College of Physicians and Surgeons of Ontario was wrong not to listen to complaints from physicians
February 9, 2023
The Divisional Court has decided that the failure of the College of Physicians and Surgeons of Ontario (College) to interview witnesses about the actions of an emergency department chief resulted in an inadequate investigation and justified quashing the decision of an Inquiries, Complaints and Reports Committee (ICRC).
In Kastner v Health Professions Appeal and Review Board, 2023 ONSC 629, lawyer Danny Kastner represented a group of physicians who complained to the College about the behaviour of Emergency Department Chief, Dr. Marko Duic.
The complaint alleged that Dr. Duic refused to hire female doctors in the emergency department, avoided working with female trainees and “openly disparaged women doctors as unsuited to emergency medicine.”1 At the time of the complaint, all 31 physicians in the hospital’s emergency department were men.
The complaint also alleged that Dr. Duic directed physicians to use involuntary psychiatric detention of patients (Form 1), and report them to the Ministry of Transportation for driver’s licence reviews (MTO reports), in circumstances where there was no medical justification, but as a means of increasing profitability in the hospital.
The physicians wished to remain anonymous because of fears of retaliation for complaining about their Chief. Their lawyer, Mr. Kastner, provided information to the College that contained a summary of his client’s concerns, a Globe & Mail investigative article into Dr. Duic’s activities, and a list of 12 witnesses.
Witnesses were willing to speak to the College
Mr. Kastner informed the College that he did not know what the witnesses would say because they would not speak to him. However, he said many of the witnesses would speak to the College, as they would be legally obligated to do so under s. 76(3.1) of the Health Professions Procedural Code.
The College investigator did not interview any of the witnesses provided by the physicians’ lawyer, nor those identified in the Globe & Mail article. The College’s ICRC decided that it “had no jurisdiction over the human rights issues and that it was satisfied that there was no evidence to support taking any action against Dr. Duic.” 2
The ICRC dismissed the complaint and took no further action.
When a person complains to the College and the ICRC makes a decision, the complainant has a right to a review before the Health Professions Appeal and Review Board (HPARB).
Investigation was deemed adequate by HPARB
On a review of the decision, the HPARB considered the adequacy of the ICRC’s investigation and the reasonableness of its decision.
The HPARB decided that the ICRC erred when it stated that it did not have the jurisdiction to investigate complaints based on discrimination. However, the HPARB decided that the ICRC had conducted an adequate investigation.
Under Section 26(1) of the Health Professions Procedural Code, the ICRC is obliged to make reasonable efforts “to consider all records and documents it considers relevant to the complaint.”
Case law has established that the ICRC’s investigation “need not be exhaustive,” but it is “required to obtain the essential information relevant to making an informed decision regarding the issues in the complaint.” 3
Mr. Kastner argued that the College should have interviewed the witnesses that he provided. The HPARB rejected the submission and found that it was:
“unlikely that any information provided by those witnesses would have changed the outcome of the [ICRC] decision … there is no indication of additional information that, if obtained, might reasonably be expected to have affected the Committee’s decision.”
The HPARB decided that the ICRC’s investigation was adequate and its decision to take no further action was reasonable.
‘Dangerous implications for the public interest’
Mr. Kastner brought an application for judicial review before the Divisional Court. On judicial review, the Court said, that:
“To find that the ICRC has no obligation to call witnesses in a situation such as this has dangerous implications for the public interest … otherwise, a member whose actions are potentially causing great damage to the public interest may be allowed to continue to do so until a complainant who is prepared to go on the record to the College comes forward.”
The HPARB had concluded that it was unlikely that if any of the witnesses had been interviewed, it would have changed the outcome of the investigation. The Court said that conclusion was unreasonable. Since the College did not interview the witnesses, the ICRC did not know what information would have been provided. The Court stated there was “no rational basis for the HPARB to find that if these witnesses were interviewed, it would not have changed the outcome of the investigation.” 4
The Court held that because the College had called none of the witnesses brought forward by the physicians, it rendered the HPARB’s decision (that the investigation was adequate) unreasonable.
The Court quashed both the decision of the HPARB and the decision of the ICRC to take no further action. The ICRC was then ordered to conduct a new investigation, in accordance with the Court’s reasons.
[1] Kastner v Health Professions Appeal and Review Board, 2023 ONSC 629 at para 10.]
[2] Kastner v Health Professions Appeal and Review Board, 2023 ONSC 629 at para 4.
[3] Kastner v Health Professions Appeal and Review Board, 2023 ONSC 629 at para 62.
[4] Kastner v Health Professions Appeal and Review Board, 2023 ONSC 629 at para 78.]