Khan v. College of Physicians and Surgeons (Ont.) et al., (1990) 43 O.A.C. 130 (DC)

• Judge: O'Driscoll, J. Holland and Rosenberg, JJ.
• Court: Ontario Court of Justice General Division (Canada)
• Case Date: November 17, 1990
• Jurisdiction: Ontario
• Citations: (1990), 43 O.A.C. 130 (DC)

Khan v. College of Physicians (1990), 43 O.A.C. 130 (DC)

MLB headnote and full text

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

(No. 870/89)

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

Ontario Court of Justice

General Division

Divisional Court

O'Driscoll, J. Holland and Rosenberg, JJ.

December 17, 1990.

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 him 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, allowed the doctor's appeal, set aside the decision of the Disciplinary 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.

Administrative Law - Topic 551.1

The hearing and decision - Decisions of the tribunal - Reasons for decision - Participation of independent counsel in drafting reasons - The Discipline Committee of the Ontario College of Physicians and Surgeons following a misconduct hearing, had their reasons for decision gone over by independent counsel to the committee allegedly for "journalistic and administrative assistance" - The Ontario Divisional Court discussed the propriety of this practice and held that counsel's involvement was in breach of s. 12(3) of the Health Disciplines Act - See paragraphs 85 to 94.

Evidence - Topic 1504

Hearsay rule - Hearsay - What constitutes - The College of Physicians and Surgeons (Ont.) commenced misconduct proceedings against a male doctor based on allegations of sexual impropriety with a four year old female patient - The Discipline Committee allowed the girl to testify and admitted a statement of the mother about what the girl said to her shortly after the assault - The Ontario Divisional Court held that because the girl testified before the Discipline Committee, her mother's hearsay statement should not have been admitted because the precondition of necessity was absent - See paragraphs 1 to 40.

Evidence - Topic 1504

Hearsay rule - Hearsay - What constitutes - The College of Physicians and Surgeons (Ont.) commenced misconduct proceedings against a male doctor based on allegations of sexual impropriety with a four year old female patient - At the hearing before the Discipline Committee, the College called a witness who testified as to what the girl's aunt told him in a telephone conversation and what the girl's mother told him that the girl told her right after the assault - The Ontario Divisional Court held that the evidence of this witness was inadmissible as offending the hearsay rule - See paragraphs 41 to 46.

Evidence - Topic 1504

Hearsay rule - Hearsay - What constitutes - The College of Physicians and Surgeons (Ont.) commenced misconduct proceedings against a male doctor based on allegations of sexual impropriety with a four year old female patient - The Discipline Committee permitted a social worker, who saw the child for police on the day of the assault, to play an audio tape of a conversation she had with the child - The Ontario Divisional Court held that the playing of the tape into the record was inadmissible hearsay evidence - See paragraphs 52 to 56.

Evidence - Topic 1504

Hearsay rule - Hearsay - What constitutes - The College of Physicians and Surgeons (Ont.) commenced misconduct proceedings against a male doctor based on allegations of sexual impropriety with a four year old female patient - The Discipline Committee allowed the girl's aunt to give evidence respecting conversations she had with the girl's mother and the girl on the afternoon of the assault - The Ontario Divisional Court held that the aunt's evidence was inadmissible as offending the rule against hearsay - See paragraphs 47 to 51.

Evidence - Topic 1754

Hearsay rule - Exceptions - Children's statements - Child protection and abuse cases - [See first Evidence - Topic 1504].

Evidence - Topic 7154

Opinion evidence - Prohibited opinions - Re basic or ultimate issue to be decided - The College of Physicians and Surgeons (Ont.) commenced misconduct proceedings against a male doctor based on allegations of sexual impropriety with a four year old female patient - The Discipline Committee admitted the expert opinion of a social worker that the child had been abused - The Ontario Divisional Court held that the expert's evidence was inadmissible because it was in the form of a conclusion on the very issue before the Committee - See paragraphs 57 to 70.

Cases Noticed:

R. v. Khan (1988), 27 O.A.C. 142 (C.A.), affd. (1990), 113 N.R. 53; 41 O.A.C. 353; 59 C.C.C.(3d) 92 (S.C.C.) refd to. [paras. 13, 21 et seq.].

Jones v. Metcalfe, [1967] 1 W.L.R. 1286, refd to. [para. 32].

R. v. Baltzer (1974), 10 N.S.R.(2d) 561; 2 A.P.R. 561; 27 C.C.C.(2d) 118 (N.S.C.A.), refd to. [para. 44].

Subramanian v. Public Prosecutor, [1956] 1 W.L.R. 965 (P.C.), refd to. [para. 44].

Ratten v. The Queen, [1972] A.C. 378 (P.C.), refd to. [para. 49].

