CITATION: Aboujamra v. The College of Physicians and Surgeons of Ontario, 2023 ONSC 1136

COURT FILE NO.: 637/22

DATE: 20230215

ONTARIO

SUPERIOR COURT OF JUSTICE

Divisional Court

BETWEEN:

DR. JAMAL ABOUJAMRA

Appellant/Moving Party

– and –

THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO

Respondent

Marie Henein and Matthew Zaia, for the Appellant/Moving Party

Morgana Kellythorne, for the Respondent

HEARD: February 10, 2023

REASONS ON MOTION FOR A STAY

sCHABAS j.

Overview

[1] On September 20, 2022, a five-member panel of the Ontario Physicians and Surgeons Discipline Tribunal found that the appellant, Dr. Jamal Aboujamra, a family physician, had committed professional misconduct by engaging in sexually abusive conduct with a young female patient under his care. The panel found, among other things, that over an extended period of time Dr. Aboujamra touched the complainant’s body, including her breasts and vaginal area, in a sexual manner and made sexual comments towards her.

[2] As required by s. 51(4.2) of the Health Professions Procedural Code, Dr. Aboujamra's certificate of registration was immediately suspended. On October 21, 2022, the panel directed the Registrar of The College of Physicians and Surgeons of Ontario to revoke Dr. Aboujamra's certificate of registration, which is the penalty required by s. 51(5) of the Code whenever a physician has been found to have committed certain acts of sexual abuse towards a patient.

[3] Dr. Aboujamra has appealed the findings against him to the Divisional Court. Pending his appeal, which counsel advises will likely be heard in May, he seeks a stay of the penalty so that he can continue to practice medicine. For the reasons that follow, the motion is dismissed.

The test for a stay

[4] To obtain a stay pending appeal, Dr. Aboujamra must satisfy the three-part test set out in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, at p. 334, that: (1) there is a serious issue to be tried; (2) Dr. Aboujamra will suffer irreparable harm if the stay is not granted; and (3) the balance of convenience favours granting the stay.

[5] It is well-accepted that the factors are not rigid “watertight compartments” or a series of independent hurdles, but are “interrelated in the sense that the overriding question is whether the moving party has shown that it is in the interests of justice to grant a stay.” Strength in meeting one part of the test “may compensate for the weakness of another”: Louis v. Poitras, 2020 ONCA 815 at para. 16.

Serious issue to be tried

[6] The test to establish a serious issue is not high. The appeal simply must not be frivolous or vexatious. In this case, due to the low threshold, the College concedes that this test is met, although it does not agree that the grounds of appeal are strong.

[7] Counsel for Dr. Aboujamra nevertheless emphasized this branch of the test, submitting that there are three strong arguments that justify overturning the panel’s decision.

[8] First, it is submitted that the panel unreasonably rejected exculpatory evidence led by Dr. Aboujamra, including evidence from three independent witnesses. Counsel submits the panel’s reasoning on this evidence is flawed, internally inconsistent and circular. The panel, it is argued, engaged in unprincipled, undisciplined reasoning that is not moored in the evidence.

[9] Second, it is argued that the panel misapplied the concept of “incremental disclosure” in dismissing inconsistencies in the complainant’s evidence. Counsel submits that the panel erred in concluding that the manner in which the complainant “remembered, reported and testified about the sexual abuse…is fully consistent with the case law about incremental disclosure in such circumstances.” The complainant’s explanation, according to the appellant, is that her memory improved over time, which the appellant submits is not recognized as an explanation for incremental disclosure, citing R. v. D.D., 2000 SCC 43 at para. 65.

[10] Third, Dr. Aboujamra submits that the panel misused the appellant’s response, including comments by him about the complainant’s drug use and sexual behaviour, to suggest he was sexist. It is also argued that the panel unreasonably dismissed Dr. Aboujamra’s evidence, highlighting instances when he would not answer questions, while not being critical of the complainant when she failed to answer questions or claimed a lack of recollection. Thus, counsel contends, this appeal raises more than a second-guessing of credibility findings, as the panel engaged in an uneven treatment of the competing evidence.

[11] Counsel for College warns, as the Supreme Court stated in RJR, that a “prolonged examination of the merits is generally neither necessary nor desirable” on this kind of motion. Counsel also cites the recent Supreme Court decision in R. v. G.F., 2021 SCC 20, at para. 76, cautioning against detailed parsing of reasons on appeals dealing with credibility findings. The College also argues that the grounds of appeal are on questions of fact, or questions of mixed fact and law, and largely focus on credibility findings by the panel which require deference.

