Docket: 1744 The College of Physicians v. Surgeons of Saskatchewan, 2011 SKCA 41

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2011 SKCA 41 Date: 20110404 Between: Docket: 1744 The College of Physicians and Surgeons of Saskatchewan Appellant - and - Dr. Mohammed Shamsuzzaman Respondent Coram: Jackson, Richards & Ottenbreit JJ.A. Counsel: Bryan Salte, Q.C. for the Appellant Aaron Fox, Q.C. for the Respondent

Appeal: From: 2009 SKQB 45 Heard: November 15, 2010 Disposition: Appeal Allowed; New Hearing Ordered Written Reasons: April 4, 2011 By: The Honourable Madam Justice Jackson In Concurrence: The Honourable Mr. Justice Richards The Honourable Mr. Justice Ottenbreit Jackson J.A. I. Introduction [ 1 ] This is an appeal from a decision of a Queen’s Bench judge, reported at 2009 SKQB 45 , 323 Sask. R. 160, quashing a decision of the Discipline Committee of the College of Physicians and Surgeons (the "Committee"). The Committee found Dr.

Shamsuzzaman guilty of conduct unbecoming on the basis of inappropriate touching during the respiratory examination of a female patient. In overturning that decision, the learned judge interpreted the applicable bylaw as providing that a physician can only be found guilty of unbecoming conduct if the medical examination was unnecessary or if the physician derived sexual gratification from the incident. He concluded that because Dr. Shamsuzzaman had not derived sexual gratification from the touching and the examination was necessary, the doctor was not guilty of unbecoming conduct.

The College of Physicians and Surgeons of Saskatchewan (the “College”) appeals this decision. [ 2 ] In my respectful view, the learned reviewing judge erred by quashing the decision on the basis that he did. Specifically, he erred by applying a standard of review of correctness to the

interpretation of the applicable bylaw. The appropriate standard of review is reasonableness, and the Committee’s

interpretation of the bylaw is reasonable. [ 3 ] In the usual course of events, the reviewing judge’s error would mean that the appeal would be allowed and the Committee’s decision would be restored. In this case, however, Dr. Shamsuzzaman had also appealed to the Court of Queen’s Bench on several other grounds, in addition to the question of the

interpretation of the applicable bylaw. Since the reviewing judge did not address these other grounds of appeal, Dr. Shamsuzzaman asked this Court to consider them, if the Court were disposed to allow the College’s appeal on the issue of the

interpretation of the bylaw. Thus, this Court considered whether the decision of the Court’s of Queen’s Bench, quashing the Committee’s decision, should be sustained on some other basis. [ 4 ] Dr. Shamsuzzaman’s other grounds of appeal concerned the Committee’s treatment of his and the complainant’s testimony, including the assessment of their credibility in light of the fact that he had no memory of the complainant or the examination. In my respectful view, the Committee’s reasons are wholly inadequate on this issue.

Either the reasons do not permit appellate review or they represent fundamental error regarding the assessment of credibility in the circumstances of this case. [ 5 ] My conclusion in relation to this alternative ground of appeal raises the question of the appropriate remedy. For the reasons that follow, I have concluded that it would not be appropriate simply to dismiss the appeal and sustain the quashing of the Committee’s decision on this alternative basis.

In the circumstances of this case, where there has yet to be an appropriate determination of whether the acts complained of did in fact occur, I have instead directed that a new discipline hearing be held. II. The Charge against Dr. Shamsuzzaman and the Legislation and Bylaws Applicable to that Charge [ 6 ] The College charged Dr. Shamsuzzaman with “unbecoming, improper, unprofessional or discreditable conduct contrary to the provisions of

Section 46(

o) and/or

Section 46 (

p) of The Medical Profession Act, 1981 , S.S. 1980-81, c. M-10.1 and/or bylaw 51(2)(

j) and/or bylaw 51(2)(

q) of the bylaws of the College.” Sections 46(

o) and (

p) of The Medical Profession Act, 1981 , S.S. 1980-81, c. M- 10.1 (the “ Act ”), referred to in the charge against Dr. Shamsuzzaman, provide:

