The issue in this appeal was whether serious criminal charges, prior to conviction, can found a refusal to grant registration to a medical student

Administrative law – Decisions of administrative tribunals – College of Physicians and Surgeons – Physicians and Surgeons – Professional governance and discipline – Licence to practice – Character evidence – Competence – Public interest – Judicial review – Evidence – Compliance with legislation – Standard of review – Reasonableness simpliciter

Chauhan v. Heath Professions Appeal and Review Board, [2013] O.J. No. 2056, 2013 ONSC 1621, Ontario Superior Court of Justice, April 5, 2013, K.E. Swinton, A.L. Harvison Young and T.R. Lederer JJ.

The appellant was in his first year of residency training in a plastic surgery program at McMaster University. The appellant applied to the College of Physicians and Surgeons of Ontario (the “College”) for a certificate of registration authorizing postgraduate education because his previous certificate was about to expire. The application was refused because of the appellant’s criminal charges; but for the charges, the appellant met the requirements for the issuance of a certificate of registration. By way of background, the appellant had been charged with a number of criminal offenses arising out of allegations that he and another doctor had drugged and then sexually assaulted a female medical student in the McMaster program. The appellant was also charged in relation to a separate set of allegations involving a different complainant alleged to have taken place before he was a medical student. The Registration Committee of the College found s.2(1)(b) of the Regulation, which required applicants to practice medicine with decency, integrity and honesty and in accordance with the law, had not been met. The Registration Committee found that the very nature of the charges raised grave concerns relevant to the College’s mandate to protect the public.

The appellant appealed the Registration Committee’s decision to the Health Professions Appeal and Review Board (the “Board”). The Board confirmed the Committee’s decision. The Board confirmed that the onus lies on the physician to demonstrate that he meets the registration requirements as set out in s.2(1) of the Regulation. The Board noted that the appellant only provided the Committee with his own statement which outlined his career history and aspirations. He did not provide positive evidence that indicated he met the conduct and character requirements under the Regulation. Although the Board accepted that the fact of criminal charges alone will not necessarily disqualify an applicant from meeting good character requirements for professional registration, the Board found that the appellant did “very little if anything to counterbalance” the information regarding the charges which were relevant. The Board upheld the Committee’s decision that the appellant had not satisfactorily demonstrated the appellant met the non-exemptible requirement of s.2(1)(b) of the Regulation.

The appellant appealed the Board’s decision to the Court. The issue at the heart of the appeal concerned the interpretation and application of s.2(1) of the Regulation. The standard of review applicable to the Board’s decision to uphold the Committee’s refusal to issue the certificate of registration was that of reasonableness.

The appellant argued that the Board’s decision was wrong for two principal reasons.

First, the appellant argued the Board misapplied the legal authorities which it relied on. The Board did not adopt from the Law Society cases the principle that good character will ordinarily be presumed to have been met and that bare criminal charges will not be sufficient to rebut that onus. The appellant argued that the Board’s failure to apply the same analysis to s.2(1)(b) was wrong or unreasonable. The Court disagreed noting key differences between the two regulatory schemes including: (i) the nature of the inquiry under s. 2(1), (ii) that under the Code there is no presumption of good character, and (iii) there was no statutory basis requiring the College to prove professional misconduct on the balance of probabilities to justify refusal as that was an entirely different matter.

Second, the appellant argued that a refusal to renew based on unproven criminal charges violates the fundamental principle of the presumption of innocence. The Court found this submission was misplaced as neither the Committee nor the Board made any determination as to whether the appellant was or was not guilty as charged. That said, the Board rejected the argument that it follows from the fact that the charges were not proven they must be wholly regarded. The Court found this position of the Board reasonable. The Court found the charges relevant considerations given the College’s public interest mandate. While the criminal charges were unproven, they were serious. The charges, along with the other information, were appropriately taken into account in determining whether the Committee had been reasonable in finding that the appellant had not discharged his onus under s.2(1)(b) of the Regulation.

In light of the above, the Court found that the Board’s decision was intelligible, transparent and justified falling within the range of possible, acceptable outcomes. The appeal was dismissed.

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