CITATION: Wilder v. Ng, 2022 ONSC 4876
DIVISIONAL COURT FILE NO.: 375/20
DATE: 20220825
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
RSJ Firestone, Stewart and Edwards JJ.
BETWEEN:
Mark Wilder
Applicant
– and –
Dr. Vicky Lee Ng and Health Professions Appeal and Review Board
Respondents
Jerome R. Morse and David Trafford, for the Applicant
Stuart Zacharias, for the Respondent, Dr. Vicky Lee Ng
David P. Jacobs and Steven G. Bosnick, for the Respondent, Health Professions Appeal and Review Board
HEARD: March 17, 2022
REASONS FOR DECISION
Stewart J.
Nature of the Application
[1] Mark Wilder (“Wilder”) has brought this application for judicial review of a decision dated August 26, 2020 of the Health Professions Appeal Review Board (“HPARB”). That decision confirmed that the handling of his complaint to the College of Physicians and Surgeons of Ontario (“CPSO”) about the medical care provided to his son by Dr. Vicky Lee Ng (“Dr. Ng”) was sufficiently adequate and that its disposition of the complaint was reasonable.
[2] Wilder is the father of a young boy (who, due to his age and for reasons of patient confidentiality, will be referred to in these reasons as “BW”) who received medical care for paediatric acute liver failure at the hospital in May and early June, 2014 at Toronto’s Hospital for Sick Children before he returned to hospital later in June 2014 to be treated for an infection. Despite his re-admission to hospital and receipt of aggressive antibiotic treatment over several days, BW passed away on June 29, 2014.
[3] At the relevant time, Dr. Ng was a paediatric hepatologist with a specialty in paediatric liver transplant surgery at the hospital. As a staff physician in the hospital’s Division of Gastroenterology, Hepatology and Nutrition and member of the Liver Transplant service, Dr. Ng was involved in the care of the majority of patients with end-stage liver failure treated at the hospital. In addition to her active involvement in patient care, Dr. Ng participated in ongoing research into various paediatric liver conditions.
[4] Dr. Ng was involved in BW’s care and saw and examined him on several occasions including attendances on June 19 and 20, 2014.
[5] Following his son’s death, Wilder complained about Dr. Ng to the CPSO which has the statutory authority to regulate members of the medical profession in Ontario. In furtherance of that authority, the CPSO receives and investigates complaints about the conduct of its members in a process that is set out in the Health Professions Procedural Code.
[6] If the CPSO considers that the circumstances warrant the initiation of any charge of professional misconduct against the member, it may do so. Following a full hearing, the CPSO Discipline Committee may levy a broad range of penalties if a finding of professional misconduct has been made, up to and including revocation of the member’s licence to practise medicine.
[7] The CPSO, through its Inquiries, Complaints and Reports Committee (“ICRC”), investigated and considered Wilder’s complaint and decided that it should not be referred to the Discipline Committee for a hearing. Rather, the CPSO determined that a formal caution to Dr. Ng be administered in person.
[8] Wilder then appealed this CPSO decision to the HPARB which, following a hearing, referred his complaint back to the CPSO for some further investigation and consideration.
[9] After conducting the further investigation and consideration as directed by the HPARB, the CPSO issued a second decision. Once again, it determined that the complaint should not be the subject of a charge of professional misconduct and a resulting hearing before the Discipline Committee. Rather, it ordered that Dr. Ng should appear before a panel to be cautioned about record-keeping and assessments of patients at high risk for sepsis, and that she should submit a report about record-keeping and the assessment of immunosuppressed patients in a similar situation to that of BW.
[10] Among the items considered by the ICRC before making its decision were a police report generated following Wilder’s complaints to the police about Dr. Ng and further submissions from the parties. Ultimately, the ICRC found that nothing in the additional information served to change its previous determination that Dr. Ng’s actions involved an isolated error in clinical judgement with no criminal intent or provided any basis to support a charge of professional misconduct.
