Court File and Parties

Citation: M.J.S. v. Health Professions Appeal and Review Board, 2022 ONSC 548 Divisional Court File No.: 422/20 Date: 2022-01-26

Ontario Superior Court of Justice Divisional Court

Before: Swinton, Lederer, and Ryan Bell JJ.

Between:

M.J.S. Applicant

– and –

Health Professions Appeal and Review Board, College of Physicians and Surgeons of Ontario and M.P. Respondents

Counsel: Alexi N. Wood and Laura MacLean for the Applicant Emily Graham for the College of Physicians and Surgeons of Ontario Steven G. Bosnick for the Health Professions Appeal and Review Board

Heard at Toronto (by videoconference): January 10, 2022

Reasons for Judgment

RYAN BELL J.

Overview

[1] The applicant physician seeks judicial review of a decision of the Health Professions Appeal and Review Board dated September 15, 2020 (the “Board decision”). In its decision, the Board confirmed a decision of the Inquiries, Complaints, and Reports Committee of the College of Physicians and Surgeons of Ontario (the “College”) dated March 6, 2019 (the “ICRC decision”). The ICRC decision required the applicant to appear before a panel of the ICRC to be cautioned regarding appropriate boundaries during a physical examination and displaying sufficient care about how his comments might be perceived, and to submit a written report reflecting on the specific encounter with the respondent M.P., a female patient. The ICRC’s disposition resulted in a summary of the decision being published on the College’s public register.

[2] M.P. did not participate in the application.

[3] The applicant submits that it was unreasonable for the Board to find that the ICRC’s investigation was adequate. The applicant also submits that it was unreasonable for the Board majority to confirm the ICRC decision.

[4] For the following reasons, I would dismiss the application.

The Legislative Framework

[5] The College is the regulatory body for the medical profession in Ontario. Its mandate is to serve and protect the public interest by governing the medical profession.[^1] One of the College’s key functions is the investigation of its members for professional misconduct or incompetence.

[6] The ICRC must form a panel to investigate a complaint filed with the Registrar regarding the conduct or actions of a member.[^2]

[7] The powers of the ICRC panel under s. 26(1) of the Health Professions Procedural Code were discussed by Swinton J. in King v. Gannage:[^3]

The ICRC plays an important role in screening complaints and reports and deciding whether further action is necessary. Subsection 26(1) of the Code sets out the powers of the ICRC panel. After investigating a complaint or considering a report, the panel must consider the member’s submissions and make “reasonable efforts to consider all records and documents it considers relevant to the complaint or the report”. It then has a broad discretion to decide whether to refer a specified allegation of a member’s professional misconduct to the Discipline Committee; take some other remedial action, such as a caution or the member’s attendance at a remedial program; or take any action it considers is not inconsistent with the health professions Act, the Code, the regulations or by-laws.

[8] Cautions and educational directions are remedial in nature and are not sanctions or penalties. They are intended to improve a member’s practice and to benefit the public by avoiding future concerns.[^4]

[9] At the outset of its reasons, the ICRC described its role as follows:

In the College’s complaints process, the Committee, with the assistance of staff, conducts an investigation, then meets to review the written record of investigation and to reach a decision.

The Committee has a number of outcomes available to it and will consider the seriousness and context of the concerns raised, the physician’s insight into his or her practice, capacity for remediation, and relevant College history when making a decision. The Committee seeks to protect the public and, where possible, to enhance the quality of physicians’ care or conduct through education and remediation.

[10] Pursuant to s. 23(2)7 of the Code, a notation of every caution a member has received from a panel of the ICRC, together with any specified continuing education or remedial programs required by the panel, will be included on the College’s public register.

[11] A member of the College who is the subject of a complaint may request a review of an ICRC decision under s. 29(2) of the Code unless the decision was to refer the allegation to a disciplinary hearing or to refer the member for incapacity proceedings. Pursuant to s. 33(1) of the Code, there are two grounds that may be raised on a review before the Board:

(i) the adequacy of the investigation conducted; and/or

(ii) the reasonableness of the decision.

[12] Pursuant to s. 35(1) of the Code, after conducting a review, the Board may:

(i) confirm all or part of the decision;

(ii) make recommendations the Board considers appropriate to the ICRC; and/or

(iii) require the ICRC to do anything the ICRC or a panel may do under the health profession Act and the Code except to request the Registrar to conduct an investigation.

Background

[13] In August 2016, the applicant, together with a male medical student, performed an internal pelvic examination of M.P. at Mount Sinai Hospital. M.P. complained to the hospital that during the examination, the applicant had made a comment to her that suggested she was deriving sexual pleasure from the examination.

[14] The hospital undertook an investigation and obtained information from the applicant, M.P., and the medical student. The applicant did not recall making the statement attributed to him by M.P. but he appreciated that he had “obviously said something to [M.P.] to make her uncomfortable.” He denied that he intended his words to have a sexual connotation.

[15] The hospital issued a report in January 2017. In its report, the hospital stated that there was “no dispute that [the applicant] made a comment that made the patient feel uncomfortable while the medical student was initiating a vaginal exam.” The hospital report also stated that “the evidence substantiates that it is more likely than not that the words [the applicant] used were reasonably interpreted by the patient to have a sexual connotation.”

[16] The hospital investigation concluded that the applicant’s comment was sufficiently serious to constitute sexual harassment under the hospital’s Human Rights and Health Equity Policy. The hospital recommended that the applicant consider the perspective of a female patient during an intimate physical examination and that the applicant practise other ways to acknowledge the patient’s discomfort and to put patients at ease.

[17] After the hospital notified the applicant about the results of its investigation, the applicant undertook a communications course with a physician trainer. The physician trainer’s report was provided to the hospital. It included positive feedback about the applicant’s learning and growth in this area.

[18] On April 5, 2017, the hospital reported the matter to the College pursuant to ss. 85.2 and 85.3 of the Code.

The ICRC’s Investigation

[19] In August 2017, an investigator from the College met with M.P., who consented to participate in the investigation and to the release of her medical records. In her letter of complaint to the College, M.P. stated that the applicant had “made an inappropriate comment of a sexual nature to me during an internal exam at Mount Sinai Hospital in August 2016. I made a complaint to the hospital as well.”

[20] The College gave the applicant notice of the complaint. In March 2018, the ICRC requested the Registrar of the College to conduct an investigation under s. 75(1)(c) of the Code. The investigator sought and was provided with the hospital’s complete investigative file which included the applicant’s complete employee record.

[21] The investigator also requested the applicant’s response to the complaint. In his response, the applicant wrote that although he did not recall making the comments alleged and denied that he would have intentionally made the comments attributed to him by M.P., he recognized that something he said was interpreted by M.P. in a way that made her uncomfortable. The applicant also wrote:

To help ensure nothing similar happens going forward, I arranged communication coaching with Dr. Dawn Martin. While I did not intentionally do or say anything inappropriate, I also recognize that such coaching could assist me both as a clinician and an administrator. My meetings with Dr. Martin were very helpful. I now have more insight into how words, even those meant to make patients feel more at ease, can have the opposite effect.

ICRC decision

[22] On March 6, 2019, the ICRC met to consider M.P.’s complaint. Its decision to issue the applicant a caution in person and to require the submission of a reflective essay was released the same day.

[23] In reaching its decision, the ICRC reviewed its role and the information obtained during its investigation, including documentation submitted by M.P. and the applicant’s response to the complaint.

[24] The ICRC recognized that the applicant had undertaken 5.5 hours of communications coaching with a communications physician trainer. The physician trainer reported that the applicant “was very engaged, open to feedback and reflective during their sessions.”

[25] The ICRC noted that because it does not hear live testimony or test evidence under oath, it was not able to determine what actually happened between M.P. and the applicant.

[26] The ICRC identified the key factors to be considered in determining whether a referral to a disciplinary hearing is warranted: (i) the seriousness of the allegations; (ii) other relevant factors (for example, the physician’s history or efforts the physician has made to address the concerns raised in the complaint); (iii) deterrence of the conduct in issue by the profession as a whole and by the specific member, and whether this is best achieved by a referral to the Discipline Committee or by another means; and (iv) whether, based on all the available information, there is a reasonable prospect that the concerns raised in the complaint could be proven at a disciplinary hearing.

[27] The ICRC considered each of these factors in the context of the specific matter before it. The factors identified by the ICRC that militated against a referral to a disciplinary hearing included the applicant’s acknowledgment “that what he felt was an attempt to put [M.P.] at ease could understandably be misinterpreted, and in retrospect was very inappropriate” and information from the physician trainer and the applicant that “assures us” of the applicant’s increased insight.

