CITATION: Kastner v. Health Professions Appeal and Review Board, 2023 ONSC 629

DIVISIONAL COURT FILE NO.: 972/21

DATE: 2023/1/30

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

McWatt ACSCJ, Sachs and LeMay JJ.

BETWEEN:

DANNY KASTNER

Applicant

– and –

HEALTH PROFESSIONS APPEAL AND REVIEW BOARD, COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO, and MARKO DUIC

Respondents

Gregory Ko and Ruth Wellen, for the Applicant

David Jacobs, for the Health Professions Appeal and Review Board

Amy Block, for the College of Physicians and Surgeons

Keary Grace and Crystal Gillas, for Marko Duic

HEARD at Toronto by videoconference: December 7, 2022

H. Sachs J.

Introduction

[1] This application for judicial review concerns the regulatory response to a professional misconduct complaint regarding the Respondent, Dr. Marko Duic. The complaint against Dr. Duic fell into two categories of allegations. First, that for 16 years, Dr. Duic used his authority as Emergency Department Chief at two major Ontario hospitals to block the hiring of women doctors and encouraged a workplace that was openly hostile to women. Second, that in order to increase department profitability, Dr. Duic demanded that the physicians in his department use involuntary psychiatric detention (Form 1) and driver’s licence reviews (MTO reports) against vulnerable patients, without medical justification.

[2] The complaint was made following an investigative report by the Globe and Mail newspaper into Dr. Duic’s activities. The complainant (Mr. Kastner) is an Ontario lawyer who represents a group of physicians who raised concerns about Dr. Duic’s behaviour but wished to remain anonymous because of fears of retaliation.

[3] In support of the complaint Mr. Kastner provided a summary of his clients’ concerns, a summary of the Globe and Mail article (with a link to the article), a copy of a report from the second of the two hospitals Dr. Duic worked in and a copy of some other documents (including an email from Dr. Duic that appeared to support the complaint about the improper use of MTO forms). He also provided a list of twelve other witnesses, whom he indicated had direct information about Dr. Duic’s behaviour. Mr. Kastner told the investigator from the Inquiries, Complaints and Reports Committee (ICRC) that these witnesses would not speak to him (and therefore he did not know what they would say), but that many of the physician witnesses had told him they would speak to their professional body.

[4] Following a limited investigation that did not involve interviewing any of the witnesses provided by the complainant or identified in the Globe article, the ICRC decided to take no further action. In its reasons for decision, the ICRC stated that it had no jurisdiction over human rights issues and that it was satisfied that there was no evidence to support taking any action against Dr. Duic on either of the two bases put forward in the complaint.

[5] On a review of the ICRCs decision, the Health Professions Appeal and Review Board (“HPARB”) determined that the ICRC erred when it stated that it did not have the authority to investigate complaints based on discrimination. Nevertheless, HPARB found that the ICRC had conducted an adequate investigation into both complaints and that its decision to take no further action was reasonable.

[6] The Applicant seeks an order quashing the HPARB decision and requiring the ICRC to redetermine the complaint.

[7] For the reasons that follow I would allow the application, quash the HPARB decision on the basis that it unreasonably concluded that the investigation done by the ICRC was adequate, and refer the matter back to the ICRC to reinvestigate the complaint.

Factual Background

The Complaint

[8] Dr. Duic was the Emergency Department Chief at St. Joseph’s Hospital from 2002 to 2011 and Southlake Regional Health Centre from 2011 to 2019.

[9] On April 4, 2019, the Applicant submitted a complaint to the CPSO alleging that Dr. Duic, during his 16 years as an Emergency Department Chief, had engaged in professional misconduct.

[10] As noted above, the complaint alleged two categories of misconduct.

(a) Discrimination Against Women: From 2002 to 2019, in his capacity as Emergency Department Chief, Dr. Duic refused to hire women doctors, actively avoided working with women trainees, and openly disparaged women doctors as unsuited to emergency medicine.

(b) Patient Exploitation and Abuse: From 2002 to 2019, Dr. Duic directed his physician team to use involuntary psychiatric detention of patients (Form 1) and the reporting of patients to the Ministry of Transportation for driver’s license reviews (MTO reports) in circumstances where there was no medical justification and explicitly as a means of increasing profitability.

[11] The complaint was made after the Globe and Mail had conducted and reported upon an investigation they had done on the same issues. While not appended to the complaint, the Globe article was summarized in the complaint and a link to the article was provided in the first footnote to the complaint.

[12] The Globe article was published in December of 2018. According to the article, over a period of 5 months, the Globe had spoken to 18 physicians who had worked under Dr. Duic and another 8 who were concerned about his leadership. Most of the people whom the newspaper spoke to expressed a desire to remain anonymous, because of a fear of repercussions, particularly because Dr. Duic was perceived as having powerful connections in emergency medicine. As the article pointed out, he has been celebrated by health ministry officials, hospital leaders and doctors as having transformed emergency medicine by reducing wait times.

[13] The article contained the following allegations:

(i) In his 16 years as Chief of Emergency Medicine at two major hospitals Dr. Duic had not hired a single female doctor to work in his department, until October of 2018, weeks after the Globe started asking questions about his hiring practices.

(ii) The article included a reference to a survey conducted by the Applicant’s clients of the gender breakdown in 28 emergency departments of a similar size to Southlake, most of them in Ontario. That survey demonstrated that on average, 34 percent of those departments were made up of women (with the breakdown ranging from 13% to 63%). Southlake’s department, made up of 30 physicians, was the only one without a single female physician.

(iii) The article stated that during the period from 2002 to 2011, Dr. Duic hired at least 23 male doctors, while hiring no women. The article referenced data from the Canadian Resident Matching Service, showing that since 2007, on average, 97 women have specialized in emergency medicine for every 100 men. In February of 2011 a female resident at St. Joseph’s hospital wrote to Dr. Duic to inquire about job opportunities. She provided the Globe with what she said was his emailed response: “Unfortunately, we have quite a queue of great Eps [emergency physicians] who aspire to work with us, and we wish we could give them all positions. It will be a number of years before we can think of offering anyone else a position, but you’re welcome to check again in 6-8 years.”

