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Medical Professionals (RHPA) - Doctors Cases (4). Tan v. Ontario Physicians and Surgeons Discipline Tribunal
In Tan v. Ontario Physicians and Surgeons Discipline Tribunal (Div Court, 2024) the Ontario Divisional Court dismissed a JR, here brought after several prior proceedings by a doctor whose certificate of registration has been revoked. This JR was brought against a second decision of the Ontario Physicians and Surgeons Discipline Tribunal to "reopen his hearing to admit fresh evidence" that was denied on the basis "that the Tribunal did not have jurisdiction to hear the motion" as it was functus officio, despite Rule 13.3.1 ['Application to Vary, Suspend or Cancel a Tribunal Order'] of the Tribunal’s Rules of Procedure .
Here the court considers functus officio, and more specifically whether a statutory-based OPSDT Rule excepted it's application (it didn't):[4] The Tribunal’s Case Management Chair dismissed Dr. Tan’s December 2023 motion, ruling that the Tribunal did not have jurisdiction to hear the motion. The Chair determined that Rule 13.3.1 of the Tribunal’s Rules of Procedure, which deals with when the Tribunal may vary, suspend, or cancel a Tribunal order “that continues in effect”, does not provide a statutory exception to the doctrine of functus officio.
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The Chair’s Decision
[7] After receiving Dr. Tan’s motion to admit fresh evidence and to re-open his hearing, the Chair requested submissions from the parties on whether the Tribunal had lost jurisdiction over the matter as a result of the principle of functus officio. The parties agreed that because of the doctrine of functus officio, there must be specific statutory authority for the Tribunal to change its finding that Dr. Tan committed sexual abuse. Dr. Tan relied on Rule 13.3.1 which provides:The Tribunal may vary, suspend or cancel a Tribunal order that continues in effect where:a. there are new facts arising or discovered after the order was made, or a material change in circumstances has occurred after the order was made; and
b. the change to the order would be in the public interest. [8] The Chair issued his decision dismissing the motion for lack of jurisdiction on February 29, 2024. The Chair concluded that Rule 13.3.1 did not provide specific statutory authority because it “applies only when an ongoing aspect of an order like terms, conditions or limitations on a certificate of registration requires modification. Even in those circumstances, it does not allow for a reversal of the finding.” (Chair’s Decision, at para. 5)
[9] The Chair reviewed the history of Rule 13.3.1, noting that the “motion to vary” was introduced to the Tribunal’s Rules of Procedure in 2009. The previous year, this court held that the Health Professions Procedural Code[1], implicitly allows the Tribunal to remove or vary an indefinite term, condition, or limitation on a certificate of registration but that it was “not for [the Court] to determine the circumstances in which a member may seek a variation of a term as that issue is not before us on this application”: Li v. College of Physicians and Surgeons of Ontario, 2008 CanLII 37613 (Div. Ct.), at para. 30. Rule 13.3.1 sets out those circumstances and the procedure to bring a request. (Chair’s Decision, at para. 9) The qualification that the request must relate to an order that “continues in effect” was added in 2023. (Chair’s Decision, at para. 10)
[10] The Chair observed that, in interpreting Rule 13.3.1, he was required to apply the “modern approach to interpretation” and analyze the text, context, and purpose of the Rule to determine its intent. (Chair’s Decision, at para. 11)
[11] The text of Rule 13.3.1 suggests that its purpose is to set out the criteria and procedure for a request to change a term, condition, or limitation under the power discussed in Li, not to establish a review power under the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22. Section 21.2(1) of the SPPA allows for the review of a decision or order and based on that review, for the decision to be confirmed or changed.[2] By contrast, Rule 13.3.1 does not use the word “review” or “reconsider” and it refers only to varying an “order.” (Chair’s Decision, at paras. 12-13)
[12] The Chair disagreed with Dr. Tan that a revocation “continues in effect” because the Code prevents him from applying for reinstatement for five years: “[r]evocation is an event that occurs at a set moment, with lasting consequences.” (Chair’s Decision, at para. 14)
[13] The Chair determined that the most important context is the principle of finality. According to the Chair, a provision that permitted a review of a decision years later, would be contrary to s. 21.2.(2) of the SPPA, which requires that any review is to take place “within a reasonable time after the decision or order is made.” (Chair’s Decision, at paras. 16-17)
[14] Finally, the Chair concluded that the history of Rule 13.3.1 suggests its purpose was to implement the power to vary identified in Li. The Chair cited Tribunal decisions in which Rule 13.3.1 has been used in the situations contemplated by Li. (Chair’s Decision, at para. 18)
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The Chair’s Decision is Reasonable
[25] In my view, the Chair’s decision dismissing Dr. Tan’s motion to re-open his discipline hearing is reasonable. The Chair’s reasons for concluding that Rule 13.3.1 does not provide specific statutory authority for the Tribunal to re-open Dr. Tan’s discipline hearing are transparent, internally coherent, and justified in relation to the facts and the law.
