CITATION: Gore v. College of Physicians and Surgeons of Ontario, 2009 ONCA 294

DATE: 20090408

DOCKET: M37387 (C49986) M37382 (C49988)

COURT OF APPEAL FOR ONTARIO

Laskin J.A. (in chambers)

BETWEEN

Stanley Gore and Padma Jain

Appellants (Moving Parties)

and

College of Physicians and Surgeons of Ontario

Respondent (Responding Party)

AND BETWEEN

Eli Judah

Appellant (Moving Party)

and

College of Physicians and Surgeons of Ontario

Respondent (Responding Party)

Andrew B. Matheson, for the moving parties, Stanley Gore and Padma Jain

Dena N. Varah, for the moving party, Eli Judah

Lisa Spiegel, for the responding party

Heard: March 30, 2009

On appeal from the order of the Divisional Court (Justices Kitley, Swinton and Lederman), dated November 25, 2008 and on a motion for stay.

ENDORSEMENT

OVERVIEW   

[1]               Section 76(1) of the Health Professions Procedural Code[1] permits an investigator appointed by the College of Physicians and Surgeons to “inquire into and examine the practice” of a doctor who is being investigated for professional misconduct or incompetence.  The three moving parties on this stay motion are doctors.  Each is a general practitioner, practising cosmetic surgery.[2]  The College is investigating each doctor’s practice for professional misconduct.  As part of its investigation, relying on s. 76(1) of the Code, the College wants to observe each doctor performing surgery.  The doctors challenge the College’s authority to do so.

[2]               The moving parties brought judicial review applications to determine whether s. 76(1) authorized a “compelled observation” of a doctor’s practice.  By reasons dated September 26, 2008, the Divisional Court dismissed the applications.  At para. 51 of its reasons, the court concluded: “In our view, pursuant to s. 76 of the Code, the College investigators have the power to require observation of surgery conducted by the member under investigation”.

[3]               On February 2, 2009, this court granted leave to appeal the decision of the Divisional Court.  The appeal is scheduled to be heard on June 10, 2009.  The doctors seek a stay precluding the College’s investigator from observing them in surgery pending the appeal.  In my view, the justice of the case entitles the doctors to a stay. 

ANALYSIS

[4]               The granting of leave to appeal shows that the applications for judicial review “raise a serious issue”. 

[5]               Additionally, I am satisfied that if a stay is not granted a compelled observation of their surgery would cause irreparable harm to the doctors.  Admittedly, from the time they are in medical school, doctors are used to being observed by other doctors.  But these observations are largely for educational purposes.  The observations in question here are for potential disciplinary purposes.

[6]               In that context these observations undoubtedly are intrusive, and will allow the College to gather evidence that might later be used against the doctors.  They will also intrude, against the doctors’ wishes, in what is otherwise a highly private relationship between patient and doctor, while the doctor is undertaking a sensitive procedure.[3]  This harm cannot be quantified and cannot be cured.  The moving parties have made out irreparable harm if a stay is not granted.

[7]               That leaves the balance of convenience to be assessed.  Two related considerations favour the College’s contention that the stay motions should be dismissed.  First, the College has a duty to protect patients from harm, and the Registrar of the College has already formed the belief that each doctor has committed an act of professional misconduct.  Second, although a new investigative technique, observation[4] of a doctor’s surgical practices is likely an effective way to assess the doctor’s skill, especially for the kind of high risk surgery these doctors perform.

[8]               In my view, however, these considerations are outweighed by a combination of considerations favouring the granting of a stay:

·                    The moving parties are not seeking a stay of the investigation into their practices, only of one investigative technique, compelled observation.  The remainder of each investigation may proceed.

·                    The College has not filed any evidence to suggest that the public or patients of the doctors are at risk.

·                    The College’s investigations up to now belie any sense of urgency.  These investigations have proceeded at a leisurely pace.  They began in mid-2007.  The College then waited eight months before asking to observe the doctors in surgery.  Even today the College has not interviewed any of the three doctors. 

·                    More pointedly, the College’s acquiescence to the moving parties’ position in the five month period between the Divisional Court decision and the granting of leave (September 2008 to February 2009) supports a stay.  During that period, the College did not insist on conducting compelled observations.  Instead, to avoid a stay motion, the College agreed that it would not insist on implementing the Divisional Court’s decision.  Now that leave has been granted, however, the College has apparently reversed its position.  Yet nothing has changed since the time of the Divisional Court’s decision.  And the hearing of the appeal is only two months away.

[9]               Because of these considerations, the balance of convenience favours a stay.  The motions for a stay of any compelled observation pending the hearing of the appeal are granted.  Any further stay will be for the panel hearing the appeal to decide.  The parties have agreed that there should be no costs of these motions. 

                                                                                                “John Laskin J.A.”