Li v. College of Physicians and Surgeons of Ontario,  O.J. No. 1828, Ontario Superior Court of Justice, April 30, 2004, MacFarland J.
In December of 2002, the Committee found that Dr. Li had committed acts of professional misconduct involving the improper performance of breast examinations. The penalty imposed was immediate revocation of Dr. Li’s license to practice medicine. The finding of misconduct followed a criminal conviction on one count of sexual assault in 2001.
Dr. Li appealed the finding of the Committee to the Court. Section 37 of the Health Professions Procedure Code, Schedule 2 to the Regulated Health Professions Act (1991), S.O. 1991, c.18 contains a condition that an order of the Committee takes effect immediately despite any appeal.
The Court held that Dr. Li’s stay application ought to be considered using the test from RJR-MacDonald Inc. v. Canada (Attorney General),  1 S.C.R. 311: The onus is on the applicant to establish that there is a serious issue to be tried, that he will suffer irreparable harm if the Order is not granted, and that the balance of convenience favours him.
The College conceded that Dr. Li’s case involved a serious issue to be tried. Counsel for Dr. Li relied heavily on an allegation of a reasonable apprehension of bias on the part of Dr. Chart, an expert and factual witness who was appointed a member of the Discipline Committee before the finding of misconduct and penalty was made in December of 2002, by a group including one or more members of the panel who dealt with Dr. Li’s case. This ground of appeal was being raised on an application to receive fresh evidence which had yet to be determined. The Court noted this allegation of reasonable apprehension of bias but did not provide any detailed comment on it.
The Court held that Dr. Li failed to satisfy the onus upon him to demonstrate irreparable harm which would occur to him, on a balance of probabilities. An affidavit from counsel was held to be insufficient in that it only attested to financial harm, and did not come from Dr. Li himself. The Court would not speculate on the nature of the irreparable harm. The Court held that more than financial harm must be proven in order to succeed on this issue.
The balance of convenience was held to favour the College. Dr. Li’s apparent failure to completely comply with earlier College requirements that he take re-training in the breast examination and then implement the new procedure, rather than the procedure he favoured, weighed heavily in the determination against him.
Dr. Li’s motion for a stay was denied.
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