Charges 46 Without in any way restricting the generality of “unbecoming, improper, unprofessional or discreditable conduct”, a person whose name is entered on the register, the education register, the temporary register or the podiatric surgical register is guilty of unbecoming, improper, unprofessional or discreditable conduct, where he: ... (

o) does or fails to do any act or thing where the discipline hearing committee considers that action or failure to be unbecoming, improper, unprofessional or discreditable; (

p) does or fails to do any act or thing where the council has, by bylaw, defined that act or failure to be unbecoming, improper, unprofessional or discreditable. [ 7 ] Section 6(2) (

m) of the Act permits the council of the College (the “Council”) to make bylaws “defining professional misconduct.” Section 51(2) of the regulatory Bylaws of the College, in force at the time of the charge, defines "unbecoming, improper, unprofessional or discreditable" conduct as follows: 51(2) The following acts or failures are defined to be unbecoming, improper, unprofessional or discreditable conduct for the purpose of

Section 46 (

p) of The Medical Profession Act, 1981 . The enumeration of this conduct does not limit the ability of Discipline Hearing Committees to determine that conduct of a physician is unbecoming, improper, unprofessional or discreditable pursuant to

Section 46(o): ... (

j) Failing to maintain the standard of practice of the profession. ... (

q) Committing

an act of sexual impropriety with a patient or

an act of sexual violation of a patient. [ 8 ] The applicable definition of "sexual impropriety" and "sexual violation” is contained in s. 51(1)(g)(viii) of the Bylaws: 51

(1) In this section: ... (g) "Sexual impropriety" and "sexual violation" include, but are not limited to: ... (viii) Conduct with a patient which is sexual or may reasonably be interpreted as sexual such as touching any sexualized body part of a patient except for the purpose of an appropriate examination or treatment; III. Overview of the Complaint, the Committee’s Decision and the Queen’s Bench Decision [ 9 ] A.S., the complainant, consulted Dr. Shamsuzzaman on October 9, 2003 because she was experiencing a side-effect from a cough medication that had been prescribed by another doctor.

She complained to the College the day after her visit to Dr. Shamsuzzaman that he had touched her inappropriately. Dr. Shamsuzzaman was not notified of the complaint until on or about December 5, 2003. The Council appointed a Discipline Committee to inquire into the complaint. A hearing was held on January 27 and 28, 2005. [ 10 ] At the hearing, A.S. testified that Dr. Shamsuzzaman had repeatedly touched her breasts, in an inappropriate manner, while ostensibly examining the state of her respiratory function [Transcript, January 27-28, 2005, pp. 16-19]. [ 11 ] For his part, Dr.

Shamsuzzaman testified that he did not remember A.S. and he had no recollection of the examination. The medical records of the clinic show that he saw A.S. during the evening of October 9, 2003, but she was one of forty-five patients that evening. He testified that he would not have performed an examination in the manner that she described.

He acknowledged that if someone had done so, it would be an inappropriate chest examination [Transcript, January 27-28, 2005, pp. 68-71]. [ 12 ] The Committee found A.S. to be “cogent, clear and convincing” and that the incidents had occurred as she had described [Decision of Discipline Committee of College of Physician and Surgeons dated 22 March 2005, p. 47a, Appeal Book.] Having established the facts, t he Committee found that what had occurred constituted conduct unbecoming within the meaning of ss. 46(

o) and (

p) of the Act and ss. 51(2)(

j) and (

q) of the Bylaws: [25] ... Dr. Shamsuzzaman’s actions described above constituted a breach of the standard of conduct expected of a physician and amounted to unbecoming, improper, unprofessional or discreditable conduct pursuant to

section 46 (

o) and (

p) of the Act as well as Bylaws 51(2) (

j) and (q)....

[26] ... [W]e find that Dr. Shamsuzzaman’s conduct meets the objective standard required for a conviction in that it “may reasonably be interpreted as sexual” within the meaning of Bylaw 51(1)(g)(viii). [27] … [A]t the end of the day, applying the standards of proof established by the case law, we find that on the evidence before us, the College did establish each of the essential elements of the charge and we find Dr. Shamsuzzaman guilty as charged. [Appeal Book, pp. 48a-49a.] [ 13 ] Dr.

Shamsuzzaman appealed the Committee’s finding of conduct unbecoming and the penalty imposed by the Council to the Court of Queen’s Bench. In allowing Dr.

Shamsuzzaman’s appeal, the reviewing judge interpreted s. 51(1)(g)(viii) in this manner: [17] A finding that the conduct of a physician is "unbecoming, improper, unprofessional or discreditable" because of a "sexual impropriety" or "sexual violation" requires the Committee to first consider whether the conduct is sexual.… [18] … [I]f, after reviewing the circumstances as a whole, the conduct of a physician is considered sexual, the charge of "sexual impropriety" or "sexual violation" is made out. However, this is not the case in the present situation.

To the contrary, the Committee found that the appellant's actions with respect to A.S.'s medical examination were not sexual in nature nor was the appellant attempting to derive any sexual pleasure from what occurred in this case. At paragraph 25, the Committee stated: [25] ... we are not satisfied on the evidence presented that Dr. Shamsuzzaman engaged in "conduct with a patient which is sexual", being the first branch of this definition section, ... [19] Therefore, it is necessary to turn to the second branch of Bylaw 51(1)(g)(viii) and determine whether the examination was for a medically necessary purpose.

As can be seen from the second branch, if there is necessary contact, which may be reasonably interpreted as sexual, with a sexualized part of the body for the purpose of an appropriate examination, it does not result in a successful charge of "sexual violation". [20] The key in the present case is to determine if the examination, which was not performed in a sexual manner, was appropriate given the patient's history . At paragraph 25, the Committee held that the chest examination performed on A.S. by the appellant was appropriate and necessary for a patient with the [complainant's] symptoms at the time.

This finding coupled with the non-sexual nature of the examination requires that the appellant's conviction to be set aside [ sic ]. [21] To be convicted of conduct "unbecoming, improper, unprofessional or discreditable" under Bylaw 51(1)(g)(viii), the medical examination must either be performed in a sexual nature or not be for the purpose of an appropriate examination . In the present case, the Committee held that the examination of A.S. was non-sexual and appropriate.

Based on these findings, the appellant's actions do not fall within the required elements of a charge of "sexual impropriety" or "sexual violation" and did not exceed the boundaries of an appropriate examination as outlined in Bylaw 51(1)(g)(viii). [2009 SKQB 45, emphasis added.] [ 14 ] The College appealed the Queen’s Bench decision to this Court on the bases that the judge: (

i) applied the incorrect standard of review in interpreting the Bylaws; (ii) misinterpreted both the Committee’s decision and Bylaw 51(1)(g)(viii); and (iii) overlooked the multiple bases upon which the Committee’s decision could stand. [ 15 ] For his part, Dr. Shamsuzzaman’s primary position was that this Court should dismiss the College’s appeal. If this Court were to accept the College’s submissions, Dr. Shamsuzzaman’s alternative submission was that the Court should consider some additional grounds of appeal that had been presented to the Court of Queen’s Bench. The additional grounds were: (

i) the Committee erred in its assessment of the credibility of the complainant and Dr. Shamsuzzaman, who had no memory of the complainant or the examination; and (ii) the Committee erred by failing to attach significance to the Council’s delay in notifying Dr. Shamsuzzaman of the charges. Further, he submitted that the Council erred with respect to the penalty imposed and the order as to costs. The College consented to the Court proceeding to consider the additional grounds of appeal. Additional materials were filed. IV. Issues [ 16 ] The various grounds of appeal raise the following issues: 1. What standard of review applies to the Committee’s

interpretation of Bylaw 51(1)(g)(viii)? 2. If the reviewing judge did not apply the appropriate standard of review, what is the result of the proper application of that standard? 3. What standard of review applies to the Committee’s assessment of credibility? Was the Committee’s treatment of the credibility of the complainant and Dr. Shamsuzzaman so wholly inadequate as to constitute an unreasonable decision? 4. What is the appropriate remedy in this Court, if it is determined that: (

i) the reviewing judge erred in law; and (ii) the Committee’s decision is nonetheless unreasonable? 5. What standard of review applies to the question of penalty and costs, and what is the result of the proper application of that standard, if it is determined that: (

i) the reviewing judge erred in law; and (ii) the Committee’s decision is not unreasonable? As I have concluded that a new hearing must be ordered, it is not necessary to consider the final question.

