Hugh Mirolo Appellant And: The College of Physicians v. Surgeons of Newfoundland and Labrador, 2021 NLSC 12

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Mirolo v. College of Physicians and Surgeons of Newfoundland and Labrador , 2021 NLSC 12 Date : January 28, 2021 Docket : 201901G1453 Between: Hugh Mirolo Appellant And: The College of Physicians and Surgeons of Newfoundland and Labrador Respondent Before: Justice Garrett A. Handrigan On Appeal From: A Decision of the Adjudication Tribunal of The College of Physicians and Surgeons, dated the 18th day of January 2019. Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: January 11, 2021

Summary: An Adjudication Tribunal of the Newfoundland and Labrador College of Physicians and Surgeons found Dr. Hugh Mirolo guilty of professional misconduct for failing to cooperate fully with its peer review assessment. The Tribunal fined Dr. Mirolo $5,000 and ordered him to pay costs of $10,000. Dr. Mirolo appealed the Tribunal’s finding of guilt and the sanctions the Tribunal imposed on him. The Court upheld the Tribunal’s finding of guilt but remitted the matter to the Tribunal to reconsider the sanctions it imposed on Dr.

Mirolo and determine first if it should impose any, or other sanctions on him, and if fines and costs, the amounts of same; and to articulate its reasons for any sanctions it imposes. It made no order as to costs, other than to note each party will bear its own. Appearances:

Sarah J. Clarke Appearing on behalf of the Appellant Ruth E. Trask Appearing on behalf of the Respondent Authorities Cited: CASES CONSIDERED: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65; Independent InvestigationsOffice of British Columbia v. Vancouver (City) Police Department, 2020 BCCA 4; Roy v. Newfoundland (Medical Board) (1996), (NL CA), 143 Nfld. & P.E.I.R. 122, 1996 CarswellNfld 240 (Nfld. C.A.) STATUTES CONSIDERED: Medical Act, S.N.L. 2011, c. M-4.02; Police Act, R.S.B.C. 1996, c. 367 REASONS FOR JUDGMENT Handrigan, J.: INTRODUCTION [1] Hugh Mirolo is a medical doctor.

He practices in St. John’s, NL and holds a licence issued under the Medical Act, S.N.L.2011, c. M-4.02. Dr. Mirolo is a member of the College of Physicians and Surgeons of Newfoundland and Labrador (“NL College”) andis subject to its peer review assessment program. Sometime during 2017, the NL College retained Atlantic Provinces Medical PeerReview (“APMPR”) to carry out a peer review of Dr. Mirolo’s medical practice, which the APMPR did. [2] The APMPR initially performed an in-office chart review of Dr.

Mirolo’s practice and then presented a report to an APMPRstanding committee; following which the committee concluded that APMPR’s review should proceed to the interview phase, wherebyDr. Mirolo would attend a meeting of the APMPR’s Assessment Committee for an interview. The APMPR advised Dr. Mirolo to attenda meeting of the Assessment Committee on November 17, 2017 in Halifax, NS. [3] The Committee canceled the meeting when Dr. Mirolo raised issues about attending and the Committee concluded that themeeting would not proceed. The APMPR rescheduled the meeting to January 12, 2018, again at Halifax. Dr.

Mirolo objected to thetiming of the new meeting and indicated he would not attend. Again, the Committee canceled the meeting. [4] Meanwhile, the APMPR contacted Dr. Mirolo on January 10, 2018 advising that it would be filing an allegation with the NLCollege saying that he may be guilty of professional misconduct for not appearing before the Assessment Committee as directed, for apeer assessment interview.

The NL College’s Complaints Authorization Committee reviewed the APMPR’s allegation and instructed theRegistrar of the NL College to refer the allegation to a Disciplinary Panel of the College as a complaint. [5] On November 26, 2018, the NL College’s Adjudication Tribunal heard the complaint against Dr. Mirolo. It issued its writtendecision on January 18, 2019 finding Dr. Mirolo guilty of professional misconduct and imposed sanctions on him for his misconduct. Dr.Mirolo filed a notice of appeal of the Tribunal’s decision on February 20, 2019. I heard Dr.

Mirolo’s appeal on January 11, 2021 andreserved my judgment until now. The Issues [6] Dr. Mirolo’s appeal raises these issues: 1) What standard of review applies to the Adjudication Tribunal’s decision? 2) Did the Tribunal err in finding that Dr. Mirolo failed to comply with APMPR’s directions to him to attend meetings of itsAssessment Committee and was guilty of professional misconduct for his failure to attend? 3) Did the Tribunal err in fining Dr. Mirolo $5,000 and ordering him to pay costs of $10,000? The Law Standard of Review

Case Law [ 7 ] In Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 , the Supreme Court of Canada declared that it was seizing “…the opportunity to re-examine its approach to judicial review of administrative decisions” (paragraph 1). To that end, it “…adopted a revised framework for determining the standard of review where a court reviews the merits of an administrative decision”.

The Supreme Court started with “…the presumption that reasonableness is the applicable standard in all cases”, from which “… [r]eviewing courts should only derogate…where required by a clear indication of legislative intent or by rule of law” (paragraph 10). [ 8 ] The Court said (at paragraph 17): The presumption of a reasonableness review can be rebutted in two types of situations. The first is where the legislature has indicated that it intends a different standard or set of standards to apply. This will be the case where the legislature explicitly prescribes the applicable standard of review.

It will also be the case where the legislature has provided a statutory appeal mechanism from an administrative decision to a court, thereby signalling the legislature's intent that appellate standards apply when a court reviews the decision. The second situation in which the presumption of reasonableness review will be rebutted is where the rule of law requires that the standard of correctness be applied.

This will be the case for certain categories of questions, namely constitutional questions, general questions of law of central importance to the legal system as a whole and questions related to the jurisdictional boundaries between two or more administrative bodies. … [ 9 ] The Supreme Court then elaborated on the relevance of this comment from paragraph 17 of the judgment in Vavilov : “…where the legislature has provided a statutory appeal mechanism from an administrative decision to a court, thereby signaling the legislature's intent that appellate standards apply when a court reviews the decision”. [ 10 ] Of which the Supreme Court said, at paragraph 37 of Vavilov : It should therefore be recognized that, where the legislature has provided for an appeal from an administrative decision to a court, a court hearing such an appeal is to apply appellate standards of review to the decision.