[12] Each of Dr. Aboujamra’s arguments involves an in-depth look at the merits of the case, an assessment of the evidence, and a careful review of the reasons of the panel. On the first issue raised by the appellant, for example, the panel found that the three independent witnesses, who were employees of the appellant, while supportive of Dr. Aboujamra’s case, did not preclude the alleged sexual touching from having occurred as they were not present during each, or all, of the meetings between the appellant and the complainant. Resolving the issue of whether the panel unreasonably rejected exculpatory evidence requires a careful review of the evidence and the reasons of the panel.

[13] On the issue of “incremental disclosure” the panel referred to the complainant’s reference to “reliving the trauma” and that she “blamed herself” which, the College submits, is more nuanced than simply saying her memory improved over time. Whether the panel misapplied the concept of incremental disclosure also requires a close review of the complainant’s testimony and the reasons of the tribunal which is best left for the panel of this court hearing the appeal.

[14] As for uneven treatment or uneven scrutiny of the evidence, this Court stated recently in Schwarz v. The College of Physicians and Surgeons of Ontario, 2021 ONSC 3313 at para. 47, that to succeed on such an argument an appellant “must point to something in the reasons or the record that makes it clear that the trier has actually applied different standards in assessing the evidence of both parties.” Again, this requires an in-depth review of the evidence and the reasons.

[15] I agree with the parties that the appellant has met the test of showing that there are serious issues raised on the appeal and that this prong of the test is met. However, these issues cannot be easily assessed on a motion of this kind, highlighting why it is undesirable for me to form any view on the merits of the appeal beyond agreeing that the appeal is not frivolous or vexatious. Additionally, as my conclusions on irreparable harm and the balance of convenience, discussed below, weigh strongly against the granting of a stay, it is not necessary for me to go further and engage in an assessment of the strength of the grounds of appeal.

Irreparable harm

[16] Dr. Aboujamra’s evidence is that unless a stay is granted his practice will be destroyed. He states that this will cause him, a 64-year-old physician, financial, emotional, psychological and reputational harm that is irreparable. Although not pressed in oral submissions, Dr. Aboujamra also states that his patients will also be harmed as many of them may be unable to access a new family physician, while those that do find a new doctor are unlikely to return to Dr. Aboujamra if he is successful on his appeal and able to return to practice.

[17] Evidence of irreparable harm must be “clear and not speculative”; there must be a real risk of disastrous consequences to the appellant: Sazant v. College of Physicians & Surgeons (Ontario), 2011 CarswellOnt 15914 at para. 11.

[18] In the context of a regulated profession, such as medicine, “[f]inancial loss in itself is insufficient to establish irreparable harm; otherwise, this threshold would always be met when a physician's licence has been revoked”: Noriega v. College of Physicians and Surgeons of Ontario, unreported, October 22, 2015 (Div. Ct.) at para. 26. Further, while Dr. Aboujamra’s practice in its current form may not survive the appeal process, it is speculative to find that his ability to practice will be gone forever. As his own evidence notes, there is a great need for family physicians in Ontario today, and patients who have written testimonials on his behalf express loyalty to him if and when his registration is reinstated.

[19] Emotional and psychological harm resulting from Dr. Aboujamra’s attachment to his practice is to be expected. As LaForme J.A. stated in Sazant at para. 13: “emotional harm and psychological attachment to a profession will almost always exist in these types of proceedings. Something more, therefore, must be required otherwise irreparable harm as a consequence would always weigh in favour of granting a stay.” In light of the more recent comments of the courts in Noriega and Sazant, the dated holding of Heeney J. in Respiratory Therapy Society of Ontario v. College of Respiratory Therapists of Ontario, [2000] O.J. No. 2897 at para. 28, that “stress, disruption and potential career consequences” are irreparable harm in this context, is attenuated.

[20] Reputational harm and embarrassment is also not irreparable harm. This type of harm is inevitable in transparent and open public discipline proceedings and cannot form a basis for a stay, otherwise it would favour a stay in virtually all cases. As Corbett J. observed in Doe v. College of Physicians and Surgeons, 2021 ONSC 7550 at para. 12:

In a great many cases - whether criminal, family, civil litigation, or administrative proceedings, findings are made that cause parties to feel reputational damage and embarrassment. They are found to have acted badly (sometimes very badly). They are not believed. Their conduct may be criticized. Such harm is corrected by the vindication one receives on appeal or review, and the transitory upset one experiences is a normal and inevitable consequence of a public litigation process: it is not irreparable harm within the meaning of the test for a stay.

[21] The possible harm to Dr. Aboujamra’s patients is not relevant in this analysis. Quoting LaForme J.A. in Sazant, at para. 11, “it is [the physician] who must suffer irreparable harm; not his patients or other third parties.” Similar observations were made in Noriega at para. 27, where this court observed that"[t]o the extent that [the physician] is relying on the harm that might befall third parties, namely, that his patients will lose access [ ... ] those consequences do not relate to any real risk of disastrous consequences to himself."

