Stanley v. Health Professions Appeal Bd., (2003) 172 O.A.C. 56 (DC)

• Judge: Benotto, S.J., Somers and Beaulieu, J.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: May 26, 2003
• Jurisdiction: Ontario
• Citations: (2003), 172 O.A.C. 56 (DC)

Stanley v. Health Professions Appeal Bd. (2003), 172 O.A.C. 56 (DC)

MLB headnote and full text

Temp. Cite: [2003] O.A.C. TBEd. JN.016

Dr. Barry Stanley (applicant) v. The Health Professions Appeal and Review Board and Joan Clodd (respondent)

(597/01)

Indexed As: Stanley v. Health Professions Appeal and Review Board (Ont.)

Court of Ontario

Superior Court of Justice

Divisional Court

Benotto, S.J., Somers and Beaulieu, J.

May 26, 2003.

Summary:

A patient attending a hospital emergency room for rectal bleeding filed a complaint that the attending doctor "molested" her by undertaking an improper breast examination. The Complaints Committee found the doctor guilty of unprofessional conduct. Although the Committee acknowledged that it could not resolve credibility findings, it relied on evidence that the patient told her friend and family doctor that it occurred, and expert evidence (not disclosed to the doctor) that a breast examination was not called for in those circumstances, to support its finding. The Health Professions Appeal and Review Board upheld the decision on appeal. The doctor sought judicial review, alleging a denial of natural justice.

The Ontario Divisional Court quashed the Board's decision for want of natural justice.

Medicine - Topic 2076

Discipline for professional misconduct - Hearing - Delay - A patient attending a hospital emergency room for rectal bleed­ing filed a complaint that the attending doctor "molested" her by undertaking an improper breast examination - The Com­plaints Committee found the doctor guilty of unprofessional conduct - Although the Committee acknowledged that it could not resolve credibility findings, it relied on evidence that the patient told her friend and family doctor that it occurred, and expert evidence (not disclosed to the doc­tor) that a breast examination was not called for in those circumstances, to sup­port its finding - The Health Professions Appeal and Review Board upheld the decision on appeal - The doctor sought judicial review, alleging a denial of natural justice - The Ontario Divisional Court quashed the Board's decision for denial of natural justice - It was patently un­reasonable to decline to determine issues of credibility, then rely on post-incident state­ments by the patient to make an adverse credibility finding against the doctor - The Committee relied on expert evidence not disclosed to the doctor until the Review Board hearing - Finally, the governing legislation contemplated a determination within 120 days - A decision which took 1,350 days was unconscionable.

Medicine - Topic 2112

Discipline for professional misconduct - Evidence - Credibility - [See Medicine - Topic 2076 ].

Medicine - Topic 2132

Discipline for professional misconduct - Judicial review (appeals) - Denial of na­tural justice - [See Medicine - Topic 2076 ].

Cases Noticed:

Yuz, Re (1986), 17 O.A.C. 228; 57 O.R.(2d) 106 (C.A.), refd to. [para. 11].

Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police and Ontario (Attorney General), [1979] 1 S.C.R. 311; 23 N.R. 410, refd to. [para. 11].

Counsel:

Andrew J. Reddon and Marcus Klee, for the applicant;

David Jacobs, for the respondents.

This application was heard on May 8, 2003, before Benotto, S.J., and Somers and Beaulieu, JJ., of the Ontario Divisional Court.

On May 26, 2003, the following judgment was released by the Court.