CITATION: Gill v. College of Physicians and Surgeons of Ontario 2022 ONSC 49

DIVISIONAL COURT FILE NO.: DC-21-372-00

DATE: 20220105

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

McWatt A.C.J.S.C.J. and Kristjanson and Favreau JJ.

BETWEEN:

DR. HARMANDER SINGH GILL

Appellant

– and –

COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO

Respondent

Margaret Bojanowska for the Appellant

Linda Rothstein & Ruth Ainsworth for the Respondent

HEARD at Toronto (by videoconference): December 14, 2021

McWatt A.C.J.S.C.J.

REASONS FOR DECISION

NATURE OF PROCEEDING

[1] This is a statutory appeal under the Regulated Health Professions Act. In its decision dated April 16, 2019 (April 2019 Decision), the Discipline Committee of the College of Physicians and Surgeons (the Committee) found that the Appellant committed an act of professional misconduct and that he is incompetent. The Committee then suspended the Appellant’s certificate of registration on May 21, 2019 as a term of granting an adjournment request of his motion to re-open the hearing. The motion to re-open and to call additional evidence on the motion was then denied by the Committee on December 18, 2019 (the Motion to Re-Open). As the penalty, the Appellant’s certificate of registration was revoked by the Committee on April 13, 2021 (the Penalty Decision).

[2] The Appellant seeks an order quashing the April 2019 Decision on Liability by the Committee. In the alternative, the Appellant seeks an order requiring the Committee to re-open the hearing or an order overturning the Penalty Decision. He also seeks an order quashing the decision as to costs.

[3] The Appellant also seeks to admit three pieces of fresh evidence. The Respondent consents to two of these pieces being admitted. They are: an agreed statement of facts and attached exhibits outlining the complete history of interactions between Dr. Gill and a College investigator, Christa Servanez; and a motion record dated June 26, 2019, prepared on behalf of Dr. Gill, which was the subject of argument at his motion to re-open. The College contests the admission of the third piece of fresh evidence.

[4] The Respondent also asks that this appeal be dismissed with costs.

DISPOSITION

[5] The motion to admit fresh evidence in the form a letter from counsel, William Chalmers of Aird & Berlis LLP, to Dr. Gill, dated April 5, 2019 (the Retainer Letter), regarding Dr. Gill’s retainer of Mr. Chalmers is dismissed. The two items of fresh evidence admitted on consent of the College have been considered as part of this appeal.

[6] The Discipline Committee of the College of Physicians and Surgeons made no errors in its decisions in this matter. As a result, the Appeal is dismissed for the reasons that follow.

COURT’S JURISDICTION

[7] Section 70(1) of the Health Professions Procedural Code, Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 provides the statutory right of appeal as follows:

Appeals from decisions

70 (1) A party to proceedings before the Board concerning a registration hearing or review or to proceedings before a panel of the Discipline or Fitness to Practise Committee, other than a hearing of an application under subsection 72 (1), may appeal from the decision of the Board or panel to the Divisional Court.

Basis of appeal

(2) An appeal under subsection (1) may be made on questions of law or fact or both.

Court’s powers

(3) In an appeal under subsection (1), the Court has all the powers of the panel that dealt with the matter and, in an appeal from the Board, the Court also has all the powers of the Board.

STANDARD OF REVIEW

[8] The parties do not dispute the standard of review in this matter. Where the legislature has provided for an appeal from an administrative decision to a court, appellate standards of review apply. On questions of law, the standard of review is correctness. On questions of fact and mixed fact and law, the standard of review is palpable and overriding error.

[9] Procedural fairness does not have a standard of review analysis. It is for the Court to determine whether the requisite level of procedural fairness has been accorded.

THE FACTS

[10] Dr. Gill is a family physician who practiced at two clinics in Mississauga.

[11] After an investigation beginning in 2014 by the Ministry of Health and Long-Term Care, Dr. Gill’s billing and medical records came to the attention of the College of Physicians and Surgeons. On May 18, 2017, allegations of professional misconduct and incompetence were referred to the College’s Discipline Committee.

