A physician (“Dr. Young”) successfully appealed both the decision of the Disciplinary Hearing Committee (the “Committee”) of the College of Physicians and Surgeons of Saskatchewan (the “College”) in which he was found guilty of unbecoming, improper, unprofessional or discreditable conduct and the associated penalty

Administrative law – Physicians and surgeons – Disciplinary proceedings – Professional misconduct or conduct unbecoming – Evidence – Reliability – Witnesses – Judicial review – Standard of review – Reasonableness simpliciter

Young v. College of Physicians and Surgeons of Saskatchewan, [2004] S.J. No. 21, Saskatchewan Court of Queen’s Bench, January 13, 2004, Koch J.

Dr. Young was charged with having telephoned another physician, Dr. Holly Wells, and in the course of that conversation attempting to elicit patient specific information relating to the practice of Dr. Dawood Moola when he was practising in Prince Albert. The College framed this as an attempt by Dr. Young to encourage Dr. Wells to breach patient confidentiality. Dr. Young was also charged with making threatening statements during that conversation, or statements that could have been understood by Dr. Wells to be threatening to Dr. Moola.

The Committee found Dr. Young not guilty of encouraging Dr. Wells to breach patient confidentiality, but guilty of the charge regarding threatening statements.

When Dr. Moola was the acting chief of staff of the Swift Current Health District, he had chaired a Medical Advisory Committee which passed a resolution calling for an external review by the College of Dr. Young’s utilisation rates of certain diagnostic services. Dr. Moola also personally requested that the College initiate proceedings for a competency investigation of Dr. Young.

The College eventually received further information on behalf of Dr. Young and rescinded its initial decision to proceed with that investigation. However, before this happened Dr. Young, who was distressed by his situation, telephoned Dr. Wells to ask her if she had experienced any difficulties with Dr. Moola while he was practising in Prince Albert. Dr. Wells gave evidence that during this conversation, Dr. Young told her that he had to shut Dr. Moola up even if it meant “blowing him away”. Dr. Wells was distressed by this and reported the matter to the College. Dr. Young categorically denied making the statements attributed to him by Dr. Wells.

The Court considered whether the Committee had failed to adequately consider the reliability of the testimony of Dr. Wells as distinct from her credibility as a witness.

The Court noted that the Pushpanathan analysis should be used to determine the appropriate standard of review, but did not proceed in detail because both counsel conceded that the proper standard of review on these facts was reasonableness simpliciter, following the reasoning in Dr. Q. v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19.

The Court accepted that Dr. Wells’s testimony was credible, as had been found by the Committee, and that Dr. Young’s denial had been rejected in that regard. However, the Court went on to say:

What remains for consideration is the application of the standard of proof to the facts as found to determine whether the alleged impropriety was proven. It is in this third step that the Committee in my view fell into error and failed to arrive at a reasonable decision. In fairness to the Committee, it had to deal with a charge which was awkwardly expressed. The essence of the charge is the uttering of a threat. That concept has significance both in criminal law and in civil law. It is a legal concept, not merely a dictionary word. In framing the charge, more attention to the legal significance of the words used might have been well advised. In particular the charge addresses the subjective perception of Dr. Holly Wells. That concept is unknown in law. Both in civil and criminal law, it is necessary to apply an objective standard, that is the perception of the hypothetical person. (para. 23)

The Court held that the Committee should have considered whether Dr. Young intended to intimidate Dr. Moola by his utterances and whether he specifically intended that his words would be taken seriously. Further, it was not essential to prove that a threat was conveyed directly or indirectly to the intended victim. It would be sufficient that the speaker intended to intimidate or instill fear.

The Court quashed the finding of guilt by the Committee and set aside the penalty and award of costs imposed by the College. The Court declined to direct a new hearing or further inquiry by the Committee.

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