Sazant v. College of Physicians and Surgeons (Ont.), (2012) 297 O.A.C. 338 (CA)

• Jurisdiction: Ontario
• Judge: Simmons, Armstrong and Pepall, JJ.A.
• Neutral Citation: 2012 ONCA 727
• Citation: (2012), 297 O.A.C. 338 (CA),2012 ONCA 727,113 OR (3d) 420,CarswellOnt 13478,297 OAC 338,113 O.R. (3d) 420,297 O.A.C. 338,(2012), 297 OAC 338 (CA)
• Date: 30 October 2012
• Court: Court of Appeal (Ontario)

Sazant v. College of Physicians (2012), 297 O.A.C. 338 (CA)

MLB headnote and full text

Temp. Cite: [2012] O.A.C. TBEd. NO.006

Dr. Marvin Sazant (appellant) v. The College of Physicians and Surgeons of Ontario (respondent)

(C53838; C53840; C53846; 2012 ONCA 727)

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

Ontario Court of Appeal

Simmons, Armstrong and Pepall, JJ.A.

October 30, 2012.

Summary:

The College of Physicians and Surgeons (Ont.) found that Dr. Sazant engaged in disgraceful, dishonourable or unprofessional conduct of a sexual nature with three boys aged between eight and 14 years. The College revoked Dr. Sazant's licence to practice. Dr. Sazant appealed.

The Ontario Divisional Court, in a decision not reported in this series of reports, dismissed the appeal. Dr. Sazant appealed.

The Ontario Court of Appeal dismissed the appeal.

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - [See Civil Rights - Topic 1641.3 ].

Civil Rights - Topic 1641.3

Property - Search and seizure - Summonses - Section 75(1)(a) of the Health Professions Procedural Code (Ont.) authorized the Registrar, on reasonable and probable grounds, to appoint investigators to determine whether a member had committed an act of professional misconduct or was incompetent - Section 76(1) authorized an investigator to inquire into and examine the practice of the member to be investigated and gave him the powers of a commission under Part II of the Public Inquiries Act (Ont.) - Section 7 of Part II of the Public Inquiries Act authorized a commission to issue summons to obtain evidence - In the present case, investigators were appointed to investigate complaints of professional misconduct consisting of sexual impropriety by Dr. Sazant toward three boys aged between eight and 14 years - To initiate their proceedings, the investigators issued summonses to the Toronto Police and the Attorney General of Ontario to obtain material from police files and Crown briefs relating to now terminated criminal proceedings against Dr. Sazant in relation to the same victims - The College of Physicians and Surgeons (Ont.) subsequently found that Dr. Sazant had committed the professional misconduct alleged - Dr. Sazant's licence to practice medicine was revoked - Dr. Sazant appealed, arguing that the s. 76(1) summons power was overbroad and thus violated his rights under s. 8 of the Charter - The Ontario Court of Appeal dismissed the appeal where the s. 76(1) summons power was a limited power, restricted to the scope of the investigation authorized under s. 75(1)(a), namely, the act(s) of professional misconduct or incompetence the Registrar formed reasonable and probable grounds to believe the member committed - In addition, s. 11 of the Public Inquiries Act restricted the summonsed testimony and documents to evidence that was not privileged - Also, a member had limited expectation of privacy in relation to an authorized investigation - The court also noted that the issue related to a summons power, a less intrusive power than a search warrant power - Finally, the court noted that the fact that the summons could be exercised in a manner that violated the Charter did not itself render the power unconstitutional - See paragraphs 105 to 187.

Medicine - Topic 6

General - Interpretation of legislation - [See Medicine - Topic 2043 ].