[26] In relation to an administrative tribunal, the doctrine of functus officio provides that, as a general rule, once a final decision by the tribunal is made, the tribunal has no power to revisit its decision because the tribunal has changed its mind, made an error within jurisdiction, or there has been a change of circumstances. The general rule is subject to limited exceptions including, where there has been a slip in drawing up the decision, to correct an error in expressing the manifest intention of the tribunal, or if there is specific statutory authority to do so: Chandler v. Alberta Association of Architects, 1989 CanLII 41 (SCC), [1989] 2 S.C.R. 848, at p. 861.
[27] Where a final decision of a court or tribunal is susceptible of appeal [SS: not the case here, paras 15-20], as is the case here under s. 70(1) of the Code, functus officio promotes finality, which is a “practical necessity for the system of justice as a whole”, and effective appellate review: Canadian Broadcasting Corp. v. Manitoba, 2021 SCC 33, at para. 34.
[28] Section 21.2(1) of the SPPA authorizes a tribunal – if its rules permit – to “review all or part of its own decision or order” and, if so, to “confirm, vary, suspend or cancel the decision or order.” Under s. 21.2(2) of the SPPA, any review must take place within a reasonable time after the decision or order is made.
[29] The Chair was alert to important differences in the wording between s. 21.2(1) of the SPPA and Rule 13.3.1. Unlike s. 21.2(1), Rule 13.3.1 does not use the word “review.” While s. 21.2(1) refers to reviewing a decision or an order, Rule 13.3.1 refers only to the ability to vary, suspend, or cancel an order. Under s. 21.2(1), the tribunal may confirm the decision or order; Rule 13.3.1 does not use the word “confirm.” Having regard to these differences, it was reasonable for the Chair to conclude that Rule 13.3.1 is not an implementation of the review power contemplated by s. 21.2(1) of the SPPA.
[30] Rule 13.3.1 requires that only an order that “continues in effect” can be varied, suspended, or cancelled. The Chair rejected Dr. Tan’s argument that a revocation continues in effect because the Code prevents him from applying for reinstatement for five years. As the Chair explained, Dr. Tan’s interpretation would result in a general review power and render the words “continues in effect” meaningless because “[n]early every order has a lasting effect, at least those leading to an entry on the public register identifying the misconduct.”
[31] The Chair carefully considered the history of Rule 13.3.1 and its purpose. Dr. Tan submits that the Chair’s “logic” does not follow from this court’s decision in Li because Li does not deal with the issue of facts arising or discovered after an order was made. In Li, this court held that the Code implicitly allows the Tribunal to remove or vary an indefinite term, condition, or limitation on a certificate of registration. Previously, the Tribunal had concluded that it did not have the power to do so. The court did not determine the circumstances in which a member could seek a variation or a term because that issue was not before it. The predecessor to Rule 13.3.1 was added the following year.
