Court File and Parties

Citation: Fraser v. Damji, 2023 ONSC 716 Divisional Court File No.: 514/20 & 517/20 Date: 2023-01-31

Ontario Superior Court of Justice Divisional Court Matheson, Akbarali and Nishikawa JJ.

Between:

Joseph Fraser Applicant

– and –

Ali Nazim Damji, M.D., Health Professions Appeal and Review Board and The College of Physicians and Surgeons of Ontario Respondents

-and between-

Joseph Fraser Applicant

• and-

Kerrie Anne Shaw M.D., Health Professions Appeal and Review Board and The College of Physicians and Surgeons of Ontario Respondents

Counsel: Joseph Fraser, in person Sara. M. Kushner and Erin Chesney, for the Respondents, Ali Nazim Damji, M.D. and Kerrie Anne Shaw, M.D. Emily Graham for the Respondent, College of Physicians and Surgeons of Ontario David Jacobs for the Health Professions Appeal and Review Board

Heard at Toronto: November 3, 2022 (by videoconference)

REASONS FOR DECISION

Nishikawa J.

Overview

[1] The Applicant, Joseph Fraser, brings two applications for judicial review challenging two decisions of the Health Professions Appeal and Review Board (HPARB) dated October 8, 2020 (the “Decisions”). In the Decisions, the HPARB confirmed the reasonableness of the decisions of the Inquiries, Complaints, and Reports Committee (ICRC) of the College of Physicians and Surgeons of Ontario (the “College”) to take no further action regarding the Applicant’s complaints against two physicians, the Respondents, Dr. Ali Nazim Damji and Dr. Kerrie Anne Shaw.

Preliminary Issue

[2] Shortly before the hearing, the Applicant sought to adjourn the hearing until after the release of decisions on two complaints that he made to the Information and Privacy Commissioner (IPC). At the hearing of the applications, the panel denied the Applicant’s adjournment request with reasons to follow.

[3] Under the circumstances, we were not persuaded to grant an adjournment. The applications for judicial review are based on the record before the HPARB. The IPC decisions, which had not been rendered at the time of the hearing, do not form part of the record before the HPARB. The IPC decisions are irrelevant to the issues before the court in that they do not relate to the Respondents in this case. In addition, the Applicant has not satisfied one of the narrow exceptions for the admissibility of new evidence on an application for judicial review. See: Sierra Club Canada v. Ontario (Ministry of Natural Resources and Ministry of Transportation, 2011 ONSC 4086 (Div. Ct.), at paras. 13-15.

[4] The applications for judicial review have been case managed since 2020. When the hearing was scheduled in February 2022, the Applicant did not mention the need to obtain the IPC decisions before the hearing. The issue was not raised until shortly before the hearing date. Accordingly, the Applicant failed to satisfy the panel that an adjournment was warranted.

Background

[5] The Applicant was a patient of the Family Medicine Teaching Unit at the Credit Valley Family Health Team (CVFHT) where he was being treated for depression. The Applicant had struck a pedestrian with his vehicle in November 2017, resulting in a fatality. Between February and March 2018, the Applicant was seen by the Respondent, Dr. Damji, on four occasions. At the time, Dr. Damji was a first-year resident in family medicine and was supervised by members of the CVFHT.

[6] On March 28, 2018, the Applicant’s last appointment, the Applicant told Dr. Damji that he was concerned about not seeing people wearing dark clothing when he drove at night. As detailed further in these reasons, the parties dispute what Mr. Fraser told Dr. Damji. In essence, Dr. Damji understood the Applicant to be expressing a concern about his visual acuity. Mr. Fraser states that he was referring to his anxiety about not seeing people. Dr. Damji reviewed the case with the Respondent, Dr. Shaw, who was supervising him and had observed the interaction between Dr. Damji and the Applicant remotely through audio and video facilities. After consultation with Dr. Shaw, Dr. Damji concluded that he had a duty under s. 203 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Highway Traffic Act”), to report the Applicant’s visual impairment to the Ministry of Transportation (MTO).