Medicine - Topic 2043

Discipline for professional misconduct - Discipline - Powers of disciplinary body - Section 75(1)(a) of the Health Professions Procedural Code (Ont.) authorized the Registrar, on reasonable and probable grounds, to appoint investigators to determine whether a member had committed an act of professional misconduct or was incompetent - Section 76(1) authorized an investigator to inquire into and examine the practice of the member to be investigated and gave him the powers of a commission under Part II of the Public Inquiries Act (Ont.) - Section 7 of Part II of the Public Inquiries Act authorized a commission to issue summons to obtain evidence - In the present case, investigators were appointed to investigate complaints of professional misconduct consisting of sexual impropriety by Dr. Sazant toward three boys aged between eight and 14 years - To initiate their proceedings, the investigators issued summonses to the Toronto Police and the Attorney General of Ontario to obtain material from police files and Crown briefs relating to now terminated criminal proceedings against Dr. Sazant in relation to the same victims - The College of Physicians and Surgeons (Ont.) subsequently found that Dr. Sazant had committed the professional misconduct alleged - Dr. Sazant's licence to practice medicine was revoked - Dr. Sazant appealed - An argument was made that the summons power provided by s. 76(1) was limited to maters directly related to the "practice of medicine" as that expression was defined in s. 3 of the Medicine Act, 1991, i.e., the assessment, diagnosis, prevention and treatment of disease - The Ontario Court of Appeal rejected the argument and dismissed the appeal - Section 76(1) should be given a broad and purposive interpretation to enable an investigator to carry out his duty to investigate - This in turn assisted the College in its statutory mandate to properly regulate the profession and protect the public - Considered in this way, the "power to examine the practice of the member to be investigated" had to include the power to inquire into whether the member had committed acts of professional misconduct - See paragraphs 80 to 104.

Medicine - Topic 2076

Discipline for professional misconduct - Hearing - Delay - The notice of hearing before the Discipline Committee of the College of Physicians and Surgeons of Ontario in respect of allegations of professional misconduct against Dr. Sazant for sexual impropriety against three boys aged eight to 14 years was issued in March 2006 - This was: (1) more than 15 years after the College first learned about the first complainant's allegations and more than five years after the criminal proceedings in relation to the first complainant had terminated; (2) more than seven years after the College first learned about the second complainant's allegations and almost two years after the criminal proceedings in relation to the second complainant had terminated; and (3) more than seven years after the College first learned about the third complainant's allegations, and about a month before the criminal proceedings in relation to the third complainant were stayed - Dr. Sazant invoked abuse of process and moved twice for a stay of proceedings for delay - The Discipline Committee dismissed both motions - The Ontario Court of Appeal upheld the decision - The delay did not impact the fairness of the disciplinary hearing - The "mere passage of time", without more, did not give rise to an abuse of process - It was impractical to pursue the disciplinary hearing until the criminal proceedings had ended - Secondly, Dr. Sazant did not establish that the delay caused him actual, significant prejudice - Restrictions on his practice, which included a supervisor when he saw under-16 patients, were not "particularly onerous ... and ... did not prevent him from maintaining a 'vibrant' practice" - Finally, there was a "strong public interest" in having Dr. Sazant's case considered on the merits - See paragraphs 188 to 248.

Medicine - Topic 2166

Discipline for professional misconduct - Practice - Stay of proceedings - [See Medicine - Topic 2076 ].

Cases Noticed:

D.P. v. Wagg (2004), 187 O.A.C. 26; 239 D.L.R.(4th) 501; 71 O.R.(3d) 229 (C.A.), refd to. [para. 66].

Gore et al. v. College of Physicians and Surgeons (Ont.) (2009), 251 O.A.C. 49; 310 D.L.R.(4th) 354; 2009 ONCA 546, consd. [para. 83].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1, consd. [para. 93].

Royal College of Dental Surgeons (Ont.) et al. v. Rocket and Price, [1990] 2 S.C.R. 232; 111 N.R. 161; 40 O.A.C. 241, refd to. [para. 101].

McCullock-Finney v. Barreau du Québec, [2004] 2 S.C.R. 17; 321 N.R. 361; 2004 SCC 36, refd to. [para. 101].

Binet v. Pharmascience Inc. et al., [2006] 2 S.C.R. 513; 353 N.R. 343, consd. [para. 102].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 114].

Thomson Newspapers Ltd. v. Director of Investigation and Research, Combines Investigation Act et al., [1990] 1 S.C.R. 425; 106 N.R. 161; 39 O.A.C. 161, consd. [para. 115].

