Administrative law – Decisions of administrative tribunals – College of Physicians and Surgeons – Physicians and Surgeons – Investigations – Failure to produce records – Statutory provisions – Disciplinary proceedings – Competence – Penalties and suspensions – Public interest – Judicial review – Compliance with legislation – Evidence – Standard of review – Reasonableness simpliciter – Bias
Yazdanfar v. College of Physicians and Surgeons of Ontario,  O.J. No. 2478, Ontario Superior Court of Justice, June 15, 2009, J.M. Wilson, S.N. Lederman and K.E. Swinton JJ.
Yazdanfar was approved by the College to carry out liposuction and breast augmentation surgery as of May 2007. Yazdanfar owned and operated the Toronto Cosmetic Clinic and performed cosmetic surgery in this out-patient facility. Others also performed cosmetic surgery procedures at the facility and she assisted other surgeons. In September 2007, a patient died after Yazdanfar had performed a liposuction procedure. Shortly after surgery, the patient had “crashed” while in the recovery area and there was a delay of approximately one hour and fifteen minutes before steps were taken to transfer the patient to a hospital, where she ultimately died. The patient’s family complained to the College.
In October 2007, the College received a second complaint alleging inadequate post-operative care after liposuction. In August 2008, the College received a third complaint about liposuction procedures performed by Yazdanfar. The College appointed Dr. Fielding, a plastic surgeon, as an investigator in November 2007. His mandate was to conduct a broad-based investigation into Yazdanfar’s cosmetic surgery practice. Forty randomly chosen files were removed from the Clinic for review. Yazdanfar vigorously resisted the investigation by the College. The College brought an Application before the Superior Court in March 2008 seeking an Order requiring Yazdanfar to comply with provisions of the Health Professions Procedural Code, S.O. 1991, c. 18 (“HPPC”), prohibiting a person under investigation from obstructing a College Investigator. Yazdanfar refused to allow the nurses who were on duty the day that the patient died to be interviewed. Yazdanfar also refused, for over a year, to answer questions posed by the College Investigator and only did so when required by Summons.
Ultimately, Dr. Fielding submitted eight reports to the College. At a meeting of the Executive Committee and the Complaints Committee of the College on April 22, 2009, specified allegations of misconduct and incompetence were referred to the Discipline Committee.
The Executive Committee made an Order under section 37 of the HPPC on May 26, 2009. This section permitted the Executive Committee to impose terms, conditions, or limitations on a member certificate if it is of the opinion the conduct of the member exposes or is likely to expose his or her patients to harm or injury. Yazdanfar sought judicial review of this Interim Order.
The Court found that the decision to issue the section 37 Order is reviewable on a standard of reasonableness. The discretionary decision reached by the Executive Committee engaged its expertise and required deference: Dunsmuir v. New Brunswick,  1 S.C.R. 190 at paras. 52-55.
Yazdanfar submitted that there was insufficient factual foundation to justify the section 37 Order. The Court noted that the evidentiary requirement to sustain a section 37 Order was outlined by Chadwick J. in Mohan v. College of Physicians and Surgeons (Ontario) (1991), 81 DLR (4th) 108 Ont. Ct. (Gen. Div.). In that case, the Court held that there must be “some evidence” supporting the decision that the section 37 test was met.
The Court noted that the College Investigator, Dr. Fielding, identified three areas of concern. First, the files illustrated problems with respect to pre-operative procedures, particularly in the area of informed consent. Second, the files illustrated the large-volume liposuction procedures performed by Yazdanfar on multiple locations on the body of the patient, which in seven cases exceeded any guideline with respect to the amount of fat removed. The breast augmentation procedure used by Yazdanfar was not conventional as she used both local and a general anesthetic. Third, the files illustrated safety concerns with respect to immediate and follow-up post-operative care. Further, apart from the concerns raised by the three Complainants, a review of forty randomly selected charts illustrated serious safety concerns.
The Executive Committee also considered submissions from Yazdanfar including various expert reports that were filed on her behalf. Three of the reports were from doctors who practised in Yazdanfar’s clinic. One report was from an Ontario plastic surgeon who filed the report anonymously, making it difficult for the Executive to determine the appropriate weight to attach to the report.
After reviewing the evidence, the Court concluded that the decision of the Executive Committee was reasonable. There was some evidence, beyond mere speculation, that supported the finding that the conduct of Yazdanfar exposed, or was likely to expose, her patients to harm or injury. The Court rejected Yazdanfar’s arguments that the decision was unreasonable because the Committee failed to consider the least restrictive Order. The Court noted that the decision was within the range of reasonable outcomes, given the concern to protect public safety. The Court further rejected Yazdanfar’s argument that there was a reasonable apprehension of bias on the part of the Executive Committee and its investigators. Yazdanfar had argued that she was caught in the politics of plastic surgeons attempting to block family physicians from conducting lucrative cosmetic procedures. However, the Court noted that the suggestion that the College would victimize Yazdanfar for political reasons was not supported by any evidence. A reasonable person, well informed, having regard to all of the circumstances, would not have a reasonable apprehension of bias on the part of either the Executive Committee or Dr. Fielding.
In the result, the Application for Judicial Review was dismissed and Yazdanfar was ordered to pay costs fixed in the amount of $10,500 to the College.
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