Gore et al. v. College of Physicians and Surgeons (Ont.), 2009 ONCA 546

• Judge: Rosenberg, Feldman and Epstein, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: June 10, 2009
• Jurisdiction: Ontario
• Citations: 2009 ONCA 546;(2009), 251 O.A.C. 49 (CA)

Gore v. College of Physicians (2009), 251 O.A.C. 49 (CA)

MLB headnote and full text

Temp. Cite: [2009] O.A.C. TBEd. JL.034

Stanley Gore and Padma Jain (appellants) v. College of Physicians and Surgeons of Ontario (respondent)

Eli Judah (appellant) v. College of Physicians and Surgeons of Ontario (respondent)

(C49986; C49988; 2009 ONCA 546)

Indexed As: Gore et al. v. College of Physicians and Surgeons (Ont.)

Ontario Court of Appeal

Rosenberg, Feldman and Epstein, JJ.A.

July 7, 2009.

Summary:

Three members of the College of Physicians and Surgeons of Ontario commenced applications for judicial review against the College. Common to all three applications was the interpretation of s. 76 of the Health Professions Procedural Code; specifically, the power of an investigator appointed under s. 75 to compel observation of the members while they performed cosmetic surgery and to require a member to be interviewed. The applications were heard together.

The Ontario Divisional Court, in a decision reported at (2008), 242 O.A.C. 18, dismissed the applications. The College investigators had the power under s. 76 of the Code to require observation of surgery conducted by the member under investigation. Further, s. 7 of the Public Inquiries Act and s. 76(1) of the Code did not exclude the member under investigation from being questioned by the investigators. The members appealed. They only contested whether an investigator had the power to compel observation of a member performing surgery.

The Ontario Court of Appeal dismissed the appeals. Largely for the reasons given by the Divisional Court, the examination that the College sought to undertake was authorized by the governing legislation.

Civil Rights - Topic 8318

Canadian Charter of Rights and Freedoms - General - Application - Statutory interpretation - Preference to charter values - This case turned on the interpretation of s. 76 of the Health Professions Procedural Code; specifically, the power of an investigator appointed by the College of Physicians and Surgeons of Ontario to observe the appellants (three doctors) while they performed cosmetic surgery - The appellants argued that if there was ambiguity in s. 76(1), it should be interpreted in light of Charter values, including protection of patient privacy and protection against self-incrimination - The Ontario Court of Appeal found, like the Divisional Court, that there was no ambiguity in s. 76(1), "at least in respect of compelled observation of physicians undertaking cosmetic surgery" - Accordingly, it was not necessary to consider the question of Charter values - See paragraphs 15 and 30.

Evidence - Topic 4155

Witnesses - Privilege - Privileged topics - Hospital records or committee reports (incl. peer reviews and quality assurance reviews) - At issue before the Ontario Court of Appeal was whether the inspectors appointed under the Health Professions Procedural Code of Ontario had the power under s. 76 to observe the appellant physicians as they performed cosmetic surgery - The appellants relied on the fact that there was no protection against self-incrimination in s. 76, comparable to the protections found in ss. 83 and 83.1 (quality assurance information was not admissible in any proceeding) - The court noted the "very different objectives" of an investigation and the quality assurance programs - Quality assurance involved assessment of hundreds of physicians who were randomly selected to be assessed - In contrast, an investigation was not random, but initiated on the basis of reasonable and probable grounds that the member may have committed an act of professional misconduct or was incompetent - The purpose of the investigation was to gather evidence - Nothing in s. 76 extended protection in respect of the evidence gathered through other investigative methods - That said, it was for the bodies dealing with subsequent proceedings to determine the admissibility of any evidence gathered during the investigative phase - Further, the quality assurance program was not as benign as the appellants asserted - See paragraphs 26 and 27.

Medicine - Topic 6

General - Interpretation of legislation - [See first Medicine - Topic 663 ].

Medicine - Topic 8

General - Purpose of legislation - [See first Medicine - Topic 663 ].

Medicine - Topic 663

Governing bodies - Powers - Investigation - Scope of - Common to three appeals was the interpretation of s. 76 of the Health Professions Procedural Code; specifically, the power of an investigator appointed by the College of Physicians and Surgeons of Ontario to compel observation of surgical procedures - The Ontario Court of Appeal dismissed the appeals, largely for the following reasons given by the Divisional Court - The power of the investigators to observe the appellants as they performed surgery was found in s. 76(1), and in particular, in the phrase, "inquire into and examine the practice of the member to be investigated" - The ordinary meaning of those words encompassed observation of surgical procedures - Recognizing that under the modern rules of statutory interpretation it was not sufficient to consider the ordinary meaning of terms, the court also considered the purpose of the legislation (protection of the public) and the relevant provisions in the legislative context - The court was satisfied that observation of a member's treatment of patients was reasonably within that purpose, and found support for the interpretation of s. 76(1) in s. 76(3), which required that no person was to obstruct an investigator - See paragraphs 10 to 14.

Medicine - Topic 663

Governing bodies - Powers - Investigation - Scope of - This case concerned the powers of investigation of investigators appointed under s. 75 of the Health Professions Procedural Code of Ontario - Those powers were contained in s. 76 of the Code and Part II of the Public Inquiries Act - The appellant physicians submitted that there was no obligation to perform surgery under observation, because of the different wording of s. 76 (investigation) and ss. 82 and 83 (assessment) - It was their position that the College of Physicians and Surgeons was attempting to subject them to an assessment of their practice and competence while denying them the protection from having the results used for matters beyond assessment - The Ontario Court of Appeal agreed with the Divisional Court that ss. 82 and 83 not only imposed a positive duty on the member to co-operate with the College and its investigators, but also protected the member because the results of the assessment were not admissible in a subsequent proceeding for misconduct or incompetence - In any event, the purposes of an assessment and an investigation were different, and it was not surprising that the provisions would be different - See paragraph 14.

Medicine - Topic 663

Governing bodies - Powers - Investigation - Scope of - The Ontario Court of Appeal interpreted s. 76 of the Health Professions Procedural Code; in particular, the power of an investigator to "inquire into and examine the practice of the member to be investigated" - The court started with the core principle of self-regulation set out by the Supreme Court of Canada in Pharmascience Inc. v. Binet (2006); namely, the "onerous" obligation placed on self-regulating bodies to protect the public - "It follows that those given this obligation have the duty to inquire into the conduct of the members and 'will have sufficiently effective means at their disposal to gather all information relevant to determining whether a complaint should be lodged' ... In view of this principle, it would take clear words to deprive the investigator of powers necessary to carry out this important public interest" - See paragraph 17.

Medicine - Topic 663

Governing bodies - Powers - Investigation - Scope of - The appellant physicians submitted that compelled observation while they performed cosmetic surgery was not contemplated by s. 76(1) of the Health Professions Procedural Code, as no provision was made for protection of the privacy of the patient - The Ontario Court of Appeal, however, noted that other provisions of the Code contemplated "significant" intrusion into patient privacy and confidentiality in the interests of conducting a proper investigation - "Investigations by self-regulating bodies inevitably involve some intrusion into the confidentiality of the relationship between the member and the client or patient. An investigation under s. 76 will have to take into account the patients' interests and the section does not purport to override those interests, except with respect to health records as articulated in subsection (4)" - Further, both the Public Utilities Act and the Code contained explicit provisions to prevent public disclosure of confidential patient information - The court also found "compelling the observations ... in College of Physicians and Surgeons of B.C. v. Bishop (1989), that 'while the public has an expectation that medical records will be kept confidential, that expectation is subject to the higher need to maintain appropriate standards in the profession'" - See paragraphs 23 and 24.

Medicine - Topic 663

Governing bodies - Powers - Investigation - Scope of - The appellant physicians refused to allow investigators appointed by the College of Physicians and Surgeons of Ontario to observe them as they performed cosmetic surgery - They relied on the newly enacted s. 95(1)(h.1) of the Health Professions Procedural Code of Ontario, allowing the College's governing body to make regulations "providing for the direct observation of a member in his or her practice, including the direct observation by inspectors of procedures, during the course of an inspection or examination" of premises used in connection with the practice - The Ontario Court of Appeal was not convinced that s. 95(1)(h.1) should be used to limit the broad scope of the investigative power under s. 76 - Such an interpretation would be inconsistent with the principle that investigative powers be interpreted in a manner that ensured investigators would have effective means at their disposal to gather all information relevant to determining whether a complaint should be lodged - Particularly when considering allegations in relation to surgery, the optimal means of gathering relevant information was through direct observation - There was "no principled basis for distorting the ordinary meaning of 'inquire into and examine the practice' [in s. 76] to exclude the means of investigation that in some circumstances are most likely to uncover the truth and therefore best protect the public" - See paragraphs 28 and 29.

Medicine - Topic 670

Governing bodies - Powers - Competency assessments - [See Evidence - Topic 4155 and second and third Medicine - Topic 663 ].

Medicine - Topic 3093

Relation with patient - Charts, records, opinions and reports - Confidentiality - Where doctor being investigated by governing body - [See fourth Medicine - Topic 663 ].