R. v. Wigglesworth, [1987] 2 S.C.R. 541; 81 N.R. 161; 61 Sask.R. 105; 24 O.A.C. 321, refd to. [para. 121].

R. v. Jarvis (W.J.), [2002] 3 S.C.R. 757; 295 N.R. 201; 317 A.R. 1; 284 W.A.C. 1, refd to. [para. 121].

British Columbia Securities Commission v. Branch and Levitt, [1995] 2 S.C.R. 3; 180 N.R. 241; 60 B.C.A.C. 1; 99 W.A.C. 1, consd. [para. 122].

R. v. McKinlay Transport Ltd. and C.T. Transport Inc., [1990] 1 S.C.R. 627; 106 N.R. 385; 39 O.A.C. 385, refd to. [para. 147].

Baron et al. v. Minister of National Revenue et al., [1993] 1 S.C.R. 416; 146 N.R. 270, refd to. [para. 147].

Krop v. College of Physicians and Surgeons (Ont.) (2002), 156 O.A.C. 77 (Div. Ct.), consd. [para. 160, footnote 4].

R.A.R. v. College of Physicians and Surgeons (Ont.) (2006), 216 O.A.C. 357; 275 D.L.R.(4th) 275 (C.A.), refd to. [para. 177].

Blencoe v. Human Rights Commission (B.C.) et al., [2000] 2 S.C.R. 307; 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161, consd. [para. 193].

R. v. Power (E.), [1994] 1 S.C.R. 601; 165 N.R. 241; 117 Nfld. & P.E.I.R. 269; 365 A.P.R. 269, refd to. [para. 208].

Stinchcombe v. Law Society of Alberta (2002), 303 A.R. 67; 273 W.A.C. 67; 2002 ABCA 106, dist. [para. 212].

Misra v. College of Physicians and Surgeons (Sask.) (1988), 70 Sask.R. 116; 52 D.L.R.(4th) 477 (C.A.), dist. [para. 212].

Thomson v. College of Physicians and Surgeons (B.C.), [1998] B.C.T.C. Uned. A35; 65 B.C.L.R.(3d) 209 (Sup. Ct.), refd to. [para. 212].

Katzman v. College of Pharmacists, [2001] O.A.C. Uned. 52 (Div. Ct.), revd. (2002), 223 D.L.R.(4th) 371 (Ont. C.A.), refd to. [para. 218].

Stanley v. Health Professions Appeal and Review Board (Ont.) (2003), 172 O.A.C. 56 (Div. Ct.), refd to. [para. 232].

Statutes Noticed:

Health Professions Procedural Code - see Regulated Health Professions Act.

Law Society of Upper Canada, Rules of Professional Conduct, rule 2.04 [para. 177].

Medicine Act, S.O. 1991, c. 30, sect. 3 [para. 78].

Medicine Act Regulations (Ont.), Reg. 856/93, sect. 1(33), sect. 1(34) [para. 79].

Public Inquiries Act, S.O. 2009, c. 33, Schedule 6, Part II, sect. 7 [para. 74]; sect. 11 [para. 75].

Regulated Health Professions Act, S.O. 1991, c. 18, Health Professions Procedural Code, Schedule 2, sect. 75(1)(a) [para. 7]; sect. 76(1) [para. 8].

Authors and Works Noticed:

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 93].

Steinecke, Richard, A Complete Guide to the Regulated Health Professions Act (2001) (Looseleaf), pp. 5-52 [para. 163]; 6:60.20(6) [para. 98].

Counsel:

Marie Henein and Matthew Gourlay, for the appellant;

Scott C. Hutchison and Vicki A. White, for the respondent;

Matthew P. Sammon, for the intervener, Dr. Leonard Kelly;

J. Thomas Curry and Jaan E. Lilles, for the intervener, Dr. Allan Beitel;

Robin K. Basu, for the intervener, Attorney General of Ontario.

This appeal was heard on May 1 and 2, 2012, by Simmons, Armstrong and Pepall, JJ.A., of the Ontario Court of Appeal. The following decision of the Court of Appeal was delivered by Simmons, J.A., and released on October 30, 2012.