Khan v. College of Physicians and Surgeons (Ont.) et al., (1992) 57 O.A.C. 115 (CA)

• Jurisdiction: Ontario
• Court: Court of Appeal (Ontario)
• Judge: Dubin, C.J.O., Osborne and Doherty, JJ.A.
• Citation: (1992), 57 O.A.C. 115 (CA),1992 CanLII 2784 (NS CA),1992 CanLII 2784 (ON CA),9 OR (3d) 641,94 DLR (4th) 193,76 CCC (3d) 10,11 Admin LR (2d) 147,[1992] OJ No 1725 (QL),57 OAC 115
• Date: 02 August 1991

Khan v. College of Physicians (1992), 57 O.A.C. 115 (CA)

MLB headnote and full text

The College of Physicians and Surgeons of Ontario (appellant) v. Dr. Abdullah Yusuf Khan (respondent) and The Discipline Committee of The College of Physicians and Surgeons of Ontario (intervener/appellant)

(No. 870/89)

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

Ontario Court of Appeal

Dubin, C.J.O., Osborne and Doherty, JJ.A.

August 21, 1992.

Summary:

A girl complained that she was sexually assaulted in a doctor's office. The Ontario College of Physicians and Surgeons com­menced disciplinary proceedings against the doctor, alleging professional misconduct. The Discipline Committee of the College found the doctor guilty and revoked his licence to practice. The revocation was stayed pending an appeal by the doctor.

The Ontario Divisional Court, J. Holland, J., dissenting, in a decision reported 43 O.A.C. 130, allowed the appeal, set aside the decision of the Discipline Committee and referred the matter back to a different panel of the Discipline Committee. The court allowed the appeal because repeated admis­sions of hearsay evidence by the Committee and participation by the Committee's inde­pendent counsel in drafting the Committee's reasons for decision resulted in a substantial wrong or miscarriage of justice. The College and its Discipline Committee appealed.

The Ontario Court of Appeal allowed the appeal and restored the Committee's finding of professional misconduct and the revoca­tion of the doctor's licence.

Administrative Law - Topic 551.1

The hearing and decision - Decisions of the tribunal - Reasons for decision - Participation of independent counsel in drafting reasons - Following a misconduct hearing, the Ontario College of Physicians and Surgeons' Discipline Committee, announced its decision to the parties, but did not give reasons at that time - Before the reasons were released three months later, they were gone over by independent counsel to the committee allegedly for "jour­nalistic and administrative assistance" only - The Ontario Court of Appeal held that counsel's involvement was not con­trary to s. 12(3) of the Health Disciplines Act, nor did it impair the fairness or integ­rity of the discipline process - See para­graphs 115 to 136.

Administrative Law - Topic 551.1

The hearing and decision - Decisions of the tribunal - Reasons for decision - Participation of independent counsel in drafting reasons - The Health Disciplines Act, s. 12(3), provided, inter alia, that a discipline committee holding a hearing may seek legal advice from an independent adviser; however, the nature of the advice should be made known to the parties so they could make legal submissions - The Ontario Court of Appeal interpreted s. 12(3) - The court held that s. 12(3) had no application beyond the hearing stage of the discipline process - The hearing phase of the discipline process encompasses the taking of evidence, the hearing of argu­ment and rendering a decision, but it does not include preparation of reasons for the decision - See paragraphs 115 to 123.

Evidence - Topic 1527

Hearsay rule - Exceptions and exclusions - Where admission of hearsay necessary and evidence reliable - The College of Physicians and Surgeons (Ont.) pursued misconduct proceedings against a male doctor based on allegations of sexual impropriety with a 3½ year old girl - The Discipline Committee allowed the girl (then eight) to testify, although her mem­ory of the event was vague - The Com­mittee admitted a statement of the mother about what the girl had told her shortly after the assault - An issue arose respect­ing whether the child's out-of-court state­ment to the mother was admissible where the girl testified - The Ontario Court of Appeal held that the statement was admis­sible, notwithstanding the girl's vive voce evidence, because admission was reason­ably necessary and the statement was reliable - See paragraphs 1 to 70.

Evidence - Topic 1527

Hearsay rule - Exceptions and exclusions - Where admission of hearsay necessary and evidence reliable - The Ontario Court of Appeal held that a child's out-of-court statements alleging abuse are not auto­matically excluded if the child testifies - Rather for admission the prosecution must establish that the reception of the statement is necessary and reliable - The fact that the child testifies will be relevant to, but not determinative of, the admissi­bility of the out-of-court statement - If a tribunal is satisfied that despite a child's viva voce evidence, it is still "reasonably necessary" to admit the child's out-of-court statement to obtain an accurate and frank rendition of the child's story, then the necessity criterion set out in R. v. Khan (S.C.C.) is satisfied - See paragraphs 36 to 53.

Evidence - Topic 1527

Hearsay rule - Exceptions and exclusions - Where admission of hearsay necessary and evidence reliable - The Ontario Court of Appeal listed factors which might be considered in determining whether a child's out-of-court statement is necessary in a case involving child abuse where the child testifies - See paragraph 58.

Evidence - Topic 1527

Hearsay rule - Exceptions and exclusions - Where admission of hearsay necessary and evidence reliable - The College of Physicians and Surgeons (Ont.) pursued misconduct proceedings against a male doctor based on allegations of sexual impropriety with a 3½ year old girl - The Discipline Committee allowed the girl's aunt to give evidence respecting conversa­tions she had with the girl on the afternoon of the assault - The Ontario Court of Appeal held that the aunt's evidence was improperly admitted - The court held that a similar statement made by the girl to her mother was admissible; therefore, the aunt's statement was not reasonably neces­sary to place a full and frank version of the girl's recollection of events before the tribunal - See paragraphs 71 to 74.

Evidence - Topic 1754

Hearsay rule - Exceptions and exclusions - Children's statements - Child protection and abuse cases - [See all four Evidence - Topic 1527 ].

Evidence - Topic 7010

Opinion evidence - Expert evidence - Admissibility of information used to sup­port opinion - The College of Physicians pursued misconduct proceedings against a doctor based on allegations of sexual impropriety with a young girl - The Dis­cipline Committee admitted an expert social worker's testimony respecting state­ments made to her by the child and her mother and a tape recording of an inter­view of the child - The Ontario Court of Appeal held that the social worker's testi­mony was admissible because an expert witness when giving an opinion is entitled to testify as to the information relied on in arriving at her opinion - The evidence is admissible, not for the truth of the contents of the material relied on by the expert, but to establish the basis for the opinion - See paragraphs 75 to 91.

Evidence - Topic 7013

Opinion evidence - Expert evidence - Use of hypothetical questions - The College of Physicians pursued misconduct proceedings against a doctor respecting allegations of sexual impropriety with a child - The Discipline Committee admitted an expert's (another doctor's) opinion that the child was abused - The opinion was based entirely on her review of the discipline proceedings' record, although some of the facts in the record were in dispute - The Ontario Court of Appeal held that the expert's opinion should have been elicited with a hypothetical question which incor­porated all of the facts forming the basis for the expert's opinion - The court never­theless held that the Committee did not err in admitting the opinion, because there was no objection to the lack of a hypothetical question during the discipline proceedings - See paragraphs 106, 107.

Evidence - Topic 7154

Opinion evidence - Prohibited opinions - Re basic or ultimate issue to be decided - The College of Physicians pursued mis­conduct proceedings against a doctor based on allegations of sexual impropriety with a young girl - The Discipline Committee admitted expert opinions concluding that the child was abused - It was argued that the expert evidence was inadmissible because it was a conclusion on the very issue before the Committee - The Ontario Court of Appeal held that the expert evi­dence was admissible - See paragraphs 92 to 109 - The court stated that "... if the evidence of the expert witness is otherwise admissible, the fact that the opinion offered suggests the factual inference which should be drawn on the very factual issue in dispute does not necessitate the exclusion of that evidence" - See para­graph 100.

Evidence - Topic 7154

Opinion evidence - Prohibited opinions - Re basic or ultimate issue to be decided - The Ontario Court of Appeal held that an expert may advance an opinion in a con­clusory form; although the trial judge has a discretion to require experts to frame their opinion in less conclusory terms - See paragraphs 101 to 105.

Evidence - Topic 7157

Opinion evidence - Prohibited opinions - Re credibility of witnesses - The Ontario Court of Appeal stated that "it is well- established that experts, save in very ex­ceptional cases, may not offer an opinion as to the veracity of any witness" - See paragraph 94.

Medicine - Topic 2075

Discipline for professional misconduct - Hearing - Procedure - Legal advice - [See both Administrative Law - Topic 551.1 ].

Practice - Topic 9227

Appeals - New trials - Reversible error but no miscarriage of justice - The Disci­pline Committee of the College of Phys­icians and Surgeons found a doctor guilty of misconduct arising out of alleged sexual improprieties with a young girl - The Ontario Court of Appeal held that the committee made errors in improperly admitting evidence - The court; however, did not order a new trial, where there was a very strong case against the doctor and the Committee would have reached the same result even without hearing the inad­missible evidence - See paragraphs 137 to 139.

Practice - Topic 9227

Appeals - New trials - Reversible error but no miscarriage of justice - The Ontario Courts of Justice Act, s. 134(6), provided that a court to which an appeal is taken shall not direct a new trial unless some substantial wrong or miscarriage of justice has occurred - The Ontario Court of Appeal held that this section was very similar to s. 686(1)(b)(iii) of the Criminal Code and therefore assumed that s. 134(6) referred to the same test for harmless error as s. 686(1)(b)(iii) - See paragraphs 137 to 139.

Words and Phrases

Legal advice - The Ontario Court of Appeal discussed the meaning of this phrase as it was used in s. 12(3) of the Health Disciplines Act, R.S.O. 1980, c. 196 - See paragraphs 115 to 123.

Cases Noticed:

Rattan v. The Queen, [1972] A.C. 378; [1971] 3 All E.R. 801 (P.C.), refd to. [para. 28].

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353; 59 C.C.C.(3d) 92; 79 C.R.(3d) 1, appld. [paras. 3, 34].

Ares v. Venner, [1970] S.C.R. 608; 14 D.L.R.(3d) 4, refd to. [para. 31 et seq.].

R. v. Laramee (1991), 73 Man.R.(2d) 238; 65 C.C.C.(3d) 465; 6 C.R.(4th) 277 (C.A.), refd to. [para. 37].

R. v. S.(K.O.) (1991), 63 C.C.C.(3d) 91; 4 C.R.(4th) 37 (B.C.S.C.), refd to. [para. 37].

Child and Family Services of Winnipeg West v. N.J.C. (1990), 69 Man.R.(2d) 43 (Q.B.), refd to. [para. 37].

R. v. F.(G.) (1991), 10 C.R.(4th) 93 (Ont. Gen. Div.), refd to. [para. 38].

R. v. Moore (1990), 63 C.C.C.(3d) 85 (Ont. Gen. Div.), refd to. [para. 38].

R. v. Collins (1991), 9 C.R.(4th) 377 (Ont. C.A.), refd to. [para. 40].

R. v. Levogiannis (1990), 43 O.A.C. 161; 1 O.R.(3d) 351 (C.A.), refd to. [para. 57].

R. v. Miller (1991), 50 O.A.C. 282; 5 O.R.(3d) 678; 68 C.C.C.(3d) 517 (C.A.), refd to. [para. 70].

R. v. Abbey, [1982] 2 S.C.R. 24; 43 N.R. 30; [1983] 1 W.W.R. 251; 39 B.C.L.R. 201; 29 C.R.(3d) 193; 68 C.C.C.(2d) 394, refd to. [para. 87].

R. v. Lavallee, [1990] 1 S.C.R. 852; 108 N.R. 321; 67 Man.R.(2d) 1; 55 C.C.C.(3d) 97; 76 C.R.(3d) 329; [1990] 4 W.W.R. 1, refd to. [para. 87].

R. v. Manahan (1990), 61 C.C.C.(3d) 139 (Alta. C.A.), refd to. [para. 87].

R. v. Beliveau (1986), 30 C.C.C.(3d) 193 (B.C.C.A.), refd to. [para. 87].

R. v. Graat, [1982] 2 S.C.R. 819; 45 N.R. 451; 2 C.C.C.(3d) 365, affirming (1980), 30 O.R.(2d) 247; 55 C.C.C.(2d) 429 (C.A.), refd to. [para. 93].

R. v. Kelly, Payne and Kelly (1990), 41 O.A.C. 32; 59 C.C.C.(3d) 497; 80 C.R.(3d) 185 (C.A.), refd to. [para. 93].

R. v. Millar (1989), 33 O.A.C. 165; 49 C.C.C.(3d) 193; 71 C.R.(3d) 78 (C.A.), refd to. [para. 93].

R. v. S.R. and D.R. (1992), 56 O.A.C. 1 (C.A.), dist. [paras. 94, 95].

R. v. G.B. et al. (No. 3) (1988), 65 Sask.R. 134 (C.A.), approved [1990] 2 S.C.R. 30; 111 N.R. 62; 86 Sask.R. 142; 77 C.R.(3d) 370; 56 C.C.C.(3d) 181, refd to. [para. 94].

R. v. F.E.J. (1989), 36 O.A.C. 348; 53 C.C.C.(3d) 64; 74 C.R.(3d) 269 (C.A.), refd to. [para. 94].

R. v. Taylor (1986), 18 O.A.C. 219; 57 O.R.(2d) 737; 31 C.C.C.(3d) 11 (C.A.), refd to. [para. 95].

R. v. Béland and Phillips, [1987] 2 S.C.R. 398; 76 N.R. 263; 9 Q.A.C. 293; 36 C.C.C.(3d) 481; 60 C.R.(3d) 1, refd to. [para. 96].

R. v. C. (R.A.) (1990), 57 C.C.C.(3d) 522; 78 C.R.(3d) 390 (B.C.C.A.), refd to. [para. 101].

R. v. Mohan (1992), 55 O.A.C. 309; 8 O.R.(3d) 173 (C.A.), refd to. [para. 101].

R. v. Swietlinski (1978), 44 C.C.C.(2d) 267 (Ont. C.A.), affd. [1980] 2 S.C.R. 956; 34 N.R. 569, refd to. [para. 106].

Del Core v. Ontario College of Pharma­cists (1985), 10 O.A.C. 57; 51 O.R.(2d) 1 (C.A.), leave to appeal refused 70 N.R. 82; 17 O.A.C. 79 (S.C.C.), refd to. [para. 125].

Spring v. Law Society of Upper Canada (1988), 28 O.A.C. 375; 64 O.R.(2d) 719; 50 D.L.R.(4th) 523 (Div. Ct.), refd to. [para. 126].

Consolidated Bathurst Packaging Ltd. v. International Woodworkers of America, Local 2-69 and Labour Relations Board (Ont.), [1990] 1 S.C.R. 282; 105 N.R. 161; 38 O.A.C. 321; 68 D.L.R.(4th) 524; 90 C.L.L.C. 14,007; 42 Admin. L.R. 1, refd to. [para. 126].

Tremblay v. Commission des affaires sociales (1992), 136 N.R. 5; 47 Q.A.C. 169 (S.C.C.), refd to. [para. 131].

Sawyer and Ontario Racing Commission, Re (1979), 24 O.R.(2d) 673; 99 D.L.R.(3d) 561 (C.A.), refd to. [para. 131].

Emerson and Law Society of Upper Canada, Re (1983), 44 O.R.(2d) 729 (Div. Ct.), refd to. [para. 131].

Statutes Noticed:

Courts of Justice Act, R.S.O 1990, c. C-43, sect. 134(6) [para. 138].

Criminal Code, R.S.C. 1985, c. C-46, sect. 486(2.1) [paras. 50, 56, 57]; sect. 686(1)(b)(iii) [para. 139]; sect. 715.1 [para. 50].

Health Disciplines Act, R.S.O 1980, c. 196, sect. 12 [para. 118]; sect. 12(3) [paras. 22, 26, 115-123]; sect. 12(6) [paras. 34, 118]; sect. 58(3), sect. 58(8), sect. 61(2) [para. 120].

Authors and Works Noticed:

Bessner, Khan: Important Strides made by the Supreme Court of Canada Respecting Children's Evidence (1990), 79 C.R.(3d) 15, pp. 19, 20 [para. 43].

Federal/Provincial Task Force, Report of, Uniform Rules of Evidence (1982), pp. 102-104 [para. 93].

Frissell and Bukelic, Application of the Hearsay Ex­ceptions and Constitutional Challenges to the Admission of a Child's Out-of-court Statements in the Prosecu­tion of Child Sexual Abuse Cases in North Dakota, 66 N. Dakota L. Rev. 599, p. 614 [para. 52].

Graham, Admissibility of Hearsay State­ments in Child Sexual Abuse Prosecu­tions (1989), 25 Crim. L. Bul. 473, pp. 481-485 [para. 52].

Macaulay, Practice and Procedure Before Administrative Tribunals (1988), pp. 22-10, 22-10.21 [para. 126].

McGillivray, R. v. Laramee: Forgetting Children, Forgetting Truth (1991), 6 C.R.(4th) 325, pp. 335-341 [para. 53].

Misener, Children's Hearsay Evidence in Child Sexual Abuse Prosecutions: A Proposal for Reform (1991), 33 Crim. L.Q. 364, pp. 376 [para. 43]; 381-384 [para. 52].

Ontario Law Reform Commission, Report on Child Witnesses (1991), p. 60 [para. 43].

Scotland, Law Reform Commission, Report on the Evidence of Children and Other Potentially Vulnerable Witnesses (1990), p. 2 [para. 66].

Sopinka, Lederman and Bryant, Law of Evidence in Canada (1992), pp. 540-543 [para. 93].

Yun, A Comprehensive Approach to Child Hearsay Statements in Sex Abuse Cases (1983), 83 Columbia L. Rev. 1745, pp. 1750-1751 [para. 66].

Counsel:

Joyce Harris and Kim Beatty, for the ap­pellant;

Claude R. Thomson, Q.C., and Andrew Heal, for the intervener/appellant;

Ian G. Scott, Q.C., and Martin Doane, as amici curiae.

This appeal was heard on August 2, 1991, before Dubin, C.J.O., Osborne and Doherty, JJ.A., of the Ontario Court of Appeal. The following decision of the court was delivered by Doherty, J.A., and released on August 21, 1992.