A physician (“Lee”) appealed his conviction by a Panel of the Discipline Committee of the College of Physicians and Surgeons of Ontario on a charge of sexually abusing a patient. The Ontario Divisional Court allowed the appeal and ordered a new hearing on the basis that the Panel denied Lee natural justice and procedural fairness in the hearing by refusing to engage in an O’Connor-type inquiry into the evidence of the complainant’s psychologist, whose clinical records were illegible.

Administrative law – Physicians and surgeons – Disciplinary proceedings – Fairness – Decisions of administrative tribunals – College of Physicians and Surgeons – Evidence – O’Connor motion – Hearing de novo – Judicial review – Procedural requirements – Natural justice – Hearings – Disclosure

Lee v. College of Physicians and Surgeons of Ontario, [2003] O.J. No. 3382, Ontario Superior Court of Justice – Divisional Court, August 26, 2003, Blair, Brockenshire and Somers JJ.

Dr. Lee obtained his MD in 1980 and, since 1986, he worked at a walk-in clinic and was pursuing his interest in psychotherapy, hypnotherapy and stress management. The complainant started seeing Dr. Lee in June of 1994 for grief counselling, stress management and marriage counselling. The basic tenor of her complaint against Dr. Lee was of repeated hugs, caresses, sexual touching and two acts of fellatio in 1995. The court noted that an assessment of the credibility and reliability of the evidence of the complainant was obviously critical at the hearing of this matter.

The complainant first revealed her allegations of sexual abuse to her psychologist, Ms. Yablo during the course of therapy. Defence counsel for Dr. Lee sought production of Ms. Yablo’s notes and records. The records proved to be illegible and Ms. Yablo was not prepared to have them transcribed. Defence counsel brought a preliminary motion before the Discipline Committee seeking an order that Ms. Yablo transcribe her notes. This motion was refused on the basis that the Committee lacked jurisdiction to make such an order. Defence counsel then brought a further motion, returnable at the start of the hearing, for production of Ms. Yablo’s notes and subpoenaed her and her notes and records. This motion was supported by affidavits from a psychiatrist and a psychologist, both of whom swore that Ms. Yablo’s notes would be critical in assessing the questions of the complainant’s memory, reliability and credibility.

The practice of the Discipline Committee in the past had been to apply the Supreme Court of Canada decision of R. v. O’Connor (1996), 103 C.C.C. (3d) 1 to such motions for production. With respect to illegible records, defence counsel suggested that in another case, a judge on an O’Connor motion had subpoenaed physicians to attend at court and, in the absence of everyone except the doctor, the judge and a court reporter, the doctor had been required to read his records aloud while the court reporter made a record. This transcript could then be considered by the judge and released in whole or in part to the defence and the Crown if the O’Connor motion was successful.

In this case, the Panel reserved its decision on the O’Connor motion over lunch and then provided Reasons merely indicating that the Panel had considered the evidence and submissions and found that the motion should be dismissed.

On appeal, the court noted that there was no question that the Panel had jurisdiction to swear in and hear from Ms. Yablo once the hearing had commenced. The court also found that the Panel had been provided with information on an appropriate course of action to deal with the illegible notes. Therefore, it was within the Panel’s jurisdiction to conduct the hearing so that fairness to all parties could be achieved. The court further found that the evidence provided by defence counsel amply satisfied the requirements of the first stage of the O’Connor test (likely relevance). The College had no evidence to tender in opposition to the evidence filed by the defence. The court further found that the Panel decision provided no explanation of how the Panel concluded that they had no jurisdiction to deal with the application. The court held that the decision reached by the Panel was incorrect and, as a result, Lee had been denied natural justice and procedural fairness in the hearing. In the result, the court allowed Lee’s appeal and ordered a new hearing pursuant to section 70(3) of the Health Professions Procedural Code before a differently constituted panel of the Discipline Committee of the College of Physicians and Surgeons of Ontario.

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