Court File and Parties

COURT FILE NO.: CV-18-590726 DATE: 2019-09-17

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: FIAZ AFZAL M.D., Plaintiff AND: ROYAL COLLEGE OF PHYSICIANS AND SURGEONS, OTTAWA, Defendant

BEFORE: Sossin J.

COUNSEL: Dr. Fiaz Afzal, for himself Jesse Gardner and Evan Rankin, Counsel for the Defendant

HEARD: August 27, 2019

REASONS FOR JUDGMENT

OVERVIEW

[1] The plaintiff, Fiaz Afzal M.D. ("Dr. Afzal"), and the defendant, Royal College of Physicians and Surgeons of Canada (named incorrectly in the style of cause Royal College of Physicians and Surgeons, Ottawa) (the "College" or "RCPSC") each bring a motion for summary judgment in this matter under Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the "Rules of Civil Procedure").

[2] RCPSC also moves, in the alternative, to strike the pleading under Rules 21 and 25 of the Rules of Civil Procedure as disclosing no cause of action.

[3] Dr. Afzal is a physician whose residency training was in the United States, and who is seeking to practice in Canada.

[4] The RCPSC is the national professional association responsible for medical education of specialists in Canada. It accredits university programs that train resident physicians, sets exams which residents must pass to be certified as specialists in Canada and determines eligibility to sit those exams based on a physicians prior education and training.

[5] The College establishes routes to certifications for specialists who complete their postgraduate residency training in a Canadian program or a program accredited by the Accreditation Council for Graduate Medical Education ("ACGME") in the U.S. ACGME applicants are required to apply for an assessment by the RCPSC in order to be granted eligibility to take a specialist examination.

[6] The underlying claim of Dr. Afzal concerns his application to the RCPSC in 2015 for assessment of his education and training to determine if he is eligible to write the internal medicine national exam. The requirement set out by the RCPSC in its "Specialty Training Requirements for Internal Medicine" (2015; Version 2.0) is that a physician must have four years of residency experience in the field of internal medicine, including one year of a senior residency in the field.

[7] The RCPSC assessment involved verifying the information Dr. Afzal provided in his application. Based on its assessment and in light of this verification process, the RCPSC concluded that Dr. Afzal had completed residency training in internal medicine at the Jersey Shore Medical Centre from July 1, 1993 to June 30, 1993 and at the Flushing Hospital Medical Centre from July 1, 1994 to June 30, 1996, for a total of three years.

[8] Based on this assessment, the RCPSC concluded that Dr. Afzal did not meet the eligibility standard to sit the national examination in internal medicine. He was missing a fourth year of residency and had not completed the required one year as a senior resident in the field.

[9] The College set out this view in its ruling letter of January 10, 2017, in which Dr. Afzal was informed that in order to be eligible to sit the national examination in internal medicine, he must complete "12 months of approved senior training in order to fulfil Section B of the specialty training requirements. This training must be taken in a Royal College approved residency program." (Emphasis in original)

[10] Rather than initiating a process to review this decision, or completing an additional year of advanced training, Dr. Afzal commenced this civil action against the RCPSC, dated January 24, 2018, seeking compensatory and punitive damages on the basis that the College discriminated against him.

[11] Counsel for the RCPSC provided Dr. Afzal, who is self-represented, with a letter outlining deficiencies in the claim as originally issued, dated February 28, 2018. In light of that information, Dr. Afzal issued an amended claim, dated March 5, 2018. In that amended statement of claim, Dr. Afzal alleges that:

Royal College of Physicians and Surgeons is Refusing to accept more than four years of plaintiff's training in the United States as meeting the specialty requirement in Internal Medicine in Canada, which has been verified by the appropriate Hospitals through court case in New York Federal Court. This refusal is illegal, discriminatory, malicious based on plaintiff's religion, Exhibit Q-3 plaintiff's previous conviction which have been legally dismissed, Expunged/Pardoned by state court in Louisiana Exhibit F-6. This refusal of Royal College amounts to Discriminatory practices prohibited under Canada Human Rights Act R.S.C. 1985.