[7] Dr. Damji advised the Applicant accordingly. Dr. Damji told the Applicant that he would not submit a Medical Condition Report (MCR) to the MTO if the Applicant proceeded immediately to an optometrist for a formal assessment of his night vision. The Applicant declined. Dr. Damji submitted a report to the MTO identifying that the Applicant had a visual acuity impairment.

[8] When the Applicant did not follow-up with CVFHT as planned, Dr. Damji contacted him by phone. Mr. Fraser advised that he did not come in for follow-up because he had relocated to Newmarket and was looking for a new family physician.

[9] As a result of the report to the MTO, on April 10, 2018, MTO notified Mr. Fraser that his driver’s licence was suspended. The letter advised Mr. Fraser that he would need to undergo an individualized assessment of his vision by a health care provider and to submit updated information regarding his visual acuity. The Applicant was eventually able to obtain an assessment through his family physician that resulted in MTO lifting the licence suspension.

The Applicant’s Complaints

[10] On January 9, 2019, Mr. Fraser initiated separate complaints with the College against Dr. Damji and Dr. Shaw alleging multiple grounds against each of them. The Applicant alleged that Dr. Damji submitted the MCR to the MTO without first providing an assessment, diagnosis or treatment plan to him. The Applicant alleged that by concluding that he had a vision impairment without conducting an assessment, Dr. Shaw violated his equality, human and privacy rights, breached her obligations under several statutes, and failed to uphold her ethical and professional obligations.

[11] A CPSO investigator contacted Mr. Fraser. Dr. Damji and Dr. Shaw responded in writing to the concerns he raised.

[12] On April 18, 2019, the ICRC reviewed the record of investigation and decided to take no further action against Dr. Damji and Dr. Shaw.

HPARB’s Decisions

[13] On June 20, 2019, the Applicant requested that the HPARB review the ICRC’s decisions.

[14] Pursuant to s. 33(1) of the Health Professions Procedural Code (the “Code”), Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (“RHPA”), the mandate of the HPARB in a complaint review is to consider either the adequacy of the ICRC’s investigation, the reasonableness of its decision, or both. After a review of an ICRC decision, the HPARB is limited to: (i) confirming all or part of the decision; (ii) making recommendations to the ICRC that it considers appropriate; and/or (iii) requiring the ICRC to do anything that the ICRC may do under the RHPA or the Code: Code, s. 35(1). The HPARB does not have jurisdiction to conduct its own investigation, admit evidence, consider new issues, or make findings of misconduct against a member of the College.

[15] On June 30, 2020, the HPARB considered the record of investigation and the parties’ submissions and confirmed the decisions of the ICRC to take no further action. The HPARB concluded that the ICRC’s investigation was adequate and that the decisions were reasonable. With respect to the complaint against Dr. Damji, the HPARB found that:

• The ICRC reasonably found that the Applicant’s disclosure on March 28, 2018 triggered a mandatory duty to report to the MTO under s. 203 of the Act and that Dr. Damji complied with that duty;
• The ICRC appropriately focused on Dr. Damji’s decision to report the Applicant to MTO, not MTO’s decision to suspend the Applicant’s licence. As a result, the ICRC’s decision was not contrary to British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868 [“Grismer”]; and
• The record did not support many of the Applicant’s allegations against Dr. Damji including, among other things, the prescribing of Wellbutrin, the suggestion of a Form 1 under the Mental Health Act, R.S.O. 1990, c. M.7, and the payment of a fee.

[16] With respect to the complaint against Dr. Shaw, the HPARB found that:

• The ICRC reasonably concluded the Applicant’s disclosure engaged a duty to make a report to the MTO under s. 203 of the Act. There was no requirement to perform an examination prior to making a report;
• Even if Dr. Shaw did not personally interact with the Applicant, her involvement in the decision to make the report was not discriminatory or contrary to Grismer; and
• The ICRC reasonably concluded that the Applicant’s privacy rights were not violated as there was sufficient evidence to assume that there was implied consent.