[32] It was reasonable for the Chair to conclude that Rule 13.3.1’s history suggests its purpose was to implement the power to vary identified in Li. And, as the Chair identified, Rule 13.3.1 has been used in situations contemplated by the Court in Li, including: Buttoo v. College of Physicians and Surgeons of Ontario, 2021 ONPSDT 40; College of Physicians and Surgeons of Ontario v. Kingstone, 2012 ONCPSD 26; College of Physicians and Surgeons of Ontario v. Wyatt, 2011 ONCPSD 10.
[33] The Chair identified the principle of finality as “the most important context here” and cited the Supreme Court of Canada’s explanation for the principle: “If lower courts could continuously reconsider their own decisions, litigants would be denied a reliable basis from which to launch an appeal to a higher court. The appeal record would be written on ‘shifting sand’, ultimately inhibiting effective review”: Canadian Broadcasting, at para. 34. The principle of finality is recognized in s. 21.2(2) of the SPPA, which requires that any review must take place within a “reasonable time” after the decision or order is made. The Chair concluded, reasonably, that a provision allowing review of a decision with no time limits on the request – the position advocated for by Dr. Tan – would be contrary to s. 21.2(2).
[34] Dr. Tan challenges the Chair’s reliance on Khan v. College of Physicians and Surgeons of Ontario, 2022 ONPSDT 37 and contends the Chair failed to provide “further explanation” for his conclusion that “Khan is clear that the rule is not intended to allow reconsideration.” I do not agree. The Chair explained that “[a]pplying functus officio, the Tribunal [in Khan] found that the application to vary rule ‘is not an appeal or reconsideration provision’ and did not provide for the reversal of a decision on the basis it was allegedly wrong.” (Chair’s Decision, at para. 19) The Chair’s reliance on Khan is consistent with his textual, contextual, and purposive analysis of the provision.
[35] In detailed, clear, and internally coherent reasons, the Chair identified and applied the correct interpretative principles. His interpretation of Rule 13.3.1 and his dismissal of Dr. Tan’s motion based on no jurisdiction were reasonable. . Trozzi v College of Physicians and Surgeons of Ontario
In Trozzi v College of Physicians and Surgeons of Ontario (Div Court, 2024) the Divisional Court considered a provision of the Medicine Act, 1991 regarding 'non-traditional medical therapy':[24] Section 5.1 of The Medicine Act, 1991 imposes a caveat that protects non-traditional medical therapy and therapy that departs from prevailing medical practice from being found to be professional misconduct or incompetence unless, “the therapy poses a greater risk to a patient’s health than the traditional or prevailing practice.” . Trozzi v College of Physicians and Surgeons of Ontario
In Trozzi v College of Physicians and Surgeons of Ontario (Div Court, 2024) the Divisional Court dismissed a JR, here against a decision and penalties [ie. it "revoked his licence to practise medicine in Ontario"] imposed by the Ontario Physicians and Surgeons Discipline Tribunal that found the applicant doctor had engaged "in conduct that would reasonably be regarded by members as disgraceful, dishonourable or unprofessional" and "incompetent" ["as defined by subsection 52(1) of the [Health Professions Procedural Code, Schedule 2 to the Regulated Health Professions Act"] over a COVID dispute.
Here the court reviews some RHPA-HPPA provisions regarding doctors' "standards of practice":RELEVANT PROVISIONS
[19] The Health Professions Procedural Code, being Sched. 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 provides the authority of the College to regulate the professions of physicians and surgeons in Ontario. The College has the right to develop standards of practice that must be maintained by doctors.
[20] Subsection 3 (2) of the Code explicitly prioritizes the public interest duties of the College as follows,(2) In carrying out its objects, the College has a duty to serve and protect the public interest. [21] Clause 51 (1)(c) of the Code requires the panel of the College’s Discipline Committee that sits as a hearing tribunal to find that a doctor committed professional misconduct if he or she committed an act defined as professional misconduct in the applicable regulations.