[12] RCPSC now brings this motion to strike Dr. Afzal's claim and for summary judgment. Given the significance of the record, and the possibility that deficiencies in pleadings could be cured with further amendments to the claim, I believe it to be more appropriate to consider the motion for summary judgment, rather than the motion to strike part or all of the claim.

[13] For the reasons set out below, I find the College is entitled to summary judgment.

ANALYSIS

[14] Rule 20.01 of the Rules of Civil Procedure provides:

20.01 (1) A plaintiff may, after the defendant has delivered a statement of defence or served a notice of motion, move with supporting affidavit material or other evidence for summary judgment on all or part of the claim in the statement of claim. R.R.O. 1990, Reg. 194, r. 20.01 (1).

(2) The plaintiff may move, without notice, for leave to serve a notice of motion for summary judgment together with the statement of claim, and leave may be given where special urgency is shown, subject to such directions as are just. R.R.O. 1990, Reg. 194, r. 20.01 (2).

To Defendant

(3) A defendant may, after delivering a statement of defence, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in the statement of claim. R.R.O. 1990, Reg. 194, r. 20.01 (3).

[15] On a motion for summary judgment, the Court must determine if there is a genuine issue for trial. In Hryniak v. Mauldin, 2014 SCC 7, the Supreme Court set out the test to be applied on a summary judgment motion (at paras. 49-50):

49. There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

50. These principles are interconnected and all speak to whether summary judgment will provide a fair and just adjudication. When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.

[16] Dr. Afzal takes issue with the substantive decision of the RCPSC in denying his application, and specifically with the calculation of his various years of training in his residency in New York and New Jersey. His evidence relates to the underlying documentation of these years of training.

[17] There appears to be some discrepancies in the documentation with respect to whether Dr. Afzal in fact completed three or four years of training. The RCPSC relies on documentation and corroborating evidence in the record or their conclusion that he has completed only three years of residency within the internal medicine field, and the additional period of his training was outside this field. Dr. Afzal, for example, contends that a year of residency spent at a hospital was a combined program in pediatrics and internal medicine. The College, however, states that it does not recognize combined programs of this kind.

[18] Moreover, even if this discrepancy were resolved in Dr. Afzal's favour, however, there remains the issue of the missing a year of advanced training as a senior resident within the specific meaning given to this term by the College. Dr. Afzal argues that a year spent on a research fellowship with a limited permit to practice at Flushing Hospital meets the College's standard of a year of advanced training. The RCPSC determined, however, that this training did not meet the requirement for eligibility to sit the internal medicine exam.

[19] As set out above, a dispute on the merits of Dr. Afzal's eligibility pursuant to the College's requirements is not a basis for a civil action. It is not the role of the Court on a civil action to collaterally attack the RCPSC's exercise of discretion within its area of expertise.

[20] In order for Dr. Afzal to avoid summary judgment, he needs to demonstrate that there is a genuine issue for trial on a question of civil liability, based on the allegations in his claim.

[21] Dr. Afzal has not raised evidence of a duty owed by the RCPSC to him that has been breached. While his amended statement of claim alleges that the College discriminated against him on the basis of his religion, the Ontario Court of Appeal has affirmed in King v. Ryerson University, 2015 ONCA 648 that remedies for discrimination must be sought through the applicable human rights legislation and administrative process.

[22] In his submissions, Dr. Afzal appeared to withdraw the allegation of discrimination on religious grounds. Nowhere in the record does Dr. Afzal communicate his religion to the College nor is there any basis on which the College would otherwise have this information. In any event, there is no evidence that the RCPSC acted a discriminatory way based on religious affiliations of any kind.

[23] Further, during oral submissions, Dr. Afzal alleged that the RCPSC discriminated against him on the basis of certain litigation that took place in Louisiana in the United States. Again, there is no indication in the record that the College's actions were influenced in any way by this litigation, or any other fact not rooted in the substantive record of Dr. Afzal's medical qualifications and training.