[11] The ICRC further confirmed that no satisfactory reason existed for concluding that Dr. Ng committed or intended to commit any fraud in the notes made by her in the hospital records. Dr. Ng was not considered by it to be distorting or attempting to conceal her actions when she made her clinical notes of her attendances upon BW, including the making of a late entry clearly identified as such by her in accordance with policies governing the making of clinical notes in hospital records.
[12] Wilder then appealed this second CPSO decision to the HPARB which, after a hearing, chose to confirm the CPSO’s handling of his complaint and its determination as appropriate in the circumstances and one with which they would not interfere.
[13] Wilder remains dissatisfied with this result and seeks judicial review of the HPARB decision. Wilder submits that the CPSO’s investigation of his complaint about Dr. Ng’s management of his son’s care was inadequate and its disposition of his complaint was unreasonable. Wilder argues that the ICRC applied an incorrect standard when confirming the decision, and that its reasons for doing so are inadequate. A further allegation of bias is raised against the ICRC by Wilder.
[14] These same submissions are made against the HPARB which confirmed the ICRC decision and declined to refer it back to the ICRC for any other action or disposition.
[15] It is submitted on behalf of Dr. Ng that Wilder’s application should be dismissed as no reason has been shown to justify interference with either the decision of the ICRC or the HPARB in this case.
[16] Although no partisan position is taken on this application on behalf of the HPARB, its counsel has provided a thorough description of its role and duties.
Jurisdiction
[17] This is a request for judicial review of the HPARB decision and not the exercise of any statutory right of appeal. Jurisdiction to hear this application for judicial review is provided under ss. 2 and 6 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.
Standard of Review
[18] The parties agree that the applicable standard of review on judicial review of a decision of this nature is one of reasonableness (see: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65).
Background Facts
[19] Most of the relevant facts surrounding and detailing the medical care given to Wilder’s son as outlined in the hospital record are not in serious dispute. Wilder’s complaint deals in large part with the veracity of Dr. Ng’s stated observations of BW and clinical notes made by her in the hospital records, the appropriateness of her decision to discharge BW on June 20, 2014 and the information provided by her to the CPSO in its investigation of his complaint.
[20] On May 23, 2014 Wilder’s son was hospitalized and diagnosed with acute liver failure caused by an atypical presentation of hemophagocytic lymphohistiocytosis (“HLH”). Dr. Ng became involved in his care at that time. A central catheter line was inserted by another physician so that BW could receive immunosuppressive medication and to obtain blood for the frequent testing required.
[21] Consideration of BW’s eligibility for a possible liver transplant was given and he was placed on a waiting list for transplant pending assessment of his response to medical management of his condition.
[22] While in hospital, BW was allowed to return home on weekend day passes, an arrangement that worked well without problem. BW’s parents were attentive and closely involved in his care and information provided to medical staff supports a conclusion that he had ample family support and resided within close reach of the hospital should any problem arise.
[23] On June 16, 2014 BW was discharged by another physician with the catheter line still in place, and with arrangements to be followed by Dr. Ng in her outpatient clinic. On June 18, 2014 he returned to the hospital because he had reported experiencing significant abdominal pain. He was seen and examined by another hepatologist, had blood drawn and a chest x-ray ordered, and was then sent home.
[24] On June 19, 2014 BW returned to hospital with continuing complaints of abdominal pain. Dr. Ng had planned to see BW that day and examined him that morning in the presence of his mother. Dr. Ng ordered an abdominal x-ray as she was of the view that the issue was likely of a gastrointestinal nature.
[25] BW returned to hospital on June 20, 2014 and again was seen and assessed by Dr. Ng who did not observe a material change in his condition. A physical examination of BW performed at that time plus a review of the x-ray results and tests done continued to cause Dr. Ng to believe that a temporary gastrointestinal issue was the source of his abdominal pain. She discharged him from hospital with arrangements for daily visits to be made by a home care nurse.
[26] In assessing BW’s overall condition, Dr. Ng attributed his marked white cell count elevation in comparison to earlier test results as being due to the effects of the medication he was receiving. Despite the elevated reading and BW’s degree of discomfort, Dr. Ng in her clinical judgment considered that he was doing well enough that he could be discharged home with daily home care nurse visits.
[27] On June 21, 2014 BW collapsed at home, was returned to hospital and admitted to the ICU. He was found to have developed infections introduced by the catheter line. BW was treated aggressively with antibiotics and other medications in hospital but died 8 days later, on June 29, 2014.
[28] There are problems that exist in the recording by Dr. Ng in the hospital records of her attendances upon BW on June 19 and 20, 2014 in that they were not made contemporaneously with her observations and treatment. On June 30, 2014, the day following BW’s death, Dr. Ng submitted a late note into the transplant database that describes her attendances and observations on June 19 and 20. These notes are specifically labelled by Dr. Ng as late entries and as duplicates of notes she says were inputted on June 27, 2014 but not processed or had somehow gone missing. Dr. Ng attributes the lateness of her notes to the fact that there was no computer in the room used to see the patient that allowed her to access the transplant database contemporaneously. Nothing in the notes purports to record any treatment that was not actually given, or any medication purported to have been prescribed or orders given that were not actually carried out.
[29] Following his son’s death, Wilder reported his complaints about Dr. Ng to the Toronto Police Service who conducted an investigation and prepared a report. In the report the police identified some instances where Dr. Ng’s observations of BW’s clinical condition did not match precisely with those of some of her colleagues. For example, a nurse told police that she did not take BW’s vital signs on June 20, whereas Dr. Ng wrote in her note that his vital signs were normal. Although Dr. Ng noted that BW was able to walk to the elevator when leaving the hospital on June 20, another physician said that he thought he left in a wheelchair. Following this police investigation and review of a report of the information obtained, it was determined that no basis existed for the laying of any criminal charges.
[30] In November 2014, Wilder complained to the CPSO that Dr. Ng had failed to provide adequate care to his son. He alleged that she failed to act promptly enough on his elevated white blood cell count, failed to respond to his concerns of pain, and falsified his medical record in making her late entries. His complaint was referred to and investigated by the ICRC.
Progress and Determination of the Complaint and Appeals 2014-2020
[31] The ICRC reviewed the complaint and submissions as well as the records of treatment given to Wilder’s son and obtained an independent expert opinion to augment its review. In its decision of September 6, 2017, the ICRC concluded that Dr. Ng’s medical management during the initiation of treatment was appropriate.
[32] However, the ICRC had concerns about Dr. Ng’s failure to consider sepsis when examining and assessing BW on June 19 and 20, 2014, as well as concerns about her record-keeping.
[33] The ICRC considered that Dr. Ng should have been aware that immunosuppressed patients may not have typical signs of infection but she was unduly influenced by his lack of fever and did not adequately consider or interpret the laboratory results available to her. The ICRC also expressed concern about Dr. Ng’s assessment of his muscle pain and that she had described him as walking when he had a wheelchair when he left the hospital on June 20, 2014. With respect to record-keeping, the ICRC emphasized the importance of contemporaneous record-keeping, particularly that of her examinations of BW on June 19 and 20, 2014.
[34] The ICRC’s concerns about Dr. Ng’s record-keeping would underscore the general need and desirability of making notes on a hospital record promptly. I would observe that this concern is in furtherance of the goal of good patient care as the records serve more than a forensic function but also provide other care providers with important information about a patient’s previously-observed condition. In a large institutional setting like the Hospital for Sick Children where many physicians and nurses and technicians may be involved in the care of a patient, prompt recording of all notes is vital.
[35] The ICRC concluded that Dr. Ng should attend at the College to be cautioned with respect to its concerns about her record-keeping in this case and her assessment of a patient at high risk for sepsis.
[36] In March 2019, Wilder requested a review of the ICRC Decision.
[37] Following a hearing, a panel of HPARB by its decision of November 13, 2018 ordered the ICRC to re-consider the complaint and the decision following a review by it of the contents of the police report and further information provided by Wilder which the ICRC had not reviewed before making its decision.