[12] The College conducted an investigation in which it obtained more complete patient records, additional OHIP claims data, contacted some of Dr. Gill’s patients, obtained information from one of Dr. Gill’s colleagues and medical suppliers and retained an expert in family medicine who reviewed the Appellant’s patient records and interviewed him.

[13] At the conclusion of the investigation, the College alleged that Dr. Gill failed to maintain the standard of practice of the profession in his care and record keeping and was incompetent in his care of patients. The College further alleged that Dr. Gill engaged in disgraceful, dishonorable or unprofessional conduct by inappropriately billing OHIP for rapid strep tests.

[14] Two weeks before the Appellant’s April 30, 2018 hearing before the Committee, Dr. Gill sought and was granted an adjournment due to a breakdown in the lawyer-client relationship between himself and counsel at McCarthy Tétrault.

[15] Although earlier dates were available, the hearing was adjourned to November 26, 2018. The seven-month postponement was in order to ensure that Dr. Gill could find a lawyer who was available to attend. During subsequent case management communications with the College, Dr. Gill maintained he needed more time to find a lawyer.

[16] On November 6, 2018, Josh Koziebrocki of Koziebrocki Law wrote to the College advising that he had been retained by Dr. Gill but was not available on the November 26 hearing dates. As a result, the hearing dates were adjourned to April 1, 2019, marked as peremptory to the Appellant.

[17] On December 8, 2018, Mr. Koziebrocki withdrew as counsel. The Appellant told the Case Management Chair that he would proceed self-represented on April 1, 2019.

[18] Between the referral of the allegations on May 18, 2017 and March 2019, Dr. Gill did not provide necessary instructions to his lawyer for a pre-hearing conference; failed to schedule or show up for case conferences; and misrepresented his efforts to retain new counsel after Mr. Koziebrocki withdrew.

[19] On March 26, 2019, College counsel received correspondence, on behalf of the Appellant, from William Chalmers of Aird & Berlis LLP. Mr. Chalmers wrote that he had “just been consulted” by Dr. Gill about being retained and was seeking an adjournment of the April 1, 2019 hearing.

[20] The Appellant brought an adjournment motion on March 29, 2019. The grounds for the adjournment were that Dr. Gill was now facing a second set of allegations of professional misconduct, referred to the Committee on March 6, 2019. Those allegations related to the doctor’s conduct in 2018 and his failure to respond to or cooperate with the College’s investigator. The Appellant later admitted to these allegations.

[21] Dr. Carole Clapperton, the Case Management Chair, dismissed Dr. Gill’s adjournment motion. She noted that it was not unusual for physicians to be faced with a second Notice of Hearing while dealing with prior allegations and that Dr. Gill was not prejudiced if the April 1 hearing proceeded. The allegations, she found, were serious and had been outstanding for several years. It was in the public interest for the matter to be decided without further delay.

[22] Dr. Gill did not attend the hearing. The College received only an unsigned email from him via Dr. Gill’s former lawyer, Mr. Chalmers. Mr. Chalmers reported to College counsel that he had received the email that morning from Dr. Gill.

[23] College counsel could not determine Dr. Gill’s whereabouts and the reason for his non-attendance at the hearing. The Committee, however, received a second email from the same email account as the first one. It was sent from someone claiming to be Dr. Gill’s sister. The Committee decided to proceed with the hearing the next day, in Dr. Gill’s absence, on April 2, 2019. The Committee directed the College to notify Dr. Gill of its decision.

[24] On April 16, 2019, after hearing all the evidence, the Committee found that Dr. Gill had committed an act of professional misconduct in that he had failed to maintain the standard of practice of the profession and engaged in conduct or an act or omission relevant to the practice of medicine that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonorable or unprofessional. The Committee also found that Dr. Gill was incompetent.

[25] In its subsequently released reasons, the Committee found that Dr. Gill’s conduct had exposed his patients to the risk of significant harm and injury and that he displayed such a lack of knowledge, skill or judgment, that demonstrated he was unfit to practice or his practice should be restricted. The Committee wrote the following:

The Committee finds that the allegation that Dr. Gill failed to maintain the standard of practice of the profession is proven. Dr. Gill failed to maintain the standard of practice in that his records were unreliable as a reflection of the nature and details of patient encounters and patients’ overall health status, and they were wholly inadequate to the provision of good quality patient care. Moreover, Dr. Gill’s care of patients with common, sometimes serious acute and chronic conditions was poor. He failed to meet the standard of practice in that he did not adequately assess, monitor, and document those conditions, did not respond to important information in patient records from other sources, and exposed his patients to the risk of significant harm and injury.