(iv) Dr. Duic actively avoided supervising or working with women doctors. When he did so, he made disparaging comments to them. The article referenced two doctors by name (Dr. Steve Findall and Dr. Jason Falk) who were on staff at Southlake when Dr. Duic took over. Both stated that they did not see Dr. Duic work with female residents, but that he did have multiple male residents that he worked with. According to those doctors, Dr. Duic would choose the residents he wanted to mentor.

(v) Data supplied by Southlake reinforced these concerns. From April of 2011 to April of 2015, Dr. Duic supervised 25 male trainees and no female trainees. During that time, 35 female and 66 male trainees rotated through the hospital.

(vi) The Globe spoke to four women who did work with Dr. Duic on training rotations. They described his attitude as dismissive. One of those women, Dr. Eileen Chung, was a resident at St. Joseph’s Hospital in 2013. On one shift she was scheduled with Dr. Duic. She recalled that he made her feel that she was too slow and that she was interrupting him by asking questions. Another female resident reported that at the end of her shift, Dr. Duic said to her “It’s too bad you’re a good resident because you will have children and your training will be a waste.” One doctor who worked closely with Dr. Duic reported that he heard him say that a female emergency doctor “didn’t have the right chromosome.”

(vii) Doctors who worked with Dr. Duic said that he encouraged the overuse of MTO forms and Form 1s at both St. Joseph’s and Southlake hospitals. Dr. Falk, who worked with Dr. Duic at Southlake, stated that Dr. Duic found a way to monetize the practice of emergency medicine by filling out these forms. Doctors who fill out a MTO form (filled out by doctors who are concerned about a patient’s capacity to drive) receive $35.00 a form and doctors who fill out Form 1s (forms that keep patients in hospital involuntarily for longer) receive $105.00 per form.

(viii) Physicians said that Dr. Duic would fill out MTO forms for people who were in nursing homes or who were severely disabled and wouldn’t be driving to begin with. Patients complained that their licenses were being taken away unjustly and that they weren’t aware their emergency doctor was concerned about their driving until they got a notice in the mail that their licenses had been revoked.

(ix) A doctor who worked at St. Joseph’s stated that the hospital’s medical advisory committee was concerned about the inappropriate use of MTO forms because of patient complaints. The Globe obtained minutes from a 2011 meeting of that committee that showed while there had been improvement in the number of MTO forms being done, there were still concerns about inappropriate documentation and patient notification.

(x) Two emergency specialists who worked at Southlake when Dr. Duic took over as Chief noticed the seemingly inappropriate use of MTO forms after Dr. Duic came. These physicians were named – Dr. Falk and Dr. Pirzada.

(xi) In 2013 Dr. Duic sent an email to more than 30 emergency doctors, which one of the recipients forwarded to the Globe. In the email Dr. Duic stated that doctors should fax their own MTO forms so that other hospital staff didn’t see them. He explained that otherwise the administrative staff at the hospital might ask “why a nursing home patient with flexn contractures [ caused by being immobile in bed for weeks] got MTO’d” According to a number of doctors, people in this position would not be driving.

(xii) Ministry of Health data accessed by the Globe through Freedom of Information Requests, showed that at St. Joseph’s emergency department there were 2,902 forms filled out from April to December of 2011, while Dr. Duic was chief. In comparison, 214 such forms were filled out in 2017. In 2012, 1,126 such forms were filled out at Southlake emergency (after Dr. Duic became chief.) This was higher than all six Greater Toronto Area hospitals used as a comparison and many times higher than four of those. With respect to Form 1s, during the period from April to December of 2011 (when Dr. Duic was chief of St. Joseph’s emergency department), emergency physicians filled out 1298 Form 1s. The Globe accessed data from four comparison Greater Toronto Area hospitals that showed that in the same time period those hospitals filled out from 341 to 509 such forms. While St. Joseph’s emergency department does see more psychiatric patients than most Ontario hospitals, by 2017, the use of such forms at St. Joseph’s dropped to 735.

[14] In addition to providing a link to the Globe article, the complaint summarized the key findings in that article.

[15] The complaint also referenced a letter the Applicant had written to Southlake in March of 2018 outlining his clients’ concerns regarding Dr. Duic’s hiring practices. At the time of the complaint all 31 physicians in Southlake’s emergency department were men. A copy of the letter was attached to the complaint

[16] Dr. Steven Beatty, Chief of Staff of Southlake, replied to the March 2018 complaint letter on April 10, 2018. The complaint letter to the College referred to that reply and attached a copy of the reply to the complaint.

[17] In his reply, Dr. Beatty indicated that he had investigated the complaint by speaking to Dr Duic and reviewing various documents and data. As a result, he was satisfied that “the only evidence that Southlake has engaged in discriminating practices is the absence of female emergency physicians currently providing care in the emergency department at Southlake.”

[18] The complaint to the CPSO summarized the statistics presented by Southlake in Dr. Beatty’s letter that seemed to confirm the concerns about gender discrimination. In particular:

• “According to Southlake’s trainee statistics, women made up 48% of trainees assigned to ER physicians other than Dr. Duic (45 out of 92), but only 6% of the trainees assigned to Dr. Duic (2 out of 33).

• Between 2011 and 2015, Dr. Duic did not supervise a single female trainee, despite 101 trainees rotating through Southlake’s emergency department, and despite Dr. Duic personally supervising 25 of them, all of whom were male.

• With respect to hiring, Dr. Beatty asserted that all of the women physicians who inquired about available positions in Southlake’s emergency department between 2013 and 2017, only 3 were fully qualified. In each case, Dr. Duic told the female applicant that the department was at “full complement”; however, during that time Dr. Duic hired 8 physicians, all of whom were male.”

[19] The Applicant also provided the CPSO with a list of 12 witnesses, who were “direct witnesses” to the misconduct described in the complaint. The Applicant indicated to the ICRC that he “was not sure what these witnesses will tell you”, but that some actively worked to change the culture that Dr. Duic “promoted. All of them were involved in emergency departments Dr. Duic directed and several were in leadership roles themselves.” In a memo written by the ICRC investigator on April 23, 2019, the investigator confirmed that the Applicant advised the investigator over the phone that “if the CPSO reaches out to physician witnesses as part of their investigation, several of the witnesses, including male physicians who worked with Dr. Duic in the past, have indicated that they will provide information to the College because they are obliged to do so.”