[28] The ICRC was of the view that it would be very difficult to prove at a discipline hearing that the applicant intended his remarks – which the ICRC described as “nevertheless highly inappropriate in the context and setting” – to have a sexual connotation. At the same time, the ICRC emphasized that “we are of the view that it was reasonable for [M.P.] to subjectively experience the remarks in the way she did.” Having regard to all the factors identified, the ICRC determined that a referral to a disciplinary hearing was not warranted in the circumstances.

[29] In reaching its decision to require the applicant to attend before the ICRC to be cautioned and to provide a reflective essay, the ICRC specifically recognized:

• the applicant had already undertaken communications coaching of the nature “we would have ordered”;
• a caution in person serves a dual purpose: “a caution in person arises when the Committee...believes that the physician would benefit from direction provided in person about the issues raised...[and] to protect the public interest”;
• where a caution in person is required a summary of the decision will appear on the College’s public register; and
• the ICRC expected to discuss the applicant’s reflective essay with him when the applicant attended to be cautioned.[^5]

Board decision

[30] In May 2019, the applicant requested that the Board review the ICRC decision, both with respect to the adequacy of the ICRC’s investigation and the reasonableness of its decision. A teleconference hearing before a panel of the Board was held in June 2020. The Board heard submissions from the applicant’s counsel and from the applicant himself.

[31] The Board decision was released on September 15, 2020. In concluding that the ICRC’s investigation was adequate and, by a majority, that the ICRC decision was reasonable, the Board considered the applicant’s submissions, the record of investigation, and the ICRC decision.

[32] In concluding that the investigation was adequate, the Board found that the ICRC had collected the essential information necessary to assess the complaint, noting that the ICRC had a statement from M.P. as to her concerns, M.P.’s medical records, and information from the applicant in response to the complaint. The Board recognized that although the ICRC was aided in its assessment of the complaint when it obtained the entire hospital investigative file, that file did not comprise the entirety of the ICRC’s investigation.

[33] In its reasons, the Board referred to the record before the ICRC which “clearly documented” the investigative steps taken. In rejecting the applicant’s argument that the investigation was inadequate because the ICRC had not conducted further interviews, the Board stated that it was not directed to any additional information that a re-interview of M.P. and/or the medical student would have provided to the ICRC. The Board also stated that it was not persuaded that further information from the physician trainer would have assisted the ICRC given that the trainer’s report was before the ICRC.

[34] In its reasons confirming the ICRC decision was reasonable, the Board majority addressed each of the applicant’s arguments:

• The majority found that, contrary to the applicant’s contention that the ICRC had “simply rel[ied]” on the hospital report, the ICRC decision reflected its consideration of and reliance on information from a range of sources.[^6]
• The majority recognized that the ICRC placed some reliance on an investigation conducted under different policies but was satisfied that the ICRC decision was based on the information it obtained during its own investigation and an application of its own expertise regarding the applicable standards of practice.[^7]
• The majority rejected the applicant’s submission that the ICRC had misapprehended or misinterpreted the hospital report, and instead found that the ICRC had, in fact, “quoted directly from the report rather than interpret it.”[^8]
• The majority determined that the single reference to sexual abuse did not render the ICRC decision unreasonable because when the ICRC used these words, it was setting out the test it invokes as a screening committee in considering whether to refer a matter to a disciplinary hearing. The majority also recognized that the ICRC did not, in its decision, infer, imply, or conclude that the applicant had sexually abused M.P.[^9]

[35] The Board majority provided detailed reasons for its conclusion that the ICRC decision to issue a caution to the applicant, and to require a reflective essay, was reasonable. The majority found:

• The substance of the caution – a discussion about appropriate boundaries during a physical examination and displaying sufficient care about how the applicant’s comments might be perceived – was “unambiguously directed at the concern” and “reflect[ed] a desire on the part of the Committee to remediate the Applicant’s approach in this area.”[^10]
• The ICRC’s disposition was tied to the concerns about what M.P. perceived the applicant said during an examination in which she was vulnerable.[^11]
• The ICRC’s reasons reflected that it “carefully considered” what outcomes were available to it, including those which could result in a punitive outcome and those that are remedial in nature.[^12]
• The ICRC’s reasons reflected that it was aware the applicant had already completed a communications course and, as a result, the ICRC did not make this part of its disposition.[^13]
• The ICRC’s reasons demonstrated that it sought a remedy that would provide it with an ability to provide further direction and education to the applicant.[^14]

[36] The Board majority summarized the basis for its finding that the disposition was a reasonable outcome at para. 87 of its reasons:

The Committee explained its reasons for rejecting certain dispositions in favour of other dispositions. The Committee tied its disposition to the conduct of concern it identified. The Committee recognized its mandate is to improve a physician’s practice and to protect the public.