[24] Finally, Dr. Afzal submits that the College was negligent in its handling of his application. Dr. Afzal has not provided evidence that any legal duty was breached by the College, nor does his amended claim plead the required elements of negligence. At its highest, Dr. Afzal's evidence attempts to demonstrate that, based on its own standards, the RCPSC should have found him eligible to sit the internal medicine exam. This evidence may have been relevant for a reconsideration or judicial review of the College's decision, but it does not support a finding of negligence.

[25] Dr. Afzal also has not established any harm or damages flowing from the RCPC's actions. He claims that the RCPSC is responsible for preventing him from pursuing his medical career in Canada. The RCPSC determined his eligibility with respect to education and training requirements for certain medical examinations.

[26] The RCPSC does not regulate the licensing of physicians, however, which in Ontario is under the authority of the College of Physicians and Surgeons of Ontario ("CPSO"). Further, in this case, the RCPSC did not determine that Dr. Afzal could not pursue his chosen medical career; rather, the RCPSC set out the additional training that would be required for him to do so. It will be up to the CPSO to determine whether Dr. Afzal has met the requirements for licensure to practice in Ontario.

[27] The bulk of Dr. Afzal's allegations in the amended statement of claim relate to allegations that certain documents were not provided to the RCPSC by the Flushing Hospital or that the RCPSC did not accept certain documents that were provided. These documentary issues are not genuine issues for trial.

[28] Dr. Afzal argues there are genuine issues for trial involving a number of irregularities in the treatment of his file. For example, he submits that the ruling letter of January, 2017, which should have been sent on the College's letterhead, was not. Dr. Afzal submits that the College misapprehended the residency program at the Flushing Hospital in light of his particular circumstances, including the settlement of litigation against the hospital, and that additional inquiries would show that he indeed meets the College's standard of eligibility to sit the internal medicine exam. Finally, he argues that the affidavit evidence of the College's representative demonstrates a lack of understanding for the U.S. training and residency context.

[29] These issues do not require a trial to resolve. They reflect Dr. Afzal's dissatisfaction with the College process and its outcome, but do not form the basis for a successful civil action against the RCPSC.

[30] In a summary judgment motion, the parties are required to put their "best foot forward." As Justice Carole Brown stated in Tropper v. RBC Life Insurance Company, 2013 ONSC 2135, at paras. 12-13:

[12] In order to defeat a motion for summary judgment, the responding party must put forward some evidence to show that there is a genuine issue requiring a trial. A responding party may not rest on mere allegations or denials of the party's pleadings, but must set out, in affidavit material or other evidence, specific facts showing there is a genuine issue requiring a trial. The court may, where appropriate, draw an adverse inference from the failure of a party to provide the evidence of any person having personal knowledge of contested facts. The motion judge is entitled to assume that the record contains all the evidence that would be introduced at trial. It is not sufficient for the responding party to say that more or better evidence will or might be available at trial. The responding party to a summary judgment motion must "lead trump or risk losing".

[13] A summary judgment motion cannot be defeated by vague references as to what may be adduced in the future, if the matter is allowed to proceed to trial. Such a proposition would undermine the rationale of Rule 20. The motion must be judged on the basis of the pleadings and materials actually before the judge, and not on suppositions about what might be pleaded or proven in the future. The requirement that the parties put their "best foot forward" goes together with the requirement that the motion judge "take a hard look at the merits of the action at this preliminary stage" to determine whether the moving party has succeeded in establishing that there is no genuine issue requiring a trial.

[31] Based on Dr Afzal's "best foot forward", the record simply does not support any legal breach on the part of the College, or damages caused by the College and suffered by Dr. Afzal.

[32] For the reasons set out above, I find that there is no genuine issue for trial. The motion by the RCPSC for summary judgment is granted and the motion by Dr. Afzal for summary judgment is dismissed. Consequently, Dr. Afzal's action against the College is dismissed.

COSTS

[33] The RCPSC seeks its costs on a substantial indemnity basis from Dr. Afzal. Given that Dr. Afzal has conducted his own case, and in light of the procedural and substantive complexity involved in this matter, however, I find costs on a partial indemnity scale to be appropriate.

[34] I award costs of $18,500.00, all inclusive, in favor of the College, to be paid by Dr. Afzal within 30 days of this judgment.

Sossin J.

Date: September 17, 2019