[20] On May 2, 2019, the Applicant provided the College investigator with the name and telephone number of a witness, Dr. Marieke Gardner. He also gave the investigator a basic description of what the witness would say. According to that “will say” Dr. Gardner was a trainee at St. Joseph’s Hospital in or around 2007. She recalled a culture where all medical staff were pressured to complete MTO forms to the maximum extent possible. The purpose for completing the forms was to augment billings. Dr. Gardner specifically recalled being told to complete a form in circumstances that she later realized did not warrant it e.g., patients who had been prescribed medication that, when taken, could make driving dangerous, but were otherwise perfectly capable of driving. Dr. Gardner recalled being contacted by a College investigator when she was a student. A patient had complained about the improper use of a MTO form. Dr. Gardner told the investigator what happened and did not hear anything further.

[21] The Applicant forwarded a copy of the email sent by Dr. Duic to 30 emergency department physicians who worked with him. The email is dated April 12, 2013, and reads as follows:

Subject: Faxing MTO forms

Please do NOT ask clerks to fax MTO forms. Please get your billing clerk, your kids or your mother to do it.

Not only will the unit clerks attempt to engage you in a discussion about why you felt an MTO form was warranted, but they will go to Dora/Marlene/Jill and ask why a nursing home patient with flexn contractures [caused by being immobile in bed for weeks] got MTO’d and engage your leadership in a conversation where we’re torn between either defending you and looking ridiculous, or agreeing and thereby making you look bad. To say nothing of the waste of time.

The next guy who is caught asking a clerk or nurse to fax an MTO form, or leaves an MTO form to be faxed on the chart, will attend the next six meetings of the most boring hospital committee!

Fax your own MTOs please!

The ICRC Investigation

[22] It is clear that the ICRC reviewed the information contained in the complaint letter itself and the information enclosed with the complaint (including the Southlake report). In addition the ICRC took the following steps.

The Gender Discrimination Complaint

[23] The ICRC spoke to Dr. Duic, who denied that he had ever had a hiring policy that discriminated against women. He stated that there had been no hires outside of a brief period where a few locum physicians were hired to cover emergency department physician absences. In his written response to the College investigator dated December 4, 2019, Dr. Duic wrote that Chiefs do not “hire” physicians. “We attract them to apply for privileges at the hospital and then we give them shifts when we have shifts.” According to Dr. Duic, at all times his agenda was to increase diversity, not just by hiring women, but by hiring racialized physicians and physicians who were not heterosexual. As put by Dr. Duic:

Diversity has more than a binary gender dimension, and I had in my hiring achieved a huge success in diversity merely by hiring according to merit. I had always tried to encourage the best physicians for our Department to come work with us and diversity happened naturally because excellence is naturally spread across all demographic groups.

[24] According to Dr. Duic, women candidates have not accepted positions for various reasons. Dr. Duic said that in response to “cold call” hiring inquiries, applicants received form letters. Nine men and three women received the same letter. Dr. Duic said that he did not choose which students or residents were assigned to him and that he had never had a complaint.

The Improper Forms Complaint

[25] The ICRC hired an assessor, Dr. Shaun Visser, to review 30 charts spanning a 14 month period consisting of 4 MTO forms that Dr. Duic had completed and 26 Form 1s, also completed by Dr. Duic. Dr. Visser found that there were no problems with the MTO forms, but that there were 6 Form 1s that Dr. Visser would not have completed “based on the information I have available to me in the chart.” Dr. Visser had 2 interviews with Dr. Duic and his legal counsel – one before reviewing the charts and one after.

Prior Complaints Involving Dr. Duic

[26] Section 26(2) of the Code requires the ICRC to consider all prior decisions involving the member. Dr. Duic had a history of 19 prior complaints – 11 of which involved complaints about form completion. One complaint concerned a patient who reported at the hospital with suicidal ideation. Dr. Duic filled out an MTO form, as a result of which his license was suspended. The patient’s condition was resolved quickly, but it took 3 months for Dr. Duic to write an updated letter so that the patient could get his license back. The patient needed his license for his employment. Another involved a patient who came to the emergency room at St. Joseph’s Hospital with injuries due to an assault. A nurse said she smelled alcohol on the patient’s breath. A blood test was ordered. Before receiving the results of the blood test, Dr. Duic filled out a MTO Form citing alcohol dependence, as a result of which the patient’s license was suspended. Twenty-five minutes later the patient’s blood test came back negative for alcohol. Dr. Duic never told the patient that he had reported him to the MTO and he never corrected his report after the blood test came back. It was only after the patient complained that Dr. Duic contacted the MTO to correct his initial report.

The Decision of the ICRC

[27] On February 11, 2020, the ICRC released its decision dismissing the Applicant’s complaint.

Decision re Gender Discrimination Complaint

[28] The ICRC summarized Dr. Duic’s response to this complaint. In doing so it found that Dr. Duic does not hire, he only recruits. It concluded by stating the following:

Considering that hiring and human rights issues are outside the purview of the Committee and the prejudiced behaviour alleged is not supported, the Committee will take no action on this area of concern.

Decision re Improper Forms Complaint

[29] The ICRC focused its decision on the assessment report of Dr. Visser. It noted that Dr. Visser stated that “In all of the charts reviewed, [Dr. Duic’s] clinical care and medical management was appropriate, and no patient was exposed to undo[sic] harm in his care.”

[30] With respect to the 6 Form 1s that Dr. Visser stated that she would not have completed, the ICRC agreed that the forms were not adequately documented (something for which Dr. Duic had been disciplined in the past), but it accepted Dr. Duic’s explanation for why he had detained the 6 patients in question. Dr. Visser agreed that these explanations supported detention. It was the documented information in the charts that did not.

