A physician’s appeal of a decision of the Discipline Committee of the College of Physicians and Surgeons of Ontario (the “College”) was dismissed where the court found that the Committee’s decision was reasonable and supported by evidence and reasons which stood up to a probing examination

27. December 2005 0

Administrative law – Physicians and Surgeons – Disciplinary proceedings – Professional misconduct – Penalties – Decisions of administrative tribunals – College of Physicians and Surgeons – Judicial review – Standard of review – Reasonableness simpliciter

Dr. R.A.R. v. College of Physicians and Surgeons of Ontario, [2005] O.J. No. 4219, Ontario Superior Court of Justice, September 14, 2005, J.G.J. O’Driscoll, P.G. Jarvis and W.L. Whalen J.J.

On February 7, 2001, the College served on Dr. Rosenberg a Notice of Hearing alleging that he committed acts of professional misconduct including engaging in sexual impropriety with a patient. The allegations were heard by the Discipline Committee of the College in February 2002 and February 2003. The Discipline Committee found that Dr. Rosenberg had committed professional misconduct with respect to all allegations set out in the Notice of Hearing and concluded that the appropriate penalty in the case was revocation of Dr. Rosenberg’s Certificate of Registration and a reprimand. Dr. Rosenberg appealed the decision of the Committee under s. 70(1) of the Health Professions Procedural Code (Schedule 2 of the Regulated Health Professions Act (1991), S.O. 1991, C. 18 [the “RHPA”]), which provided that an appeal from the decision of a panel be made to the Divisional Court on questions of law or fact or both.

In determining the appropriate standard of review, the court noted that the statutory right of appeal given in s. 70 includes questions of law or fact or both and that the RHPA did not contain a privative clause to screen the Discipline Committee from court scrutiny. However, the court also noted that the Supreme Court of Canada had determined that disciplinary bodies of self-governing professions should be awarded a large degree of autonomy and their decisions should not be interfered with “unless judicial intervention is clearly warranted”, citing Pearlman v. Manitoba Law Society Judicial Committee, [1991] 2 S.C.R. 869. The court noted that recent cases, including the Supreme Court of Canada decision in Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] S.C.J. No. 18, have held that the standard of review is one of reasonableness.

The court found that the Discipline Committee had ample evidence on the critical issues of inquiry in this case including the existence of a doctor/patient relationship between Dr. Rosenberg and the complainant, L.C., and a concurrent sexual relationship between these two people. The court noted that the concurrency of the relationships was a necessary ingredient to meet the definition of “sexual abuse” under the legislation which carried a mandatory penalty of revocation of licence.

The court held that the Discipline Committee’s decision was supported by evidence and reasons which stood up to a probing examination and that the decision under review was reasonable. In the result, the appeal was dismissed.

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