Swart v. College of Physicians and Surgeons (P.E.I.), (2014) 361 Nfld. & P.E.I.R. 5 (PEICA)

JudgeJenkins, C.J.P.E.I., Murphy and Mitchell, JJ.A.
Case DateNovember 04, 2014
JurisdictionPrince Edward Island
Citations(2014), 361 Nfld. & P.E.I.R. 5 (PEICA)

Swart v. College of Physicians (2014), 361 Nfld. & P.E.I.R. 5 (PEICA);

    1122 A.P.R. 5

MLB headnote and full text

Temp. Cite: [2014] Nfld. & P.E.I.R. TBEd. DE.022

Dr. Henry Swart (appellant) v. College of Physicians and Surgeons of Prince Edward Island (respondent)

(S1-CA-1292; 2014 PECA 20)

Indexed As: Swart v. College of Physicians and Surgeons (P.E.I.)

Prince Edward Island Court of Appeal

Jenkins, C.J.P.E.I., Murphy and Mitchell, JJ.A.

December 10, 2014.

Summary:

Dr. Swart challenged the College's disciplinary Order regarding a patient's complaint that he was negligent in performing exploratory laparoscopic surgery and in discharging her. The Order was made pursuant to recommendations of the Fitness to Practise Committee. Dr. Swart submitted that the Committee made critical errors that resulted in: (i) a denial of procedural fairness; (ii) findings and recommendations being improperly made and not supported by evidence, resulting in an unreasonable decision; and (iii) an unwarranted penalty.

The Prince Edward Island Court of Appeal allowed the appeal on all grounds, quashed the Council's Order, and ordered that no further action be taken with respect to the complaint.

Medicine - Topic 2067

Discipline for professional misconduct - Hearing - Duty to give reasons - Section 34(8) of the Medical Act (P.E.I.) required the Fitness to Practise Committee to report its findings and recommendations in writing to the Council - The Prince Edward Island Court of Appeal stated that s. 34(8) "is a statutory requirement for reasons. At common law, despite the principle that there is no general requirement for reasons, it is recognized as preferable that reasons be given for administrative decisions. The rationale is that failure to give reasons tends to undermine the confidence of the parties in a tribunal and inhibit judicial review or review statutory appeal. ... [I]n some circumstances - where the decision has important significance for the individual, when there is a statutory right of appeal, and from the point of view of fairness - the duty of procedural fairness requires the provision of a written explanation for a decision. It would be unfair for a person who is subject to a decision that is critical to his or her future not to be told why the result was reached. A discipline decision under the Act would fall within this rubric, because the outcome is critical to the future of a physician accused of misconduct." - See paragraph 82.

Medicine - Topic 2067

Discipline for professional misconduct - Hearing - Duty to give reasons - Section 34(8) of the Medical Act (P.E.I.) required the Fitness to Practise Committee to report its findings and recommendations in writing to the Council - The Prince Edward Island Court of Appeal stated that "a statutory requirement that a discipline committee report its findings and recommendations has been held to mean that the content of the report has to include a meaningful explanation, otherwise it is not compliant ... . Reasons have been found to be inadequate where they did not disclose whether a tribunal took into account various mitigating factors, and where the tribunal did not address the serious and detailed submissions of the affected party ... ; where they failed to identify the particular standard that a licensed practical nurse failed to meet ... ; and where the reasons indicated that a tribunal misconstrued the evidence of a key witness ... . Addressing the degree of departure from the standard is essential" - See paragraphs 83 and 84.

Medicine - Topic 2075

Discipline for professional misconduct - Hearing - Procedure - The Prince Edward Island Court of Appeal, in the context of considering procedural fairness, noted that under P.E.I.'s Medical Act, the Council could choose whether to have an investigation conducted by a Fitness to Practise Committee or a Board of Inquiry - The Board of Inquiry process required a high level of procedural fairness - In this case, in deciding to have the complaint investigated and considered by the Committee, the Council complied with the Act - "However, if the Council contemplated that the Complaint was of such a serious nature that it could result in the physician's right to practise medicine being lost, one would think that the Council would have opted to appoint a Board of Inquiry, and thereby afford the high degree of procedural fairness a Board of Inquiry is required to provide." - See paragraphs 54 to 56.

Medicine - Topic 2075

Discipline for professional misconduct - Hearing - Procedure - The Prince Edward Island Court of Appeal stated that "the provisions of the [Medical] Act that constitute the Fitness to Practise Committee leave a lot of the decision-making regarding matters of process with the Committee. ... These provisions provide some instruction regarding anticipated procedural fairness anticipated by the Act. First, the Fitness to Practise Committee is required to hear the evidence and ascertain the facts of each case. Second, at the Board of Inquiry stage, there are extensive specific provisions for procedural fairness. Third, the Council has the responsibility and the corresponding discretion to decide the appropriate process for investigating and considering a particular complaint. In 2009, the Legislature enacted new legislation to replace the discipline provisions of the Act. However, the new legislation has not yet been proclaimed. The new legislation explicitly includes the requirement of administrative law fairness. ... Had the process in the new legislation been followed [in the case under appeal], many of the problems encountered would have been avoided, or could have been efficiently reviewed on appeal." - See paragraphs 57 to 63.

Medicine - Topic 2075

Discipline for professional misconduct - Hearing - Procedure - The Prince Edward Island Court of Appeal stated that "It is a basic principle that a tribunal considering allegations of professional misconduct or fitness to practice has a duty to conduct its proceedings in accordance with the requirements of natural justice. ... As for the kind of case under appeal, a high standard of justice is required because the right of a physician to continue in one's profession is at stake. ... [T]he Committee must listen fairly to both sides and give the parties involved fair opportunity to correct or contradict any relevant statement prejudicial to their position. It follows that a tribunal such as a Committee must not, in general, hold private interviews with witnesses or hear evidence in the absence of a person whose conduct is under scrutiny. This analysis leads to the conclusion that an individual who faces a statutory professional disciplinary process is entitled to the full protection of the requirements of natural justice" - See paragraphs 64 and 65.

Medicine - Topic 2075

Discipline for professional misconduct - Hearing - Procedure - Dr. Swart, a member of the College of Physicians and Surgeons (P.E.I.), submitted that the Fitness to Practise Committee, in the course of its investigation, breached its duty of procedural fairness to him in three ways: (1) it commenced its interview of the complainant and her family before the scheduled time and in the absence of Dr. Swart or his counsel; (2) it employed double-hearsay evidence in its decision-making process; and (3) it utilized professional expertise of Committee members in the absence of any underlying evidence - The Prince Edward Island Court of Appeal found that the Committee committed those breaches of procedural fairness, and that those breaches were "concerning" - The Committee started the interview process early and in the absence of Dr. Swart's counsel; Dr. Swart was not obliged to complain or object - The Committee used double-hearsay evidence to suggest that the patient would have died but for her mother's intervention and advocacy - The Committee utilized its own expertise to supplement the evidence that was before the Committee in its finding of the degree of physician incompetence - Regarding the second and third breaches, Dr. Swart could only have become aware of their existence after the Committee made its recommendations to the Council - See paragraphs 51, 67 to 80.

Medicine - Topic 2082

Discipline for professional misconduct - Statutory appeals - Scope of - The present appeal related to the Council of the College of Physicians and Surgeons (P.E.I.), accepting a Fitness to Practise Committee recommendation - Section 37 of the Medical Act created a statutory right of appeal from any order of the Council for any party to a proceeding before the Committee - The appeal right was stated in general terms, without any restriction - The Prince Edward Island Court of Appeal discussed the role of the Court on appeal, the scope of appeal and the standard of review - See paragraphs 38 to 48.

Medicine - Topic 2101

Discipline for professional misconduct - Evidence - General - Dr. Swart, a member of the College of Physicians and Surgeons (P.E.I.), challenged the College's disciplinary Order made pursuant to recommendations of the Fitness to Practise Committee - The Prince Edward Island Court of Appeal, in quashing the Order, held that the Committee made the following material errors in dealing with the evidence regarding vitally important matters - "(i) It accepted the Complainant's evidence and implicitly rejected Dr. Swart's evidence on important matters that go to the ultimate questions of misconduct and fitness without providing any explanation for choosing one and rejecting the other. (ii) It employed double-hearsay evidence, which had the effect of elevating the consequence of Dr. Swart's error. (iii) It utilized the professional expertise of the Committee in the absence of evidence before the Committee in making an important determination - that Dr. Swart's knowledge and appreciation fell below that of even a resident elevated the degree of the error. This finding goes to the heart of the question of whether the physician conduct goes beyond mere negligence or carelessness and amounts to unfitness or professional misconduct under the Act. (iv) It took the previous Dr. Swart Complaint Synopsis into account, without providing any explanation as to why it was important or how or whether any filter was used. It is thereby unknown upon appellate review how the Committee viewed previous complaints regarding which the College took no action when it determined its recommendation for penalty." - See paragraph 89.

