The College of Physicians and Surgeons of Ontario (the “College”) appealed the decision of the Divisional Court, quashing a newly Amended Notice of Hearing on the basis that the Registrar for the College had proffered the Amended Notice of Hearing in the middle of a disciplinary hearing in the absence of statutory authority to do so. The appeal was dismissed and the decision of the Divisional Court upheld. The issue raised on appeal was whether the Registrar of the College had the jurisdiction to refer new allegations of professional misconduct and incompetence of a member of the College to the Discipline Committee after a discipline hearing had already commenced against that member.

Administrative law – Physicians and surgeons – Disciplinary proceedings – Fairness – Statutory provisions – Judicial review – Procedural requirements – Amendment of notice of hearing – Jurisdiction

Henderson v. College of Physicians and Surgeons of Ontario, [2003] O.J. No. 2213, Ontario Court of Appeal, June 5, 2003, Weiler, Rosenberg and Armstrong, JJ.A.

Allegations of professional misconduct were made by a Ms. S against Dr. Henderson and these were referred to the Complaints Committee of the College. Ms. S was a former patient of Dr. Henderson who alleged that Dr. Henderson had begun a sexual relationship with her while he was her doctor.

Part way through the hearing, the interim Registrar of the College signed a newly Amended Notice of Hearing including new allegations against Dr. Henderson by a Ms. H, that had not formed part of the original complaint.

Counsel for Dr. Henderson challenged the Committee’s jurisdiction to proceed with the newly Amended Notice of Hearing, and the Discipline Committee decided to proceed. The Discipline Committee then adjourned the proceedings to permit counsel for Dr. Henderson to renew his application for judicial review. The Divisional Court quashed the newly Amended Notice of Hearing.

The College took the position on the appeal that the interim Registrar did not require express statutory authority to execute an amended Notice of Hearing after a hearing had started. The College tried to argue that the Registrar’s action was purely administrative or clerical in nature and that it was therefore covered by section 40 of the Health Professions Procedural Code (the “Code”), Schedule 2 of the Regulated Health Professions Act, S.O. 1991, c.18 which allowed for such administrative changes.

The Court of Appeal rejected this argument, preferring the argument of Dr. Henderson that the amendment of the existing Notice of Hearing was really a joinder of the allegations of Ms. H with those of Ms. S, and involved much more than a simple amendment.

The College had failed to follow the procedure set out in the Code, under which the Chair of the Discipline Committee should have selected a panel to hold a hearing into the new allegations involving Ms. S. The Court of Appeal stated:

…professional legislation should be strictly complied with and strictly construed by the courts. … The underlying policy of the approach of strict construction of professional discipline statutes is based on the theory that the consequences for a person who is subject to the discipline process of his or her professional body carry potentially grave consequences, including the loss of one’s livelihood. The ultimate penalty of disbarment or erasure is often referred to as a professional death penalty. Given such consequences, the accused is entitled to have his or her professional regulator strictly adhere to the express provisions of its legislative mandate.

The Court of Appeal also held that where the good character, propriety of conduct or competence of a party is in issue in a proceeding, that party should be entitled to be furnished with reasonable information of any allegations with respect thereto, prior to the hearing.

The Court of Appeal stated further:

This is as it should be. In balancing the interests of the College in prosecuting and punishing acts of professional misconduct and the interest of a physician to a fair hearing when his or her professional life is at stake, the scale must tip in favour of the physician.

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