[22] Subsection 52 (1) of the Code is an explicit provision regarding incompetence. It says,52 (1) A panel shall find a member to be incompetent if the member’s professional care of a patient displayed a lack of knowledge, skill or judgment of a nature or to an extent that demonstrates that the member is unfit to continue to practise or that the member’s practice should be restricted.
[23] Acts of professional misconduct are defined in the Professional Misconduct Regulation, O. Reg. 856/93, under The Medicine Act, 1991, SO 1991, c. 30. Subsection 1 (1) of the regulation defines the following as acts of professional misconduct under s. 51 (1)(c) of the Code,
2. Failing to maintain the standard of practice of the profession.
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27. Contravening the Act, the Regulated Health Professions Act, 1991 or the regulations under either of those Acts.
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30. Failing to respond appropriately or within a reasonable time to a written inquiry from the College.
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33. An act or omission relevant to the practice of medicine that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional. . Gill v. Health Professions Appeal and Review Board
In Gill v. Health Professions Appeal and Review Board (Div Court, 2024) the Divisional Court dismissed two JRs challenging CPSO cautionary decisions regarding a doctor's social media COVID comments.
Here the court considers the role of professional monitoring bodies, specifically the CPSO:[75] Balanced against Dr. Gill’s free speech rights was the College’s mandate to regulate the medical profession, which includes ensuring that physicians conduct themselves in a manner aligned with professional ethics. This is made explicit in s. 3(1)5 of the Code, which stipulates that one of the College’s objectives is to “[t]o develop, establish and maintain standards of professional ethics for its members”. In keeping with this object, the College passed its guidance with respect to how physicians should conduct themselves on social media generally, and more specifically, during the COVID-19 pandemic. For ease of reference these policies are reproduced again.
[76] The College’s Statement on Social Media directs that physicians “[p]rotect their own reputation, the reputation of the professions, and the public trust by no posting content that could be viewed as unprofessional.”
[77] The College’s guidance to physicians about how they should be engaging on social media about issues relating to the pandemic reads:Physicians are reminded to be aware of how their actions on social media or other forms of communication could be viewed by others, especially during a pandemic. Your comments or actions can lead to patient/public harm if you are providing an opinion that does not align with information coming from public health or government. It is essential that the public receive a clear and consistent message. The College’s statement on Social Media – Appropriate Use by Physicians outlines general recommendations for physicians including acting in a manner that upholds their reputation, the reputation of the profession and maintains public trust. [78] These policies are specifically referenced in the College’s decisions in which a caution was issued.
[79] In carrying out its objectives, the College must uphold its overriding duty to serve and protect the public interest (Gore v. College of Physicians and Surgeons of Ontario, 2009 ONCA 546, 96 O.R. (3d) 241, at para. 12). The Supreme Court of Canada has repeatedly emphasized the importance of this role and the responsibility it entails. As the Supreme Court put it in Pharmascience v. Binet, 2006 SCC 48, [2006] 2 S.C.R. 513, at para. 36:The importance of monitoring competence and supervising the conduct of professionals stems from the extent to which the public places trust in them. [80] In this case, the College’s caution decisions found that in the context of a pandemic or public health emergency, misleading or false information about public health interventions could be dangerous to the public. This is because members of the public may give significant weight to doctors’ opinions, which in turn could cause them to ignore public health directives. This could put the public at risk. There is nothing unreasonable about this concern, and is one that has been recognized by courts across the country, including the Supreme Court of Canada. It is not, as Dr. Gill asserts, a “paternalistic” concern based on mere speculation.
[81] Thus, when the College chose to draw the line at those tweets which it found contained misinformation, it did so in a way which reasonably balanced Dr. Gill’s free speech rights with her professional responsibilities. Further, as discussed above, it did so in a manner that offered some protection to the public, but was minimally intrusive to Dr. Gill. In other words, its response was proportionate.
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