[31] A key aspect of Dr. Duic’s explanation was that when he came to Southlake there was a reluctance to put patients on Form 1s. However, in the ensuing couple of years there were four high profile suicides of patients seen in the emergency department that could have been prevented if they had been put on Form 1s. Dr, Duic felt it was his duty to encourage physicians to adopt a lower threshold for completing these forms. As a result, there have been no more completed suicides onsite or immediately post discharge.

[32] The ICRC also found that it had nothing before it to suggest that Dr. Duic had completed any forms for profit. It concluded this aspect of its decision by stating: “In the end, we accept [Dr. Duic’s] explanations surrounding the completion of the forms as reasonable and appropriate.”

The Decision of the HPARB

[33] The HPARB considered both the adequacy of the ICRC’s investigation and the reasonableness of its decision not to take any further action against Dr. Duic. On November 26, 2021, the HPARB confirmed the decision of the ICRC.

Adequacy of Investigation

[34] HPARB articulated the following principle that it used to guide its decision on the adequacy of the investigation:

24. An adequate investigation does not need to be exhaustive. Rather, the Committee must seek to obtain the essential information relevant to making an informed decision regarding the issues raised in the complaint.

[35] The HPARB first dealt with the Applicant’s complaint before it that the College should have provided the Applicant with a copy of Dr. Duic’s response to his complaint and an opportunity to respond. HPARB rejected this submission, finding that the duty of procedural fairness owed to a complainant is more limited, as a complainant faces no professional consequences as a result of a complaint. The Code does not require the College to provide a copy of the doctor’s response to the complainant and in this case, given the interactions that had already occurred between the College and the complainant, HPARB was “not persuaded that his additional response would have led the Committee to a different conclusion. The Board finds that the Applicant provided nothing new in the Review, other than his opinion of what further investigations the Committee should have undertaken and where he believed the Committee misapprehended the Record.”

[36] Before HPARB, as before this court, the Applicant submitted that the College should have interviewed the witnesses provided by him. HPARB rejected this submission, finding

… the Board finds it is unlikely that any information provided by those witnesses would have changed the outcome of the Committee decision as the Committee had relevant information through the Southlake report and the Assessor’s report to consider the Applicant’s concerns.

The Board finds that the Committee’s investigation covered the events in question, and that it obtained relevant information to make an informed decision regarding the issues raised in the complaint. There is no indication of additional information that, if obtained, might reasonably be expected to have affected the Committee’s decision.

[37] On this basis the HPARB concluded that the ICRC’s investigation was adequate.

Reasonableness of the ICRC Decision

[38] The HPARB found that the ICRC erred when it found that “hiring and human rights issues are outside the purview of the Committee.” However, in spite of this, the HPARB concluded that the ICRC’s decision to take no further action on the gender discrimination complaint was reasonable given Dr. Duic’s denial and the information in the Southlake report. In its reasons the HPARB highlighted the following portion of the Southlake report:

All physicians appointed to our Associate Staff participated in a formal selection process that included physicians, nursing and administrative staff. The successful staff were then approved by the Medical Advisory Committee and subsequently by the Board of Directors of Southlake Regional Health Centre. Since January 2011 there have been no advertised emergency department positions on the Southlake website, medical journals or emergency department conferences…notwithstanding the absence of female emergency physicians practising at Southlake, Southlake can find no evidence of an act of bias against female emergency department physicians, residents or medical students. The statement that “[Dr. Duic] will not hire women physicians” is false and misleading. The current active staff are all-male but that has not been by design, but rather by the choice of female applicants who declined direct offers to apply. As for restricting access to the emergency department for female family medicine residents, [Dr. Duic] does not assign residents to the emergency departments; FMTU [Family Medicine Teaching Unit] does the assignments, as all residents must rotate to the emergency department as part of their required training.

Improper Use of Forms

[39] The HPARB found the ICRC’s Assessor Report, combined with its acceptance of Dr. Duic’s explanation for why he detained 6 patients on a Form 1 when the Assessor would not have done so, was a reasonable basis for the ICRC to refuse to take any further action with respect to this aspect of the complaint.

[40] The HPARB concluded that the ICRC decision made “it clear that it considered each of the Applicant’s concerns with respect to [Dr. Duic], addressed each of those concerns in detail, and provided coherent reasons for its conclusions.”

Standard of Review

[41] All parties agree that the applicable standard of review on this application is reasonableness.

Issues

On this application the Applicant raised two issues:

1. Whether it was reasonable for HPARB to find that the ICRC’s investigation was adequate.

2. Whether it was reasonable for HPARB to find that the ICRC’s decision was reasonable.

Was it reasonable for HPARB to find that the ICRC’s investigation was adequate?

Position of the Parties

The Applicant’s Position

[42] With respect to the gender discrimination complaint, the Applicant maintains that the HPARB analysis about the adequacy of the ICRC investigation is neither rational, intelligible nor justifiable for the following reasons:

(a) It failed to explain how the ICRC investigation could be adequate without interviewing a single witness put forward by the Applicant. The only witness interviewed was Dr. Duic;

(b) It failed to explain how the ICRC investigation could be adequate when it failed to deal with the Applicant’s complaints about Dr. Duic’s conduct at St. Joseph’s Hospital;

(c) It failed to explain how the ICRC investigation could be adequate when it failed to deal with a major aspect of the complaint – that Dr. Duic created a hostile working environment for women during his tenure at both St. Joseph’s Hospital and Southlake;

(d) It failed to explain how the ICRC investigation could be adequate when it failed to engage with the contradictory evidence, most notably the statistics contained in the Southlake report that demonstrated that the Duic-led emergency departments were an extreme outlier in having no women doctors at all, as compared to other major Canadian hospitals.

[43] With respect to the improper forms complaint, the Applicant submits that the HPARB analysis of the adequacy of the ICRC investigation into this complaint is neither rational, intelligible nor justifiable for the following reasons:

(a) The HPARB failed to explain how the ICRC investigation could be adequate when the ICRC ignored the most important aspect of that complaint – namely, that Dr. Duic encouraged and/or pressured other physicians in his department to fill out MTO forms and Form 1s in circumstances where such forms were not warranted.

(b) The HPARB failed to explain how the ICRC investigation could be adequate when the ICRC failed to interview a single witness put forth by the Applicant on this issue;

(c) The HPARB failed to explain how the ICRC investigation could be adequate when it failed to engage with significant evidence on this issue, most notably the email from Dr. Duic to thirty members of his department directing them to fill out MTO forms themselves to avoid questions from administrators about these forms;

(d) The HPARB failed to explain how the ICRC investigation could be adequate when it failed to comment on or deal with the fact that Dr. Visser’s sample covered a limited period of time and did not cover any period while Dr. Duic was at St. Joseph’s Hospital.

[44] With respect to both complaints, the Applicant submits that the HPARB’s conclusion that the ICRC’s investigation was adequate in spite of the fact that the ICRC did not provide him with an opportunity to respond to Dr. Duic’s submissions is unreasonable.

[45] According to the Applicant, he unreasonableness of the HPARB decision that the ICRC investigation was adequate is illustrated by two unsupportable conclusions in its decision: (1) HPARB’s conclusion that the investigation “covered the events in question”; (2) HPARB’s speculation that any potential information provided by witnesses would not have changed the outcome of the ICRC decision.

The Respondents’ Positions

HPARB

[46] The HPARB emphasized the considerable deference that this court is to afford their decisions and to the decisions of the ICRC. As it points out, it is only in extraordinary circumstances that it is appropriate for this court to interfere with its factual findings.

[47] With respect to the Applicant’s submission that the ICRC did not give him an opportunity to respond to the responses received from Dr. Duic, first there was no such obligation and second, if there was, that defect was cured before the HPARB. In the hearing before HPARB the Applicant had a full opportunity to set out what he would have said in front of the ICRC. As confirmed by the Court of Appeal in Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, 111 O.R. (3d) 561, the HPARB is capable of curing any procedural defects that may have occurred before a complaints and investigation committee.

[48] According to HPARB, s. 26(1) of the Code required the ICRC to make “reasonable efforts to consider the records and documents it considers relevant to the complaint.” Thus, the ICRC had the discretion to consider the scope of the investigation necessary. The ICRC was not required to interview witnesses or examine all records or documents.

[49] The allegation that the ICRC failed to adequately consider the allegations set out in the Globe and Mail article is answered by the fact that this article was attached by way a hyperlink in a footnote. According to the Divisional Court in King v. Gunnage, 2020 ONSC 7967, 96 Admin. L.R. (6th) 129, the fact that hyperlinks may not have been considered does not render a decision unreasonable.

CPSO

[50] The CPSO submits that the adequacy of the ICRC’s investigation into the gender discrimination complaint must be considered in light of the fact that the CPSO only has jurisdiction over individual physicians. Thus, unlike the Ontario Human Rights Commission, it is not equipped to address systemic discrimination issues which may exist at institutions over which it has no jurisdiction.

[51] The CPSO, like HPARB, emphasized the discretionary nature of the ICRC’s investigative function. It also underlined two other facts: (1) The ICRC is a screening body, not a fact-finding body; and (2) An investigation need not be exhaustive; it must only be reasonable.

[52] The CPSO highlighted that the people the Applicant was representing wished to remain anonymous. To the extent that the Applicant provided the ICRC with a list of witnesses, he stated that he did not know what those witnesses would say or whether they would support the complaint. According to the CPSO, the ICRC is not obliged to engage in a “fishing expedition” or to compel people to attend for an interview. In circumstances such as this, where the people behind the complaint wished to remain anonymous and Dr. Duic denied the allegations, it was reasonable for the ICRC to rely on the Southlake report, which found that the concern regarding discrimination was unsubstantiated.

[53] With respect to the complaints about forms being filled out improperly, it was reasonable for the ICRC to conclude that if Dr. Duic himself was not engaging in such a practice (as the investigator found), then he would not be encouraging others to do so. Further, the allegation was that the forms were being filled out improperly “for profit”. The only person who can “profit” from filling out the forms in question is the physician who fills out the forms. Thus, Dr. Duic could not profit from the fact that other physicians in his department were filling out these forms.

Dr. Duic

[54] Dr. Duic’s submissions echoed those of the other Respondents. He emphasized the investigative discretion of the ICRC and the deference that must be given to the ICRC and the HPARB decisions.

[55] With respect to the allegation that the ICRC failed to investigate the discrimination complaint, it was clear that the ICRC considered Dr. Duic’s response and the Southlake report. While the ICRC did not refer to the Southlake report in its reasons, that report substantiated Dr. Duic’s response that he did not “hire” physicians or assign residents during his tenure as Southlake’s emergency department chief.

[56] The ICRC was not obligated to interview any witnesses under the Code, except Dr. Duic. Their decision not to do so in this instance was reasonable since the Applicant could not tell the ICRC what these witnesses would say.

[57] The Globe and Mail article was not before the ICRC or the Board. It was just hyperlinked in a footnote. It largely contained hearsay evidence. The statistics cited therein had to be viewed in the context of Dr. Duic’s response to the complaint and the Southlake report. The email to emergency room doctors from Dr. Duic concerning completing MTO forms does not support an allegation that Dr. Duic directed or encouraged those doctors to abuse MTO reports. It just directs them not to rely on hospital staff to fax in those reports.

[58] The information provided by Dr. Marieke Gardner speaks of her experience as a trainee in 2007, 12 years earlier. Further, as the ICRC pointed out, the laws surrounding mandatory reporting for MTO forms had recently changed, which would render Dr. Gardner’s perspective dated.

[59] Dr. Duic also emphasized that the ICRC investigation does not have to be exhaustive.

The Law

[60] Under the Health Professions Procedural Code being Schedule 2 to the Regulated Health Professions Act, 1991, SO 1991, c. 18, s. 26 (1) (the “Code”), the ICRC is obliged to investigate complaints. In doing so it is required to consider the submissions of the member being investigated and “to consider all records and documents it considers relevant to the complaint”. Under s. 26(2) of the Code, the ICRC is required to consider all prior decisions involving the member.