Further, the Committee finds that Dr. Gill is incompetent in that his professional care of patients displayed a lack of knowledge, skill or judgment of a nature or to an extent that demonstrates that he is unfit to continue to practise or that his practice should be restricted.

Lastly, the Committee finds the allegation that Dr. Gill engaged in conduct or an act or omission that would reasonably be regarded by members as disgraceful, dishonorable or unprofessional to be proven. Dr. Gill submitted thousands of claims to OHIP for rapid strep tests that he did not perform. As well, of any rapid strep tests he may have conducted, many or all were without justification.

[26] On May 9, 2019, Mr. Chalmers served a motion record seeking to re-open the hearing claiming that a medical illness had prevented Dr. Gill from attending and presenting his defence. Mr. Chalmers indicated that he was acting on the motion on a limited scope retainer. The Appellant’s evidence on the motion consisted of an affidavit sworn by himself and included his medical records between March 27, 2019 and April 15, 2019.

[27] On May 16, 2019, the College served its responding motion record, including an expert opinion from Dr. Paul Healey, who had reviewed the medical records contained in Dr. Gill’s motion record.

[28] On May 17, 2019, Mr. Chalmers served an adjournment motion for the motion to re-open scheduled to begin May 21, 2019. The sole ground of the adjournment was to permit Dr. Gill to deliver reply evidence, consisting of a responding expert report.

[29] The College consented to the adjournment on terms. Dr. Gill agreed to the terms that the motion would begin July 2, 2019; that the dates be peremptory for him to proceed; and that his reply evidence would be limited to the responding expert report.

[30] College counsel, however, also asked that Dr. Gill’s certificate of registration be suspended as a condition of the adjournment, pending final disposition of the discipline case. The Appellant opposed the suspension.

[31] The Committee granted Dr. Gill’s adjournment request and imposed the suspension the College asked for, finding that that the suspension was necessary in light of the “deeply concerning” evidence about risks to which the Appellant exposed patients and in order to maintain the public trust in the integrity of the profession.

[32] On May 23, 2019, the Appellant brought a motion to vary the suspension. He proposed that a Practice Monitor would conduct a “review” of his patient care.

[33] On May 24, 2019, the Committee dismissed the motion, finding Dr. Gill’s proposal was inadequate to protect the public. The Committee left it open to Dr. Gill to renew his motion on a different record at some later date.

[34] On June 14, 2019, Dr. Gill served his responding expert evidence on the motion to re-open.

[35] On June 26, 2019, Dr. Gill served new motion materials to vary the suspension order. The materials contained an affidavit which included evidence about the merits of the allegations if the hearing were to be re-opened. The Affidavit has been admitted on consent of the College as fresh evidence in this appeal. The affidavit contained evidence in response to the evidence of Dr. Potter, who had testified as the College’s expert at the hearing on April 2nd. The affidavit also included the Appellant’s anticipated evidence in defence of his billing practices and his challenges to the evidence of the College’s witnesses who had testified at the April hearing.

[36] At the motion to re-open on July 2, 2019, College counsel sought to clarify the record in light of the material filed on June 26th by the Appellant.

[37] Dr. Gill’ lawyer denied that the Appellant was seeking to file additional evidence other than the responding expert’s report or that he was asking for leave to vary the Committee’s order limiting reply evidence on the motion. The motion, then, proceeded on the basis of the previously filed evidence and without the Appellant’s June 26, 2019 affidavit.

[38] Nonetheless, during the Appellant’s cross-examination by College counsel, Dr. Gill changed his position and sought an order varying the Committee’s order limiting new evidence on the motion. The Committee declined Dr. Gill’s request. Later, at the close of the motion to re- open, the Committee dismissed a further request by the Appellant to admit his June 26th affidavit.

[39] On both of his attempts to re-open the record, the Committee ruled that the evidence the Appellant sought to adduce had long been available to him; that he had ample opportunity to raise it before the motion began while represented by counsel; and that there should be no further delay.