[22] Accordingly, I conclude that Dr. Aboujamra has failed to establish irreparable harm if a stay is not granted pending his appeal.

Balance of convenience

[23] The final element of the RJR test requires the court to balance Dr. Aboujamra’s interests against the public interest. Again quoting LaForme J.A. in Sazant at para. 15, “[t]he public interest goes beyond that of public safety and also includes public confidence in the administration of justice, and in cases such as this, confidence in the disciplinary process of the College.” See also Yazdanfar v. College of Physicians and Surgeons of Ontario, 2012 ONSC 2422 at paras. 67-68. At the same time, however, the public interest may also include the interest in not damaging professional reputations unnecessarily, and not depriving patients of a competent medical practitioner.

[24] Sazant involved whether to grant a stay following findings of sexual misconduct by a physician. LaForme J.A. found, at para. 17, that “public confidence in the College's ability to discipline members of the medical profession” weighed against the limited financial interest of Dr. Sazant. In light of what were found to be “serious breaches of sexual conduct committed by a medical doctor”, Justice LaForme denied the stay, stating that “[t]he public has a right to feel confident that the College, in circumstances such as this, will discipline one of its members accordingly and that our courts will respect its decision.”

[25] Since Sazant was decided in 2011, Ontario’s zero-tolerance approach for sexual abuse by health professionals has been reinforced by legislative amendments providing for immediate interim suspension and mandatory revocation, as occurred in this case: Protecting Patients Act, 2017, S.O. 2017, c. 11. Although these amendments did not oust the court’s jurisdiction to grant stays pending appeal, the statutory changes emphasize the seriousness of such conduct, and are intended to protect the public from it and enhance public confidence in the public institutions that address such cases. This is not to say that the balance of convenience will always weigh against granting a stay, but it must be recognized that any departure from the zero-tolerance approach, such as granting an interim stay of Dr. Aboujamra’s penalty, may undermine public confidence in the regulation of physicians and other regulated health professions.

[26] Counsel for Dr. Aboujamra submits that one must also consider the public interest in allowing him to practice pending the outcome of the appeal. Dr. Aboujamra has no previous disciplinary record with the College. Counsel submits that, with conditions on his practice, the appellant poses little risk to the public and he can provide needed care for his large roster of patients who may otherwise have their care disrupted and may have difficulty finding a new family physician. Much of Dr. Aboujamra’s practice involves treating elderly patients; it was proposed that a condition of a stay be that he only treat those patients, and that he do so in the presence of a registered nurse as a chaperone.

[27] Counsel for Dr. Aboujamra relies on the decision in Dr. Q. v. College of Physicians and Surgeons of British Columbia, 1999 BCCA 53, in which a stay following a finding of sexual misconduct was granted, but that case was decided well before the legislated emphasis on zero-tolerance.

[28] I also distinguish this case from Sliwin v. College of Physicians and Surgeons of Ontario, 2015 ONSC 2280, also relied upon by Dr. Aboujamra. Although the facts are not fully stated in that decision, the court was influenced by the lengthy time that had passed since the misconduct had occurred, and by the fact that the misconduct did not involve “non-consensual exploitative situations” which was relevant to the “public perception issue.” (para. 9) Neither factor applies here.

[29] In my view, the balance of convenience weighs against granting a stay, even with conditions. Sexual misconduct of the kind found here goes to the core values of the health profession. The public interest in maintaining confidence in the disciplinary process, which includes a zero-tolerance approach to sexual misconduct, outweighs the limited public interest in allowing Dr. Aboujamra to continue to provide medical care to some of his patients pending his appeal.

Conclusion

[30] Dr. Aboujamra has not met the second and third prongs of the RJR test – he will not suffer irreparable harm and the balance of convenience does not favour a stay. Although he has satisfied me that the appeal raises serious issues, to assess the strength of those issues requires an in-depth examination of the merits which should generally not be undertaken on a motion to stay. In any event, the other factors strongly work against granting a stay. I conclude, therefore, treating the test wholistically, that it is not in the interests of justice to grant a stay of the penalty pending Dr. Aboujamra’s appeal.

[31] The motion for a stay is dismissed. Counsel did not address costs of the motion. In the circumstances, those costs can be addressed by the panel hearing the appeal.

Paul B. Schabas J.

Released: February 15, 2023

CITATION: Aboujamra v. The College of Physicians and Surgeons of Ontario, 2023 ONSC 1136

COURT FILE NO.: 637/22

DATE: 20230215

ONTARIO

SUPERIOR COURT OF JUSTICE

Divisional Court

DR. JAMAL ABOUJAMRA

– and –

THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO

REASONS ON MOTION FOR A STAY

Schabas J.

Released: February 15, 2023