Osif v. College of Physicians and Surgeons (N.S.), 2009 NSCA 28

• Judge: Bateman, Saunders and Fichaud, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: January 28, 2009
• Jurisdiction: Nova Scotia
• Citations: 2009 NSCA 28;(2009), 276 N.S.R.(2d) 118 (CA)

Osif v. College of Physicians (2009), 276 N.S.R.(2d) 118 (CA);

    880 A.P.R. 118

MLB headnote and full text

Temp. Cite: [2009] N.S.R.(2d) TBEd. MR.054

Dr. Stani Osif (appellant) v. The College of Physicians and Surgeons of Nova Scotia (respondent)

(CA 299088; 2009 NSCA 28)

Indexed As: Osif v. College of Physicians and Surgeons (N.S.)

Nova Scotia Court of Appeal

Bateman, Saunders and Fichaud, JJ.A.

March 19, 2009.

Summary:

The College of Physicians and Surgeons (N.S.) received a complaint about Osif, a hospital emergency room physician. The College investigated the complaint and charges were laid which arose out of the original complaint, an audit, a clinical assessment and the review of the complaint file. A hearing committee found Osif guilty of charges of professional misconduct and professional incompetence and imposed significant directives and restrictions before she would be permitted to return to the practice of medicine as a licenced physician. Osif appealed.

The Nova Scotia Court of Appeal dismissed the appeal.

Administrative Law - Topic 621

The hearing and decision - Evidence and proof - General - The College of Physicians and Surgeons (N.S.) received a complaint about Osif, a hospital emergency room physician - Dr. MacLeod was retained by the investigation committee to provide a review of certain charts found in the complaint file - For this purpose Dr. MacLeod was given the modified complaint file summary, Osif's commentary and relevant patient charts - Dr. Ross was retained by the investigation committee to conduct a clinical assessment of Osif's emergency room skills - A hearing committee found Osif guilty of charges of professional misconduct and professional incompetence - Osif appealed, asserting that the College erred in admitting the evidence of Dr. MacLeod and Dr. Ross where they relied on the complaint file summary, which contained misleading information - The Nova Scotia Court of Appeal dismissed the appeal - Administrative tribunals were not restricted by the rules of evidence applicable to court proceedings - In many ways, administrative tribunals were the masters of their own procedures - Administrative tribunals could receive evidence of doubtful relevance and admissibility - Questions of admissibility and weight could be decided in deliberations after the hearing was complete, as was the decision of the hearing committee in this case - Dr. MacLeod's and Dr. Ross's testimony made it clear that they were not tainted by the complaint file summary - Their conclusions were based on independent and objective review of documented allegations against Osif and personal observations during Dr. Ross's actual assessment of Osif's emergency room skills - See paragraphs 80 to 96.

Administrative Law - Topic 624

The hearing and decision - Evidence and proof - Hearsay evidence - The College of Physicians and Surgeons (N.S.) received a complaint about Osif, a hospital emergency room physician - Dr. MacLeod was retained by the investigation committee to provide a review of certain charts found in the complaint file - For this purpose Dr. MacLeod was given the modified complaint file summary, Osif's commentary and relevant patient charts - Dr. Ross was retained by the investigation committee to conduct a clinical assessment of Osif's emergency room skills - A hearing committee found Osif guilty of charges of professional misconduct and professional incompetence - Osif appealed, asserting that the complaint file summary and the modified complaint file summary supplied to Drs. MacLeod and Ross were not necessary to assist them with their inquiries and were unreliable because they were hearsay - The Nova Scotia Court of Appeal dismissed the appeal - Neither the summary nor the modified summary were admitted at the hearing for the truth of their contents - The College did not intend to introduce either of these documents at the hearing, and only did so at the direction of the hearing committee to permit the committee to make rulings on their admissibility - See paragraphs 97 and 98.