[40] On December 18, 2019, the Committee dismissed the Appellant’s motion to re-open the hearing, finding that Dr. Gill had no medical illness of any consequence at the time of the hearing and his conduct in not appearing was part of an ongoing manipulation of the College proceedings in order to create delay.

[41] On February 25, 2020, the Committee released its decision finding that the Appellant had committed an act of professional misconduct and was incompetent.

[42] On December 14, 2020, the Committee heard submissions from the parties on the issues of penalty and costs. The College sought revocation of Dr. Gill’s certificate of registration and a public reprimand. Dr. Gill sought a suspension with remedial terms.

[43] Finally, on April 13, 2021, the Committee ordered the revocation of Dr. Gill’s certificate of registration, a reprimand, and costs to be paid to the College in the amount of $124,440. It found that the order was necessary to adequately protect the public and was appropriate because the physician had engaged in dishonest billing in conjunction with seriously deficient clinical care.

ISSUES RAISED BY DR. SINGH ON THE APPEAL

i. The fresh evidence should be admitted;

ii. the Committee erred in denying Dr. Gill’s request for an adjournment of the April 1, 2019 hearing dates;

iii. the Committee erred in its decision to proceed in Dr. Gill’s absence on April 1, 2019;

iv. the Committee erred in its decision to suspend Dr. Gill’s certificate of registration as a term of granting an adjournment of the motion to re-open;

v. the Committee erred in its decision to refuse to re-open the hearing; and

vi. the Committee erred in its decision to revoke Dr. Gill’s certificate of registration.

ANALYSIS

i. The Fresh Evidence

[44] The Appellant argues that the Retainer Letter shows that the Committee erred on December 18, 2019 when it dismissed his motion to re-open and found as a fact that he had no medical illness at the time of the April 2 to 8, 2019 hearing. The Committee’s decision noted that the Appellant could have retained counsel to communicate with the College about his alleged illness but did not. The Committee commented that the Appellant never informed them that he had either consulted or retained counsel at any time during the hearing.

[45] The letter is proposed as some proof that the Appellant had contacted and retained Mr. Chalmers on April 4, 2019; and that the Committee’s comments about him not having a lawyer were wrong, which undermines their findings that he was not ill.

[46] In fact, the Committee’s belief that the Appellant had no lawyer came from a May 9, 2019 affidavit before them, in which the Appellant had sworn that he was self-represented at the time of the discipline hearing.

[47] It is only in exceptional cases that the Court admits fresh evidence on appeal with respect to issues litigated at first instance. The Supreme Court of Canada in R. v. Palmer and Palmer, [1980] 1 SCR 758; R. v. Litt 2021 ONCA at para. 28) has set out the factors to be considered in applications such as this one:

(i) Admissibility: is the evidence admissible under the operative rules of evidence?

(ii) Cogency: is the evidence sufficiently cogent in that it could reasonably be expected to have affected the verdict (in this case, the outcome on the motion to re-open)?; and

(iii) Due diligence: what is the explanation offered for the failure to adduce the evidence, and should that explanation affect the admissibility of the evidence?

[48] Further, the Court must consider whether the decision not to lead evidence at first instance was a tactical choice. The Court of Appeal has noted that “[f]resh evidence applications cannot be made the means whereby appellate counsel seek to undo reasonable tactical decisions made at trial so as to secure a new trial, where that different tack may or may not be pursued by the defence.” (R. v. Kelly, at para. 224).

[49] The College concedes that the retainer letter meets the admissibility criterion but fails to meet the cogency and due diligence criteria. The College also alleges that any failure to adduce this evidence at the motion was a tactical decision which the Appellant should not be permitted to resile from on this appeal.

[50] I agree.

[51] The Retainer Letter was not relevant to a decisive, or potentially decisive, issue on the motion to re-open and could not reasonably be expected to have affected the result.

[52] If it had been before the Committee, it could not have reasonably affected the result. The Committee’s reasons for refusing the motion to re-open cited a multitude of factors it considered in assessing the Appellant’s credibility. His conduct in relation to his retainer of counsel was but one of them. The Committee explicitly addressed whether there was objective evidence of a medical illness which prevented the Appellant from attending the hearing. It considered the expert evidence and the documentary record and concluded that there was no objective evidence that Dr. Gill suffered from biliary colic and, in fact, much of the objective evidence was inconsistent with his claims of illness.

[53] The Retainer Letter could have been entered into evidence by due diligence.

[54] Dr. Gill acknowledges that the Retainer Letter existed at the time of the motion to re-open. He explains, however, that he did not enter it into evidence on the motion to re-open because he had not been asked, in cross-examination, when he had retained counsel to assist him and that its relevance did not become apparent to him until after the Committee released its reasons.

[55] Dr. Gill was represented by counsel on the motion to re-open. His credibility was a key issue on the motion, and because it is his position that the Retainer Letter bolstered his credibility, it was incumbent on him to introduce it into evidence then.

[56] I am also persuaded that the Appellant’s failure to adduce the Retainer Letter was a tactical decision not to reveal that he had retained Mr. Chalmers on April 4, 2019. His evidence, both in his affidavit on the motion to re-open, and when cross-examined by College counsel, was that he had not retained counsel while the hearing was ongoing.

[57] I agree with the College’s position on this appeal that, had the Appellant disclosed the letter, he would have waived solicitor-client privilege and would have opened the door to requests for production of Mr. Chalmers’ client file from the College about the relevant time period. The Appellant made a tactical decision not to rely on the Letter during the hearing and thereby avoided the disclosure of his communications with Mr. Chalmers. He is not, now, then, permitted to resile from that tactical choice on this appeal.

[58] The Retainer Letter is not admissible evidence at this appeal.

ii. The Committee’s Decision to Refuse an Adjournment on April 1, 2019

[59] The Appellant submits that Dr. Clapperton misapprehended the evidence on his March 2019 motion to adjourn the April 1, 2019 hearing. Dr. Gill’s only ground for the adjournment request was that new allegations of professional misconduct had been referred to the Committee in a Notice of Hearing dated March 6, 2019. The Appellant took the position that the allegations in the new Notice and the matters scheduled to proceed on April 1 were inextricably linked. He argued that because of a very significant change in the potential jeopardy he faced, he required an adjournment to seek counsel and to adjust his defence strategy for the April hearing.

[60] Dr. Clapperton did not err in her decision to deny the adjournment. She expressly considered the factors outlined by the Court of Appeal for Ontario in The Law Society of Upper Canada v. Igbinosun, 2009 ONCA 484 when considering whether to grant an adjournment. She noted the seriousness of the allegations against the Appellant and the two previous adjournments of hearing dates as well as the fact that the April 1 date had been marked as peremptory to the Appellant. She found that it was not unusual for physicians to face a second Notice of Hearing while dealing with a prior allegation. She also found that the allegations in the March 6 Notice were clearly unrelated to those in the hearing scheduled to proceed on April 1. The allegations in the March 6 Notice related to the Appellant’s failure to cooperate with College investigators, rather than patient care and billing practices, and were alleged for a different time period (2018, rather than 2011-2015). She also concluded that, as Dr. Gill had intended to proceed without counsel, and as the new allegations were completely unrelated, there was no prejudice to him in permitting the scheduled hearing to proceed. Dr. Clapperton concluded that, considering the College’s mandate to protect the public, a timely hearing and decision weighed against an adjournment.

[61] The Appellant’s contention that Dr. Clapperton’s decision was tainted by her prior case management of his matter over a period of two years is unsupported by any evidence.

[62] The Appellant complains that Dr. Clapperton was speculating when she found, as part of her reasons to deny the adjournment, that Dr. Gill failed to instruct counsel, failed to attend a case management call, and did not retain counsel who was available for the hearing for seven months despite repeated exhortations to retain counsel. In fact, she was correct in her findings and well supported by credible evidence at the motion.

[63] In any event, the test for this Court to intervene on an allegation that a trier of fact has misapprehended the evidence is stringent. The “misapprehension” must relate to the substance of the evidence, not to peripheral details, and must play an essential part in the tribunal’s reasoning process. An error in the assessment of evidence will only amount to a miscarriage of justice, warranting intervention, if striking it from the judgment would leave the reasoning on which the finding is based on unsteady ground (R. v. Orwin, 2017 ONCA 841 (Ont. C.A.), at para. 45; R. v. Lohrer, 2004 SCC 80, at para. 2).