[38] In accordance with the order of the HPARB, the ICRC conducted the further review and investigation outlined. In its decision dated April 17, 2019 the ICRC ordered that Dr. Ng should appear before the same panel of the ICRC conducted about record-keeping and assessments of patients at high risk for sepsis, and that she should submit a report about record-keeping and the assessment of immunosuppressed patients in a similar situation as that of Wilder’s son. The ICRC had considered the police report and further information and submissions from the parties and found there was nothing that lead the ICRC to change the previous determination that this matter involved an isolated error in clinical judgment with no criminal intent. The ICRC further confirmed that there was no basis for concluding that Dr. Ng committed or intended to commit fraud in her medical documentation. Indeed, Dr. Ng did not appear to defend herself or cover up her actions when she made the late note and it was expected and not unusual for a clinician to make such a note even if late.
[39] Wilder then appealed this decision of the ICRC to the HPARB.
[40] By a decision of August 26, 2020, the HPARB panel, composed of one of the same members from the first panel and two new members, decided to confirm the second ICRC decision. It noted that the ICRC had considered the additional documents and information obtained as a result of the first HPARB decision, including the police report and investigation, and the panel found that the ICRC’s investigation was adequate.
[41] The panel noted that the standard of review to be applied by it was one of reasonableness. It found that the second ICRC decision was reasonable. The panel also found that a referral for a hearing before the Discipline Committee in this case would not likely satisfy the criteria from Brett v. Board of Directors of Physiotherapy (see: Brett v. Board of Directors of Physiotherapy, 1992 7698), which govern the referral of an allegation of professional misconduct to the Discipline Committee: there must be sufficient evidence which if unanswered could give rise to a finding of professional misconduct, and that it is an appropriate case in all the circumstances to send on for a hearing. The panel further found that the reasons were adequate.
[42] Finally, the panel found that no reasonable apprehension of bias in the ICRC panel had been shown. It was clear that the ICRC had reviewed all the information. The presence of the same panel members for the first and second ICRC investigations was not sufficient to establish bias in the circumstances.
[43] Accordingly, the HPARB confirmed the second decision of the ICRC without reservation.
[44] Wilder then brought this application for judicial review.
[45] Wilder seeks a review of the decision of the HPARB for essentially the same reasons.
Issues and Discussion
[46] Wilder’s submissions generally assert the unreasonableness of the outcome of his complaint with respect to both the decision of the ICRC and that of the HPARB in confirming it. He makes the following main arguments:
The decision of ICRC demonstrates a reasonable apprehension of bias;
The ICRC applied an incorrect standard for referral to the Discipline Committee;
The decision of the ICRC is unreasonable, and particularly so in that it did not specifically address Wilder’s complaint that Dr. Ng had sought to mislead it in her response;
The reasons provided by the ICRC for its decision are inadequate.
Reasonable Apprehension of Bias
[47] Wilder submits that the ICRC demonstrated a reasonable apprehension of bias in favour of Dr. Ng. This same submission was raised before the HPARB.
[48] A party alleging bias must establish serious and substantial grounds in order to overcome the strong presumption of judicial impartiality (see: AG v GP, 2012 35492).
[49] It is submitted on behalf of Dr. Ng that no serious, substantial grounds exist to support any conclusion that the ICRC approached its reconsideration of the matter with any preconceived or otherwise biased view.
[50] The ICRC, in its further decision in this matter following the first HPARB review, accurately outlined the HPARB’s directions. It noted that it had reviewed the complete Toronto Police documentation and all the previous and new submissions, including Wilder’s list of statements by Dr. Ng that he considers to be false when compared with the information in the police report as directed by the HPARB in its decision referring the matter back for further investigation and consideration. The ICRC, having undertaken the further review directed by the HPARB, concluded that there was no new information that would cause it to arrive at a conclusion other than that this case involved an isolated error in clinical judgment.
[51] The ICRC did not dismiss Wilder’s complaint. However, it considered that a referral to a hearing before the Discipline Committee was not warranted in this case, and would neither be proportionate nor in the public interest. It considered that its concerns may be adequately addressed by the attendance and delivery of a recorded caution to her.
[52] Although Wilder may disagree with this decision and be disappointed by it, Wilder has failed to establish the serious and substantial grounds required to support a conclusion that the ICRC approached its reconsideration of his complaint with any preconceived or otherwise biased view. I therefore would not give effect to this ground of review.