Medicine - Topic 2111

Discipline for professional misconduct - Evidence - Findings of investigating committee - A member of the College of Physicians and Surgeons (P.E.I.), challenged the College's disciplinary Order made pursuant to recommendations of the Fitness to Practise Committee - The Committee found that the member's "repeated errors in judgment amount to wanton and cavalier disregard for the health and well-being of his patient" and that his care of the patient was "... conduct that was clearly disgraceful and unprofessional within the meaning of the Medical Act and Regulations." - The Prince Edward Court of Appeal held that none of those findings and conclusions were supported by the evidence that was before the Committee - Nor was there evidence on the record to support any of the three findings that the member's conduct was: "clearly disgraceful;" he showed "wanton and cavalier disregard" for the patient; or his conduct was "clearly disgraceful and unprofessional" - The removal of those findings and conclusions vitiated the Committee recommendation and Council decision on penalty - See paragraphs 99 to 102.

Medicine - Topic 2111

Discipline for professional misconduct - Evidence - Findings of investigating committee - Dr. Swart, a member of the College of Physicians and Surgeons (P.E.I.), challenged the College's disciplinary Order made pursuant to recommendations of the Fitness to Practise Committee - The Committee report to the Council stated that the "failures of judgment are of such a nature that they amount to a lack of skill and judgment that demonstrates professional incompetence rather than simple negligence or carelessness." - The Prince Edward Island Court of Appeal held that "this damning conclusion is not supported by the evidence." - The Committee made its critical findings in three general areas: pre-surgery, surgery and discharge - "[T]he record that was before the Fitness to Practise Committee does not permit the conclusion either that Dr. Swart demonstrated a lack of knowledge, skill or judgment of such a nature and extent to make it desirable in the public interest that he be no longer permitted to practise or that his practice be restricted, or that he is guilty of professional misconduct. Therefore, the core findings and conclusions of professional misconduct and unfitness are unreasonable and should be quashed." - See paragraphs 104 to 125.

Medicine - Topic 2137

Discipline for professional misconduct - Judicial review (appeals) - Dr. Swart challenged the College's disciplinary Order regarding a patient's complaint that he was negligent in performing exploratory laparoscopic surgery and in discharging her - Both parties requested the Court to consider further evidence, comprised of two affidavits - The Prince Edward Island Court of Appeal stated that "Usually a judicial review or a statutory appeal is based on the record of proceedings before a tribunal. In this case, there was no formal hearing before the Committee, and consequently there was no viva voce evidence, no cross-examination, no recording of proceedings, and no transcript. The [Medical] Act does not expressly require such formalities and procedural protection. ... The statutory right of appeal created by s. 37 of the Act states that the record of appeal before the Court is to be comprised of the order of Council and the findings and recommendation of the Committee. Subsection 37(4) then states that the Court of Appeal may receive and consider any further evidence which it considers relevant." - The requested further evidence was clearly relevant to the reasonableness of the sanction or penalty, and could not have been produced before the College imposed the penalty - The Court therefore received and consider the evidence - See paragraphs 49 and 50.

Medicine - Topic 2137

Discipline for professional misconduct - Judicial review (appeals) - Dr. Swart challenged the College's disciplinary Order regarding the patient complaint against him - The Order was made pursuant to recommendations of the College's Fitness to Practise Committee - Dr. Swart submitted that the Committee made critical errors in its decision-making process that resulted in: (i) a denial of procedural fairness; (ii) findings and recommendations being improperly made and not supported by evidence, resulting in an unreasonable decision; and (iii) an unwarranted penalty - The Prince Edward Island Court of Appeal quashed the Council's Order and allowed the appeal - The Committee made material errors regarding the matters raised by all three grounds of appeal - There were three breaches of procedural fairness - The Committee made errors in dealing with the evidence - It then made findings and recommendations that were not supported by evidence or in law, including the core findings of "professional misconduct" and "unfitness to practice" - Its recommendation on penalty was not sustainable because it was based on unsubstantiated findings and conclusions and because it was improperly formulated - The Court ordered that no further action be taken with respect to the complaint - See paragraphs 34, 150 to 153.

Medicine - Topic 2181

Discipline for professional misconduct - Punishments - General - The Prince Edward Island Court of Appeal stated that "a penalty is unreasonable if it does not bear a direct relationship to the wrongdoing found to have been committed. In this case, the foundation for the penalty being found to be unsubstantiated, it follows that the Committee core findings and conclusions of professional misconduct and unfitness to practise are unreasonable. There being no basis for the penalty, it should be quashed." - The appellant's additional submissions also had merit: the penalty imposed was disproportionate in the circumstances; was based on improper consideration of his Complaint Synopsis; and was not feasible or capable of being performed - The Court discussed those submissions as well, "because we wish to provide guidance that may assist the Council on administration of future complaints" - See paragraphs 128 to 149.

Cases Noticed:

Milstein and Ontario College of Pharmacy et al. (No. 2), Re (1976), 72 D.L.R.(3d) 202 (Ont. Div. Ct.), refd to. [para. 42].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 43].

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20, refd to. [para. 43].

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. 43].

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. 43].

Matheson v. College of Physicians and Surgeons (P.E.I.) (2010), 295 Nfld. & P.E.I.R. 56; 911 A.P.R. 56; 2010 PECA 5, refd to. [para. 44].

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. 52].

Conseil de la magistrature (N.-B.) v. Moreau-Bérubé, [2002] 1 S.C.R. 249; 281 N.R. 201; 245 N.B.R.(2d) 201; 636 A.P.R. 201; 2002 SCC 11, refd to. [para. 52].

Moreau-Bérubé v. New Brunswick (Judicial Council) - see Conseil de la magistrature (N.-B.) v. Moreau-Bérubé.

Mondesir v. Manitoba Association of Optometrists (2001), 160 Man.R.(2d) 143; 262 W.A.C. 143; 2001 MBCA 183, leave to appeal denied (2002), 293 N.R. 198; 166 Man.R.(2d) 160; 278 W.A.C. 160 (S.C.C.), refd to. [para. 53].

Kane v. Board of Governors of University of British Columbia, [1980] 1 S.C.R. 1105; 31 N.R. 214, refd to. [para. 65].

Knight v. Board of Education of Indian Head School Division No. 19, [1990] 1 S.C.R. 653; 106 N.R. 17; 83 Sask.R. 81, refd to. [para. 65].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 65].

Mondesir v. Manitoba Association of Optometrists (1998), 131 Man.R.(2d) 124; 187 W.A.C. 124 (C.A.), refd to. [para. 65].

Syndicat canadien de la fonction publique, section locale 301 v. Montréal (Ville), [1997] 1 S.C.R. 793; 210 N.R. 101, refd to. [para. 66].

Markandey v. Board of Ophthalmic Dispensers (Ont.), [1994] O.J. No. 484 (C.J.), refd to. [para. 66].

Milner v. Registered Nurses Association (B.C.) (1997), 71 B.C.L.R.(3d) 373 (S.C.), refd to. [para. 66].

R. v. Dixon (S.), [1998] 1 S.C.R. 244; 222 N.R. 243; 166 N.S.R.(2d) 241; 498 A.P.R. 241, refd to. [para. 66].

Innisfil (Township) v. Vespra (Township); South Simcoe Estates et al., [1981] 2 S.C.R. 145; 37 N.R. 43, refd to. [para. 66].

Mehr v. Law Society of Upper Canada, [1955] S.C.R. 344, refd to. [para. 66].

Reddall v. College of Nurses of Ontario (1983), 1 Admin. L.R. 278 (Ont. C.A.), refd to. [para. 66].

Del Core v. College of Pharmacists (Ont.) (1985), 10 O.A.C. 57; 21 D.L.R.(4th) 68 (C.A.), refd to. [para. 66].

Bennet v. Registered Psychiatric Nurses' Association (Man.) (2003), 173 Man.R.(2d) 267; 293 W.A.C. 267; 2003 MBCA 69, refd to. [para. 66].

Casavant v. Professional Ethics Committee of the Saskatchewan Teachers' Federation (2005), 262 Sask.R. 195; 347 W.A.C. 195; 2005 SKCA 52, refd to. [para. 83].

