R.A.R. v. College of Physicians and Surgeons (Ont.), (2006) 216 O.A.C. 357 (CA)

• Judge: Feldman, MacPherson and Sharpe, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: September 05, 2006
• Jurisdiction: Ontario
• Citations: (2006), 216 O.A.C. 357 (CA)

R.A.R. v. College of Physicians (2006), 216 O.A.C. 357 (CA)

MLB headnote and full text

Temp. Cite: [2006] O.A.C. TBEd. NO.005

Dr. R.A.R. (appellant) v. College of Physicians and Surgeons of Ontario (respondent)

(C44655)

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

Ontario Court of Appeal

Feldman, MacPherson and Sharpe, JJ.A.

November 2, 2006.

Summary:

Commencing in 1992, the appellant physician engaged in a sexual relationship with a patient. By September 1993, the appellant and the patient were living together and planning to marry. The appellant continued to treat the patient as her physician. Effective January 1, 1994, the Regulated Health Professions Act (RHPA) introduced a new zero tolerance/mandatory revocation regime for sexual abuse of patients. The appellant continued a sexual relationship with the patient and also continued to treat her medically after January 1, 1994. By 1997, the appellant and the patient had ceased living together. In 1998, the appellant and the patient ceased both their sexual and professional relationships. The patient subsequently laid a complaint against the appellant. The Discipline Committee of the College of Physicians and Surgeons of Ontario concluded that the zero tolerance/mandatory revocation regime applied. It found the appellant guilty of sexual abuse and revoked his certificate of registration. The appellant appealed.

The Ontario Divisional Court, in a decision reported at 203 O.A.C. 354, dismissed the appeal. The appellant appealed. He argued that by January 1, 1994, his relationship with the patient had become "spousal" in nature and the zero tolerance/ mandatory revocation regime should not apply to his conduct. He also argued that the Discipline Committee retroactively applied the RHPA zero tolerance/mandatory revocation regime to his relationship with the patient.

The Ontario Court of Appeal dismissed the appeal.

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.

Medicine - Topic 2026

Discipline for professional misconduct - Professional misconduct or conduct unbecoming a member - Sexual improprieties - Commencing in 1992, the appellant physician engaged in a sexual relationship with a patient - By 1993, the appellant and the patient were living together and planning to marry - The appellant continued to treat the patient as her physician - Effective January 1, 1994, the Regulated Health Professions Act introduced a new zero tolerance/mandatory revocation regime for sexual abuse of patients - The appellant continued a sexual relationship with the patient and also continued to treat her medically after January 1, 1994 - By 1997, the appellant and the patient had ceased living together - In 1998, they ceased both their sexual and professional relationships - The patient laid a complaint against the appellant - The Discipline Committee of the College of Physicians and Surgeons of Ontario concluded that the zero tolerance/mandatory revocation regime applied - It found the appellant guilty of sexual abuse and revoked his certificate of registration - The appellant's appeal to the Ontario Divisional Court was dismissed - The appellant appealed - He argued that by January 1, 1994, his relationship with the patient had become "spousal" in nature and the zero tolerance/mandatory revocation regime should not apply to his conduct - The Ontario Court of Appeal dismissed the appeal - The Divisional Court was correct in applying the reasonableness standard of review to the decision of the Discipline Committee - The Discipline Committee's decision to apply the zero tolerance/mandatory revocation provisions to the appellant was not unreasonable - See paragraphs 28 to 51.

Medicine - Topic 2124

Discipline for professional misconduct - Judicial review (appeals) - Scope of review respecting disciplinary findings - [See Medicine - Topic 2026 ].

Statutes - Topic 6703

Operation and effect - Commencement, duration and repeal - Retrospective and retroactive enactments - What constitutes retrospective or retroactive operation - The appellant physician engaged in a sexual relationship with a patient from 1992 to 1998 - The patient subsequently laid a complaint against the appellant - Effective January 1, 1994, the Regulated Health Professions Act (RHPA) had introduced a new zero tolerance/mandatory revocation regime for sexual abuse of patients - The Discipline Committee of the College of Physicians and Surgeons of Ontario concluded that the zero tolerance/mandatory revocation regime applied - It found the appellant guilty of sexual abuse and revoked his certificate of registration - The appellant's appeal to the Ontario Divisional Court was dismissed - The appellant appealed, arguing that the Discipline Committee retroactively applied the RHPA zero tolerance/mandatory revocation regime to his relationship with the patient - The Ontario Court of Appeal rejected the argument - The Discipline Committee had judged the appellant on the basis of his conduct following January 1, 1994 - See paragraphs 52 to 53.

Cases Noticed:

Mussani v. College of Physicians and Surgeons (Ont.) (2004), 193 O.A.C. 23; 74 O.R.(3d) 1 (C.A.), consd. [para. 24].

Devgan v. College of Physicians and Surgeons (Ont.) (2005), 193 O.A.C. 357 (Div. Ct.), refd to. [para. 29].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 30].

Syndicat national des employés de la commission scolaire régionale de l'Outaouais (CSN) v. Union des employés de service, local 298 (FTQ), [1988] 2 S.C.R. 1048; 95 N.R. 161; 24 Q.A.C. 244; 35 Admin. L.R. 153, refd to. [para. 30].

Union des employés de services, local 298 v. Bibeault - see Syndicat national des employés de la commission scolaire régionale de l'Outaouais (CSN) v. Union des employés de service, local 298 (FTQ).

Bibeault - see Syndicat national des employés de la commission scolaire régionale de l'Outaouais (CSN) v. Union des employés de service, local 298.

U.E.S. - see Union des employées de service.

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20; 144 D.L.R.(4th) 1, refd to. [para. 30].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201; 160 D.L.R.(4th) 193, refd to. [para. 30].

Seidman v. College of Physicians and Surgeons (Ont.) (2003), 179 O.A.C. 391 (Div. Ct.), refd to. [para. 31].

Smith v. College of Physicians and Surgeons (Ont.) (2006), 208 O.A.C. 259 (Div. Ct.), refd to. [para. 31].

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; 2003 SCC 20, refd to. [para. 33].

Authors and Works Noticed:

Ontario College of Physicians and Surgeons, Final Report of the Task Force on Sexual Abuse of Patients, (1991), generally [para. 24].

Counsel:

Susan Chapman and Jonathan Rosenstein, for the appellant;

Jill Copeland, for the respondent.

This appeal was heard on September 5, 2006, before Feldman, MacPherson and Sharpe, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Sharpe, J.A., and was released on November 2, 2006.