Issues

[17] This application for judicial review raises the following issues:

(a) What is the applicable standard of review?

(b) Were the HPARB’s decisions confirming the ICRC’s decisions reasonable?

(c) Should this court consider the additional materials submitted by the Applicant?

Analysis

Standard of Review

[18] As agreed by the parties, the standard of review of the HPARB’s decisions is reasonableness. A reasonable decision is “one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker. The reasonableness standard requires that the reviewing court defer to such a decision.”: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 85.

Were the Decisions Reasonable?

[19] The Applicant submits that the Decisions are unreasonable and violate his human rights as the report to the MTO was made on false assumptions about the Applicant’s visual acuity rather than an individual assessment. The Applicant asserts that Dr. Damji misinterpreted the Applicant’s presentation of anxiety as a visual acuity issue; as a result, he failed to provide the appropriate psychological care. He also argues that it was Dr. Damji’s responsibility to perform a proper eye examination and not the Applicant’s responsibility to seek out an optometrist. The Applicant further submits that the HPARB and ICRC failed to properly consider his privacy rights under the Personal Health Information Privacy Act 2004, S.O. 2004, C. 3, Schedule A.

[20] The Respondents, Dr. Damji and Dr. Shaw, submit that the HPARB appropriately reviewed the ICRC’s decisions in light of Grismer. The ICRC reasonably concluded that Dr. Damji provided appropriate care. The Respondents further submit that the HPARB considered and rejected the Applicant’s allegation that his privacy rights were breached based on the ICRC’s determination that it was reasonable for Dr. Shaw to conclude that there was implied consent.

[21] The College submits that the Decisions are reasonable in that they distinguish Grismer on the basis that that decision imposes a requirement on the licensing authority to assess the driver’s ability to meet the requisite standard; it does not impose this requirement on those operating under a duty to make reports to the licensing authority. Further, the College submits that the MTO’s decision to remove the suspension upon receiving the eye examination performed by the Applicant’s family doctor does not undermine the HPARB and ICRC’s decisions.

[22] In my view, the HPARB’s Decisions confirming the ICRC’s determinations to take no further action are reasonable. The ICRC is a specialized, screening body with expertise in medicine and professional standards and is vested with statutory discretion to investigate and screen patient complaints. See: McKee v. Health Professions Appeal and Review Board (Div. Ct.), at para. 30. Subsection 33(1) makes clear that the HPARB, the statutory tribunal that reviews decisions of health regulatory colleges, owes deference to the ICRC’s screening decisions.

[23] Within this framework, the HPARB reviewed the ICRC’s treatment of each of the grounds enumerated by the Applicant. The HPARB considered whether the ICRC’s decisions were based on a coherent and rational chain of analysis that was justified in relation to the relevant facts and applicable laws. The HPARB specifically noted that the ICRC identified the documents it relied on in making its decisions. The HPARB further observed that the ICRC’s determinations fell within its expertise in the standards of the medical profession.

[24] The HPARB considered the parties’ disagreement as to what the Applicant said to Dr. Damji during the March 28, 2018 appointment, and was alert to the Applicant’s submission that he was expressing anxiety and not a visual impairment concern. While neither the ICRC nor the HPARB are required to determine that issue conclusively, the HPARB concluded that the contemporaneous notes supported the ICRC’s determination to take no further action. Moreover, it was appropriate for the Board to defer to the ICRC’s assessment of written medical records in assessing complaints where there are differing recollections as to what was said: Reyhanian v. Ontario (Health Professions Appeal and Review Board), 2013 ONSC 297 (Div. Ct.) at para. 19.

[25] In respect of the applicable law, the HPARB found that while the ICRC did not consider Grismer, it considered the law applicable to Dr. Damji and Dr. Shaw, namely, s. 203 of the Highway Traffic Act. The HPARB reasonably concluded that the ICRC’s focus on the legal obligations applicable to the doctors was appropriate. In any event, Grismer speaks to the duty to accommodate on the licensing authority and not to a medical professional’s duty to report.