Standard for Referral to Discipline Committee
[53] Wilder submits that the ICRC applied an incorrect standard for referral of a complaint to the Discipline Committee for a hearing.
[54] Wilder bases his submission on the following statements contained in the decision of the ICRC:
(a) The Committee found nothing in the material that leads us to change the previous determination that this matter involved an isolated error in clinical judgement with no criminal intent on the Respondent’s part; and
(b) Upon reconsideration, the Committee sees no information, aside from the Complainant’s assertions, to suggest that the Respondent wilfully failed to diagnose or treat the patient.
[55] It is submitted on behalf of Dr. Ng that no incorrect standard for referral was applied by the ICRC.
[56] The statements cited on Wilder’s behalf do not amount to an enunciation of a general standard or test for referral to the Discipline Committee. Rather, they were responses to Wilder’s allegations that Dr. Ng acted deliberately such that she should have been prosecuted for a criminal offence and ought to be charged with professional misconduct.
[57] The ICRC stated its conclusion in its decision, as follows:
The Committee is satisfied that this extremely unfortunate case of poor clinical judgement on the Respondent's part is an isolated incident. There is no pattern of deficiencies in the Respondent's patient care and this is the only patient complaint the College has received about the Respondent's care. A wider review of the Respondent's practice found no concerns in her management of sepsis in 18 patients with severe hepatic involvement with HLH. This report also commented on the high baseline mortality rate for this serious condition. The 10 provider, the hospital and the Respondent's colleagues were supportive of her care overall. As a paediatric hepatologist, the Respondent makes very difficult clinical judgements every day. It is extremely unfortunate that she made an error in judgement in this case, but it appears to the Committee that the Respondent has acknowledged and learned from it.
[58] In my opinion there is no basis for any conclusion that the ICRC, or the HPARB in its review of the ICRC decision, applied an incorrect standard in arriving at the decision to dispose of the complaint in this manner. It was entirely within the ambit of the ICRC’s authority to view the sequence of events as it did, an assessment that is amply supported by the record, and to consider Dr. Ng’s lapse of judgment in this case as isolated and not one that required referral to the Discipline Committee.
Were the decisions of the ICRC and the HPARB unreasonable?
[59] Wilder’s submission that the decision under review is unreasonable rests again primarily on his contention that there are contradictions between what Dr. Ng told the CPSO and what other individuals told the police – principally in regard to his son’s apparent condition on June 19 and 20, 2014, and based on Wilder’s contention that his son’s condition had significantly deteriorated by June 20, 2014. Wilder submits that the only explanation for such discrepancies is that Dr. Ng had provided deliberate fabrications in an attempt to create a falsely positive picture of the patient’s condition.
[60] It is submitted on behalf of Dr. Ng that Wilder has failed to show that the decisions of the ICRC or the HPARB are unreasonable.
[61] In fact, reading the information in the police interviews as a whole, the recurring theme is that BW was a very sick boy who appeared essentially as would be expected for someone in his extremely unfortunate circumstances which included a diagnosis of acute liver failure. Other individuals who saw him in hospital on June 19 and 20, 2014 did not consider that his clinical presentation gave rise to any significant concern beyond that already existing based on his very serious underlying condition.
[62] Dr. Ng’s response to the CPSO regarding the events of June 20, 2014 includes her recollection that BW stood up with some assistance and then walked slightly ahead of those in the examination room and down two hallways to the elevators. In her further response, she stated that a nurse, identified by her, had advised her that BW’s vital signs were normal on that same date.
[63] Information provided by other staff supports the description that BW was able to walk on June 20, 2014. This information included the following statements by Nurse Stunguris, regarding BW’s response when she asked him if he wanted a wheelchair to get to the transplant office: “He said no, I remember him telling me, ‘they told me I need to get moving to get my muscle strength back.’ So, he said ‘I’ll walk up’ and I said okay”. BW proceeded to walk to the transplant office, according to Nurse Stunguris, “pretty much doing it on his own”. He did not indicate he was having difficulty and there were no cries of pain. Nurse Stunguris described his gait as follows: “Slow. Not laboured just more slow. But a normal gait in a slower capacity”. His breathing did not appear laboured. The walk, which would normally take five minutes, took about ten minutes. Nurse Stunguris said she was “surprised” to learn that BW passed away, given how he appeared on June 20, 2014.
