Three physicians appealed the dismissal of their applications for judicial review of decisions of the Respondent College, which had requested that the physicians submit to observation of their surgical practices. The Court of Appeal upheld the Divisional Court’s finding that observation of a member’s treatment of patients was reasonably within the legislation’s primary purpose to protect the public, where concerns have been raised about the member’s competence.

Administrative law – Decisions of administrative tribunals – College of Physicians and Surgeons – Competence – Public interest – Investigations – Powers to investigate – Judicial review – Compliance with legislation

Gore v. College of Physicians and Surgeons of Ontario, [2009] O.J. No. 2833, Ontario Court of Appeal, July 7, 2009, M. Rosenberg, K.N. Feldman and G.J. Epstein JJ.A.

The Appellants were general practitioners who, it was alleged, had no special training in surgery but were performing invasive and high-risk cosmetic surgery. The Registrar of the College of Physicians and Surgeons had reasonable and probable grounds to believe that the Appellants had committed an act of professional misconduct or were incompetent. The Registrar had therefore appointed investigators, including a physician investigator, to conduct an inquiry into the practice of the Appellants.

The College had asked that the Appellants submit to an interview and to observation of their surgical practice. The Appellants initially refused to comply with both requests. Before the Court, they only contested the request that the inspectors observe their surgical practice. They argued that the governing legislation did not authorize such an investigation.

The Appellants applied to the Divisional Court for judicial review of the College’s decision. There were several issues before the Divisional Court. However, before the Court of Appeal, the parties’ only contested whether an investigator, appointed under s. 75 of the Health Professions Procedural Code, had the power to compel observation of a member performing cosmetic surgery. The Divisional Court held that the power of the investigators to observe the Appellants as they performed surgery was found in s. 76(1), and in particular, in the phrase “inquire into and examine the practice of the member to be investigated”. The Court held that the ordinary meaning of these words encompassed observation of surgical procedures. Recognizing that under the modern rules of statutory interpretation it is not sufficient to consider the ordinary meaning of terms in legislation, the Court went on to consider the purpose of the legislation and the relevant provisions in the legislative context. The primary purpose of the legislation is the protection of the public and the College, as a self-regulatory body, has a statutory duty to serve and protect the public interest. The Court was satisfied that observation of a member’s treatment of patients was reasonably within that purpose, where concerns had been raised about the member’s competence.

The Court of Appeal agreed entirely with the Reasons of the Divisional Court. In rejecting the Appellants’ submissions, principally that the Divisional Court erred in failing to consider the phrase in its legislative context, the Court of Appeal cited the core principle of self-regulation set out by the Supreme Court of Canada in Pharmascience Inc. v. Binet, [2006] 2 S.C.R. 513. There, the majority had emphasized the onerous obligation placed on self-regulating bodies to protect the public. It follows that those given this obligation have the duty to inquire into the conduct of the members and “will have sufficiently effective means at their disposal to gather all information relevant to determining whether a complaint should be launched”. In view of this principle, the Court of Appeal held that it would take clear words to deprive the investigator of powers necessary to carry out this important public interest.

In the result, the Court of Appeal dismissed the appeal.

To stay current with the new case law and emerging legal issues in this area, subscribe here.