With one exception, the decision of the Discipline Committee of the College of Physicians and Surgeons of Ontario (the “Committee”) to disclose confidential third party records pertaining to various complainants was confirmed

Administrative law – Physicians and surgeons – Disciplinary proceedings – Decisions of administrative tribunals – College of Physicians and Surgeons – Judicial review – Disclosure of third party records – Relevance of information disclosed – Evidence – Standard of review – Reasonableness simpliciter

College of Physicians and Surgeons of Ontario v. Au, [2005] O.J. No. 234, Ontario Superior Court of Justice, January 26, 2005, J.D. Carnwath, P.G. Jarvis and K.E. Swinton JJ.

The Respondent, Dr. A., was the subject of discipline proceedings brought by the College of Physicians and Surgeons of Ontario (the “College”). The Discipline Committee of the College was hearing allegations of sexual abuse by 19 complainants during the course of their doctor/patient relationship with Dr. A. between 1975 and 2002. Dr. A. moved for disclosure of confidential third party records relating to 10 of the 19 complainants. The Committee ordered disclosure of certain records, purporting to apply the criminal law standards to the issues before it.

The court held that the standard of review of the Committee’s decision was one of reasonableness. The application of a standard of reasonableness involved asking whether the reasons given, when taken as a whole, could support the decision after a somewhat probing examination.

The Committee had considered the application in two stages. The Committee concluded that the dual requirements of a) likely relevance, and b) that the production “be necessary in the interest of justice” applied to the stage one determination as to whether records should be produced to the Committee for its review. The Committee then proceeded to consider the individual cases. It decided to review the records it had ordered produced and determine whether any of the records should be produced to the parties as well as any conditions or limitations that might be attached to such production. The Committee considered the following factors:

a) the seriousness of the allegations and the right of Dr. A. to make a full answer and defence;

b) the privacy and equality rights of the complainants;

c) the nature and substance of the records;

d) the need to have sufficient context to understand the records;

e) the extent to which Dr. A. and the allegations against him were noted in the records; and

f) the ability to assess the credibility of the complainants.

The court held that the Committee did not err in choosing to have regard to the principles set out in the criminal law authorities. Given the importance of the privacy interests of the complainants and the potential consequences for Dr. A., regard to these principles was reasonable. The court noted that the Committee instructed itself that there must be some basis for concluding that the statements had some potential to provide the defence with some added information not already available to it, or have some potential impeachment value.

The Committee correctly noted the dual requirements of “likely relevance” and that the production “be necessary in the interests of justice” as applying to both the first and second stages of the determination. The Committee correctly noted that the degree of intrusion on the complainants’ rights was clearly greater where the records were produced to Dr. A. and thereafter might become evidence or form the basis for questions at the hearing. The Committee found this to be a relevant consideration. In all the circumstances, except one, the court found the Committee’s decision reasonable. In the result, the decision of the Committee to disclose the third party records of the Complainants was confirmed.

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