[64] The diabetes nurse educator, Lynne Cormack, also saw BW on June 20, 2014. She told the police the following regarding her observations of him that day:
He wasn’t crying or tearful or anything like that. He just was not happy. Yeah, flat, sad. That would be expected when you’re this sick. None of it was unusual to me. That he would look like this. But the abdominal pain was not severe enough – if he could not move because he was doubled over then I would’ve called the doctor. I did not.
[65] When BW was leaving the hospital on June 20, Dr. Lurz had also seen him in a wheelchair when leaving the hospital on occasions prior to this date. Dr. Lurz told police that on June 20 BW looked tired, but Mrs. Wilder said: “Oh ya, yes he is tired during the day but at home he is much better”. Mrs. Wilder did not express concern during this encounter regarding how BW had been over the last couple of days, Dr. Lurz also told the police.
[66] Wilder cite statements about the gravity of his son’s condition from his neighbour and nanny who did not observe the patient in the hospital. However, these individuals did not observe BW in the hospital at the material time, and therefore were not in a position to comment on how he appeared when he was there. As well, these individuals were under the impression that Dr. Ng had said BW appeared “fine” or “totally fine”. However, Dr. Ng had said only that BW’s clinical presentation “had not materially changed since his discharge on June 16th” – referring to the baseline clinical presentation of a child with a very serious health condition.
[67] With respect to Nurse Stunguris’ statement to police that she did not take BW’s vitals on June 20, 2014, Dr. Ng confirmed to the CPSO that it nevertheless remained her recollection that the nurse who took his vital signs and advised her they were normal was, in fact, Nurse Stunguris. There is no issue but that Nurse Stunguris interacted with BW that day.
[68] Dr. Ng’s recollection and belief that BW’s vital signs on June 20, 2014 were within normal limits (from wherever that information was sourced) is supported by the information from VHA Home Healthcare that “all vital signs seemed stable” according to the nurse who saw him at home the next day, June 21, 2014.
[69] As the court observed in its decision in Reyhanian v. Health Professions Appeal and Review Board, 2013 ONSC 297, the ICRC is required to engage in some limited weighing of facts in conducting an investigation and determining if there were reasonable grounds to believe that misconduct had occurred:
We do accept that the ICRC is not an adjudicative body and does not make findings of credibility, per se. However, it does not flow from that proposition that the ICRC must refer to discipline any case in which there are disputed issues of fact, on the theory that if the complainant were believed, professional misconduct would be established. Rather, the ICRC is entitled to take a critical look at the facts underlying the complaint and the evidence that does and does not support it, along with a myriad of other issues (such as, the record of the respondent, special circumstances surrounding the incident, policy concerns, the capacity of the discipline committee, among others). The factual record revealed from the investigation must necessarily be part of that analysis.
[70] It is submitted on behalf of Wilder that the statements made to police during their investigation that bear upon the issues he has raised are somehow deserving of greater weight, being ones described as having been made under oath, than those others provided by Dr. Ng or the hospital records or other sources. Although it does not seem entirely clear that all statements provided to police conducting this investigation were given under oath following any caution, it is evident that they were not cross-examined upon.
[71] The nature of any discrepancies, which can fairly be described as minor in my view, do not support Wilder’s assertion that Dr. Ng should be disciplined for “misleading the regulator” as is now suggested on his behalf. The ICRC is not obligated to accede to the demands of any complainant for a hearing but, rather, must discharge its authority in the public interest. In this case it is apparent that none of those who provided the police with their recollection of BW’s assessment or condition before or at the time of discharge from hospital upon whose version of events Wilder relies on appear to have expressed any alarm or taken any steps to prevent such discharge. All have had the distinct benefit of perfect hindsight and certain knowledge of what eventually happened. In my opinion, it would not have been either fair or in the public interest to direct a hearing before the Discipline Committee on a charge of professional misconduct against Dr. Ng in such circumstances.
