College of Physicians and Surgeons (Ont.) v. K., (1987) 19 O.A.C. 51 (CA)

• Judge: Dubin, Morden and Tarnopolsky, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: June 02, 1986
• Jurisdiction: Ontario
• Citations: (1987), 19 O.A.C. 51 (CA)

College of Physicians v. K. (1987), 19 O.A.C. 51 (CA)

MLB headnote and full text

In The Matter Of a hearing directed by the Complaints Committee of the College of Physicians and Surgeons of Ontario, pursuant to Section 58(2) of the Health Disciplines Act, R.S.O. 1980, c. 196

College of Physicians and Surgeons of Ontario v. K.

Indexed As: College of Physicians and Surgeons (Ont.) v. K.

Ontario Court of Appeal

Dubin, Morden and Tarnopolsky, JJ.A.

February 24, 1987.

Summary:

A psychiatrist was found guilty by the Discipline Committee of the College of Physicians and Surgeons of professional misconduct contrary to s. 27(29) of regulation 448/80 or, alternatively, of disgraceful, dishonourable or unprofessional conduct contrary to s. 27(32). His licence to practice medicine in Ontario was revoked. The psychiatrist allegedly seduced two emotionally disturbed female patients. The psychiatrist applied to quash the decision.

The Ontario Divisional Court, in a judgment reported 50 O.R.(2d) 14, allowed the application and quashed the decision. The court held that the laying of one charge involving two complaints, rather than separate charges before different panels of the Committee, was contrary to the principles of fundamental justice under s. 7 of the Charter of Rights and Freedoms. The court also held that the Committee erred in admitting the evidence of each complainant to support or confirm the evidence of the other. The court also held that the Discipline Committee failed to apply the correct test as to whether there was a conspiracy between the two complainants. The College appealed.

The Ontario Court of Appeal allowed the appeal, set aside the decision of the Divisional Court, and restored the decision of the Discipline Committee. The court held that one charge for the two complaints was not improper, the evidence of each complainant was admissible as similar fact evidence and could be used to support or confirm the other's evidence and the Committee properly considered and rejected the notion of a conspiracy.

Civil Rights - Topic 8547

Canadian Charter of Rights and Freedoms - Interpretation - Principles of fundamental justice, s. 7 - A psychiatrist was charged with professional misconduct on the basis of similar complaints by two female patients - The Ontario Court of Appeal held that assuming, without deciding, that s. 7 of the Charter applied, one charge on two complaints was proper and not contrary to the "principles of fundamental justice" - The court stated that the disciplinary committee was not obliged to proceed with two sets of charges, each before a different panel of the committee - See paragraphs 30 to 35.

Evidence - Topic 1257

Relevance and materiality - Similar acts - To prove course of conduct - A psychiatrist charged with professional misconduct allegedly seduced two emotionally disturbed female patients - The Ontario Court of Appeal held that the striking similarity of the testimony of the two patients disclosed a pattern of conduct by the psychiatrist of significant probative force in support of the complaints - The court stated that unless the two patients conspired to testify falsely against the psychiatrist it was a classic case for the admissibility of similar fact evidence - Therefore, the evidence of each patient could be used to confirm or support the evidence of the other - See paragraphs 36 to 50.

Evidence - Topic 4025

Witnesses - Credibility - Collusion or complicity - The Ontario Court of Appeal held that the mere possibility of collusion between two witnesses did not make similar fact evidence inadmissible - If there was a possibility of collusion, the trier of fact must determine whether the witnesses' stories were concocted - The court stated that if the trier of fact was satisfied that there was no real chance of collusion and that it could not be reasonably inferred that there was collusion, then the evidence of each witness could be used to confirm or support the evidence of the other - See paragraphs 51 to 58.

Evidence - Topic 5206

Witnesses - Corroboration - Similar fact evidence as corroboration - [See Evidence - Topic 1257 above].

Medicine - Topic 2024

Discipline for professional misconduct - Conduct unbecoming a member - What constitutes - A psychiatrist was found guilty by the Discipline Committee of the College of Physicians and Surgeons of professional misconduct contrary to s. 27(29) of regulation 448/80 or, alternatively, of disgraceful, dishonourable or unprofessional conduct contrary to s. 27(32) - The psychiatrist seduced two emotionally disturbed and vulnerable female patients and, inter alia, had sexual intercourse with each on multiple occasions - The Ontario Court of Appeal set aside a decision of the Divisional Court quashing the Committee's decision and restored the Committee's decision.

Medicine - Topic 2165

Discipline for professional misconduct - Practice - Charge - Form and content - [See Civil Rights - Topic 8547 above].

Medicine - Topic 2186

Discipline for professional misconduct - Punishments - Revocation of licence - A psychiatrist was found guilty by the Discipline Committee of the College of Physicians and Surgeons of professional misconduct contrary to s.27(29) of regulation 448/80 or, alternatively, of disgraceful, dishonourable or unprofessional conduct contrary to s. 27(32) - The psychiatrist seduced two emotionally disturbed and vulnerable female patients and, inter alia, had sexual intercourse with each on multiple occasions - The Ontario Court of Appeal refused to interfere with the Committee's decision to revoke the psychiatrist's licence to practice in Ontario.

Cases Noticed:

Mood Music Publishing Co. Ltd. v. DeWolfe Ltd., [1976] 1 All E.R. 763, consd. [para. 38].

Macdonald et al. v. Canada Kelp Co. Ltd. et al. (1973), 39 D.L.R.(3d) 617, consd. [para. 39].

Director of Public Prosecutions v. Boardman, [1975] A.C. 421, consd. [para. 41].

K. and Saskatchewan College of Physicians and Surgeons, Re (1970), 13 D.L.R.(3d) 453, dist. [para. 46].

R. v. McNamara et al. (No. 1) (1981), 56 C.C.C.(2d) 193, consd. [para. 54].

R. v. R.S. (1985), 19 C.C.C.(3d) 115 (Ont. C.A.), consd. [para. 56].

Singh and College of Nurses of Ontario, Re (1981), 33 O.R.(2d) 92, agreed with [para. 69].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 31].

Health Disciplines Act, R.S.O. 1980, c. 196, sect. 12(6) [para. 37]; sect. 13 [para. 68].

Health Disciplines Act Regulations, regulation 448/80, sect. 27(29), sect. 27(32).

Authors and Works Noticed:

Cross on Evidence (6th Ed.), p. 333 [para. 55].

Counsel:

David Stockwood, Q.C., and Nancy J. Spies, for the appellant;

Leah Price, for the respondent.

This appeal was heard on May 22 and June 2, 1986, before Dubin, Morden and Tarnopolsky, JJ.A., of the Ontario Court of Appeal. The judgment of the Court of Appeal was delivered by Dubin, J.A., and released on February 24, 1987: