Dhawan v. College of Physicians and Surgeons (N.S.), (1998) 168 N.S.R.(2d) 201 (CA)

• Judge: Chipman, Freeman and Bateman, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: May 06, 1998
• Jurisdiction: Nova Scotia
• Citations: (1998), 168 N.S.R.(2d) 201 (CA)

Dhawan v. College of Physicians (1998), 168 N.S.R.(2d) 201 (CA);

    505 A.P.R. 201

MLB headnote and full text

Temp. Cite: [1998] N.S.R.(2d) TBEd. MY.010

Dr. Pankaj M. Dhawan (appellant) v. College of Physicians and Surgeons of Nova Scotia (respondent)

(CA 143933)

Indexed As: Dhawan v. College of Physicians and Surgeons (N.S.)

Nova Scotia Court of Appeal

Chipman, Freeman and Bateman, JJ.A.

May 6, 1998.

Summary:

A doctor was found guilty of professional misconduct in his treatment of five female patients by a Hearing Committee of the College of Physicians and Surgeons. The doctor's penalty was a six month licence suspension, mandatory assessment with any recommended counselling, treatment, remedial training and education, a require­ment that a female chaperone be present when he examined female patients and an order that he pay costs of $50,000. The doctor appealed under s. 68(1) of the Medi­cal Act against both the finding of miscon­duct and the penalty. The grounds of appeal were: (1) Whether proper standards were applied by the Committee in determining that the appellant was guilty of professional misconduct. (2) Whether the findings of the Committee respecting the complaints were based on cogent and convincing evidence and whether such findings constitute pro­fessional misconduct. (3) Whether certain of the findings of the Committee said to be based on "preferred evidence" were suffi­cient to satisfy the appropriate burden of proof. (4) Whether the Committee erred in permit­ting the College to open its case after having closed it. (5) Whether the Committee erred in allowing the College to introduce similar fact evidence when it reopened its case. (6) Whether the Committee erred in permitting the College to introduce rebuttal evidence. (7) Whether the Committee erred in allowing the College to introduce similar fact evi­dence on rebuttal. (8) Whether the Commit­tee erred in the use it made of the similar fact evidence admitted on rebuttal. (9) Whether the Committee erred in impos­ing the penalty upon the appellant.

The Nova Scotia Court of Appeal dis­missed the appeal as to the finding of pro­fessional misconduct, but allowed the appeal respecting penalty to the extent that one provision improperly delegating the Com­mit­tee's powers to the Registrar of the Col­lege was struck (i.e., continuing suspension unless doctor satisfied Registrar that he complied with the recommendations of the mandatory assess­ment).

Medicine - Topic 2075

Discipline for professional misconduct - Hearing - Procedure - Re-opening case - At the resumption of an adjourned disci­plinary hearing, after the College closed its case and the doctor opened its case, the College sought to reopen its case to call evidence that was only discovered after the adjournment - A voir dire was held - The Committee determined that the evidence was relevant and not previously determin­able using due diligence - The Committee permitted the College to reopen its case and afforded the doctor an opportunity to respond to the reopened case - The Nova Scotia Court of Appeal held that the Com­mittee did not err in exercising its discre­tion to permit the reopening of the case - The doctor suffered no prejudice - See paragraphs 46 to 53.

Medicine - Topic 2104

Discipline for professional misconduct - Evidence - Burden or standard of proof - A doctor found guilty of professional misconduct submitted that the Hearing Committee did not apply the proper stan­dard for professional misconduct - The Nova Scotia Court of Appeal held that the Committee did not err - Professional mis­conduct, where not defined in the Medical Act, was to be determined by the doctor's peers applying the standards and ethics of the profession to the given facts of each case - This principle was not defeated by the fact that two of the five Committee members were lay persons, not doctors - See paragraphs 8 to 14.

Medicine - Topic 2104

Discipline for professional misconduct - Evidence - Burden or standard of proof - A doctor found guilty of professional misconduct submitted that the Hearing Committee misapplied the burden of proof when on several occasions it stated that it "preferred" the evidence of the complain­ants over that of the doctor - The Nova Scotia Court of Appeal dismissed the appeal - The Committee applied the proper burden (i.e., preponderance of evidence) - The requirement of clear and convincing proof based on cogent evidence did not alter that burden of proof to some­thing higher than a balance of probabilities - The Committee's use of the word "pre­ferred", while not as good a choice of words as "accepted" did not constitute a misapplica­tion of the burden of proof - See para­graphs 23 to 45.

Medicine - Topic 2116

Discipline for professional misconduct - Evidence - Similar fact evidence - A doc­tor was found guilty of professional mis­conduct respecting his treatment of five female patients (incl. sexual improprieties) - The Hearing Committee admitted into evidence similar fact evidence by a sixth woman, which displayed conduct by the doctor strikingly similar to that experi­enced by the complainants - The Nova Scotia Court of Appeal held that the Com­mittee did not err in admitting the similar fact evidence, where its probative value was not outweighed by its prejudicial effect - The court noted that courts were less wary of admitting such evidence in civil cases than in criminal cases - See paragraphs 54 to 84.

Medicine - Topic 2116

Discipline for professional misconduct - Evidence - Similar fact evidence - A doc­tor was found guilty of professional mis­conduct respecting his treatment of five female patients (incl. sexual improprieties) - After the College had closed its case, the doctor introduced evidence of good char­acter - The College was then permitted to call similar fact evidence to rebut that evidence of good character - The rebuttal evidence was from a former female patient who only came forward after the close of the College's case, in response to media coverage - The Nova Scotia Court of Appeal held that the Committee properly admitted, and properly used, the similar fact evidence in rebuttal - See paragraphs 85 to 109.

Medicine - Topic 2127

Discipline for professional misconduct - Judicial review (appeals) - Sufficiency of evidence at hearing - A doctor was found guilty of professional misconduct respect­ing his treatment of five female patients - The doctor appealed on the ground that the complaints were not based on cogent and convincing evidence - The Nova Scotia Court of Appeal dismissed the appeal - Section 68(1) of the Medical Act limited appeals to questions of law - Accordingly, the court could not retry the case on the evidence - There was no jurisdiction to interfere with the Committee's finding of professional misconduct where "there was sufficient evidence supporting the con­clusion that the findings could be reached by reasonable people" - See paragraphs 15 to 22.

Medicine - Topic 2185

Discipline for professional misconduct - Punishments - Suspension of licence - A doctor was found guilty of professional misconduct respecting his treatment of five female patients (incl. sexual improprieties) - A Hearing Committee of the College of Physicians and Surgeons imposed a six month licence suspension, mandatory assessment with required compliance with any recommended counselling, treatment, remedial training or education, an order requiring a female chaperone for all exam­inations of female patients and $50,000 in costs - Further, if the assessment was not taken or the recommendations were not complied with, the Registrar of the College was empowered to continue the suspension - The Nova Scotia Court of Appeal held that the Committee did not err in the pen­alty imposed, with the exception of del­egating to the Registrar the right to con­tinue the licence suspension if the require­ments of the assessment were not met - That was an improper delegation - Only the Committee had the power to impose a penalty - The court struck that portion of the penalty - See paragraphs 110 to 131.

Cases Noticed:

X. v. College of Physicians and Surgeons (B.C.)(No. 1) (1991), 2 B.C.A.C. 112; 5 W.A.C. 112 (C.A.), refd to. [para. 8].

Roy v. Medical Board (Nfld.) (1994), 117 Nfld. & P.E.I.R. 160; 365 A.P.R. 160 (Nfld. T.D.), refd to. [para. 9].

College of Physicians and Surgeons (Ont.) v. Lambert (1992), 59 O.A.C. 370; 98 D.L.R.(4th) 639 (Div. Ct.), refd to. [para. 9].

Milstein v. College of Pharmacy (Ont.) et al. (No. 2) (1976), 13 O.R.(2d) 700 (Div. Ct.), refd to. [para. 11].

Pearlman v. Manitoba Law Society Judicial Committee, [1991] 2 S.C.R. 869; 130 N.R. 121; 75 Man.R.(2d) 81; 6 W.A.C. 81; [1991] 6 W.W.R. 289, refd to. [para. 12].

Law Society of Manitoba v. Savino (1983), 23 Man.R.(2d) 293; 1 D.L.R.(4th) 285 (C.A.), refd to. [para. 12].

Cape Breton Development Corp. et al. v. Penny (1977), 20 N.S.R.(2d) 292; 27 A.P.R. 292; 76 D.L.R.(3d) 186 (C.A.), refd to. [para. 17].

Crossman v. Labour Standards Tribunal (N.S.) (1991), 109 N.S.R.(2d) 274; 297 A.P.R. 274 (C.A.), refd to. [para. 17].

Ace Towing v. Irving et al. (1993), 121 N.S.R.(2d) 447; 335 A.P.R. 447 (C.A.), refd to. [para. 17].

Qureshi v. Provincial Medical Board (1983), 61 N.S.R.(2d) 280; 133 A.P.R. 280 (T.D.), refd to. [para. 24].

Stephen v. College of Physicians and Sur­geons (Sask.) (1991), 95 Sask.R. 176 (Q.B.), refd to. [para. 25].

Dalton Cart­age Co. v. Continental Insur­ance Co. and St. Paul Fire and Marine Insurance Co., [1982] 1 S.C.R. 164; 40 N.R. 135, refd to. [para. 26].

Bater v. Bater, [1950] 2 All E.R. 458 (C.A.), refd to. [para. 27].

R. v. Riley (1978), 42 C.C.C.(2d) 437 (Ont. C.A.), dist. [para. 38].

R. v. Nadeau, [1984] 2 S.C.R. 570; 56 N.R. 130, refd to. [para. 42].

R. v. Saulnier (1989), 89 N.S.R.(2d) 208; 227 A.P.R. 208 (C.A.), refd to. [para. 42].

R. v. Gushue (S.N.) (1992), 117 N.S.R.(2d) 152; 324 A.P.R. 152 (C.A.), refd to. [para. 42].

R. v. Brown (J.R.) (1994), 132 N.S.R.(2d) 224; 376 A.P.R. 224 (C.A.), refd to. [para. 42].

Gateway Realty Ltd. v. Arton Holdings Ltd. and LaHave Developments Ltd. (1991), 106 N.S.R.(2d) 163; 288 A.P.R. 163 (T.D.), refd to. [para. 49].

R. v. M.B.P. (1994), 165 N.R. 321; 70 O.A.C. 161; 89 C.C.C.(3d) 289 (S.C.C.), refd to. [para. 49].

R. v. S.G.G., [1997] 2 S.C.R. 716; 214 N.R. 161; 94 B.C.A.C. 81; 152 W.A.C. 81, refd to. [para. 49].

R. v. Schofield (G.R.) (1996), 148 N.S.R.(2d) 175; 429 A.P.R. 175 (C.A.), refd to. [para. 49].

R. v. Wigglesworth, [1987] 2 S.C.R. 541; 81 N.R. 161; 61 Sask.R. 105; 24 O.A.C. 321; 45 D.L.R.(4th) 235; [1988] 1 W.W.R. 193; 60 C.R.(3d) 193; 28 Admin. L.R. 294; 32 C.R.R. 219; 37 C.C.C.(3d) 385, refd to. [para. 50].

Sheehan v. Edmonton (City) (1990), 103 A.R. 78 (C.A.), refd to. [para. 50].

James v. Law Society of British Columbia (1982), 143 D.L.R.(3d) 379 (B.C.S.C.), refd to. [para. 50].

Makin v. Attorney-General for New South Wales, [1894] A.C. 57 (P.C.), refd to. [para. 58].