[72] The record therefore does not serve to support Wilder’s contention that there were any “stark” contradictions between information given to the police by others and those made by Dr. Ng to the ICRC. Further, there is no adequate basis shown to require that Dr. Ng’s statements to her professional regulator be considered to be of less reliability that statements made in an interview by police.
[73] Having said that, the issue is whether Wilder has shown that the decision of the ICRC (and that of the HPARB confirming it) is unreasonable.
[74] There were no contradictory findings made by the ICRC such that its decision lacked transparency, intelligibility or justification. Similarly, those reasons do succeed in providing an adequate explanation for the conclusion reached, contrary to Wilder’s submission. This is in keeping with the admonition offered in Vavilov, supra (at paras 92-94):
[92] Administrative decision makers cannot always be expected to deploy the same array of legal techniques that might be expected of a lawyer or judge — nor will it always be necessary or even useful for them to do so. Instead, the concepts and language employed by administrative decision makers will often be highly specific to their fields of experience and expertise, and this may impact both the form and content of their reasons. These differences are not necessarily a sign of an unreasonable decision — indeed, they may be indicative of a decision maker’s strength within its particular and specialized domain. “Administrative justice” will not always look like “judicial justice”, and reviewing courts must remain acutely aware of that fact.
[93] An administrative decision maker may demonstrate through its reasons that a given decision was made by bringing that institutional expertise and experience to bear: see Dunsmuir, at para. 49. In conducting reasonableness review, judges should be attentive to the application by decision makers of specialized knowledge, as demonstrated by their reasons. Respectful attention to a decision maker’s demonstrated expertise may reveal to a reviewing court that an outcome that might be puzzling or counterintuitive on its face nevertheless accords with the purposes and practical realities of the relevant administrative regime and represents a reasonable approach given the consequences and the operational impact of the decision. This demonstrated experience and expertise may also explain why a given issue is treated in less detail.
[94] The reviewing court must also read the decision maker’s reasons in light of the history and context of the proceedings in which they were rendered. For example, the reviewing court might consider the evidence before the decision maker, the submissions of the parties, publicly available policies or guidelines that informed the decision maker’s work, and past decisions of the relevant administrative body. This may explain an aspect of the decision maker’s reasoning process that is not apparent from the reasons themselves, or may reveal that an apparent shortcoming in the reasons is not, in fact, a failure of justification, intelligibility or transparency.
[75] The ICRC – a specialized body with medical expertise – noted that the extensive police investigation included interviews with health professionals at all levels. While the information from those persons interviewed may have included some minor discrepancies about specific comments made by specific individuals, the ICRC considered that it “disagrees with the Complainant’s claim that the police investigation revealed an extensive effort on the Respondent’s part to mislead and deceive the College”.
[76] The ICRC further stated that it “found nothing in the report that would give us any compelling reason to refer this matter to the College’s Discipline Committee”. In so holding, the ICRC was not required to summarize all the information contained in the police records, which Wilder had received and in respect of which he had made detailed submissions. The ICRC also specifically referred to the submissions on behalf of Dr. Ng with respect to the police documentation, stating that these set out reasonable explanations for her conduct.
[77] Ultimately the issue for the ICRC, and for the HPARB on review, was not merely whether Dr. Ng’s recollection or those of another member of the hospital staff were in conflict but whether, in the context of the context, record and the sequence of events taken as a whole, there was a foundation for Wilder’s accusation of deceitful conduct by Dr. Ng such that a hearing before the Discipline Committee was warranted.
[78] The test for referral to discipline is not a simple assessment of the seriousness of any allegations made by a complainant. As the court held in Schilthuis v. College of Veterinarians of Ontario, 2005 1083:
The College is charged with supervision and regulation of veterinarians in Ontario, with particular emphasis on the protection of the public. The Executive Committee exercises considerable discretion in determining which cases should proceed to a hearing before the Discipline Committee. This is a classic gatekeeper type role, which is heavily laden with policy related issues and therefore subject to a high level of deference by the court. The College is uniquely positioned to determine which cases are sufficiently serious that a formal hearing is required into alleged misconduct, and has far more expertise than a court in making such a determination.
[79] This observation applies similarly to the ICRC in the exercise of its regulatory function in the public interest in considering complaints that come before it.
[80] In that same regard, the HPARB properly recognized that, when assessing a complaint, the task for the Committee is to determine whether a referral to the Discipline Committee is appropriate in the circumstances of a particular complaint (see: A.M. v, H.A.A.E.R., 2018 2598). The ICRC is not required to refer every allegation of professional misconduct to discipline. This is made evident by the considerable array of outcomes available to the ICRC provided by the regulatory regime and under the legislation which gives it the authority to take such action as it considers appropriate.
[81] In this same context, the HPARB accurately recognized that the ICRC is a specialized panel whose members are in a position to assess the appropriate degree of remediation required.
[82] A requirement that a member attend at the CPSO to be cautioned, the details of which are recorded and publicly available, is a serious outcome (see: M.M. v. L.E.H., 2015 6688). In this case, in the absence of any prior complaint or disciplinary history, and in light of the review of Dr. Ng’s practice which concluded that she has provided good quality care to her patients, I consider that the decision of the ICRC was eminently reasonable. For the same reasons, I would view the decision of the HPARB to decline to interfere with it in any way or require that any further investigation or steps be taken as being likewise equally reasonable.
[83] For the same reasons, I would view the decision of the HPARB to decline to interfere with it in any way or to require that any further investigation or steps be taken as being likewise equally reasonable.
Adequacy of Reasons
[84] It is submitted on Wilder’s behalf that the reasons for the decisions under review are inadequate, primarily on the basis that they are not justified given the information and record before the panels.
[85] It is submitted on Dr. Ng’s behalf that the reasons for both decisions are adequate and comply with the directives for such reasons as contained in the governing case law.
[86] 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 on its own a basis to set the decision aside. Administration decision makers cannot always be expected to deploy the same array of legal techniques that might be expected of a lawyer or judge. Administrative justice will not always look like judicial justice, and reviewing courts must remain acutely aware of that fact (see: Vavilov, supra, para 91).
[87] Even in criminal cases where individual liberty is at stake there is no general requirement that reasons be so detailed that they allow an appeal court to retry the entire case on appeal. There is no need to prove that the trial judge was alive to and considered all of the evidence, or answer each and every argument of counsel (see: R. v. Dinardo, 2008 SCC 24).
[88] The reasons for decision of the ICRC, as well as those of the HPARB fall well within these directives. As already mentioned, they are transparent, intelligible and justified. They set out to an acceptable degree the matters considered, the decision itself and the basis for the making of such decision. Although the ICRC’s reasons for decision, and those of the HPARB, may not have led to the outcome desired by Wilder in these very unfortunate and saddening circumstances, they are nevertheless adequate.
[89] Accordingly, I would not give effect to this ground of review.
Conclusion
[90] For these reasons, I see no basis upon which it would be appropriate to grant any of the relief sought on this application. As a result, the application is dismissed.
Costs
[91] Following the hearing of submissions from the parties, we received their positions on costs of the application based on the available scenarios.
[92] As Dr. Ng has successfully responded to the application, she shall have her costs fixed at $12,000.00, inclusive of all disbursements and applicable taxes, payable by Wilder within 90 days. This amount is within the range of that suggested as reasonable by counsel and one which is considered by the court to be fair and proportionate in all the circumstances.
[93] Counsel for the HPARB confirmed that it does not seek any costs as against any party and thus none will be ordered.
Stewart J.
I agree _______________________________
RSJ Firestone
I agree _______________________________
Edwards J.
Released: August 25, 2022
CITATION: Wilder v. Ng, 2022 ONSC 4876
DIVISIONAL COURT FILE NO.: 375/20
DATE: 20220825
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
RSJ Firestone, Stewart and Edwards JJ.
BETWEEN:
Mark Wilder
Applicant
– and –
Dr. Vicky Lee Ng and Health Professions Appeal and Review Board
Respondents
REASONS FOR decision
Stewart J.
Released: August 25, 2022