[61] In Gannage, at para. 21 the Divisional Court described the role of the ICRC as follows:

The ICRC plays an important role in screening complaints 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 the by-laws.

[62] On the issue of what constitutes an adequate investigation, all parties directed us to the Divisional Court’s decision in M.J.S. v. Heath Profession Appeal and Review Board, 2022 ONSC 548, where at para. 41 the Court states:

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”. The Board correctly observes 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 Profession Appeal and Review Board, 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.”

The IPRC’s Failure to Allow the Applicant an Opportunity to Respond

[63] The HPARB found that the ICRC’s investigation was not undermined by the fact that it did not provide the Applicant an opportunity to respond to Dr. Duic’s submissions. It did so for the following reasons:

(1) The procedural fairness owed to a complainant is more limited, given that, unlike the regulated health professional, a complainant faces a lesser consequence as a result of an ICRC decision.

(2) The ICRC has a wide discretion in how to carry out its investigation beyond the minimum standard of disclosure set out in the Code.

(3) The Applicant had an opportunity to respond to Dr. Duic during the course of the review. Furthermore, according to the HPARB “the Applicant provided nothing new at the Review, other than his opinion of what further investigations the Committee should have undertaken and where he believed the Committee misapprehended the record.”

[64] Given that the Applicant was given an opportunity to respond to Dr. Duic during the course of the review by HPARB, the HPARB’s conclusion on this issue was a reasonable one. If there was a defect in the investigation on the basis of the ICRC’s failure to give the Applicant an opportunity to respond, that defect was “cured” by the review hearing (see Volochay).

The ICRC’s Failure to Contact Any Witnesses Except Dr. Duic

[65] The Applicant alleges that the ICRC’s failure to contact any witnesses except Dr. Duic rendered its investigation inadequate. The information the Applicant provided with the complaint included the names of a number of people who appeared to have direct knowledge of the matters complained of. With respect to the gender discrimination complaint, the Globe article gave the name of three doctors who could speak to that complaint – Dr. Steve Findall and Dr. Jason Falk (who worked at Southlake with Dr. Duic) and Dr. Eileen Chung (who was a resident at St. Joseph’s and described her experience with Dr. Duic, which spoke to the aspect of the complaint that dealt with Dr. Duic creating a hostile working environment for women.) Dr. Falk was also named, along with Dr. Pirzada, as someone who had direct knowledge about the improper billing allegations. Dr. Marieke Gardner was another person whom the Globe named as having direct knowledge of these allegations and her witness statement was provided. In addition, the April 2013 email referred to in the Globe article was sent to 30 emergency room doctors, all of whom were named in the email. The Applicant provided the ICRC with a copy of that email, which contained the names of those doctors. Finally, the Applicant gave the investigator the names of 12 witnesses with direct knowledge of the events in question. The Applicant was candid about the fact that he did not know what these witnesses would say but stated that a number of the physician witnesses had indicated to him that they would speak to a representative from the ICRC because of their professional obligation to do so.

[66] The Respondents put forward several arguments for why it was reasonable for the ICRC to fail to contact any of these witnesses. In doing so, they acknowledged that this complaint was a very serious one – gender discrimination that was alleged to have persisted over 17 years at two major hospitals and improper or fraudulent billing that could have a devastating impact on vulnerable patients. Detaining a person on a Form 1 takes away a person’s liberty and autonomy and depriving someone of the right to drive could impact on their ability to maintain their employment or perform the normal tasks of daily living.

[67] None of the Respondents went so far as to allege that the ICRC had no obligation to call witnesses – their only obligation was to review the documents and information submitted with the complaint. In spite of this, I do wish to comment on the statement in the Divisional Court decision, M.J.S., which could be taken as suggesting otherwise. For ease of reference I will reproduce the applicable quote from MJS.

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”. The Board correctly observes 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 Profession Appeal and Review Board, 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. (emphasis added)

[68] Towards the end of this quote the Divisional Court states that the ICRC is “not required to …. conduct interviews….” This statement must be viewed in context. Both cases were emphasizing the function of the ICRC – which is to screen complaints, not to make findings of fact or resolve issues of credibility. Thus, in a case such as Torgenson, where the patient alleged a particular form of conduct that the doctor denied, it was not up to the ICRC to interview witnesses to determine who was telling the truth.

[69] In this case the ICRC is not being asked to interview witnesses in order to determine who is telling the truth. Rather, it has before it a situation where very serious allegations are being made about a member, but the complainant is a lawyer who has no direct knowledge of the events in question. His clients do, but his clients wish to remain anonymous because of fears of retaliation. The names of direct witnesses are provided, but the ICRC is told that they will only speak to the CPSO, because of their obligation to cooperate with the College in a professional investigation. This obligation is set out at s.76(3.1) of the Code, which provides that “[a] member shall co-operate with an investigator.”

[70] To find that the ICRC has no obligation to call witnesses in a situation such as this has dangerous implications for the public interest. History has demonstrated that some of the most serious allegations that can be made about a professional do not get made because of fears of consequences such as retaliation – complaints about sexual abuse and complaints about discrimination being but two examples. Thus, those complaints may be made on an anonymous basis. Obviously, disciplinary action cannot be taken on the basis of anonymous information, but if the names of possible witnesses are given, the public interest may require that the ICRC take active steps to inquire of those witnesses to see if there is any support for the allegations. This is especially true in a situation such as this one, where a number of possible witnesses were regulated health care professionals who have an obligation to co-operate with an investigator from their professional body. Otherwise, a member whose actions are potentially causing great damage to the public interest may be allowed to continue to do so until a complainant who is prepared to go on the record to the College comes forward.

[71] This is not to say that the ICRC will always have an obligation to contact witnesses. As the Respondents point out, it has considerable discretion as to how it conducts its investigations. There may be certain situations where it is clear that the allegations have no foundation or could never succeed, even if the witnesses were contacted. It is obvious that in this case, the ICRC erroneously took this view in respect of the gender discrimination complaint. In its opinion, it had no jurisdiction over that complaint. The HPARB, for different reasons, took the same view about both aspects of the complaint when it made the following statement:

33. While the Applicant submitted that the Committee should have interviewed the witnesses provided by him, the Board finds that it is unlikely that any information provided by those witnesses would have changed the outcome of the Committee decision as the Committee had relevant information through the Southlake report and the Assessor’s report to consider the Applicant’s concerns.