R. v. Robertson, [1987] 1 S.C.R. 918; 75 N.R. 6; 20 O.A.C. 200; 33 C.C.C.(3d) 481, refd to. [para. 59].

Director of Public Prosecutions v. Boardman, [1974] 3 All E.R. 887 (H.L.), refd to. [para. 60].

R. v. Guay (1978), 23 N.R. 451; 42 C.C.C.(2d) 536; 89 D.L.R.(3d) 532 (S.C.C.), refd to. [para. 60].

R. v. Green, [1988] 1 S.C.R. 228; 82 N.R. 194; 52 Man.R.(2d) 64, refd to. [para. 60].

R. v. L.E.D., [1989] 2 S.C.R. 111; 97 N.R. 321; 71 C.R.(3d) 1; 50 C.C.C.(3d) 142, refd to. [para. 60].

R. v. C.R.B., [1990] 1 S.C.R. 717; 107 N.R. 241; 109 A.R. 81; 76 C.R.(3d) 1; [1990] 3 W.W.R. 385; 73 Alta. L.R.(2d) 1; 55 C.C.C.(3d) 1, refd to. [para. 60].

R. v. M.H.C., [1991] 1 S.C.R. 763; 123 N.R. 63; 4 C.R.(4th) 1; 63 C.C.C.(3d) 385, refd to. [para. 60].

R. v. F.F.B., [1993] 1 S.C.R. 697; 148 N.R. 161; 120 N.S.R.(2d) 1; 332 A.P.R. 1, refd to. [para. 60].

Mood Music Publishing Co. v. DeWolfe Ltd., [1976] 1 All E.R. 763 (C.A.), refd to. [para. 66].

MacDonald v. Canada Kelp Co. et al. (1973), 39 D.L.R.(3d) 617 (B.C.C.A.), refd to. [para. 68].

College of Physicians and Surgeons (Ont.) v. Mohan (1993), 67 O.A.C. 231; 16 O.R.(3d) 62 (Div. Ct.), refd to. [para. 69].

Bartashunas v. Psychology Examiners, [1992] O.J. No. 1845 (Div. Ct.), refd to. [para. 72].

R. v. McNamara et al. (No. 1) - see R. v. Canadian Dredge & Dock Co., Marine Industries Ltd., Porter (J.P.) Co. and Richilieu Dredging Corp.

R. v. Canadian Dredge & Dock Co., Mar­ine Industries Ltd., Porter (J.P.) Co. and Richilieu Dredging Corp. (1981), 56 C.C.C.(2d) 193 (Ont. C.A.), affd. (1985), 59 N.R. 241; 9 O.A.C. 321; 19 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 98].

R. v. Tierney (1982), 70 C.C.C.(2d) 481 (Ont. C.A.), refd to. [para. 104].

Wood v. Cross (1993), 92 Man.R.(2d) 94; 61 W.A.C. 94 (C.A.), refd to. [para. 115].

Brand v. College of Physicians and Sur­geons (Sask.) (1990), 86 Sask.R. 18; 72 D.L.R.(4th) 446 (C.A.), refd to. [para. 124].

Statutes Noticed:

Medical Act, S.N.S. 1995-96, c. 10, sect. 66(2)(e) [para. 110]; sect. 68(1) [para. 5].

Authors and Works Noticed:

Casey, The Regulation of Professions in Canada, para. 11.1 [para. 50].

de Smith, Judicial Review of Administra­tive Action (5th Ed.), p. 286 [para. 16].

Sopinka, Lederman and Bryant, The Law of Evidence in Canada (1992), p. 462 [para. 97].

Counsel:

George M. Mitchell, Q.C., Edward Green­span, Q.C., and Sandra O. Arab, for the appellant;

Marjorie A. Hickey, Q.C., and Raymond G. Adlington, for the respondent.

This appeal was heard on April 6-7, 1998, before Chipman, Freeman and Bateman, JJ.A., of the Nova Scotia Court of Appeal.

On May 6, 1998, Chipman, J.A., delivered the following judgment for the Court of Appeal.