Administrative Law - Topic 2266

Natural justice - The duty of fairness - What constitutes procedural fairness - The College of Physicians and Surgeons (N.S.) received a complaint about Osif, a hospital emergency room physician - Dr. Ross was retained by the investigation committee to conduct a clinical assessment of Osif's emergency room skills - A hearing committee found Osif guilty of charges of professional misconduct and professional incompetence - Osif appealed, asserting that the requirement for her to attend the assessment conducted by Dr. Ross without knowledge or advice that such an assessment could form the basis of subsequent charges violated the rules of procedural fairness - The Nova Scotia Court of Appeal dismissed the appeal - The court held that "it would lead to an absurd result if the College were prohibited from using the results of its regulatory and investigative work, in subsequent disciplinary proceedings. By choosing to practise medicine in Nova Scotia, [Osif] agreed to be bound by the Medical Act as providing the self-regulating statutory regime by which her profession would be governed. The College was obliged to act upon the serious concerns discovered during its assessment and Dr. Osif exercised her rights to fully participate in the process and vigorously defend the charges brought against her" - See paragraphs 165 to 181.

Civil Rights - Topic 651.2

Liberty - Limitations on - Right to practice one's profession - The College of Physicians and Surgeons (N.S.) received a complaint about Osif, a hospital emergency room physician - Dr. Ross was retained by the investigation committee to conduct a clinical assessment of Osif's emergency room skills - A hearing committee found Osif guilty of charges of professional misconduct and professional incompetence - Osif appealed, asserting that the requirement for her to attend the assessment conducted by Dr. Ross without knowledge or advice that such an assessment could form the basis of subsequent charges amounted to a violation of her s. 7 liberty rights under the Charter - The Nova Scotia Court of Appeal dismissed the appeal - The rights encompassed by s. 7 did not extend to protect the ability to pursue one's employment or profession - Alternatively, and assuming without deciding that Osif's liberty interest was engaged, the court would nonetheless conclude that any deprivation of her liberty arose in accordance with the principles of fundamental justice and the rules of procedural fairness - See paragraphs 151 to 164.

Medicine - Topic 2077

Discipline for professional misconduct - Hearing - Costs - The College of Physicians and Surgeons (N.S.) received a complaint about Osif, a hospital emergency room physician - The College investigated the complaint and charges were laid which arose out of the original complaint, an audit, a clinical assessment and the review of the complaint file - A hearing committee found Osif guilty of charges of professional misconduct and professional incompetence and imposed significant directives and restrictions before she would be permitted to return to the practice of medicine as a licenced physician - The hearing committee ordered Osif to pay $200,000 towards the College's expenses - However, the hearing committee directed that the obligation would be reduced by whatever expenses were incurred by Osif in completing the required program of re-education and qualification - Further, the hearing committee recommended that costs be paid over time, on a monthly basis, until any outstanding balance was paid in full - Osif appealed, asserting that the costs awarded against her were unreasonable and arbitrary - The Nova Scotia Court of Appeal dismissed the appeal - After considering all the factors, the hearing committee devised a creative solution to Osif's unique situation and awarded costs accordingly - The hearing committee's costs decision was largely discretionary and revealed a line of analysis that fell within a range of possible, acceptable outcomes which were defensible in respect of facts and law - The award fit within the margins of reasonableness - See paragraphs 182 to 196.

Medicine - Topic 2104

Discipline for professional misconduct - Evidence - Burden or standard of proof - The College of Physicians and Surgeons (N.S.) received a complaint about Osif, a hospital emergency room physician - The College investigated the complaint and charges were laid which arose out of the original complaint, an audit, a clinical assessment and the review of the complaint file - A hearing committee found Osif guilty of charges of professional misconduct and professional incompetence - Osif appealed, asserting that there was a "higher" standard of civil proof in matters where the outcome was so serious to a professionally trained individual facing disciplinary proceedings - The Nova Scotia Court of Appeal rejected the assertion and dismissed the appeal - The hearing committee was well aware of the requisite standard of proof required in order to determine whether the charges against Osif had been proven - The hearing committee concluded that the burden was on the College to prove its charges against Osif on the balance of probabilities - Further, the College's proof had to be clear and convincing and based on cogent evidence - See paragraphs 111 and 112.

Medicine - Topic 2111

Discipline for professional misconduct - Evidence - Findings of investigating committee - [See Medicine - Topic 2121 ].

Medicine - Topic 2118

Discipline for professional misconduct - Evidence - Admissibility - General - [See Administrative Law - Topic 621 ].