Statutes - Topic 501

Interpretation - General principles - Purpose of legislation - Duty to promote object of statute - [See first Medicine - Topic 663 ].

Statutes - Topic 2605

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - Intention from related provisions - [See second and third Statutes - Topic 2614 ].

Statutes - Topic 2614

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - Legislative or statutory context - At issue was the powers of investigators appointed under the Health Professions Procedural Code of Ontario - Under s. 76(1), "An investigator may inquire into and examine the practice of the member to be investigated and has, for the purposes of the investigation, all the powers of a commission under Part II of the Public Inquiries Act" - The appellant physicians submitted that the powers of inquiry and examination were limited to those that were capable of being enforced under Part II of the Public Inquiries Act; that since there was no power under the Act to compel a physician to perform surgery under observation, it followed that "inquire and examine" could not include compelled observation - The Ontario Court of Appeal rejected that submission - The powers given to the investigators under the Public Inquiries Act were not the only powers of enforcement under the Code - Section 76(1) must be read along with its subsections, in particular s. 76(3), which prohibited anyone from obstructing an investigator - The newly enacted s. 76(3.1), which required a member to co-operate fully with an investigator, was an enforcement power that supported a broad interpretation of "inquire and examine" - Those provisions were in addition to the "more cumbersome" procedure under the Public Inquiries Act - See paragraphs 18 to 20.

Statutes - Topic 2614

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - Legislative or statutory context - At issue was whether an investigator appointed under s. 75 of the Health Professions Procedural Code of Ontario had the power to observe the appellant physicians performing surgery - The appellant physicians submitted that s. 76(2) provided for a limited right of examination of any "thing" in the place of practice; therefore, the Legislature could not have intended an additional power to observe the member perform surgery; otherwise, it would have said so expressly - The Ontario Court of Appeal rejected that narrow interpretation of the legislative scheme - Section 76(2) contained two distinct powers; namely, the power to enter and the power to examine things - The power to enter was not limited to entry for the purpose of examining things - Having gained lawful entry, it would be open to the investigator to exercise any of the other powers conferred by s. 76 - See paragraphs 21 and 22.

Statutes - Topic 2614

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - Legislative or statutory context - This case turned on the interpretation of s. 76 of the Health Professions Procedural Code; specifically, the power of an investigator appointed by the College of Physicians and Surgeons of Ontario to observe the appellants while they performed cosmetic surgery - The appellants submitted that if the Legislature had intended to compel observation, it would have expressly indicated that intention as it did with respect to the quality assurance provisions (ss. 82 and 83) - The Ontario Court of Appeal commented that the submission had more force prior to the recent addition of s. 76(3.1), which expressly required the member to "co-operate fully" with an investigator - The court stated that "it is now apparent that the s. 75 investigators have ample powers to ensure that they are able to inquire into and examine the practice of the member" - See paragraph 25.

Words and Phrases

Inquire into and examine - The Ontario Court of Appeal held that the phrase "inquire into and examine" as found in s. 76(1) of the Health Professions Procedural Code of Ontario must be read along with the other provisions of s. 76, and in particular s. 76(3), and interpreted the phrase to include compelled observation of surgery - See paragraphs 18 to 20.

Cases Noticed:

Binet v. Pharmascience Inc. et al., [2006] 2 S.C.R. 513; 353 N.R. 343, folld. [para. 17].

College of Physicians and Surgeons of British Columbia v. Bishop (1989), 56 D.L.R.(4th) 164 (B.C.S.C.), refd to. [para. 24].

Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; 149 N.R. 1, refd to. [para. 30].

Statutes Noticed:

Health Professions Procedural Code - see Regulated Health Professions Act, S.O. 1991, c. 18, Schedule 2.

Public Inquiries Act, R.S.O. 1990, c. P-41, Part II, sect. 7(1) [para. 8].

Regulated Health Professions Act, S.O. 1991, c. 18, Schedule 2, Health Professions Procedural Code, sect. 75, sect. 76 [para. 8]; sect. 82(1), sect. 83(1), sect. 83(3), sect. 83(4), sect. 83.1(6), sect. 95(1) [para. 9].

Counsel:

Andrew Matheson and Sarah Shody, for the appellants, Stanley Gore and Padma Jain;

Nina Bombier and Dena N. Varah, for the appellant, Eli Judah;

Paul Schabas, Lisa Brownstone and Lisa Spiegel, for the respondent, College of Physicians and Surgeons of Ontario.

These appeals were heard on June 10, 2009, by Rosenberg, Feldman and Epstein, JJ.A., of the Ontario Court of Appeal. Rosenberg, J.A., delivered the following judgment of the Court, released on July 7, 2009.