[26] In addition, the Applicant’s position that a medical practitioner cannot report a patient unless they fall below national medical standards is not supported by the mandatory language of the s. 203, which requires that the medical practitioner report any patient who, in their opinion, is “suffering from a condition that may make it dangerous for the person to operate a motor vehicle[.]” (Emphasis added.) In this case, the report was not based on an assessment, but on what Mr. Fraser reported. See: Toms v. Foster (ONCA).

[27] While the Applicant argues that Dr. Damji was not a legally qualified medical practitioner, as required under the Highway Traffic Act, at the time of the incident at issue, Dr. Damji was registered with the College. He held a postgraduate education certificate of registration and thus eligible to practice medicine as required by the postgraduate program, in clinical teaching units or settings affiliated with a postgraduate program. Dr. Damji was in such a postgraduate program with the CVFHT.

[28] Certain of the Applicant’s arguments are based on a more recent version of s. 203, which distinguishes between mandatory and discretionary reports and requires mandatory reporting for certain prescribed medical conditions. However, it is the provision that was in force at the time, March 2018, that is relevant to these applications for judicial review.

[29] The HPARB’s rejection of the Applicant’s argument that Dr. Shaw could not make a report to the MTO without examining him was also reasonable. As noted above, the report was made on the basis of what the Applicant had told Dr. Damji, and not based on an examination. The report was also based on the Applicant’s previous accident and the fact that he had not recently had an eye examination. Neither Dr. Damji nor Dr. Shaw suggested that they performed an examination on the Applicant; he was advised to attend an examination with an optometrist.

[30] The HPARB considered the Applicant’s submission that Dr. Damji and Dr. Shaw failed to uphold the values of the profession, including the principles of honesty and integrity and found that the ICRC’s review of the record did not support that Dr. Damji lacked compassion, competence, altruism or trustworthiness. In respect of Dr. Shaw, the ICRC had no concerns with her professionalism or ethics, and found nothing in the file to substantiate such concerns. The HPARB’s conclusion was a reasonable one based on the record and standards.

[31] The HPARB’s remaining findings regarding the care that Dr. Damji provided to the Applicant are reasonable given the absence of support in the record to support the Applicant’s allegations.

Should this Court Consider the Additional Materials Submitted by the Applicant?

[32] The Applicant submitted in his application materials certain documents that were not before the HPARB, including: (i) a copy of the medical chart that he obtained from the clinic; (ii) an extract of OHIP billings pertaining to him; (iii) his notes of the HPARB review; and (iv) a copy of the MTO’s new Medical Condition Report.

[33] As noted above, however, the record on an application for judicial review is limited to the material before the board or tribunal whose decision is being reviewed: Sierra Club, at para. 13. The case law provides the following limited exceptions for the admissibility of additional evidence: (i) general background that might assist the court; (ii) evidence to demonstrate an absence of evidence to support a material finding of fact; or (iii) evidence to show procedural defects that are not apparent from the record or the reasons.

[34] The Applicant has not argued that any of the exceptions for the admissibility of additional fresh evidence apply. He has not raised a procedural defect before the HPARB or an absence of evidence to support a material finding of fact. The additional material, some of which is irrelevant to the issues in the applications, is not background information that would be of assistance to the court. Because none of the exceptions apply, the additional material submitted by Mr. Fraser is not admissible on the applications for judicial review.

[35] In any event, even if the additional materials were admissible evidence on the applications, they would have no impact on the outcome.

Conclusion

[36] For the foregoing reasons, the applications for judicial review are dismissed. At the hearing, counsel for each of the Respondents advised that in the event that the applications were unsuccessful, they would not be seeking costs. No costs are ordered.

“Nishikawa J.”

I agree: “Matheson J.”

I agree: “Akbarali J.”

Released: January 31, 2023