[64] None of the issues Dr. Gill identifies at this appeal amount to errors in the Chair’s reasoning to deny an adjournment of the April 1 hearing, nor do they meet the legal threshold to warrant intervention by this Court.

iii. The Decision to Proceed in Dr. Gill’s Absence on April 1, 2019

[65] The Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (SPPA), s. 7(1) allows a Committee to proceed in a member’s absence if he or she fails to appear for their discipline hearing once they have received notice. When the Appellant failed to appear on April 1, 2019, the Committee treated his actions as an implied request for an adjournment.

[66] The Committee reviewed the history of the matter and the evidence before it. The evidence consisted of two emails from a Hotmail account, as well as the College’s efforts to contact Dr. Gill that morning. The Committee also heard about the history of adjournments in the matter and the evidence from a College investigator, Christa Servanez, about Dr. Gill’s last-minute cancellations of mandatory meetings in another investigation.

[67] The Appellant complains about lack of disclosure of Ms. Servanez’s evidence and the fact that the College presented her as a witness on April 1st. In fact, he had received all the exhibits to Ms. Servanez’s testimony that were before the Committee, including evidence that on three occasions over the previous six months, Dr. Gill had not shown up for pre-arranged meetings with her or had cancelled the night before, citing “a personal/family emergency” or “an unforeseen medical emergency.”

[68] In its reasons for proceeding in the Appellant’s absence, the Committee recited Ms. Servanez’s evidence, but did not rely on it in its decision to proceed. Rather, it decided to proceed based on the fact there was no medical evidence before it that Dr. Gill was unable to attend or participate that day; that Dr. Gill had ample notice of the hearing; that the history of the case was lengthy and included two previous adjournments of scheduled hearing dates; and that there was a compelling public interest in proceeding.

[69] The Appellant argues that two pieces of evidence ought not to have been put before the Committee on April 1, 2019: evidence of a surveillance report which showed Dr. Gill’s vehicle at a residence in Caledon on March 31, 2019; and evidence that Dr. Gill’s name was linked to the anonymous Hotmail address from which the two email communications about his alleged illness came on the first day of the discipline hearing. College counsel fairly characterized the weight and relevance of both documents, noting that, with respect to the surveillance, it was inconclusive; and with respect to the email search, that the most that could be said is that the address was “associated with [Dr. Gill], whether he has set it up for his sister or whether it is his.” The evidence was relevant to the issue the Committee had to decide regarding an adjournment of the proceedings. I find, also, that the Committee appropriately weighed this evidence in concluding that the hearing had to proceed.

[70] The Appellant next complains that the College acted improperly in failing to disclose that there were scheduling issues with witnesses on April 3, 2019, and, as a result, the hearing could have been scheduled to recommence instead on April 4, 2019. This would have permitted him additional time to provide medical information and further submissions. The Appellant’s position ignores the fact that the College made repeated attempts to contact him during this period and he never provided any meaningful medical information or other information about his whereabouts. The unavailability of witnesses on one of the scheduled hearing dates does not justify the hearing being adjourned to April 4 rather than to April 2 and does not amount to procedural unfairness or any error on the part of the Committee in deciding to carry on with the hearing without the Appellant.

[71] Dr. Gill complains that the College did not provide notice to him that, if he provided information confirming his medical situation, the Committee might reconsider whether or not to proceed with the hearing. In fact, on April 4, 2019, College counsel wrote to Dr. Gill that, unless he immediately “provide[d] verifiable documentation of a medical emergency which prevents [his] attendance”, the College would be seeking to continue the hearing. His position, here, also ignores the fact that, on April 1, 2019 and following, the College repeatedly requested detailed medical information from him and received no meaningful response to those requests.