This means that the applicable standard is to be determined with reference to the nature of the question and to this Court’s jurisprudence on appellate standards of review. Where, for example, a court is hearing an appeal from an administrative decision, it would, in considering questions of law, including questions of statutory

interpretation and those concerning the scope of a decision maker’s authority, apply the standard of correctness in accordance with Housen v. Nikolaisen , (citation omitted). Where the scope of the statutory appeal includes questions of fact, the appellate standard of review for those questions is palpable and overriding error (as it is for questions of mixed fact and law where the legal principle is not readily extricable): see Housen , (citation omitted).

Of course, should a legislature intend that a different standard of review apply in a statutory appeal, it is always free to make that intention known by prescribing the applicable standard through statute.

Statute [ 11 ] Section 56 (1) of the Medical Act says “[t]he college or the respondent may, within 30 days after receiving notice of a decision or order of an adjudication tribunal under this Part, appeal the decision or order or a part of it to the Trial Division by filing a notice of appeal with the court”. [ 12 ] Drawing on the Supreme Court’s comments as quoted from paragraph 37 of Vavilov , and because the Newfoundland and Labrador legislature provided in section 56 (1) of the Medical Act for an appeal of the Adjudication Tribunal’s decisions to this Court, I find that the applicable standards of review in this matter are the appellate standards of review, or more particularly: • For questions of law, correctness. • For questions of fact, "palpable and overriding error"; and • For questions of mixed fact and law and inferences of fact, generally "palpable and overriding error", but this may vary, depending on the inferences or the mixture of fact and law. [ 13 ] These are the standards I will apply when reviewing the Adjudication Tribunal’s decision Peer Assessment under the Medical Act [ 14 ]

Section 57 of the Medical Act authorizes the NL College to “… establish a peer assessment committee consisting of licensed medical practitioners and persons licensed to practise medicine by the medical regulatory authority in the manner prescribed by regulation”; and

section 58 permits the NL College to “…enter into an agreement with one or more of the medical regulatory authorities and medical societies for the establishment of a peer assessment committee”. [ 15 ] Section 61(2) (

b) of the Medical Act also says that the peer assessment committee may “…require that that medical practitioner confer with the peer assessment committee” and section 61(3) says that “[a] medical practitioner whose standards of practice are the subject of an assessment under the peer assessment program shall cooperate fully with the peer assessment committee and assessors”. [ 16 ] To those ends, the NL College joined with the Colleges in two of the other Atlantic Provinces, New Brunswick and Prince Edward Island, to form the Atlantic Provinces Medical Peer Review.

The APMPR first conducted in-office chart reviews of Dr. Mirolo’s practice and then tried to engage him for an in-person interview, at the two meetings I mentioned earlier in these reasons, on

November 17, 2017 and January 12, 2018 respectively. Dr. Mirolo’s failures to attend those meetings are, of course, at the root of the complaint that the NL College’s Adjudication Tribunal found him guilty of and then disciplined him for. Discipline under the Medical Act [ 17 ]

Section 39 of the Medical Act defines “allegation” as a “written document alleging that a person has engaged in conduct deserving of sanction” and it defines “conduct deserving of sanction” to include, amongst other things, “professional misconduct”.

Section 40 of the Medical Act authorizes the NL College to establish a “complaints authorization committee” which may receive an “allegation” from the Registrar of the NL College.

If the committee is “…of the opinion that there are reasonable grounds to believe that a respondent has engaged in conduct deserving of sanction, the allegation shall be considered as constituting a complaint, and the committee may instruct the registrar to file the complaint against the respondent and refer it to the disciplinary panel” (s. 44(6)(b)). [ 18 ] Adjudication tribunals are established under s. 45 of the Medical Act “…for the purposes of dealing with complaints referred by the disciplinary panel…”.

If the adjudication tribunal decides that a respondent is guilty, it may administer several sanctions, including imposing a fine not to exceed $10,000 (s. 49(3)(d)), to be paid to the college and ordering that the respondent pay all or part of the costs incurred by the college in investigating and hearing the complaint (s. 49(3)(e)). [ 19 ] This is the law I will apply to the issues I stated above. I turn now to analyze those issues, starting with the background to them. Analysis Background [ 20 ] Dr. Hugh Mirolo practices at the Waterford Hospital in St. John’s, NL. Dr.

Mirolo came to this province approximately 15 years ago, following medical studies in his native Argentina and by way of the United States, where he claims he studied neuropsychiatry at Yale, Dartmouth and other Ivy League schools. He says he arrived in Newfoundland on October 27, 2005 and immediately began to establish a neuropsychiatry unit in St. John’s. [ 21 ] This is how Dr. Mirolo described his clinic when he testified before the Adjudication Tribunal on November 26, 2018: I get referrals from psychiatry. We operate by referrals only. The clinic is a super specialty clinic.

We do not accept walk-ins or people directly. It’s only through referrals by healthcare professionals, your psychologists or neurologists, psychiatrists and so on and so forth, and I do see the cases that are difficult cases that usually bounce back between psychiatry and the neurology and internal medicine. (Transcript of hearing, page 128, lines 4-14) [ 22 ] Elsewhere in his testimony, Dr. Mirolo, told how he viewed his classification as a medical doctor: What I practice is – it’s not neuropsychiatry as a subspecialty.

It’s neuropsychiatry as a specialty, and the reason I can say this is because I have training in all four things: psychiatry, neuropsychiatry, neurology, internal medicine, with a focus on internal medicine. (Transcript of hearing, page 127, lines 5-11) [ 23 ] Margaret Susan Murray is the Executive Director of the APMPR. She also testified before the Adjudication Tribunal. Ms. Murray noted that the NL College engaged the APMPR to peer review Dr. Mirolo’s medical practice. At first the APMPR conducted an in-office chart review of Dr.