Fedoriuk v. Royal Canadian Mounted Police (Commissioner) (1988), 88 N.R. 61; 54 D.L.R.(4th) 168 (F.C.A.), refd to. [para. 84].

Walsh v. Council for Licensed Practical Nurses (2010), 295 Nfld. & P.E.I.R. 222; 911 A.P.R. 222; 2010 NLCA 11, refd to. [para. 84].

Gale v. College of Physicians and Surgeons (Ont.) (2003), 178 O.A.C. 88 (Div. Ct.), refd to. [para. 84].

Sussman v. College of Alberta Psychologists (2010), 490 A.R. 304; 497 W.A.C. 304; 2010 ABCA 300, refd to. [para. 84].

R. v. Gagnon (L.), [2006] 1 S.C.R. 621; 347 N.R. 355; 2006 SCC 17, refd to. [para. 85].

F.H. v. McDougall, [2008] 3 S.C.R. 41; 380 N.R. 82; 260 B.C.A.C. 74; 439 W.A.C. 74; 2008 SCC 53, refd to. [para. 85].

Osif v. College of Physicians and Surgeons (N.S.) (2009), 276 N.S.R.(2d) 118; 880 A.P.R. 118; 2009 NSCA 28, refd to. [para. 85].

Gillis v. Council for Licensed Practical Nurses (2004), 238 Nfld. & P.E.I.R. 82; 706 A.P.R. 82; 2004 CarswellNL 150 (T.D.), refd to. [para. 85].

Dhawan v. College of Physicians and Surgeons (N.S.) (1998), 168 N.S.R.(2d) 201; 505 A.P.R. 201 (C.A.), refd to. [para. 85].

Shamsuzzaman v. College of Physicians and Surgeons (Sask.) (2011), 371 Sask.R. 84; 518 W.A.C. 84; 2011 SKCA 41, refd to. [para. 85].

Myers v. Law Society of Newfoundland (1998), 165 Nfld. & P.E.I.R. 150; 509 A.P.R. 150 (Nfld. C.A.), refd to. [para. 97].

Bayang v. College of Physicians and Surgeons (Ont.) (1993), 63 O.A.C. 141 (Div. Ct.), refd to. [para. 98].

Reddoch v. Medical Council (Yukon) (2001), 161 B.C.A.C. 131; 263 W.A.C. 131 (Yuk. C.A.), refd to. [para. 98].

Adamo v. College of Physicians and Surgeons (Ont.) (2007), 223 O.A.C. 175 (Div. Ct.), refd to. [para. 102].

Trace v. Institute of Chartered Accountants (Alta.) (1988), 91 A.R. 241 (C.A.), refd to. [para. 102].

Huerto v. College of Physicians and Surgeons (Sask.) (1999), 178 Sask.R. 52; 1999 CarswellSask 40 (Q.B.), refd to. [para. 104].

Huerto v. College of Physicians and Surgeons (Sask.) (2004), 253 Sask.R. 1; 2004 CarswellSask 587 (Q.B.), refd to. [para. 104].

Adamo, Re, [2005] O.C.P.S.D. 22, refd to. [para. 104].

Green v. College of Physicians and Surgeons (Sask.) (1986), 51 Sask.R. 241 (C.A.), refd to. [para. 119].

Bradley, Re, [1995] O.C.P.S.D. 24, dist. [para. 140].

Statutes Noticed:

Medical Act, R.S.P.E.I. 1988, c. M-5, sect. 32.1(1) [para. 3].

Authors and Works Noticed:

Casey, James T., The Regulation of Professions in Canada (2002), pp. 7-1 to 7-6 [para. 65]; 8-8.1 [para. 66]; 13-7 [para. 97]; 15-1 [para. 41]; 15-6 to 15-19 [para. 42]; 15-9 [para. 43]; para. 10.1 [para. 85].

Counsel:

James W. Gormley, Q.C., and Thomas P. Laughlin, for the appellant;

J. Gordon MacKay, Q.C., and C. Ryan Gallant, for the respondent.

This appeal was heard at Charlottetown, P.E.I., on November 4, 2014, before Jenkins, C.J.P.E.I., Murphy and Mitchell, JJ.A., of the Prince Edward Island Court of Appeal. In reasons written by Jenkins, C.J., the Court delivered the following judgment, dated December 10, 2014.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT