objective
[60] The starting point for the Doré/Loyola analysis is to consider the statutory objective engaged by the Committee’s Decision. As discussed above, the College has an important public protection mandate that requires them to maintain appropriate professional communication standards: see Policy Statement. In my view, this obligation is heightened in a busy hospital maternity ward where collaboration and communication are essential to quality patient care.
[61] It is uncontroversial that the College’s primary objective is to regulate its members: Code, s. 3(1). The Supreme Court of Canada has emphasized that professional self-regulation is a privilege that comes with an onerous obligation to protect the public interest and maintain public confidence in self-regulation: Pharmascience Inc. v. Binet, 2006 SCC 48, [2006] 2 S.C.R. 513, at para. 36.
[62] There is an overarching duty on medical regulators to act in the public interest: Sazant v. College of Physicians and Surgeons of Ontario, 2012 ONCA 727, 113 O.R. (3d) 420, at paras. 101-102 and 130. In the execution of this duty, the College has the authority to investigate professional misconduct by members: Code, ss. 3, 25, and 75-79; Gore v. College of Physicians and Surgeons of Ontario, 2009 ONCA 546, 96 O.R. (3d) 241, at para. 17; Sazant, at para. 99.
Has the Doctor suffered prima facie discrimination?
[63] Having considered the College’s statutory objective, I turn now to whether the Doctor has suffered prima facie discrimination because of the Committee’s Decision to impose the Caution. If the Doctor’s equality rights are not engaged by the Decision, then I need not go on to the balancing stage of the Doré/Loyola framework.
[64] For the purposes of the Charter analysis, I accept that the Doctor identifies with grounds enumerated in s. 15 and that she has had unique experiences based on her intersectional experiences as a woman with a mental health disability. I also accept that the Doctor identifies as a survivor of sexual violence and traces her PTSD diagnosis back to sexual violence in the workplace.
[65] Pursuant to Fraser v. Canada (Attorney General), 2020 SCC 28, 450 D.L.R. (4th) 1, at para. 50-52, to prove a prima facie violation of s. 15(1) based on “adverse impact” discrimination, the Doctor must demonstrate on a balance of probabilities that:
(1) the Committee’s decision had a disproportionate impact on the Doctor, and
(2) that it had the effect of reinforcing, perpetuating, or exacerbating disadvantage against people with mental health disabilities.
[66] At stage one of the Fraser analysis, the disproportionate impact should be assessed from the perspective of the rights-claimant. According to the Court in Fraser at para. 50, the focus must be on the impact of the government action on the claimant or group.
[67] The Doctor argues that the Decision had an “adverse impact” on her in two ways. First, she says that the publication of the Summary negatively affected her professional reputation and threatened her livelihood. As noted above, this argument fails because the Committee had no discretion when it came to the publication of a Summary or its content, and because the Doctor has not challenged the mandatory publication provisions of the statutory scheme.
[68] Second, the Doctor argues that the Caution was more stressful for her because of her PTSD, likening it to a retraumatizing “public shaming”. Unfortunately, there was no information to indicate that the Doctor was mistreated or stigmatized during the in-person proceeding, nor that she suffered a significant deterioration in her mental health afterwards. There was no transcript or recording of the Caution in the record before us. There is simply no information before this Court to find that the Caution had a disparate or adverse impact on the Doctor, even on a balance of probabilities standard.
[69] Counsel litigating cases that engage s. 15 of the Charter must be mindful of the practical realities of meeting the burden of proof. While the Supreme Court of Canada in Fraser established an appropriately contextual and flexible approach to “adverse impact” discrimination claims, there must be some social science information about the impact of the scheme on the protected group, or direct evidence about the impact of the scheme on the individual claimant: Fraser, para. 56-67. Evidence of membership in a protected group is not enough.
[70] Here, because the Charter issues were raised for the first time on judicial review, there was no information before the Committee about the potential disparate impact of the Caution on the Doctor herself, or on people with mental health disabilities more generally. In the absence of evidence, the Doctor cannot shore up her Charter claim by imploring this panel to make generalizations or assumptions about the needs and capabilities of historically disadvantaged groups (i.e. sexual assault survivors or people with mental health disabilities).
[71] The Doctor has not satisfied me that the Committee’s Decision was a prima facie breach of her s. 15 rights because the Doctor has not proven that the Committee’s Decision had any adverse impact on her or on people with mental health disabilities more generally. Neither expert gave their opinion about the potential health impacts of an in-person proceeding on the Doctor or on someone with a similar diagnosis.
[72] To the contrary, the Committee’s Decision appropriately and accurately summarized the Doctor’s unchallenged information about her PTSD and contextualized her Conduct within her broader lived experiences as a survivor of sexual violence. The Committee did not rely on impermissible stereotypes about risk or capacity. It did not perpetuate disadvantage insofar as the Caution was remedial rather than punitive and accurately reflected the Doctor’s specific needs and circumstances. There was no sanction imposed and no other remedial steps ordered.
[73] Given my finding that there was no breach of the Doctor’s Charter rights, I need not go on to engage in the balancing outlined in Doré/Loyola.
DISPOSITION
[74] The application for judicial review is dismissed. The Committee’s Decision to caution the Doctor in person about professional communication was reasonable.
COSTS
[75] The parties agreed that the successful party is entitled to $6,000 in costs. I find this amount to be fair and reasonable given the complexity of the issues. The College is entitled to costs in the amount of $6,000, payable within 30 days.
Mandhane J.
I agree _______________________________
Swinton J.
I agree _______________________________
Backhouse J.
Released: May 16, 2022
CITATION: Doe v. College of Physicians and Surgeons of Ontario, 2022 ONSC 2920
DIVISIONAL COURT FILE NO.: DC-20-506-JR
DATE: May 16, 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Swinton, Backhouse and Mandhane JJ.
BETWEEN:
JANE DOE
Applicant
– and –
THE College of Physicians and surgeons OF ONTARIO
Respondents
REASONS FOR JUDGMENT
Mandhane J.
Released: May 16, 2022