Lee v. College of Physicians, (2003) 175 O.A.C. 227 (DC)

• Judge: Blair, R.S.J., Brockenshire and Somers, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: April 09, 2003
• Jurisdiction: Ontario
• Citations: (2003), 175 O.A.C. 227 (DC)

Lee v. College of Physicians (2003), 175 O.A.C. 227 (DC)

MLB headnote and full text

Temp. Cite: [2003] O.A.C. TBEd. SE.011

Dr. Young M. Lee (appellant) v. College of Physicians and Surgeons (respondent)

(610/01)

Indexed As: Lee v. College of Physicians and Surgeons (Ont.)

Court of Ontario

Superior Court of Justice

Divisional Court

Blair, R.S.J., Brockenshire and Somers, JJ.

August 26, 2003.

Summary:

A complaint of sexual abuse was made against a doctor (Lee). The complainant had first revealed the allegations of abuse during the course of her therapy sessions with a psychologist (Yablo). Lee sought production of Yablo's notes and records. The records proved to be illegible and Yablo was not prepared to have them transcribed. Lee brought a preliminary motion for an order that Yablo transcribe her notes. A panel of the Discipline Committee refused on the basis that it lacked jurisdiction to make the order. Lee brought a second motion, re­turnable at the start of the hearing, for prod­uction of Yablo's notes and subpoenaed her and her notes and records. The panel dis­missed the motion on the basis that it lacked jurisdiction. The panel found Lee guilty of abusing the complainant. The panel repri­manded the doctor, revoked his certificate of registration and made an order for the pay­ment of expenses and costs. Lee appealed.

The Ontario Divisional Court concluded that the panel had denied Lee natural justice and procedural fairness, allowed the appeal and ordered a new hearing before a dif­ferently constituted panel.

Administrative Law - Topic 549

The hearing and decision - Decisions of the tribunal - Reasons for decisions - Suf­ficiency of - A complaint of sexual abuse was made against a doctor (Lee) - The complainant had revealed the allegations during sessions with a psychologist (Yablo) - Lee moved for production of Yablo's notes and subpoenaed her and her notes and records - The motion was supported by affidavits from two psychiatrists and a psychologist respecting the importance of the notes and records - The panel dis­missed the motion on the basis that it lacked jurisdiction - The panel was also not satisfied that the requirement of "likely relevance" was met - The panel found Lee guilty of abusing the complainant - The Ontario Divisional Court allowed Lee's appeal - The panel had jurisdiction to swear in and hear from Yablo - It was up to the panel, and within its jurisdiction, to conduct the hearing so that fairness to all of the parties, including Yablo, could be achieved - Further, the defence affidavits had satisfied the relevancy requirement - The panel's decision did not explain how they had reached their determinations - Lee was denied natural justice and procedural fairness.

Administrative Law - Topic 2155

Natural justice - Administrative decisions or findings - Effect of failure of tribunal or official to give reasons for decisions - [See Administrative Law - Topic 459 ].

Administrative Law - Topic 2490

Natural justice - Procedure - At hearing - Calling witnesses - [See Administrative Law - Topic 459 ].

Administrative Law - Topic 2610

Natural justice - Evidence and proof - Witnesses - Calling of - [See Ad­ministrative Law - Topic 459 ].

Administrative Law - Topic 2617

Natural justice - Evidence and proof - Disclosure - [See Administrative Law - Topic 459 ].

Medicine - Topic 2067

Discipline for professional misconduct - Hearing - Duty to give reasons - [See Administrative Law - Topic 459 ].

Medicine - Topic 2075

Discipline for professional misconduct - Hearing - Procedure - [See Administrative Law - Topic 459 ].

Medicine - Topic 2115

Discipline for professional misconduct - Evidence - Discovery and disclosure - Complainant's records - [See Ad­ministrative Law - Topic 459 ].

Cases Noticed:

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1; 103 C.C.C.(3d) 1, refd to. [para. 8].

R. v. Mills (B.J.), [1999] 3 S.C.R. 668; 248 N.R. 101; 244 A.R. 201; 209 W.A.C. 201; 139 C.C.C.(3d) 321, refd to. [para. 8].

R. v. W.B. (2000), 134 O.A.C. 1 (C.A.), refd to. [para. 10].

London (City) v. Ayerswood Development Corp. et al. (2002), 167 O.A.C. 120 (C.A.), refd to. [para. 12].

R. v. Burns (R.H.), [1994] 1 S.C.R. 656; 165 N.R. 374; 42 B.C.A.C. 161; 67 W.A.C. 161, refd to. [para. 20].

R. v. Sheppard (C.) (2002), 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50 (S.C.C.), refd to. [para. 20].

R. v. Braich (A.) et al. (2002), 285 N.R. 162; 164 B.C.A.C. 1; 268 W.A.C. 1 (S.C.C.), refd to. [para. 20].

R. v. Brown (E.) (2002), 165 O.A.C. 36 (C.A.), refd to. [para. 20].

Ontario Public Service Employees' Union, Thibert, Jung and McGill v. Ontario (Minister of Correctional Services) (1984), 2 O.A.C. 351; 5 D.L.R.(4th) 651 (Div. Ct.), refd to. [para. 20].

Gray v. Disability Support Program (Ont.) (2002), 158 O.A.C. 244 (C.A.), refd to. [para. 20].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22; 174 D.L.R.(4th) 193, refd to. [para. 21].

Counsel:

David M. Porter and Sarah J. Erskine, for the appellant;

Debbie Calderwood, for the respondent.

This appeal was heard on April 9, 2003, by Blair, R.S.J., Brockenshire and Somers, JJ., of the Ontario Divisional Court. Brock­enshire, J., delivered the following reasons for decision of the court on August 26, 2003.