R. v. Kyselka et al. (1962), 133 C.C.C. 103 (Ont. C.A.), refd to. [para. 61].

R. v. Burkart et al., [1965] 3 C.C.C. 210 (Sask. C.A.), refd to. [para. 61].

R. v. Kostuck (1986), 43 Man.R.(2d) 84; 29 C.C.C.(3d) 190 (C.A.), refd to. [para. 61].

R. v. Béland and Phillips (1987), 79 N.R. 263; 9 Q.A.C. 293; 36 C.C.C.(3d) 481 (S.C.C.), refd to. [para. 61].

R. v. F.E.J. (1989), 36 O.A.C. 348; 53 C.C.C.(3d) 64 (C.A.), refd to. [para. 63].

R. v. Beliveau (1986), 30 C.C.C.(3d) 193 (B.C.C.A.), refd to. [para. 63].

R. v. Millar (1989), 33 O.A.C. 165; 49 C.C.C.(3d) 193; 71 C.R.(3d) 78, refd to. [paras. 63, 67, 78].

R. v. G.B. et al. (1988), 65 Sask.R. 134 (C.A.), affd. (1990), 111 N.R. 1; 86 Sask.R. 81; 56 C.C.C.(3d) 161; 70 C.R.(3d) 347 (S.C.C.), refd to. [para. 64].

R. v. Campbell (1977), 17 O.R.(2d) 673 (C.A.), refd to. [para. 74].

R. v. John (1985), 63 N.R. 141; 23 C.C.C.(3d) 329 (S.C.C.), refd to. [para. 74].

R. v. Robillard, [1978] 2 S.C.R. 728; 21 N.R. 557, refd to. [para. 74].

R. v. Harper (1982), 40 N.R. 255; 65 C.C.C.(2d) 193 (S.C.C.), refd to. [para. 77].

R. v. MacDonald (1976), 9 N.R. 271; 29 C.C.C.(2d) 257 (S.C.C.), refd to. [para. 77].

Spring v. Law Society of Upper Canada (1988), 28 O.A.C. 375; 50 D.L.R.(4th) 523 (Div. Ct.), refd to. [paras. 86, 91-94, 113].

Del Core v. Ontario College of Pharmacists (1985), 10 O.A.C. 57; 51 O.R.(2d) 1 (C.A.), refd to. [paras. 87, 88].

Re Sawyer and Ontario Racing Commission (1979), 24 O.R.(2d) 673 (C.A.), refd to. [para. 89].

Re Bernstein and College of Physicians and Surgeons of Ontario (1977), 15 O.R.(2d) 447; 76 D.L.R.(3d) 38, refd to. [para. 89].

Re Emerson and Law Society of Upper Canada (1983), 44 O.R.(2d) 729, refd to. [para. 90].

Colpitts v. The Queen (1965), 52 D.L.R.(2d) 416 (S.C.C.), refd to. [para. 99].

R. v. Hertrich, Stewart and Skinner (1982), 67 C.C.C.(2d) 510 (Ont. C.A.), refd to. [para. 100].

R. v. Hamilton (1989), 27 M.V.R. 133 (Ont. C.A.), refd to. [para. 101].

Statutes Noticed:

Courts of Justice Act, S.O. 1984, c. 11, sect. 144(6) [para. 3].

Criminal Code, R.S.C. 1985, c. C-46, sect. 686(1)(b)(iii) [para. 98].

Evidence Act, R.S.O. 1980, c. 145, sect. 18(1), sect. 18(2) [para. 25].

Health Disciplines Act, R.S.O. 1980, c. 196, sect. 12(3) [paras. 86, 94, 113]; sect. 12(6) [paras. 23, 29]; sect. 13(1) [para. 1]; sect. 13(2) [paras. 1, 4]; sect. 60(5), sect. 60(8) [para. 20].

Health Disciplines Act Regulations, R.R.O. 1980, c. 448, sect. 27.29, sect. 27.22, sect. 27.32 [para. 15].

Statutory Powers Procedure Act, R.S.O. 1980, c. 484, sect. 15 [para. 24].

Authors and Works Noticed:

McCormick on Evidence (3rd Ed. 1984), pp. 734, 735 [para. 44].

Sopinka and Lederman, The Law of Evidence in Civil Cases, pp. 152, 153 [para. 31].

Counsel:

R.J. Carter, Q.C., for the appellant;

J. Harris and K. Beatty, for the College (respondent);

A.M. Rock, Q.C. and A. Heal, for the Intervenor Discipline Committee.

This appeal was heard on November 14 and 15, 1990, before O'Driscoll, J. Holland and Rosenberg, JJ., of the Ontario Divisional Court. The decision of the Court was released on November 17, 1990, including the following opinions:

O'Driscoll, J. - see paragraphs 1 to 84

Rosenberg, J. - see paragraphs 85 to 94

O'Driscoll and Rosenberg, JJ. - see paragraphs 95 to 106

J. Holland, J., dissenting - see paragraphs 107 to 115