Patient X v. College of Physicians and Surgeons (N.S.), (2015) 359 N.S.R.(2d) 31 (CA)

• Judge: Bryson, Bourgeois and Van den Eynden, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: April 30, 2015
• Jurisdiction: Nova Scotia
• Citations: (2015), 359 N.S.R.(2d) 31 (CA);2015 NSCA 41

Patient X v. College of Physicians (2015), 359 N.S.R.(2d) 31 (CA);

  1133 A.P.R. 31

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. AP.054

Patient X (appellant) v. College of Physicians and Surgeons of Nova Scotia (respondent) and Dr. Y (intervenor)

(CA 428606; 2015 NSCA 41)

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

Nova Scotia Court of Appeal

Bryson, Bourgeois and Van den Eynden, JJ.A.

April 30, 2015.

Summary:

A patient filed a complaint with the College of Physicians and Surgeons that a doctor fondled her breasts and made inappropriate racial comments. The College's Investigation Committee dismissed the complaint without referring it to a hearing. The patient applied for judicial review. The patient applied for a confidentiality order protecting her identity (pseudonym), banning publication of her medical information, sealing the record and excluding the public from the courtroom. The doctor, not a party to the judicial review proceeding, also sought to use a pseudonym. The doctor did not seek to exclude the public or ban publication of the patient's medical information.

The Nova Scotia Supreme Court, in a judgment reported (2013), 326 N.S.R.(2d) 164; 1033 A.P.R. 164, ordered that the identity of the patient and doctor be protected by use of pseudonyms. The record was to be partly sealed and redacted to protect their names and identifying information. The requests to ban publication of the patient's medical information and to exclude the public were denied. On judicial review, the patient argued that the Committee breached the requirements of procedural fairness by not permitting her to cross-examine the doctor and that the Committee's decision was unreasonable.

The Nova Scotia Supreme Court, in a judgment reported (2013), 330 N.S.R.(2d) 345; 1046 A.P.R. 345, dismissed the application. There was no right to cross-examination and the decision not to refer the complaint to a hearing was reasonable. The patient appealed, arguing that: (1) she had ineffective assistance by counsel; (2) the Investigation Committee was biased due to the inclusion on the Committee of a doctor who had previously treated the patient for an orthopaedic matter; (3) the application judge was racially biased; (4) the failure to allow the patient to cross-examine the doctor constituted procedural unfairness; and (5) the Committee's reasons were inadequate and the decision was unreasonable.

The Nova Scotia Court of Appeal dismissed the appeal and awarded $500 costs against the patient.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Administrative Law - Topic 549

The hearing and decision - Decisions of the tribunal - Reasons for decisions - Sufficiency of - [See Medicine - Topic 2011 ].

Administrative Law - Topic 2266

Natural justice - The duty of fairness - What constitutes procedural fairness - [See Medicine - Topic 2011 ].

Administrative Law - Topic 2491

Natural justice - Procedure - At hearing - Cross-examination - [See Medicine - Topic 2011 ].

Courts - Topic 693

Judges - Disqualification - Bias - Evidence - A patient filed a complaint with the College of Physicians and Surgeons that a doctor fondled her breasts and made inappropriate racial comments during an examination for a breathing problem - The College's Investigation Committee, after considering written materials submitted by both parties, followed by an oral meeting where the patient and doctor were questioned, dismissed the complaint without referring it to a full hearing - The patient's application for judicial review was dismissed - On appeal, the patient argued that the application judge was biased due to racial prejudice - The Nova Scotia Court of Appeal stated that "Patient X points out the occasions in the decision where Justice Hood references race. All however, are in the context of explaining the nature of the complaint made by Patient X, and the Investigation Committee's finding on the issue. Justice Hood made no independent remarks about race generally or Patient X's race specifically. ... there is absolutely nothing in the record before this Court to raise even a hint that in reaching her conclusions, Justice Hood was motivated or influenced by any of them. This ground of appeal fails." - See paragraphs 50 to 57.

Medicine - Topic 2011

Discipline for professional misconduct - General - Complaints - Investigation of - A patient filed a complaint with the College of Physicians and Surgeons that a doctor fondled her breasts and made inappropriate racial comments during an examination for a breathing problem - The College's Investigation Committee, after considering written materials submitted by both parties, followed by an oral meeting where the patient and doctor were questioned, dismissed the complaint without referring it to a full hearing - The Committee found that incidental contact with a patient's breasts during the chest examination might be unavoidable and a comment relating to a "black" person's lungs being smaller than those of a caucasian person of the same sex and build was appropriate given that lung capacity varied between ethnicities - The Committee found no evidence of "fondling" or of inappropriate sexual remarks - The patient sought judicial review, arguing that the Committee breached the requirements of procedural fairness by not permitting her to cross-examine the doctor and that the Committee's decision was unreasonable - The application judge dismissed the application - Unlike the Hearing Committee, the Investigative Committee was primarily limited to a screening or gate-keeping role, which afforded a low level of procedural fairness, which did not include the right to cross-examine the doctor - The screening stage was inquisitorial, not adversarial - At this stage, extensive procedural rights could impede the efficiency of the process by converting the investigative stage into an additional hearing stage - This was a regulatory proceeding, not a criminal matter or a civil proceeding - The reasons given for not referring the complaint to a full hearing were, although brief, both clear and reasonable when both the minutes of the meeting and the remainder of the record were considered - The Nova Scotia Court of Appeal dismissed the patient's appeal - The application made no error in the conclusions reached - See paragraphs 58 to 81.

Practice - Topic 8331.2

Costs - Appeals - Costs of appeal - Frivolous or vexatious appeal - A patient's complaint against a doctor was dismissed without referring it to a hearing - The patient's application for judicial review of that decision was dismissed - The patient's subsequent appeal, including issues not properly before the Court of Appeal, was also dismissed - The College of Physicians and Surgeons sought costs, although only for a token amount due to the patient's limited finances - The self-represented patient claimed no costs should be awarded - The Nova Scotia Court of Appeal stated that "an award of costs is appropriate. Although the issues she attempted to raise are certainly important to her, and some also have a broader societal importance, most of what Patient X attempted to raise in this Court simply did not belong in front of us. Patient X was of the mistaken view that she could somehow turn a complaint to the College about a doctor, and the subsequent review of the resulting disciplinary decision, into a claim at the Court of Appeal for monetary damages for assault, breach of privacy and other complaints. ... Self-represented litigants, even those with an arguable issue to be considered, must realize that there may be financial consequences to bringing a matter which is found to be without merit" - The court awarded the College $500 in costs against the patient - See paragraphs 82 to 87.

Practice - Topic 9230

Appeals - New trials - Lack of or incompetence of counsel at trial - A patient's complaint against a doctor was dismissed without referring it to a hearing - The patient's application for judicial review of that decision was dismissed - On appeal, the patient raised the issue of ineffective assistance by her trial counsel - The Nova Scotia Court of Appeal stated that "Although the ineffective assistance of legal counsel can sometimes be a valid ground of appeal, there is a protocol which requires the lawyer in question be notified of the allegation, and be given the opportunity to respond. ... That has not been done here. Even if it was, it is well-established that the ineffective assistance of counsel is an available grounds of appeal in only the very narrowest of civil matters ... This is not such a case. It cannot be raised by Patient X as a valid ground of appeal." - See paragraph 41.

Cases Noticed:

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 29].

Shin Han F&P Inc. v. Canada-Nova Scotia Offshore Petroleum Board (2014), 353 N.S.R.(2d) 335; 1115 A.P.R. 335; 2014 NSCA 108, refd to. [para. 35].

R. v. West (W.F.) (2009), 279 N.S.R.(2d) 241; 887 A.P.R. 241; 2009 NSCA 63, refd to. [para. 41].

R. v. Hobbs (K.P.) (2009), 282 N.S.R.(2d) 14; 895 A.P.R. 14; 2009 NSCA 90, refd to. [para. 41].

R. v. Fraser (A.) (2011), 306 N.S.R.(2d) 201; 968 A.P.R. 201; 2011 NSCA 70, refd to. [para. 41].

D.W. v. White et al. (2004), 189 O.A.C. 256 (C.A.), leave to appeal denied (2005), 339 N.R. 400 (S.C.C.), refd to. [para. 41].

M.W. v. Nova Scotia (Minister of Community Services) (2014), 353 N.S.R.(2d) 106; 1115 A.P.R. 106; 2014 NSCA 103, refd to. [para. 41].

Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al. (2013), 446 N.R. 65; 2013 SCC 36, refd to. [para. 48].

C.B. v. T.M., [2013] N.S.R.(2d) Uned. 87; 2013 NSCA 53, refd to. [para. 51].

North End Community Health Association et al. v. Halifax (Regional Municipality) (2014), 351 N.S.R.(2d) 252; 1111 A.P.R. 252; 2014 NSCA 92, leave to appeal denied [2014] S.C.C.A. No. 527, refd to. [para. 60].

Baker v. Canada (Minister of Citizenship and Immigration) (1999), 243 N.R. 22 (S.C.C.), refd to. [para. 62].

Counsel:

Patient X, appellant, in person;

Marjorie A. Hickey, Q.C., and Danielle Kershaw, for the respondent;

Andrew J. Sowerby and Liam Gillis (articled clerk), for the intervenor, Dr. Y.

This appeal was heard on April 2, 2015, at Halifax, N.S., before Bryson, Bourgeois and Van den Eynden, JJ.A., of the Nova Scotia Court of Appeal.

On April 30, 2015, Bourgeois, J.A., delivered the following judgment for the Court of Appeal.