[72] Thus, the HPARB concluded that the concerns expressed in the complaint were fully answered by the other documents the ICRC reviewed – the Southlake report and the Assessor’s report.

[73] The portion of the Southlake Report that was highlighted by the HPARB was the portion where the position was taken that Dr. Duic does not hire physicians and does not assign trainees. First, it is important to note that the report was prepared by an administrator at Southlake, who well may have some ultimate legal liability for Dr. Duic’s behaviour. Second, the Southlake Report says nothing about the hostile environment aspect of the complaint. Third, it did not and could not deal with Dr. Duic’s conduct at St. Joseph’s Hospital. Fourth, on its face, the Southlake Report suggestion that Dr. Duic had no role to play in hiring contradicts Dr. Duic’s own response to the ICRC where he commented that he took pride in his “hiring” role in creating a diverse workforce at the emergency department he worked for. Fifth, the Southlake Report conclusion that there was no substance to the allegations against Dr. Duic purports to be based in part on the objective evidence it reviewed. That evidence was provided to the ICRC. It demonstrated that as a result of Dr. Duic’s tenure as emergency chief at Southlake, there were no women in a department of 30, no women had been hired over a considerable number of years, and Dr. Duic supervised almost all men. Southlake’s explanation was that it was satisfied, after talking to Dr. Duic, that this was not because of discriminatory practices.

[74] In the face of evidence about how much of an outlier Southlake was when it came to the presence and role of women in its emergency department, was it reasonable to accept Dr. Duic’s explanation that this was not by design without inquiring further? To answer “yes” to this question raises a real concern about the treatment of systemic discrimination complaints. It is not uncommon for the response to these complaints to be – the lack of presence of eg. women, BIPOC individuals, members of the LGBTQ+ community, is due not to systemic discrimination, but to the fact that these people do not apply. Even if this is true, it still requires investigating whether there are systemic discriminatory practices imposed by an individual in power that have contributed to this result

[75] Given the fact that the Southlake Report did not deal with Dr. Duic’s conduct at St. Joseph’s Hospital or with the allegations concerning creating a hostile environment for women, the HPARB’s conclusion that it sufficed to “fully answer” the issues in the complaint was not supported by the evidence and was therefore unreasonable.

[76] The same is true of the Assessor’s Report. It confined itself to a small sample of Dr. Duic’s own behaviour when it came to the improper forms allegation. That sample was taken over a comparatively short time period, which did not include the time Dr. Duic spent at St. Joseph’s Hospital. The Assessor’s Report says nothing about the essence of the complaint, which was that in order to increase the profitability in emergency medicine, Dr. Duic pressured other doctors to fill out forms in circumstances where these forms were not necessary. I do not accept the position that because only the individual physician can “profit” from filling out such a form, it was not necessary to investigate this aspect of this complaint any further. The complaint was not that Dr. Duic was seeking to personally profit from the form practices alleged. Rather, he was seeking to increase the billings of all of the doctors who practiced emergency medicine in his department.

[77] Given the fact that the Assessor’s Report does not deal with a major issue raised in the complaint, the HPARB’s conclusion that it served to “fully answer” the improper billing complaint is also unreasonable.

[78] The HPARB concluded that the ICRC’s investigation was adequate because it was unlikely that if any witnesses were interviewed, this would have changed the outcome of the investigation. This conclusion is also unreasonable. To the extent that the Globe named witnesses gave information about the complaints, it was information that supported the allegations. The only thing the ICRC and the HPARB knew about the 12 witnesses that the Applicant suggested the ICRC interview is that they had direct knowledge about the events in question. It was not known what information they would give. Therefore, there was no rational basis for the HPARB to find that if these witnesses were interviewed, it would not have changed the outcome of the investigation.

[79] The Respondents take the position that the fact that the ICRC did not interview any of the witnesses named in the Globe article did not render its investigation unreasonable. They do so on the basis that while the main elements of the article were discussed in the body of the complaint, the full text of the article was not enclosed with the complaint; it was hyperlinked in a footnote.

[80] In making this submission the Respondents rely on the Divisional Court’s decision in Gunnage. That case dealt with a complaint against a doctor who used a particular form of therapy to treat autism spectrum disorder. The complaint was made by a group who opposed this form of treatment for the disorder. There were no particulars in the complaint and no evidence of any concerns from any of the patients the doctor had treated. The ICRC decided to take no further action with respect to the complaint. On review, the HPARB found that the ICRC investigation was adequate and its decision to take no further action was reasonable. On judicial review, the applicant argued that the ICRC’s investigation was inadequate because it did not adequately investigate whether the use of the therapy in question was harmful to children with autism spectrum disorder. In particular, she pointed to the fact that the ICRC did not consider a Case Study that the doctor had authored and that she had hyperlinked in an email to the ICRC. She also argued that the ICRC did not consider two other hyperlinked references in two reports she submitted. The Divisional Court found that the failure of the ICRC to consider these hyperlinked references did not render its investigation unreasonable. First, the court found that neither of the hyperlinked references raised any concerns about the fact that the doctor in question was harming children. Second, the Court found:

[38] Moreover, if the applicant believed that the some of the sources found in the hyperlink were significant, it was up to her to bring those specific sources to the ICRC’s attention. As a complainant, she had an obligation to clarify her concerns for the ICRC.

[81] Gammage does not stand for the principle that hyperlinked documents need not be considered by the ICRC. It only goes so far as to say that if these documents were not specifically brought to the ICRC’s attention and do not speak to the member’s conduct, an investigation is not rendered inadequate because it did not consider the hyperlinked documents.

[82] In this case the Globe article was specifically brought to the ICRC’s attention and was not only summarized but highlighted in the Applicant’s complaint. It spoke directly to the conduct complained of in the complaint. Thus, the fact that the full article was hyperlinked as opposed to copied and enclosed does not form a reasonable basis for a submission that there was no obligation to call the witnesses named in that article who appeared to have direct knowledge of the issues raised by the complaint.