[37] At para. 95, the Board concluded that the reasons of the ICRC reflected that,

the Committee turned its mind to the appropriateness of the outcomes available to it and chose a disposition that is remedial in nature and provides for both specific deterrence in that the Applicant will engage in a discussion with his peers about this interaction, as well as general deterrence given its recording on the public register. The Committee’s reasons demonstrate that the fact that the Applicant has already engaged in a communication course was only part of the remediation that the Committee reasonably determined necessary to address its concern.

The Standard of Review

[38] All the parties agree that reasonableness is the standard of review in this application for judicial review of the Board decision.[^15]

Analysis

The Board’s Finding that the Investigation was Adequate

[39] The applicant submits the Board’s finding that the ICRC’s investigation was adequate is unreasonable. The applicant argues that the ICRC should have received more information from M.P., re-interviewed the attending medical student, and interviewed the physician trainer. The applicant also argues the ICRC should have conducted its own investigation and ought not to have relied solely on the hospital’s investigation conducted under a different policy.

[40] Each of these arguments was advanced by the applicant before the Board. The Board addressed each argument in its reasons.

[41] In assessing the adequacy of the ICRC’s investigation, the Board was required to ask “whether the Committee exercised its investigative discretion reasonably having regard to the Committee’s function as a screening process to determine how and in what manner the particular complaint should be dealt with.”[^16] The Board correctly observed at para. 39 of its reasons that an adequate investigation need not be exhaustive: the ICRC is required to obtain the essential information relevant to making an informed decision regarding the issues in the complaint. As this Court recently observed in *Torgerson v. Health Professions Appeal and Review Board* [^17], although the ICRC is required to make “reasonable efforts” to consider the records and documents that it considers relevant to the complaint, it is not required to examine all records and documents, conduct interviews, hear testimony, or make findings of credibility.

[42] The applicant relies on *Children’s Aid Society of Renfrew County v. G(R) (No. 2)*[^18] in support of his argument that it was unreasonable for the ICRC to have relied on the hospital’s investigative file, which was prepared for a different purpose. In my view, G(R) does not assist the applicant. In that case, the father was the successful party in a child protection proceeding. In determining that the Children’s Aid Society was liable for the father’s costs, the court took into account that the Society had relied on materials from a police investigation in which only the child was interviewed. The Society had also failed to interview any of the adult witnesses who would have had direct knowledge of the events at issue.

[43] In this case, the ICRC obtained the interviews of all three witnesses to M.P.’s physical examination. The Board found that the ICRC decision reflected its consideration of and reliance on information from a range of sources. The Board was satisfied that the ICRC provided the applicant with an opportunity to respond to the ICRC’s investigation of the complaint. The Board specifically noted that there was nothing before it to suggest that the applicant had information relevant to the complaint that he had been prevented from sharing with the ICRC. The ICRC was clearly aware of its mandate under the Code and the Board was satisfied that the ICRC based its decision on information from its own investigation and the application of its expertise in the regulatory context.

[44] The Board’s reasons for finding that the ICRC’s investigation was adequate are transparent, internally coherent, and justified in relation to the facts and the law. In my view, the Board’s finding was reasonable.

The Board’s Decision to Confirm the ICRC Decision

[45] The applicant submits that the majority’s decision to confirm the ICRC was unreasonable because: (i) the majority failed to address the ICRC’s misapprehension of the evidence; (ii) the issuance of a caution in person was duplicative of the communications coaching already undertaken by the applicant; and (iii) the effect of the caution was punitive because it is recorded on the College’s public register.

[46] The Board majority addressed each of these arguments and concluded that the ICRC decision was reasonable.

