P.L. v. College of Physicians and Surgeons (Alta.), (1999) 237 A.R. 1 (CA)

• Judge: Hetherington, O'Leary and Berger, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: December 02, 1997
• Citations: (1999), 237 A.R. 1 (CA)

P.L. v. College of Physicians (1999), 237 A.R. 1 (CA);

    197 W.A.C. 1

MLB headnote and full text

Temp. Cite: [1999] A.R. TBEd. MY.012

In The Matter Of the "Medical Profession Act";

In The Matter Of an Investigation of Facts Regarding P.L., a Medical Practitioner.

P.L. (appellant) v. College of Physicians and Surgeons of the Province of Alberta (respondent)

(96-16797)

Indexed As: P.L. v. College of Physicians and Surgeons (Alta.)

Alberta Court of Appeal

Hetherington, O'Leary and Berger, JJ.A.

April 16, 1999.

Summary:

A patient alleged that a doctor engaged in improper sexual conduct with her. An inves­tigating committee of the council of the College of Physicians and Surgeons found that the allegations were well founded and that the doctor was guilty of unbecoming conduct. The committee recommended that the doctor's name be struck from the Col­lege's register. The council found that the allegations were proven and struck the doc­tor's name from the register. The doctor appealed the order.

The Alberta Court of Appeal, Berger, J.A., dissenting, dismissed the appeal.

Administrative Law - Topic 350

The hearing and decision - Nature or extent of the hearing - Opportunity to present evidence - Dr. L. allegedly engaged in sexual misconduct with a patient - Dr. P., a psychiatrist, testified for L. before an investigating committee of the council of the College of Physicians and Surgeons - P. never examined the patient, but, after reviewing written information, concluded that there was a strong possibil­ity that she was psychotic - The commit­tee found L. guilty of unbecoming conduct - At the hearing before the council, the College's counsel called additional medical witnesses - L. called P. in rebuttal - P was not permitted to repeat evidence which he had given before the committee - The council found that the allegations were proven and accepted the committee's recommendation that L.'s name be struck from the register - L. appealed, arguing that he was denied the opportunity to make a full defence - The Alberta Court of Appeal rejected the argument - See para­graphs 10 to 29.

Administrative Law - Topic 350

The hearing and decision - Nature or extent of the hearing - Opportunity to present evidence - Dr. L. allegedly engaged in sexual misconduct with a patient - An investigating committee of the council of the College of Physicians and Surgeons found that the allegations were well founded and the doctor was guilty of unbecoming conduct - At the hearing before the council, L. was denied permission to call his office manager and a receptionist - Although available, they had not been called to give evidence before the committee - The College's counsel called additional medical witnesses - The council found that the allegations were proven and accepted the committee's recommendation that L.'s name be struck from the register - L. appealed, arguing that he was denied the opportunity to make a full defence - The Alberta Court of Appeal rejected the argument where the evidence of L.'s witnesses was not relevant to the issue before the council - See para­graphs 30 to 32.

Administrative Law - Topic 623

The hearing and decision - Evidence and proof - Opportunity to call evidence - [See both Administrative Law - Topic 350 ].

Administrative Law - Topic 2490

Natural justice - Procedure - At hearing - Calling witnesses - [See second Adminis­trative Law - Topic 350 ].

Administrative Law - Topic 2610

Natural justice - Evidence and proof - Witnesses - Calling of - [See second Ad­ministrative Law - Topic 350 ].

Administrative Law - Topic 2614

Natural justice - Evidence and proof - Rebuttal evidence - [See first Adminis­trative Law - Topic 350 ].

Medicine - Topic 2104

Discipline for professional misconduct - Evidence - Burden or standard of proof - A doctor allegedly engaged in sexual misconduct with a patient - An investigat­ing committee of the council of the Col­lege of Physicians and Surgeons found that the allegations were well founded and the doctor was guilty of unbecoming conduct -The council found that the allegations were proven and struck the doctor's name from the register - The doctor appealed, arguing that the investigating committee applied the wrong standard of proof - The commit­tee did not say what standard of proof it applied - The Alberta Court of Appeal rejected that argument - The court stated that it could "be assumed that the members of the investigating committee ... were familiar with the well-established standard of proof ..." and were aware of the gravity of the allegations made against the doctor - See paragraphs 7 to 9.

Medicine - Topic 2132

Discipline for professional misconduct - Judicial review (appeals) - Denial of natural justice - [See both Administrative Law - Topic 350 ].

Cases Noticed:

K.V. v. College of Physicians and Sur­geons (Alta.), [1999] 237 A.R. 49; 197 W.A.C. 49 (C.A.), refd to. [para. 5].

Ringrose v. College of Physicians and Surgeons (Alta.) (1978), 8 A.R. 113 (C.A.), refd to. [paras. 8, 82].

George L. v. College of Physicians and Surgeons (Alta.), [1994] 3 W.W.R. 277; 145 A.R. 377; 55 W.A.C. 377 (C.A.), refd to. [para. 44].

J.C. v. College of Physicians and Surgeons (B.C.) (1990), 42 B.C.L.R.(2d) 257 (B.C.C.A.), refd to. [para. 62].

Jory v. College of Physicians and Surgeons (B.C.), [1985] B.C.J. No. 320 (S.C.), refd to. [para. 62].

Bater v. Bater, [1950] 2 All E.R. 458 (C.A.), refd to. [para. 67].

Hornal v. Neuberger Products Ltd., [1957] 1 Q.B. 247 (C.A.), refd to. [para. 67].

R. v. Secretary of State for the Home Department; Ex parte Khea; R. v. Secre­tary of State for the Home Department; Ex parte Khawaja, [1984] 1 A.C. 74 (H.L.), refd to. [para. 70].

R. v. Hampshire County Council; Ex parte Ellerton, [1985] 1 All E.R. 599 (C.A.), refd to. [para. 72].

Smith v. Smith and Smedman, [1952] 2 S.C.R. 312, refd to. [para. 73].

Hanes v. Wawanesa Mutual Insurance Co., [1963] S.C.R. 154, refd to. [para. 76].

London Life Insurance Co. v. Lang Shirt Co. (Trustee), [1929] S.C.R. 117, refd to. [para. 76].

Continental Insurance Co. v. Dalton Cart­age Co. et al., [1982] 1 S.C.R. 164; 40 N.R. 135, refd to. [para. 78].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335; 26 D.L.R.(4th) 200; 50 C.R.(3d) 1; 24 C.C.C.(3d) 321; 19 C.R.R. 308, refd to. [para. 80].

Ringrose v. College of Physicians and Surgeons (Alta.) (1979), 13 A.R. 147 (C.A.), leave to appeal denied (1979), 26 N.R. 279; 15 A.R. 180 (S.C.C.), refd to. [para. 82].

Reed v. Lincoln (Town) (1975), 6 O.R.(2d) 391 (C.A.), refd to. [para. 82].

Bahinipaty v. College of Physicians and Surgeons (Sask.) (1986), 50 Sask.R. 15 (Q.B.), refd to. [para. 83].

Coates et al. v. Registrar of Motor Vehicle Dealers and Salesmen (Ont.) (1988), 28 O.A.C. 307; 52 D.L.R.(4th) 272 (Div. Ct.), refd to. [para. 83].

Coutts v. Popplewell, [1994] B.C.J. No. 884 (S.C.), refd to. [para. 83].

Denys v. College of Nurses (Ont.), [1983] O.J. No. 1046 (H.C.), refd to. [para. 83].

G.H. v. College of Physicians and Sur­geons (B.C.) (1995), 8 B.C.L.R.(3d) 392 (S.C.), refd to. [para. 83].

Camgoz, Re (1989), 74 Sask.R. 73 (C.A.), refd to. [para. 83].

Law Society of Alberta v. Estrin (1992), 4 Alta. L.R.(3d) 373 (C.A.), refd to. [para. 84].

Nand v. Board of Education of Edmonton Public School District No. 7 (1994), 157 A.R. 123; 77 W.A.C. 123; 23 Alta. L.R.(3d) 63 (C.A.), leave to appeal ref­used (1995), 189 N.R. 398; 178 A.R. 78; 110 W.A.C. 78 (S.C.C.), refd to. [para. 85].

McKee v. College of Psychologists (B.C.), [1991] B.C.W.L.D. 2673 (S.C.), affd. (1994), 47 B.C.A.C. 186; 76 W.A.C. 186; 95 B.C.L.R.(2d) 62 (C.A.), refd to. [para. 89].

Hammami v. College of Physicians and Surgeons (B.C.) (1996), 73 B.C.A.C. 205; 120 W.A.C. 205; 21 B.C.L.R.(3d) 267 (C.A.), leave to appeal refused (1996), 206 N.R. 236; 85 B.C.A.C. 78; 138 W.A.C. 78 (S.C.C.), refd to. [para. 91].

Authors and Works Noticed:

Bell, G.W., The Standard of Proof in Pro­fessional Disciplinary Matters (1995), 53 The Advocate 255, pp. 256, 257 [para. 92].

Corpus Juris Secundum (1996), vol. 32A, p. 688, §1299 [para. 64].

Cross on Evidence (8th Ed. 1995), pp. 170, 171, 172 [para. 69].

Halsbury's Laws of England (4th Ed. 1976), vol. 17, p. 16, para. 19 [para. 63].

Macaulay, Robert W., and Sprague, James L.H., Practice and Procedure Before Administrative Tribunals (1997), vol. 2, p. 12-115 [para. 29].

Phipson, The Law of Evidence (14th Ed. 1990), para. 4-39 [para. 69].

Sopinka, John, Lederman, Sydney N., and Bryant, Alan W., The Law of Evidence in Canada (1992), p. 141 [para. 65].

Counsel:

J.P. Peacock, Q.C., for the appellant;

D.J. Boyer, Q.C., for the respondent.

This appeal was heard on December 2, 1997, before Hetherington, O'Leary and Berger, JJ.A., of the Alberta Court of Appeal. The decision of the court was given on April 16, 1999, including the following opinions:

Hetherington, J.A. (O'Leary, J.A., con­curring) - see paragraphs 1 to 33;

Berger, J.A., dissenting - see paragraphs 34 to 100.