[72] There were no breaches of procedural fairness leading to the Committee’s decision to proceed.

iv. The Imposition of a Suspension of Certificate of Registration as a Term of Adjournment of the Motion to Re-Open

[73] The SPPA gives the Committee powers to impose interim orders, including the suspension of a certificate of registration, as a term of an adjournment (SPPA s. 16.1; Dua v College of Veterinarians of Ontario, 2021 ONSC 6917, at para 3, 27-33; Hill v College of Physicians and Surgeons of Ontario, 2018 ONSC 5833 (“Hill (Div. Ct.), at para 9, leave to appeal to Court of Appeal dismissed, March 15, 2019). The Committee made no error in deciding to order the suspension in light of its findings that the Appellant had failed to maintain the standard of practice and was incompetent or was unfit to continue to practice or that his practice should be restricted. The Committee also found that he exposed patients to the risk of harm or injury. In addition, Dr. Gill had put forward no plan or proposal to protect the public during the period of delay occasioned by his adjournment request on May 17, 2019. The decision discloses no error in principle warranting appellate intervention.

v. The Dismissal of the Motion to Re-Open

[74] Dr. Gill argues that the Committee erred in denying his request to re-open the hearing. He maintains that the Committee should have allowed him to revisit the Discipline issues due to the fact that his profession and employment were at stake. The real question for the Committee was, however, whether the Appellant had been prevented from attending the hearing by reason of illness (biliary colic), such that his inability to participate in the hearing constituted a denial of natural justice. The Committee’s decision not to re-open the hearing turned on factual findings that the Appellant did not suffer from biliary colic and was not prevented from attending the hearing due to illness. The Committee’s findings were made by an expert tribunal based on expert evidence and are entitled to significant deference.

[75] The Appellant challenges various conclusions drawn by the Committee. None of them meet the threshold for disturbing the Committee’s findings, which were based on a careful weighing of extensive expert and documentary evidence and Dr. Gill’s testimony.

[76] The Appellant also argues that the conduct of counsel for the College was improper and inflammatory. That conduct unfairly prejudiced the Committee by highlighting behavior the College viewed as inappropriate and diverted their focus from the real issues to be determined by them. None of the ten instances of alleged improper conduct by College counsel on the motion to re-open were inappropriate or encroached on professional misconduct:

• College counsel’s comment that it was “even better” that the panel had not been provided with the June 26, 2019 affidavit of the Appellant in advance of the motion was not unfair seeing that it was inadmissible;

• College counsel’s submissions that the Appellant was attempting to interfere with the Committee’s ability to control its own process by attempting to file the June 26th affidavit was appropriate;

• College counsel opposed the Appellant’s request to refer to the June 26th affidavit when he testified and when counsel made a submission to the Committee suggesting that Dr. Gill had planned what he wanted to say on cross-examination and wanted to rely on the affidavit in order to tell a prepared story. This was an appropriate submission by the College.

• Instances of inappropriate behavior by counsel for the College cited by Dr. Gill arise out of legitimate objections raised by her about the way the Appellant or his counsel conducted the hearing. College counsel’s statement that objections to cross-examination should be carefully exercised, her objection to questions in re-examination based on the limited scope of re-examination and her objection to the leading of hearsay evidence were entirely appropriate.

• Dr. Gill takes issue with College counsel putting to him evidence which connected him to an email address which the Appellant claimed was his sister’s address. College counsel was entitled to cross- examine on this evidence and the Appellant’s lawyer had the right, which he exercised, to re- examine on this point.

• Dr. Gill takes issue with a genuine error made by counsel, which she acknowledged, that she had left exhibits in the witness box overnight. There was no prejudice caused to the Appellant from the mistake.

• Dr. Gill submits that the cross-examination by College counsel was aggressive, sarcastic and mocking, but offers no examples to substantiate his accusations. In fact, College counsel was patient, fair and asked appropriate questions.

• Dr. Gill complains about an objection counsel made to his leading evidence of a conversation between College counsel and his sister during the motion as hearsay. However, during argument, the College ultimately agreed that the conversation could be admitted for the truth of its contents.

[77] None of these comments by the College’s lawyer are outside the norm of the role of adversarial litigants in a matter like this one. Certainly, none of them rise to a level which should have this Court interfere with the decision of the Committee. For the most part, counsel repeatedly consented to or did not oppose adjournments; explained hearing processes; provided ongoing disclosure; consented to the admission of hearsay evidence when the Appellant’s reply witness was unavailable; consented to Dr. Gill consulting with counsel in the midst of cross-examination; and warned him of the risk of waiving privilege.

[78] Dr. Gill also argues that the Committee erred in prohibiting him from adjourning the motion to re-open and prohibited him from adducing additional evidence on the motion in the form of the June 26th affidavit which contained the evidence he would have led in his defence on the merits of his case. He argues that he sought, but was denied, the opportunity to lead this additional evidence which was relevant to the issues to be determined as part of the motion. In fact, none of the evidence in the affidavit was relevant to the issues on the motion to re-open. And when he sought an adjournment of his motion to re-open on May 21, 2019, he explicitly consented to an order limiting any further evidence on the motion, except for a medical evidence response.

[79] The Committee found that there was no reasonable explanation for Dr. Gill’s failure to tender this new affidavit evidence sooner. It considered the prejudice to the College with re-opening at that stage - after cross-examinations were complete. It considered the negative impact on the integrity of the Committee’s rules and processes in permitting any further delay. The Committee properly exercised its discretion not to admit the new evidence.

[80] The relief sought to re-open the case is granted only in exceptional cases. There is a strong public interest in the finality of disciplinary proceedings and the discretion to re-open a hearing should be exercised sparingly and with the greatest care so that fraud and abuse of the [tribunal’s] processes do not result (671122 Ontario Ltd v Sagaz Industries Canada Inc, 2001 SCC 5960). This is not an exceptional case. The Committee did not err in its decision not to re-open the case.

vi. The Decision to Revoke the Certificate of Registration and Penalty

[81] At the penalty hearing, the College sought revocation of Dr. Gill’s certificate of registration and a public reprimand. Dr. Gill sought a suspension with remedial terms. The Committee considered the breadth, severity and persistence of Dr. Gill’s misconduct, and noted that his misconduct encompassed both grossly inadequate clinical care that put his patients at risk and dishonest actions by which he placed his own interests ahead of those of his patients and the public. It noted that there was no basis to conclude that the Appellant had shown insight or remorse, nor had he provided meaningful details about any remediation. It is clear from all the evidence that revocation was necessary in terms of the Appellant’s incompetence and was the only order that would adequately protect the public and maintain the public’s confidence in the medical system.

[82] The Appellant has failed to show that the Committee made an error in principle or that the penalty was clearly unfit (R v Lacasse, 2015 SCC 64 at para 39-40). To be clearly unfit, the penalty must be disproportionate or fall outside the range of penalties for similar offences in similar circumstances (College of Physicians and Surgeons of Ontario v Pierovy, 2018 ONCA 420). Deference is afforded to the discretionary decision of the Committee to set a particular penalty (Lacasse, supra at para. 12).

[83] The findings against Dr. Gill were extremely serious, involving clinical incompetence and dishonest billing in the amount of $146,000. Revocation was well within the range of available penalties for this misconduct and has been imposed for similar misconduct in recent decisions upheld by this Court (Attallah v. College of Physicians and Surgeons of Ontario, 2021 ONSC 3722, leave to appeal to Court of Appeal dismissed November 10, 2021).

[84] The Appellant points to no errors in principle in the Committee’s penalty decision or any unfairness in the penalty proceedings which would allow this Court to interfere with the decision.

CONCLUSION

[85] For the reasons above, the appeal is dismissed.

[86] The parties have agreed that costs shall be fixed and payable to the successful party on this appeal in the amount of $10,000. Therefore, the Appellant shall pay the Respondent $10,000 in costs, all inclusive, within 90 days of the release of this judgment.

McWatt A.C.J.S.C.J.

I agree_______________________________

Kristjanson J.

I agree_______________________________

Favreau J.

Released: January 5, 2022

CITATION: Gill v. College of Physicians and Surgeons of Ontario 2022 ONSC 49

DIVISIONAL COURT FILE NO.: DC-21-372-00

DATE: 20220105

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

McWatt A.C.J.S.C.J. and Kristjanson and Favreau JJ.

BETWEEN:

DR. HARMANDER SINGH GILL

Appellant

– and –

COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO

Respondent

REASONS FOR DECISION

McWatt A.C.J.S.C.J.

Released: January 5, 2022