A family physician (“Dr. Au”) was unsuccessful in quashing an Amended Notice of Hearing regarding allegations of inappropriate touching. He alleged that new members of the Discipline Committee who would hear those allegations were tainted by their exposure to previous members of the Discipline Committee who were also members of the Patient Relations Committee (“PRC”) in respect of the same complainants.

Administrative law – Decisions of administrative tribunals – College of Physicians and Surgeons – Disciplinary proceedings – Professional misconduct or conduct unbecoming – Judicial review – Bias – Jurisdiction

College of Physicians and Surgeons of Ontario v. Au, [2006] O.J. No. 1994, Ontario Superior Court of Justice – Divisional Court, May 1, 2006, R.T.P. Gravely, J.M. Wilson and K.E. Swinton JJ.

Dr. Au was charged with inappropriate touching and the matter was referred to the Discipline Committee for a hearing. A panel of the Discipline Committee was selected to hear the matter and shortly before that hearing was to resume in April 2005, the College disclosed that while the applicant’s discipline hearing was pending, three of the complainants had applied to the PRC of the College for funding for therapy on the basis that Dr. Au had sexually abused them.

At the time of the therapy funding applications, five of the seven members of the PRC were also members of the Discipline Committee. The Chair of the Discipline Panel that was to preside over Dr. Au’s hearing was also a member of the PRC and was part of the panel of the PRC that granted one complainant’s application for funding in March 2003.

In April 2005, the College did not oppose Dr. Au’s motion to disqualify that Discipline Panel on the basis of an apprehension of bias which resulted in a loss of jurisdiction. Dr. Au brought an application for judicial review when a new panel was not selected for more than one year following the disqualification.

Dr. Au’s argument was that the new members of the Discipline Panel who were to be chosen from the Discipline Committee would be tainted by their contact with previous members of the Discipline Panel who had also been sitting in the PRC hearings to consider funding to the complainants. Dr. Au framed this as a reasonable apprehension of institutional bias. He argued that there could be no untainted panel of the Discipline Committee constituted to determine his case.

The test for determining whether there is a reasonable apprehension of bias is whether an informed person, having regard to all of the circumstances and viewing the matter realistically and practically, would find a reasonable apprehension of bias on the part of the administrative body.

The court considered the case of Ringrose v. College of Physicians and Surgeons of the Province of Alberta, [1977] 1 S.C.R. 814. In that case, there was an allegation of a reasonable apprehension of bias because a member of the Discipline Committee was also a member of the Executive Committee of the College. Two members of that Executive had imposed an interim suspension on Dr. Ringrose pending the investigation. The Supreme Court of Canada held that the overlapping membership on two committees was not alone sufficient to give rise to a reasonable apprehension of bias. In particular, the Member of the Executive in question had not participated in the decision by the Executive to suspend the member. The court held that even if he had participated in that decision, that alone would not constitute a pre-judgment of the issues in the discipline matter.

The court dismissed Dr. Ringrose’s appeal on the basis that the governing statute prescribed overlapping functions between the two committees, and therefore there could be no reasonable apprehension of bias.

Dr. Au argued that there were not overlapping functions between the PRC and the Discipline Committee.

The court held that the PRC and the Discipline Committee had different purposes and functioned differently. Further, there was a statutory requirement that the PRC could award funding before a finding of professional misconduct had been made against a member providing that there was sufficient evidence to support a “reasonable belief” that sexual abuse had occurred while that person was a patient. This standard was held to be a different standard than the question to be asked on determining whether the member had committed sexual abuse. There were also administrative and statutory provisions to ensure that there was no communication between the PRC and the Discipline Committee about a particular case. A statutory section provided that a funding decision of the PRC would not constitute a finding against the member. The court also noted that the members of a new panel of the Discipline Committee must be presumed to act fairly and impartially unless there was evidence to the contrary. The mere exposure of new Discipline Committee members to those who were on the original panel would not taint the new panel that would be selected for the applicant’s hearing. There was no evidence of any particular relationship between the former members of the panel and the potential new members of the Discipline Panel. In the result, the court held that there was no reasonable apprehension of institutional bias because of the possible exposure of new members of the Discipline Committee to members of the original panel or those who had sat on the PRC in respect of the complainant’s applications for funding. The College was permitted to proceed with the selection of a new Discipline Panel to hear the allegations against Dr. Au.

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