[83] The Respondents also argued that there was no basis to think that the witnesses who received the April 2013 email from Dr. Duic concerning how MTO forms should be completed had anything relevant to say about the issues in the complaint. According to Dr. Duic in particular, the email said nothing about the complaint that Dr. Duic encouraged other physicians to abuse MTO forms; it just gave them instructions on how they should be submitted.

[84] For ease of reference I will again reproduce the relevant email.

Subject: Faxing MTO forms

Please do NOT ask clerks to fax MTO forms. Please get your billing clerk, your kids or your mother to do it.

Not only will the unit clerks attempt to engage you in a discussion about why you felt an MTO form was warranted, but they will go to Dora/Marlene/Jill and ask why a nursing home patient with flexn contractures [caused by being immobile in bed for weeks] got MTO’d and engage your leadership in a conversation where we’re torn between either defending you and looking ridiculous, or agreeing and thereby making you look bad. To say nothing of the waste of time.

The next guy who is caught asking a clerk or nurse to fax an MTO form, or leaves an MTO form to be faxed on the chart, will attend the next six meetings of the most boring hospital committee!

Fax your own MTOs please!

[85] While not conclusive by any means, the email does raise concerns about whether MTO forms were being abused. In particular, in the email Dr. Duic expresses a concern about not wanting to defend a doctor to the administration who sends in a MTO form for a nursing home patient with “flexn contractures”. In the email he states that defending this practice would make him look “ridiculous”. This would imply that there was no justification for sending in a MTO form for such a patient. However, if this was the case, why isn’t Dr. Duic telling his physicians not to MTO such patients, instead of threatening to send them to the most boring hospital committee meetings if they do not make sure that the administration is not made aware of the form by sending it in without involving hospital staff?

[86] The Respondents argued that suggesting that the ICRC should call the witnesses submitted by the Applicant when the Applicant had no idea what these witnesses would say would be equivalent to saying that conducting an adequate investigation is equivalent to engaging in a “fishing expedition”. I do not agree. A fishing expedition implies that the ICRC has no basis for concern about Dr. Duic, but is seeking to call witnesses to see if they can find information that will give them a basis for concern. That is not the case here. Two very serious complaints have been made about Dr. Duic. The ICRC has information that would appear to support the complaints, including concerning objective statistical evidence. Some of the information has been communicated by people who do not wish to be identified. However, the ICRC has been advised that the witnesses in question have direct knowledge of the conduct alleged and some have explicitly stated that they are willing to share that knowledge with the ICRC.

[87] Given these circumstances, calling the Applicant’s witnesses would not mean that the ICRC was overstepping the boundaries of its mandate, which is to investigate and screen complaints. Rather, to adequately fulfill its mandate and investigate all of the concerns raised in the complaint the ICRC had to make reasonable efforts to find out what the Applicant’s witnesses had to say about these issues. This is not to say that the ICRC had to call every witness or even the majority of those witnesses. As the law makes clear, its investigation is not required to be exhaustive. It just had to do enough to satisfy itself as to whether or not those witnesses had direct information about the allegations and if that information supported the allegations at issue. Further, it was not required to resolve any contradictions in the evidence or any credibility disputes. It was only required to investigate what evidence was available and if that evidence supported recommending that any further action be taken against Dr. Duic.

[88] The ICRC called none of the Applicant’s witnesses. For the reasons already given, in the circumstances of this case, this rendered the HPARB’s conclusion that the ICRC conducted an adequate investigation unreasonable.

Conclusion

[89] Given my conclusion with respect to the adequacy of the investigation, there is no need to deal with the Applicant’s other arguments. The application for judicial review is allowed and the HPARB decision must be set aside.

[90] The question then becomes whether the decision should be sent back to the HPARB for a new review in accordance with these reasons. In Montour v. Health Professions Appeal and Review Board, 2019 ONSC 3451 the Divisional Court set aside a HPARB decision and concluded that it would be pointless to remit the matter back to HPARB for a reconsideration. The inevitable result would be that the ICRC decision would have to be set aside. The same is true in this case.

[91] Therefore, it is ordered that both the HPARB decision and the ICRC decision be quashed. The ICRC is ordered to conduct a new investigation in accordance with these reasons, which require that the ICRC make reasonable efforts to contact witnesses who may have direct knowledge of the issues raised in the complaint. These issues include conduct at both St. Joseph’s Hospital and Southlake Hospital. With respect to gender discrimination, they include a failure to hire or supervise women and the creation of a hostile working environment. With respect to the improper forms complaint, the issue to be investigated is whether Dr. Duic pressured doctors at St. Joseph’s and Southlake emergency departments to fill in Form 1s and MTO forms in circumstances where they were not warranted and that he did so in order to improve the profitability of emergency medicine in those departments.

[92] As the successful party, the Applicant is entitled to his costs. The parties have agreed that no costs are sought against HPARB and that the CPSO is to pay the Applicant $6000.00 by way of partial indemnity costs. The Applicant also seeks costs against Dr. Duic. The parties have not been able to agree on the quantum of those costs. Therefore, the Applicant and Dr. Duic will provide written submissions on the question of costs within 14 days from the date of this endorsement. The Applicant shall provide his submissions within 6 days and Dr. Duic will have 6 days to respond. These submissions shall not exceed three pages in length (including costs outlines). Any reply submission (not to exceed one page) shall be filed within 2 days.

Sachs J.

I agree _______________________________

McWatt ACSCJ

I agree _______________________________

LeMay J.

Released: January 30, 2023

CITATION: Kastner v. Health Professions Appeal and Review Board, 2023 ONSC 629

DIVISIONAL COURT FILE NO.: 972/21

DATE: 2023/1/30

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

McWatt ACSCJ, Sachs and LeMay JJ.

BETWEEN:

DANNY KASTNER

Applicant

– and –

HEALTH PROFESSIONS APPEAL AND REVIEW BOARD, COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO, and MARKO DUIC

Respondents

REASONS FOR JUDGMENT

SACHS J.

Released: January 30, 2023