Mirolo’s practice, following which it directed him to attend an interview with the APMPR’s Assessment Committee. The three members of the Assessment Committee were medical doctors, Dr. Daigle, the APMPR’s medical director and Drs. Peters and McNeil, both psychiatrists. [ 24 ] Ms. Murray explained why the Assessment Committee engaged psychiatrists, and not neuropsychiatrists to peer review Dr. Mirolo: The Royal College of Physicians and Surgeons of Canada has since 1929 by

an Act of parliament been responsible for issuing specialist certification. They currently have something like 68 or 80 specialties and subspecialties that are approved by them as accepted, I guess, by the Royal College in practice. Neuropsychology is not one of those. (Transcript of hearing, page 49, lines 17-25) [ 25 ] She later advised that the College of Physicians and Surgeons of Ontario relies on psychiatrists to peer review doctors who hold themselves out as neuropsychiatrists.

As she explained in her testimony before the Adjudication Tribunal: So, I called the college in Ontario – again, they’re a very good resource – and said, “Do you know if there is any move to have neuropsychiatry certified by the Royal College” and was told “No”. And I said, “What do you do in the case of the assessment of a neuropsychiatrist in your jurisdiction” and I was told that a psychiatrist is sent. (Transcript of hearing, page 50, lines 6-14) [ 26 ] So, on October 4, 2017, Ms. Murray sent a registered letter to Dr. Mirolo.

She alluded to “previous correspondence” she had sent to him advising that “…the Assessment Committee of the Atlantic Provinces Medical Peer Review wished to meet personally with you to discuss [text omitted for reasons of privacy in copy of letter provided]”. She advised that a meeting was scheduled for Friday, November 17, 2017 @ 9:00 am in Halifax, NS and she noted that the meeting was provided for in

section 61 of this province’s Medical Act , copies of which she included. Ms. Murray also directed Dr. Mirolo to “[p]lease bring to the interview the first eight records reviewed by the assessor during the last office visit (copy enclosed) as well as 8-10 charts of other current patients”. [ 27 ] Dr. Mirolo did not respond to Ms. Murray’s letter directly but engaged legal counsel to respond for him. In particular, he

engaged Robert Regular of Regular Power Clarke Bennett Lawyers to write to Ms. Murray, which Mr. Regular did on November 10, 2017. Mr. Regular apologized for the lateness of his response and assured Ms. Murray that Dr. Mirolo “…is not refusing to attend for a peer review, however, he is concerned that what you have arranged, where it is to be held and the requirement that he bring patient records with him, will not achieve what the legislation you reference intends, and may violate other legislation pertaining to the rights of patients and his employer”. [ 28 ] Mr.

Regular elaborated on the points that he raised summarily in his opening remarks. In particular, he said he was concerned about: • the constitution of the Assessment Committee, in that no members were neuropsychiatrists, so Dr.

Mirolo believed that the members were “not his peers”; • having to travel to Halifax and “incur expenses to do the assessment”; • losing income by being away from his practice for 2-3 days and wanting lost fees “reimbursed to him”; • taking responsibility for patients’ files, which were Eastern Health’s property, not his; and • preferring to have legal counsel present during the assessment. [ 29 ] Mr. Regular concluded his letter with this request: “If…[having legal counsel present for the assessment] is a problem, please address it in your reply.

If it isn’t a problem, please take that into account in setting the new date and consult my office before making the date firm”. [ 30 ] Ms. Murray replied to Mr. Regular on November 15, 2017 and responded to all of the concerns that Mr. Regular addressed on Dr. Mirolo’s behalf when he wrote to her on November 10, 2017. Ms. Murray concluded her letter with this observation: As a result of your letter and the issues noted, it was evident that the planned interview could not take place, and we have canceled it.

I will be placing your letter and my response on the agenda of the upcoming meeting of the APMPR Board of Directors, which is scheduled for November 29. We will be in touch following a Board decision on further action. [ 31 ] The APMPR acted promptly to deal with the matter. Ms. Murray wrote to Mr. Regular on December 6, 2017 advising that the Board met and directed her to “…convey its decision to you”. She advised: “The Board has determined that Dr.

Mirolo be offered a final opportunity to meet with members of the Assessment Review Committee as provided under Sections 61(2) and 61(3) of the Medical Act of Newfoundland and Labrador ”. She then told Mr. Regular the meeting would take place on Friday, January 12, 2018 @ 9:00 am, in Halifax, NS. The members of the review panel remained the same and Dr. Mirolo could have legal counsel with him. [ 32 ] Ms. Murray also delivered this message to Dr. Mirolo, by way of his counsel: “If Dr.

Mirolo does not attend on January 12 with the patient charts as required, the Board has determined that he will be referred as a complaint to the College of Physicians and Surgeons of Newfoundland and Labrador”. [ 33 ] Dr. Mirolo replied to Ms. Murray’s letter to Mr. Regular with his own letter on December 21, 2017. He noted her letter of December 6, 2017 to Mr. Regular and sought “…your consideration on setting another date for the meeting”. He supported his request by noting that he had a patient scheduled for his clinic in St.

John’s for the week of January 8-12, 2018 and that the appointment had been arranged for “months”. According to Dr. Mirolo, “[t]his patient resides in the United States, she is traveling from Boston, MA to St. John’s, specifically for this assessment”. He added other comments about the importance of this appointment to his patient and reiterated that “[y]our consideration of this reason is greatly appreciated”. [ 34 ] Ms. Murray replied to Dr. Mirolo’s letter on January 2, 2018. She alluded to her letter of December 6, 2017 to Mr.

Regular and noted because of it, “…we have for the second time made provision for this interview…” and then she set out the logistics of what APMPR did to reschedule the interview to January 12, 2018. She noted “…that we are unable to reschedule the meeting” but offered to start it at 8:00 am instead of 9:00 am so that Dr. Mirolo could fly into and out of Halifax on the same day, getting back to St. John’s in early afternoon, thereby mitigating the inconvenience to him and his patient. [ 35 ] Ms. Murray also gave Dr.

Mirolo this reminder: “…failure to attend the interview will, as directed by the APMPR Board, result in referral as a complaint to the College of Physicians & Surgeons of Newfoundland and Labrador”. Robert Regular, Dr. Mirolo’s solicitor replied to Ms. Murray’s January 2, 2018 letter to Dr. Mirolo by email on January 5, 2018: “He [Dr.

Mirolo] takes the position that the commitment he made to his out of the country patient, to provide neuropsychiatric services to that patient, before your organization arbitrarily set the date for the subject Review, without consulting him or me, is more important than attending the meeting you have set”. [ 36 ] Ms. Murray replied to Mr. Regular’s January 5, 2018 email, by registered letter on January 10, 2018. She noted her letter of December 6, 2017 to Mr. Regular in which she said the “…APMPR Board determined that Dr.

Mirolo be offered a final opportunity to meet with members of the Assessment Review Committee…” and she also acknowledged that Dr. Mirolo said that he would not attend the interview. She concluded her letter with this observation: “I regret, therefore, that we can take no further action other than that directed by the APMPR Board: referral as a complaint to the College of Physicians and Surgeons of Newfoundland and Labrador”; and she provided a copy of the referral letter. [ 37 ] Dr. Susan E. Skanes is Chairperson of the Board of Directors of APMPR.

She wrote to the Registrar of the NL College on January 10, 2018 setting out the background to its complaint against Dr. Mirolo, and concluded her letter thus: It is, therefore, the concern of the Board of the Atlantic Provinces Medical Peer Review that Dr. Mirolo may be guilty of professional misconduct in that he does not appear to be in compliance with the requirements of Sections 61(2) and 61(3) of the Act Respecting the Practice of Medicine in the Province of Newfoundland and Labrador .

[ 38 ] The NL College tried by these means, but unsuccessfully, over the next two and a half months, to get Dr. Mirolo to respond to the APMPR’s letter of complaint to the NL College of January 10, 2018: • Registered letter to Dr. Mirolo, headed “Private & Confidential” , on January 16, 2018 (Emphasis in original). • Email to Dr. Mirolo on March 5, 2018. • Email to Dr. Mirolo on March 22, 2018; and • Registered letter to Dr. Mirolo, headed “Private & Confidential” , on March 29, 2018 (Emphasis in original). [ 39 ] The Registrar of the NL College noted in her March 29, 2018 letter that Dr.

Mirolo failed to reply to the earlier correspondence from the College and further that “…the allegation [received from the APMPR] has now been referred to the Complaints Authorization Committee [of the NL College] for consideration”. Ultimately, the Complaints Authorization Committee instructed the Registrar of the NL College to refer the APMPR’s allegation to the College’s Disciplinary Panel to be tried as a complaint at a disciplinary hearing.

The hearing took place on November 26, 2018 and the Adjudication Tribunal reserved its decision. [ 40 ] On January 18, 2019, the Tribunal issued its written decision, finding Dr. Mirolo guilty of professional misconduct and imposing the sanctions on him that I referred to earlier in these reasons. Dr. Mirolo filed his notice of appeal in this Court on February 20, 2019 and I heard his appeal on January 11, 2021. I reserved my judgment on it until now. [ 41 ] This is the background to Dr. Mirolo’s appeal. I turn now to discuss the issues I stated earlier, against this background.

Discussion Guilty of Professional Misconduct [ 42 ] The crux of the complaint against Dr. Mirolo for professional misconduct is that he failed to attend a twice-scheduled meeting of the APMPR’s Assessment Review Committee. In that says the complaint, Dr. Mirolo failed in the duty on him under s. 61(3) of the Medical Act to “cooperate fully” with the peer review process and is guilty of professional misconduct because of his failure. [ 43 ] As I noted above, the APMPR afforded Dr.

Mirolo two opportunities to attend the peer review interview, in the first instance on November 17, 2017 and ultimately on January 12, 2018. On neither occasion did Dr. Mirolo attend, nor, in fact, did the APMPR’s Assessment Review Committee meet on either of those dates. Ms. Murray, Executive Director of the APMPR told the NL College’s Adjudication Tribunal that the APMPR canceled both meetings, anticipating that if the Review Committee convened Dr. Mirolo would not appear and it would not be able to conduct its business. [ 44 ] Dr. Mirolo offers these rationales for not attending the meetings.

As to the November 17, 2017 meeting, he says: …the ‘first opportunity’ to confer in Halifax was revoked by the APMPR itself as is evident from the letter of the Executive Director of the APMPR to Mr. Regular dated November 15 th , 2017. In the letter, Ms. Sue Murray states, in part: ‘As a result of your letter and the issues noted, it was evident that the planned interview could not take place, and we have cancelled it ’. Therefore, the Appellant [Dr.

Mirolo] was ultimately deprived of the option to attend the first meeting and the January 12 th , 2018 meeting should not have been viewed as a ‘second opportunity’. (Paragraph 25 of the Appellant’s Appeal Brief; emphasis in original) [ 45 ] As to the January 12 th , 2018 meeting, he says: …the same was scheduled without prior input from the Appellant, notwithstanding his solicitor's prior request to be consulted before setting down a new date the same. While the Appellant [Dr.

Mirolo] acknowledges that he was required to ‘cooperate fully’ with the Peer Assessment Committee and assessors, requesting another date for the meeting due to a prior commitment should not have been considered as being uncooperative. There is no indication that the Appellant was refusing to allow an investigation into his medical practice; he was simply asking that he not be compelled to travel to the meeting on that date given his obligations to an out-of-country patient. In fact, Mr.

Regular made it clear in his letter to the Executive Director on the APMPR dated November 10 th , 2017 that the Appellant was, in fact, not refusing to attend the peer review: (Paragraph 26 of the Appellant’s Appeal Brief; emphasis in original) [ 46 ] Let me synthesize Dr.

Mirolo’s reasons for not attending the interviews this way: • For the first meeting, the APMPR canceled it so I could not attend. • For the second meeting, the APMPR scheduled it without consulting me and it conflicted with an important consultation I had with a patient. [ 47 ] In its decision, the NL College’s Adjudication Tribunal dealt with Dr. Mirolo’s failures to attend the scheduled meetings in succinct fashion: In this instance, after carefully considering all of the evidence, the relevant sections of the [ Medical] Act and By-Laws, and jurisprudence, the Tribunal finds that the Respondent [Dr.

Mirolo] failed in his duty to report to the Peer Assessment Committee on January 12, 2018 as instructed. The Tribunal notes that this was the Respondent’s second opportunity provided by the Peer Assessment Committee to confer in Halifax. The Tribunal does not accept the reasons provided by the Respondent for his failure to attend. If the statutory framework for the Peer Assessment Committee interviews was to be conducted on a consensual basis, the language of

Part VI

of the Act would state just that. However, these legislative provisions are mandatory. The Respondent’s failure to comply with the statutory obligations clearly stated in Sections 61 and 62 of the Act was a failure on the part of the Respondent to cooperate fully with the Peer Assessment Committee as required under Section 61(3) of the legislation. This is professional misconduct, as the College’s By- Laws, made under

Section 15 of the Act, state that under

Section 4(

a) that professional misconduct includes contravening the Act, regulations or by-laws. [ 48 ] This is the crux of the Tribunal’s decision. Let me parse out the Tribunal’s findings and consider whether they withstand the standard of review that applies to them. [ 49 ] The Tribunal’s findings include: 1) Dr. Mirolo had a duty to report to the Peer Assessment Committee. 2) The Peer Assessment Committee interviews are mandatory, not consensual requirements for medical practitioners. 3) Dr. Mirolo failed to report to the Peer Assessment Committee as instructed. 4) The Tribunal rejected Dr.

Mirolo’s reasons for failing to attend. 5) Dr. Mirolo failed to cooperate fully with the Peer Assessment Committee. 6) Failure to cooperate fully with the Peer Assessment Committee is professional misconduct. [ 50 ] Shortly, I will take each of these findings separately and consider whether the Tribunal acted appropriately when making them. I will apply the standard of correctness to Nos. 1 and 2 and palpable and overriding error to Nos. 3, 4, 5 and 6. Before beginning this review let me say simply that the Tribunal was fully advised of the factual matrix on which it was to adjudicate.

In paragraphs 7 to 34 of its written decision, under the heading of “Considerations”, the Tribunal sets out a thorough review of the facts that it relies on to make the findings I reported above. [ 51 ] As well, I note that the Tribunal had the benefit of hearing evidence from Tanya Drover, a licencing officer with the NL College, Margaret Susan Murray, Executive Director of the APMPR and Dr. Mirolo. 1) Duty to Report to the Peer Assessment Committee [ 52 ] Section 61(2) of the Medical Act provides: 61(2). The peer assessment committee, or an assessor on behalf of the committee may (

a) require that medical practitioner to provide information respecting the clinical assessment and care of patients by that medical practitioner or his or her records of care administered to patients; and (

b) require that that medical practitioner confer with the peer assessment committee. [ 53 ] It is self-evident from s. 61(2) that a peer assessment committee may insist that a medical practitioner report to it to be interviewed as part of his assessment. As the legislation says, the committee, may “(

b) require that the medical practitioner confer with the…committee” (underlining mine). Thus, when the APMPR wrote to Dr. Mirolo on October 4, 2017 and advised him its Assessment Committee “…wished to meet personally with you to discuss [text omitted for reasons of privacy in copy of letter provided]”, it was simply advising Dr. Mirolo of his duty to report to/confer with the committee, as provided for in s. 61(2) (

b) of the Medical Act . [ 54 ] The same applies when the Assessment Committee wrote to Dr. Mirolo on December 6, 2017 and offered him a “final opportunity to meet with members of the Assessment Review Committee as provided for under Sections 61(2) and 61(3) of the Medical Act of Newfoundland and Labrador”. [ 55 ] Even on the high standard of review of correctness, the Tribunal did not err in finding that Dr. Mirolo had a duty to report to the APMPR’s Assessment Committee. 2) Peer Assessment Committee Interviews are Mandatory [ 56 ] A similar analysis applies here as to the previous finding, with the same result.

The Committee may require a medical practitioner to confer with the peer assessment committee; and if it does, as the Assessment Committee did here, both on October 4, 2017 and December 6, 2017 a medical practitioner is obliged to attend. Even on the high standard of review of correctness, the Tribunal did not err in finding that the Peer Assessment Committee interviews are mandatory, not consensual. 3) Dr. Mirolo failed to report to the Peer Assessment Committee as instructed [ 57 ] The Adjudication Tribunal found as a fact that Dr.

Mirolo failed to report to the Peer Assessment Committee as it instructed him to do. The Committee offered Dr. Mirolo two opportunities to appear before it, first on November 17, 2017 and again on January 18, 2018. The Tribunal also found that Dr. Mirolo had a duty to report to the Committee and that he failed to discharge his duty to report. [ 58 ] These findings are subject to review on the standard of palpable and overriding error because they involve elements of mixed fact and law and/or inferences of fact. The Tribunal did not err in finding that Dr. Mirolo did not attend before the Assessment

Committee as it instructed him to do. Those are incontrovertible facts and require no further discussion. [ 59 ] As to the Tribunal’s finding that Dr. Mirolo had a duty to report to the Committee, which finding involves elements of mixed fact and law and/or inferences of fact, the Tribunal alluded to statutory framework in which the complaint against Dr. Mirolo had been brought and noted: “after carefully considering all of the evidence, the relevant sections of the [ Medical ] Act and By-Laws, and jurisprudence, the Tribunal finds that the Respondent [Dr.

Mirolo] failed in his duty to report to the Peer Assessment Committee on January 12, 2018 as instructed”. Later in the same paragraph of its decision, the Tribunal observed that statutory directive to cooperate with the review process is “mandatory”, not “consensual”; i.e., the directive creates a “duty” and does not simply rely on the medical practitioner to consent. [ 60 ] It is helpful to review s. 61(2) of the Medical Act , to which the Tribunal alluded in its reasons. It reads, as relevant here: 61(2). The peer assessment committee, or an assessor on behalf of the committee may (

a) require that medical practitioner to provide information respecting the clinical assessment and care of patients by that medical practitioner or his or her records of care administered to patients; and (

b) require that that medical practitioner confer with the peer assessment committee. [ 61 ] From the legislation it is clear that the peer assessment committee (or an assessor on its behalf) “may require” a medical practitioner to do one of two things: provide information about his patients or confer with the committee.

Neither the committee nor an assessor are obliged to require a medical practitioner to provide information about his patients or confer with the committee, but it is the committee’s or the assessor’s discretion, and not the medical practitioner’s discretion that the qualifier “may” relates to. [ 62 ] If the committee or an assessor directs the medical practitioner, he must comply; he has no discretion to refuse their requests. The positive obligations that s. 61(2) (

a) and (

b) places on the medical practitioner to comply is underscored by the wording of s. 61(3) which requires the medical practitioner to “fully cooperate” with the peer assessment committee and assessors. I will examine s. 61(3) shortly, but simply say for now that the Adjudication Tribunal did not err on the standard of palpable and overriding error when it found that Dr. Mirolo did not report to the Peer Assessment Committee of the APMPR as instructed and that he had a duty to report. 4) The Tribunal rejected Dr. Mirolo’s reasons for failing to attend [ 63 ] Earlier in these reasons, I summarized Dr.

Mirolo’s reasons for not attending the interviews the APMPR scheduled for him. For the first, he said that the APMPR canceled it so it should be counted against him; and for the second, he said the APMPR did not consult with him or his legal counsel to find a date, time and place that was acceptable to all attendees. [ 64 ] The Adjudication Tribunal rejected Dr. Mirolo’s reasons for failing to attend the scheduled interviews, in this pithy utterance: “The Tribunal does not accept the reasons provided by the Respondent [Dr. Mirolo] for his failure to attend”.

The Tribunal went on to add that “[i]f the statutory framework for the Peer Assessment Committee interviews was to be conducted on a consensual basis, the language of

Part VI of the Act would state just that”. [ 65 ] I discern these findings by the Tribunal on Dr. Mirolo’s reasons for failing to attend: • as to the first interview, it was not enough for him to reply to the APMPR’s directive to attend by objecting, both to attending the interview and the process the APMPR followed to

schedule it and then to say he could not attend the interview because the APMPR canceled it; and • as to the second interview, it was not enough for Dr. Mirolo to refuse to attend on that date because it conflicted with a previously scheduled patient appointment. [ 66 ] I will deal with each scheduled interview separately. [ 67 ] The APMPR directed Dr. Mirolo to attend the first interview on November 17, 2017. Ms. Murray wrote a registered letter to Dr.

Mirolo on October 4, 2017 after having sent earlier correspondence to him to advise that the Assessment Committee wished to meet with him to continue the peer review process that it began by conducting an in-office chart review of his practice. Robert Regular replied to Ms. Murray’s October 4, 2017 correspondence on November 10, 2017, almost six weeks after Ms. Murray’s letter to Dr. Mirolo and just one week before the scheduled interview. [ 68 ] Mr. Regular raised several issues on Dr. Mirolo’s behalf. I set them out specifically earlier in these reasons and I will not repeat them here.

It is sufficient to note that the APMPR was not going to resolve them all in the time left before the hearing, even though Ms. Murray provided a comprehensive response to them on November 15, 2017. The APMPR, through Ms. Murray, advised it was canceling the meeting to avoid the cost and inconvenience that would have ensued by pressing ahead with it, only for Dr. Mirolo not to attend. [ 69 ] It is disingenuous for Dr.

Mirolo, in this context, to simply say he could not attend the first interview because the APMPR canceled it; just as it is disingenuous for his counsel to begin his letter to the APMPR on November 10, 2017 by saying that Dr. Mirolo “is not refusing to attend for a peer review” and then to provide a list of reasons why he did not wish to participate in peer review, including that the “assessor” who conducted the in-office chart review “was not qualified to conduct the assessments”. [ 70 ] The Tribunal had all correspondence between the APMPR, Dr. Mirolo and his counsel, Mr.

Regular, available to it, as well as the testimony of Ms. Murray and Dr. Mirolo at the hearing on November 26, 2018. It did not err on the standard of palpable and

overriding error when it rejected his reasons for failing to attend the first interview. [ 71 ] As to the second interview, Ms. Murray wrote to Mr. Regular, Dr. Mirolo’s counsel, on December 6, 2017. She sent a registered letter on that date and faxed it through to Mr. Regular as well, confirming that it was delivered to Mr. Regular’s law office on the same date. I note here that Mr. Regular had taken up corresponding with the APMPR on Dr. Mirolo’s behalf, as he directed Ms. Murray when he replied to her for Dr. Mirolo on November 10, 2017. In her letter to Mr. Regular, Ms.

Murray advised that the APMPR was offering Dr. Mirolo “a final opportunity” to attend for an interview on Friday, January 12, 2017. [ 72 ] Dr. Mirolo replied to Ms. Murray’s letter himself, simply saying he would not attend because the date and time conflicted with a long-standing appointment he had with an out-of-country patient; he asked Ms. Murray to reschedule the interview. She replied saying she could start the interview earlier to lessen the inconvenience to Dr. Mirolo, but she could not reschedule it. [ 73 ] Once again, the Tribunal had all correspondence between the APMPR, Dr. Mirolo and his counsel, Mr.

Regular available to it, as well as the testimony of Ms. Murray and Dr. Mirolo at the hearing on November 26, 2018. It did not err on the standard of palpable and overriding error when it rejected his reasons for failing to attend the first interview. 5) Dr. Mirolo failed to cooperate fully with the Peer Assessment Committee [ 74 ] The Tribunal expressed itself this way when finding that Dr.

Mirolo did not fully cooperate with the Committee: “The Respondent’s failure to comply with the statutory obligations clearly stated in Sections 61 and 62 of the Act was a failure on the part of the Respondent to cooperate fully with the Peer Assessment Committee as required under Section 61(3) of the legislation”. [ 75 ] There are two elements to the Tribunal’s finding: He failed to comply with the Committee’s directives to attend the interviews; and his noncompliance was a failure to “cooperate fully” with the Committee. I have dealt sufficiently with Dr.

Mirolo’s failure to comply with the Committee’s directives to attend the interviews, under the preceding heading and will not repeat that discussion here. [ 76 ] As to the Dr. Mirolo’s noncompliance with the directives to attend the interviews being a failure to cooperate fully with the Committee, that goes to the meaning of the phrase “cooperate fully” and requires me to interpret the statute, to see if how the Tribunal interpreted the phrase conforms with how the statute intended it to be taken. [ 77 ] I note, in particular, that the Tribunal found that Dr.

Mirolo’s “statutory obligations [were] clearly stated in Sections 61 and 62 of the Act” and that his non-compliance was “a failure …to cooperate fully with the Peer Assessment Committee”. I am reminded of how the British Columbia Court of Appeal recently interpreted the obligation on police officers to “cooperate fully” with the Independent Investigations Office under s. 38.101 of the Police Act, R.S.B.C. 1996, c. 367 . [ Independent Investigations Office of British Columbia v.

Vancouver (City) Police Department , 2020 BCCA 4 (Referred to here as the IIO case )] [ 78 ] In the IIO case, the British Columbia Court of Appeal was required to interpret the words “cooperate fully” in

section 38.101 of the Police Act . The

section read that an officer “must cooperate fully with (

b) an IIO investigator in the IIO investigator's exercise of powers or performance of duties under this Act”. [ 79 ] In that case, the IIO was called in to investigate an incident on November 10, 2016 when a man was fatally shot by one of several officers who attended a robbery. The IIO began the investigation and directed the officers to attend for compulsory interviews. Before the interviews, counsel for the officers asked the IIO for disclosure of records of the incident specific to each of the officers. [ 80 ] The IIO refused to disclose the records and the officers declined to be interviewed.

The IIO brought a petition to the British Columbia Supreme Court to compel the officers to attend for the interviews even though they had not received the disclosure they requested. The trial judge ordered the officers to attend for the interviews. They appealed and the Court of Appeal dismissed their appeal. [ 81 ] Harris, J.A. who wrote the Court’s decision, offered his view of the “officer’s public legal duty to cooperate fully”.

It is apropos of this matter: I agree with the judge's conclusion that the officers' public legal duty to cooperate fully with the IIO is part of a legislative scheme that is intended to provide an independent and transparent investigative body for the purpose of maintaining public confidence in the police and the justice system, and that only minimal procedural requirements can be expected at the investigation stage….I also agree that witness officers fail to comply with their duty to cooperate by demanding certain conditions — such as pre-interview disclosure, the presence of counsel, the presence of union representatives, assurances that there will be no derivative use of their accounts, and that the interview be scheduled to accommodate annual leave, weekly leave, particular shifts or on some other basis — as a pre-condition to their cooperation…. [ 82 ] The College of Surgeons and Physicians of Newfoundland and Labrador is a self-regulating agency.

It engages in a comprehensive peer review process to ensure that it maintains public confidence in the medical profession, and it depends on medical practitioners to participate in peer review willingly to ensure its success. This does not happen when medical practitioners place conditions on their participation, as Dr. Mirolo did here. [ 83 ] Before leaving this point, please note that I prefer to think of a medical practitioner’s duty to cooperate fully in peer review positively, rather than negatively and then consider what Mr. Mirolo might have done to facilitate the exercise than what he did to prevent it.

In particular, Dr. Mirolo could have acted positively, in ways such as these to accommodate the APMPR’s requests for interviews and to engage fully in the process: • Inquire of Ms. Murray, based on her correspondence with him before she wrote her registered letter to him on October 4, 2017, when she anticipated the Assessment Committee would meet so that he could plan to attend. • Reply to her October 4, 2017 letter soon after he received it rather than wait for his counsel to reply a week before the first

interview was set. • Accept the qualifications of the Assessment Committee, without insisting that the psychiatrists on it were not “his peers”. • Canvass with Eastern Health their protocols for releasing patient charts to him to bring to the interviews, rather than insisting on itbeing another’s responsibility. • Accept the APMPR’s offer to reimburse him 50% of his travel costs to the interview, even though the agency had no responsibilityto reimburse him at all. • Accept the APMPR’s offer to start the January 12, 2018 meeting early to enable him to travel to and from Halifax the same day sohe could still with his patient to conclude their week-long consultation. • Respond to the NL College’s repeated requests to him about the complaint that the APMPR had filed with the NL College for hisfailure to cooperate in the peer review process. [84] The NL College’s Adjudication Tribunal was fully advised of how the APMPR’s process unfolded with Dr.

Mirolo. It foundthat he breached his duty to cooperate fully with the Peer Assessment Committee. It did not err on the standard of palpable andoverriding error when it found that he did. 6) Failure to cooperate fully with the Peer Assessment Committee is professional misconduct [85] In finding Dr. Mirolo guilty of professional misconduct, the Tribunal said: “This is professional misconduct, as the College’sBy-Laws, made under

Section 15 of the Act, state that professional misconduct includes contravening the Act, regulations or by-laws”.Section 15 (1)(

i) of the Medical Act authorizes the NL Council to “make by-laws, (

i) establishing a code of ethics which shallinclude (

i) a definition of ‘professional misconduct’ and ‘conduct unbecoming a medical practitioner’ for the purposesof sections 39 to 56 [dealing with discipline]”. Otherwise, “professional misconduct” is not defined in the Medical Act. [86] In Roy v. Newfoundland (Medical Board) (1996), (NL CA), 143 Nfld. & P.E.I.R. 122, 1996 CarswellNfld240 (Nfld. C.A.), our Court of Appeal considered what professional misconduct by a medical practitioner is.

In Roy, the NL Collegefound a medical practitioner guilty of professional misconduct for inappropriately examining a patient’s breasts and for being insensitivein providing privacy for her while she undressed. [87] The doctor appealed the College’s decision to this Court, which dismissed his appeal. He appealed to our Court of Appeal onseveral grounds, including a claim that the College’s

interpretation of “professional misconduct” was patently unreasonable. Indismissing his appeal, Cameron, J.A. found that the appeal judge in this Court did not err by accepting the College’s finding that theappellant had committed professional misconduct. [88] As to what constitutes “professional misconduct”, Cameron, J.A. stated: The weight of the authorities supports the position that the conduct of the person against whom a complaint is laid should be measuredagainst the opinion of fellow professionals. In Davidson v.

Royal College of Dental Surgeons (Ontario)[citation omitted] the test, earlieridentified in the English case of Allinson v.

General Council of Medical Education & Registration [citation omitted], was stated asfollows: If it is shewn that a member of the college, in the pursuit of his profession, has done something with respect to it which would bereasonably regarded as improper by his professional brethren, of good repute and competency, then it is open to the board of directors ofthe college to decide that he has been guilty of 'improper conduct in professional respect'. (Roy, paragraph 38) [89] I discern from Cameron, J.A.’s comment that courts should, where appropriate, defer to medical colleges on what constitutesprofessional misconduct for medical practitioners.

In this case, the NL College’s Adjudication Tribunal consisted of two medicalpractitioners and one public interest person. It was suitably constituted to judge whether Dr. Mirolo’s failure to comply with theAPMPR’s directives to attend peer review interviews amounted to professional misconduct. [90] Sections 61(2) & (3) of the Medical Act requires a medical practitioner to comply with directives from a peer assessmentcommittee, or an assessor on its behalf when they are engaged on the peer assessment process.

The Adjudication Tribunal did not err onthe standard of palpable and overriding error when it found that Dr. Mirolo breached those provisions of the Medical Act and hisbreaches amounted to professional misconduct. The Sanctions the Tribunal Imposed [91] As I noted earlier in these reasons, the Adjudication Tribunal fined Dr. Mirolo $5,000 and ordered him to pay $10,000 towardsthe cost of the proceedings. Dr. Mirolo challenges those sanctions on this appeal.

As to the fine, he says that the “…AdjudicationPanel…did not articulate any rationale to explain the fine imposed, nor did it discuss the aggravating or mitigating circumstances whichwould justify the imposition of a fine” (Paragraph 40 of Appellant’s Brief). [92] As to the costs’ award, he says that “…the Adjudication Tribunal failed to provide reasons for reaching the decision it madeand this amounted to a denial of procedural fairness” (Paragraph 60 of the Appellant’s Brief). Dr. Mirolo also says the evidence the NLCollege submitted to the Tribunal to support its claim for costs was not reliable.

In particular, it says that “…all except one of the costs

listed by…[the NL College] were rounded figures which were lacking in detail and supporting documentation” (Paragraph 56 of Appellant’s Brief). [ 93 ] In each instance Dr. Mirolo acknowledged that the reviewing court should defer to penalties imposed by disciplinary tribunals and review them only to determine if the tribunal erred in principle or imposed a penalty which is clearly unfit. [ 94 ] The NL College disagrees with the positions that Dr. Mirolo adopted for each issue.

As to the fine, it says that “…the Tribunal made an appropriate and proper order, within its statutory jurisdiction, when it imposed a fine on the Appellant. There is no basis for interfering with it on appeal” (Paragraph 68 of Respondent’s Memorandum). [ 95 ] As to the costs, the NL College says that “[t]he Tribunal acted within its statutory authority in making a costs award” (Paragraph 79 of Respondent’s Memorandum); and that relevant case law “…reveals that an award of costs following a disciplinary finding is typical” (Paragraph 80 of Respondent’s Memorandum). It also notes that counsel for Dr.

Mirolo consented to the document the Tribunal relied on for the costs of the proceedings, as an exhibit at the hearing. [ 96 ] I have a problem with the sanctions the Tribunal imposed on Dr. Mirolo. It is not as to the quantum in either instance, but as Dr. Mirolo has noted in his Brief, with the paucity of reasons the Tribunal provided for why it imposed any fine at all, or for its amount, or any costs at all, or their amount. Let me explain. [ 97 ] In paragraph 42 of the Tribunal’s decision, which I quoted earlier in these reasons, I parsed out the Tribunal’s findings for why Dr.

Mirolo was guilty of professional misconduct. Those reasons support that analysis, but they do not support its decision to impose a fine on Dr. Mirolo or order him to pay costs. [ 98 ] This is what the Tribunal says about the sanctions: “Based on the foregoing, the Adjudication Tribunal finds the Respondent guilty of professional misconduct. The Adjudication Tribunal finds this conduct is deserving of sanction. These sanctions are as follows… .” Regrettably, that is not enough. It does not inform Dr.

Mirolo, the public or this Court why the Tribunal imposed the sanctions or what it intended to achieve by them. [ 99 ] In the result, I find that the Adjudication Tribunal erred on the standard of palpable and overriding error when it failed to articulate its reasons for imposing a fine on Dr. Mirolo or for its amount and for ordering him to pay costs, or their amount. I remit this matter to the Tribunal to reconsider the sanctions it imposed on Dr.

Mirolo and determine first if it should impose any, or other sanctions on him, and if fines and costs, the amounts of same; and to articulate its reasons for any sanctions it imposes. [ 100 ] As to the document the Tribunal relied on to determine the costs of the proceedings, I find that it was appropriately before the Tribunal for its consideration. Costs [ 101 ] Because of the divided outcome, each party will bear its own costs.

Summary and Disposition [ 102 ] An Adjudication Tribunal of the Newfoundland and Labrador College of Physicians and Surgeons found Dr. Hugh Mirolo guilty of professional misconduct for failing to cooperate fully with its peer review assessment. The Tribunal fined Dr. Mirolo $5,000 and ordered him to pay costs of $10,000. Dr. Mirolo appealed the Tribunal’s finding of guilt and the sanctions the Tribunal imposed on him. [ 103 ] The Court upheld the Tribunal’s finding of guilt but remitted the matter to the Tribunal to reconsider the sanctions it imposed on Dr.

Mirolo and determine first if it should impose any, or other sanctions on him, and if fines and costs, the amounts of same; and to articulate its reasons for any sanctions it imposes. It made no order as to costs, other than to note each party will bear its own. Order [ 104 ] In the result, I order that: 1) The appeal against the Tribunal’s finding that Dr. Mirolo was guilty of professional misconduct is dismissed. 2) The matter is remitted to the Tribunal to reconsider the sanctions it imposed on Dr.

Mirolo and determine first if it should impose any, or other sanctions on him, and if fines and costs, the amounts of same; and to articulate its reasons for any sanctions it will impose. 3) Each party will bear its own costs. _____________________________ Garrett A. Handrigan Justice