Medicine - Topic 2121

Discipline for professional misconduct - Judicial review (appeals) - General - The College of Physicians and Surgeons (N.S.) received a complaint about Osif, a hospital emergency room physician - The College investigated the complaint and charges were laid which arose out of the original complaint, an audit, a clinical assessment and the review of the complaint file - A hearing committee found Osif guilty of charges of professional misconduct and professional incompetence - Osif appealed, asserting that the hearing committee misapprehended relevant evidence relating to the credibility of Osif and the complainants - The Nova Scotia Court of Appeal dismissed the appeal - Assessments of credibility were "quintessentially" questions of fact - This appeal was restricted by s. 68(1) of the Medicine Act to "points of law" - In the absence of any statutory authority to appeal on points of fact, the court had no jurisdiction to entertain Osif's assertions on credibility - In any event, the court was not persuaded that any of the hearing committee's credibility findings were prompted by palpable or overriding error - See paragraphs 106 to 118.

Medicine - Topic 2124

Discipline for professional misconduct - Judicial review (appeals) - Scope of review respecting disciplinary findings - The College of Physicians and Surgeons (N.S.) received a complaint about Osif, a hospital emergency room physician - The College investigated the complaint and charges were laid which arose out of the original complaint, an audit, a clinical assessment and the review of the complaint file - A hearing committee found Osif guilty of charges of professional misconduct and professional incompetence and imposed significant directives and restrictions before she would be permitted to return to the practice of medicine as a licenced physician - Osif appealed - The Nova Scotia Court of Appeal held that once the presence of a privative clause, the purpose of the tribunal and the expertise of the tribunal were all taken into account, the necessary review analysis concerning most of the issues decided by the College investigating Osif's conduct warranted the application of the standard of reasonableness - Issues of procedural fairness were reviewed on the standard of correctness - See paragraphs 48 to 75.

Medicine - Topic 2132

Discipline for professional misconduct - Judicial review (appeals) - Denial of natural justice - [See Administrative Law - Topic 2266 ].

Medicine - Topic 2190

Discipline for professional misconduct - Punishments - Considerations - The College of Physicians and Surgeons (N.S.) received a complaint about Osif, a hospital emergency room physician - The College investigated the complaint and charges were laid which arose out of the original complaint, an audit, a clinical assessment and the review of the complaint file - A hearing committee found Osif guilty of charges of professional misconduct and professional incompetence and imposed significant directives and restrictions before she would be permitted to return to the practice of medicine as a licenced physician - Osif appealed, asserting that the hearing committee imposed a disproportionate penalty in two respects: first, by restricting her from practice in an emergency room, and second, by requiring her to successfully pass College of Family Physicians of Canada certification examination - The Nova Scotia Court of Appeal dismissed the appeal - The hearing committee considered the possibility of revoking Osif's licence, before ultimately concluding that the findings did not justify revocation, where other measures such as re-education, conditions of licence, and restrictions placed on scope of practice would have a reasonable chance of success - The hearing committee's decision was reasonable - See paragraphs 197 to 210.

Cases Noticed:

Toronto (City) et al. v. Canadian Union of Public Employees, Local 79 et al., [2003] 3 S.C.R. 77; 311 N.R. 201; 179 O.A.C. 291, refd to. [para. 49].

Falkenham (C.R.) Backhoe Services Ltd. v. Human Rights Board of Inquiry (N.S.) et al. (2008), 264 N.S.R.(2d) 281; 847 A.P.R. 281; 2008 NSCA 38, refd to. [para. 50].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1, refd to. [para. 51].

Khosa v. Canada (Minister of Citizenship and Immigration) (2009), 385 N.R. 206; 2009 SCC 12, refd to. [para. 51].

Creager v. Provincial Dental Board (N.S.) (2005), 230 N.S.R.(2d) 48; 729 A.P.R. 48; 2005 NSCA 9, refd to. [para. 58].

Hills v. Provincial Dental Board (N.S.) (2009), 275 N.S.R.(2d) 135; 877 A.P.R. 135; 2009 NSCA 13, refd to. [para. 58].

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207, refd to. [para. 62].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170, refd to. [para. 63].

Dr. Q. v. College of Physicians and Surgeons (B.C.) - see Dr. Q., Re.

Dhawan v. College of Physicians and Surgeons (N.S.) (1998), 168 N.S.R.(2d) 201; 505 A.P.R. 201 (C.A.), refd to. [para. 73].

Prassad v. Minister of Employment and Immigration, [1989] 1 S.C.R. 560; 93 N.R. 81, refd to. [para. 82].

Kelly v. Police Commission (N.S.) (2006), 241 N.S.R.(2d) 300; 767 A.P.R. 300; 2006 NSCA 27, refd to. [para. 82].

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161, refd to. [para. 98].

F.H. v. McDougall (2008), 380 N.R. 82; 260 B.C.A.C. 74; 439 W.A.C. 74 (S.C.C.), refd to. [para. 112].

R. v. R.E.M. (2008), 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 113].

R. v. Beare; R. v. Higgins, [1988] 2 S.C.R. 387; 88 N.R. 205; 71 Sask.R. 1, refd to. [para. 152].

Ruffo (Juge) v. Conseil de la magistrature et autres, [1995] 4 S.C.R. 267; 190 N.R. 1, refd to. [para. 155].

Pearlman v. Manitoba Law Society Judicial Committee, [1991] 6 W.W.R. 289; 130 N.R. 121; 75 Man.R.(2d) 81; 6 W.A.C. 81 (S.C.C.), refd to. [para. 156].

Waldman v. Medical Services Commission (B.C.) et al., [1997] B.C.T.C. Uned. B67; 150 D.L.R.(4th) 405 (S.C.), affd. (1999), 128 B.C.A.C. 218; 208 W.A.C. 218; 177 D.L.R.(4th) 321; 1999 BCCA 508, refd to. [para. 157].

Reference Re Sections 193 and 195.1(1)(c) of the Criminal Code, [1990] 1 S.C.R. 1123; 109 N.R. 81; 68 Man.R.(2d) 1, refd to. [para. 157].

Walker and Robertson v. Prince Edward Island (1993), 111 Nfld. & P.E.I.R. 150; 348 A.P.R. 150; 107 D.L.R.(4th) 69 (P.E.I.C.A.), affd. [1995] 2 S.C.R. 407; 181 N.R. 158; 130 Nfld. & P.E.I.R. 181; 405 A.P.R. 181, refd to. [paras. 158, 159].

Blencoe v. Human Rights Commission (B.C.) et al. (2000), 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161, refd to. [para. 162].

Rodriguez v. British Columbia (Attorney General) et al. (1993), 158 N.R. 1; 34 B.C.A.C. 1; 56 W.A.C. 1 (S.C.C.), refd to. [para. 167].

Cunningham v. Canada, [1993] 2 S.C.R. 143; 151 N.R. 161; 62 O.A.C. 243, refd to. [para. 167].

McPherson v. Institute of Chartered Accountants of British Columbia (1988), 33 B.C.L.R.(2d) 348 (S.C.), affd. [1991] B.C.J. No. 1064 (C.A.), refd to. [para. 172].

Charboneau et al. v. College of Physicians and Surgeons (Ont.), [1985] O.J. No. 2673 (H.C.), refd to. [para. 172].

Jaswal v. Medical Board (Nfld.) (1996), 138 Nfld. & P.E.I.R. 181; 431 A.P.R. 181 (Nfld. T.D.), refd to. [para. 193].

Authors and Works Noticed:

Hogg, Peter W., Constitutional Law of Canada (Looseleaf Ed.), vol. 2, p. 44-12 [para. 162].

Counsel:

Thomas P. Donovan, Q.C., and Clare E. Bilek, for the appellant;

Marjorie A. Hickey, Q.C., Alex Benitah and Alison Buchanan (articled clerk), for the respondent;

Edward A. Gores, Q.C., for the Attorney General of Nova Scotia (not participating).

This appeal was heard on January 28, 2009, at Halifax, N.S., by Bateman, Saunders and Fichaud, JJ.A., of the Nova Scotia Court of Appeal. The following judgment of the Court of Appeal was delivered by Saunders, J.A., on March 19, 2009.