Huerto v. College of Physicians, 124 Sask R 33

JudgeHalvorson, J.
CourtCourt of Queen's Bench of Saskatchewan (Canada)
Case DateJuly 18, 1994
JurisdictionSaskatchewan
Citations124 Sask R 33;1994 CanLII 4900 (FCA);26 Admin LR (2d) 169;[1994] 9 WWR 457;(1994), 124 Sask.R. 33 (QB);117 DLR (4th) 129

Huerto v. College of Physicians (1994), 124 Sask.R. 33 (QB)

MLB headnote and full text

On Appeal From The Disciplinary Committee, College of Physicians and Surgeons

Dr. Carlos Huerto (appellant) v. College of Physicians and Surgeons (respondent)

(1993 Q.B. No. 2059)

Indexed As: Huerto v. College of Physicians and Surgeons (Sask.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Halvorson, J.

July 18, 1994.

Summary:

The Disciplinary Committee of the College of Physicians and Surgeons found Dr. Huer­to guilty of 24 counts of professional mis­conduct. Huerto appealed.

The Saskatchewan Court of Queen's Bench allowed the appeal and quashed the decision.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal - Bias - Apprehension of - A discipline committee found Dr. Huerto guilty of 24 counts of professional mis­conduct - At the outset of the hearing, Huerto had expressed an apprehension of bias respecting a member of the Commit­tee, because that member had participated on a discipline committee five years earlier which had investigated professional mis­conduct by Huerto and convicted him of one of three counts - The Saskatchewan Court of Queen's Bench held that there was a reasonable apprehension of bias with respect to the challenged member and quashed all findings of guilt - See para­graphs 8 to 22.

Medicine - Topic 6

Interpretation of legislation - A discipline committee found Dr. Huerto guilty of 24 counts of professional misconduct laid under s. 46(o) of the Medical Profession Act - Section 46(o) stated that a person was guilty of professional misconduct where he "does or fails to do any act or thing where the discipline hearing com­mittee considers that action or failure to be unbecoming, improper, unprofessional or discreditable" - Huerto argued that the principle of ejusdem generis should be applied to s. 46(o) to limit the misconduct under that residual clause to activities possessing the characteristics of culpability or moral blameworthiness as in the pre­ceding clauses - The Saskatchewan Court of Queen's Bench held that ejusdem generis could not be invoked to circum­scribe the scope of s. 46(o) - See para­graphs 51 to 54.

Medicine - Topic 2024

Discipline for professional misconduct - Conduct unbecoming a member - What constitutes - A discipline committee found Dr. Huerto guilty of 24 counts of pro­fessional misconduct laid under the Medi­cal Profession Act, s. 46(o) - Huerto argued that the committee erred by decid­ing that treatment which departed from an acceptable standard of care was pro­fessional misconduct, because more than negligence was required to substanti­ate a misconduct charge - The Saskatchewan Court of Queen's Bench held that tests formulated by the discipline committee for determining professional misconduct aris­ing from quality of care, did not offend any principles of law - The committee had accepted that the failure to meet the stan­dard of care must be significant to consti­tute professional misconduct - See para­graphs 56 to 74.

Medicine - Topic 2043

Discipline for professional misconduct - Discipline - Powers of disciplinary body - A discipline committee found Dr. Huerto guilty of 24 counts of professional mis­conduct - Huerto argued that the charges alleged incompetency and should have been the subject of a competency evalu­ation under s. 45 of the Medical Profession Act, rather than disciplinary proceedings under s. 46 of the Act - The Saskatchewan Court of Queen's Bench rejected the argu­ment - Huerto had previously been found competent by a competency committee acting under s. 45 - The focus of the disciplinary committee was to determine whether Huerto, a competent doctor, prop­erly applied his skill and knowledge - See paragraphs 44 to 47.

Medicine - Topic 2052

Discipline for professional misconduct - Discipline - Order to pay costs of pro­ceedings - A discipline committee of the College of Physicians and Surgeons found a doctor guilty of 24 counts of professional misconduct - As part of the sentence imposed, the doctor was ordered to pay costs of $106,000 before reinstatement of his practising privileges - The Saskatchewan Court of Queen's Bench stated that the costs seemed excessive and that "[c]ourts should not routinely sanction these charges simply because they were incurred by the college. There must be reasonableness ... A solution is to have the bill taxed by a local registrar of the Court of Queen's Bench" - See paragraphs 94 to 97.

Medicine - Topic 2106

Discipline for professional misconduct - Evidence - Expert knowledge of tribunal - A discipline committee found Dr. Huerto guilty of 24 counts of professional mis­conduct - Huerto argued that the commit­tee, which was made up of doctors, incor­rectly applied its own expertise to enhance the evidence - The Saskatchewan Court of Queen's Bench found that the Committee incorrectly applied its medical knowledge and quashed all findings of guilt - See paragraphs 23 to 40.

Medicine - Topic 2124

Discipline for professional misconduct - Appeals - Scope of review respecting disciplinary findings - A discipline com­mittee found Dr. Huerto guilty of 24 counts of professional misconduct - Huer­to appealed, arguing that the committee's conclusions were not supported by the evidence - The Saskatchewan Court of Queen's Bench held that although it might have made different findings and reached different conclusions than the committee, it would not interfere where it was sat­isfied that the committee did not make any palpable or overriding error which affected its findings and there was evidence to support its conclusions - See paragraphs 75 to 88.

Medicine - Topic 2124

Discipline for professional misconduct - Appeals - Scope of review respecting disciplinary findings - The Saskatchewan Court of Queen's Bench discussed the scope of the court's jurisdiction on an appeal from a decision of a disciplinary committee of the College of Physicians and Surgeons - See paragraphs 76 to 79.

Statutes - Topic 2582

Interpretation - Interpretation of words and phrases - Ejusdem generis rule - Cases when rule inapplicable - [See Medicine - Topic 6 ].

Cases Noticed:

Fogel v. Minister of Manpower and Immi­gration (1975), 7 N.R. 172 (F.C.A.), refd to. [para. 9].

Nord-Deutsche Versicherungs Gesellschaft v. R., [1968] 1 Ex. C.R. 443, refd to. [para. 10].

Hart v. R. (1981), 60 C.C.C.(2d) 474 (Ont. H.C.), refd to. [para. 10].

Huziak v. Andrychuk (1977), 1 C.R.(3d) 132 (Sask. Q.B.), refd to. [para. 10].

Simmons v. Manitoba (1989), 57 Man.R.(2d) 121 (C.A.), refd to. [para. 11].

Canadian National Railway Co. v. Cana­dian Human Rights Commission (1985), 64 N.R. 312 (F.C.A.), refd to. [para. 11].

C.M., Re (1984), 55 B.C.L.R. 267 (Prov. Ct.), refd to. [para. 11].

College of Physicians and Surgeons (Ont.) v. Petrie (1989), 32 O.A.C. 248; 37 Admin. L.R. 119 (Div. Ct.), refd to. [para. 11].

Ahmad v. College of Physicians and Sur­geons (B.C.) (1970), 15 D.L.R.(3d) 105 (B.C.S.C.), refd to. [para. 17].

Spence v. Spencer and Prince Albert Board of Police Commissioners (1987), 53 Sask.R. 35 (C.A.), refd to. [para. 17].

Brand v. College of Physicians and Sur­geons (Sask.) (1990), 86 Sask.R. 18 (C.A.), refd to. [para. 20].

Mackey et al. v. Chiropractors Association of Saskatchewan et al. (1990), 88 Sask.R. 274 (Q.B.), refd to. [para. 32].

Ringrose v. College of Physicians and Surgeons (Alta.)(No. 2), [1978] 2 W.W.R. 534; 8 A.R. 113 (C.A.), refd to. [para. 35].

College of Physicians and Surgeons (Sask.) v. Camgoz (1982), 20 Sask.R. 400 (C.A.), refd to. [para. 65].

McCoan v. General Medical Council, [1964] 3 All E.R. 143 (P.C.), refd to. [para. 72].

Bassett v. College of Physicians and Sur­geons (Sask.) (1988), 70 Sask.R. 283 (C.A.), refd to. [para. 73].

R. v. Andres, [1982] 2 W.W.R. 249; 1 Sask.R. 96 (C.A.), refd to. [para. 77].

Stephen v. College of Physicians and Surgeons (Sask.) (1991), 95 Sask.R. 176 (Q.B.), refd to. [para. 78].

Lensen v. Lensen, [1987] 2 S.C.R. 672; 79 N.R. 334; 64 Sask.R. 6; [1988] 1 W.W.R. 481; 44 D.L.R.(4th) 1, refd to. [para. 81].

Brand v. College of Physicians and Sur­geons (Sask.) (1990), 83 Sask.R. 218 (Q.B.), refd to. [para. 91].

Statutes Noticed:

Health Disciplines Act Regulations (Ont.), Reg. 448, sect. 27(21) [para. 58].

Medical Profession Act, S.S. 1980-81, c. M-10.1, sect. 6(2) [para. 59]; sect. 43(m) [para. 65]; sect. 45 [para. 5]; sect. 46(i), sect. 46(j), sect. 46(n), sect. 46(o) [para. 49]; sect. 46(p) [para. 59]; sect. 62 [para. 1]; sect. 62(1)(c), sect. 62(1)(d), sect. 62(3) [para. 76]; sect. 64(4) [para. 101]; sect. 69.1 [para. 7].

Counsel:

Brian J. Scherman, for the appellant;

Bryan E. Salte, for the respondent.

This appeal was heard before Halvorson, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following judgment on July 18, 1994.

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