[47] In support of its conclusion that the ICRC decision reflected no misapprehension of the evidence, the majority,

• observed that the ICRC considered the information and conclusions obtained through the hospital investigation[^19] and that it relied on information from a range of sources;[^20]
• noted that the ICRC considered the applicant’s statement that although he did not recall making the comments alleged, or any other inappropriate comments, he recognized that something he said was interpreted by M.P. in a way that made her uncomfortable;[^21]
• found that the ICRC’s sole reference to sexual abuse was made in a “generic statement” of the test as to whether a referral to Discipline was warranted[^22] and
• found that the ICRC quoted directly from the hospital report rather than interpreted it.[^23]

[48] In confirming the reasonableness of the ICRC’s decision to impose a caution in person and to require a reflective essay, the Board majority was satisfied that the ICRC had turned its mind to the appropriateness of the outcomes available to it and chose a remedial disposition that would provide for both specific deterrence of the applicant (through a discussion with his peers) and general deterrence (given its recording on the College’s public register).[^24] As the majority explained, a caution “serves the broader mandate of the College to protect the public interest by ensuring the physician will continue to improve on his/her techniques and skills.”[^25]

[49] As the Board majority observed and this Court has repeatedly recognized, directing the applicant to attend and receive a caution in person is not a penalty. Rather, it is an educational and remedial measure intended to improve the physician’s practice and to benefit the public by avoiding future concerns.[^26] The fact that remedial orders of the nature issued by the ICRC in this case appear on the public register does not fundamentally alter their preventive, educational, and remedial nature.[^27] I note that with the passage of six years or, upon application to the ICRC where it was the relevant committee, such a notation may be removed from the register.[^28]

[50] This Court has confirmed that it “owes substantial deference to the expertise of the Committee in determining the appropriate scope of education or remediation.”[^29] The majority of the Board concluded that the ICRC decision was reasonable because the ICRC explained its reasons for the disposition, tied its disposition to the conduct of concern, and recognized its mandate is to improve a physician’s practice and to protect the public.

[51] The applicant is asking this Court to re-weigh the relevant factors considered by the ICRC and come to a different result. This was not the Board’s role in determining the reasonableness of the ICRC decision, and it is not the role of this Court on judicial review of the Board decision.[^30]

[52] In my view, it was reasonable for the Board majority to conclude that the ICRC arrived at a reasonable decision based on the information in the record before it. The majority’s reasons are transparent, internally coherent, based on a rational chain of analysis, and justified in relation to the facts and the applicable law.

Conclusion

[53] For these reasons, I would dismiss the application for judicial review.

[54] The Board does not seek costs of the application and accordingly, no costs are awarded to it. In accordance with the agreement reached between the applicant and the College, the applicant will pay the College’s costs of the application, fixed in the amount of $6,000, inclusive of HST and disbursements.

Ryan Bell J.

I agree Swinton J.

I agree Lederer J.

Released: January 26, 2022

[^1]: Section 3(2) of the Health Professions Procedural Code, being Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18. [^2]: Code, s. 25(1). [^3]: 2020 ONSC 7967 (Div. Ct.), at para. 21; see also Longman v. Ontario College of Pharmacists, 2021 ONSC 1610 (Div. Ct.), at para. 33. [^4]: Longman, at para. 44, citing Banner v. College of Physicians and Surgeons of Ontario, 2012 ONSC 5547 (Div. Ct.), at para. 11 and Fielden v. Health Professions Appeal and Review Board, 2013 ONSC (Div. Ct.), at para. 10. [^5]: ICRC decision, p. 11. [^6]: Board decision, para. 69. [^7]: Board decision, para. 71. [^8]: Board decision, para. 74. [^9]: Board decision, paras. 76-77. [^10]: Board decision, para. 84. [^11]: Board decision, para. 84. [^12]: Board decision, para. 85. [^13]: Board decision, para. 85. [^14]: Board decision, para. 86. [^15]: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65; King v. Gannage, at para. 26. [^16]: McKee v. The Health Professions Appeal and Review Board, 2009 55293 (ON SCDC), at para. 32. [^17]: 2021 ONSC 7416 (Div. Ct.), at para. 45; McKee, at para. 44. [^18]: 2005 ONCJ 471. [^19]: Board decision, at para. 62. [^20]: Board decision, at para. 69. [^21]: Board decision, at para. 63. [^22]: Board decision, at para. 76. [^23]: Board decision, at para. 74. [^24]: Board decision, at para. 95. [^25]: Board decision, at para. 93. [^26]: Geris, 2020 ONSC 7437 (Div. Ct.), at para. 41; Torgerson, at para. 71; Longman, at para. 44; Griffith v. Health Professions Appeal and Review Board, 2021 ONSC 5246 (Div. Ct.), at para. 81. [^27]: Geris, at para. 34; Longman, at paras. 44-45. [^28]: Code, ss. 23(2)7 and (11)(b), (c), and (d). [^29]: Beitel v. The College of Physicians and Surgeons, 2013 ONSC 4658, at para. 57. [^30]: Geris, at para. 41.