V. Standard of Review Analysis in relation to the

Interpretation of the Bylaw A. Introduction [ 17 ] The reviewing judge quashed the Committee’s decision on the basis of his

interpretation of the applicable bylaw. In Dr. Q v. College of Physicians and Surgeons of British Columbia , 2003 SCC 19 , [2003] 1 S.C.R. 226, the Supreme Court held that “[t]he question of the right standard to select and apply is one of law and, therefore, must be answered correctly by a reviewing judge” (see: para. 43). According to Dr. Q , the appellate court’s task is to determine whether the reviewing judge chose and applied the correct standard, and if the judge did not do so, to review the tribunal’s decision according to the correct standard.

Thus, a standard of review analysis is required to determine whether the reviewing judge correctly recognized and applied the standard of review. B. Background to the Standard of Review Analysis [ 18 ] The review of the decision of the Court of Queen’s Bench begins with an examination of the Act . Dr. Shamsuzzaman exercised his right to apply to the Court of Queen’s Bench by filing a notice of appeal pursuant to ss. 62 and 63 of the Act : Right of appeal 62

(1) A person: (

a) whose name is struck from the register, the education register, the temporary register or the podiatric surgical register; (

b) who is prohibited from practising in Saskatchewan; (

c) who is suspended from practising or reprimanded; or (

d) whose practice is restricted or who has otherwise been disciplined under

section 54 or 54.01; may appeal in the manner provided in this Part from the decision of the council to the court. . . . Notice of appeal 63 A notice of appeal required pursuant to subsection 62(2) shall set out the grounds of appeal. [ 19 ] Notwithstanding the presence of a right of appeal in this statute, a standard of review analysis is required with respect to the particular question facing the reviewing court (see, for example, Dr. Q , supra ; Law Society of New Brunswick v. Ryan , 2003 SCC 20 , [2003] 1 S.C.R. 247; and Dunsmuir v. New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190).

The Supreme Court of Canada released Dr. Q and Ryan on the same day. Both appeals dealt with decisions of professional disciplinary committees: medicine and law, respectively. In Dr. Q , s. 73 of the Medical Practitioners Act [R.S.B.C. 1996, c. 285] provided for an appeal to the courts “on the merits” (see: para. 6). In Ryan , s. 66(1) of the Law Society Act, 1996 [S.N.B. 1996, c. 89] provided for a “broad right of appeal on questions of law or fact” (see: para. 28).

In both cases, the Supreme Court of Canada conducted a standard of review analysis. [ 20 ] Dunsmuir is now the foundational decision governing the selection of the appropriate standard of review in individual cases.

It has swept aside the old terminology of correctness, reasonableness simpliciter and patent unreasonableness, replacing them with the standards of correctness and reasonableness. [ 21 ] In Dunsmuir , Bastarache and LeBel JJ. established that “questions of fact, discretion and policy as well as questions where the legal issues cannot be easily separated from the factual issues” will generally attract a standard of reasonableness (at para. 51). As to questions of law, the Court opined that “many” such questions will attract a standard of correctness.

Without providing a conclusive list, Bastarache and LeBel JJ. provide the following guidance regarding when the correctness standard applies to the review of certain questions of law: 1. A question of law that is of "central importance to the legal system ... and outside the ... specialized area of expertise" of the administrative decision maker will always attract a correctness standard (at para. 55); 2.

A “correctness review has been found to apply to constitutional questions regarding the division of powers between Parliament and the provinces” (at para. 58); 3. “[O]ther constitutional issues, are necessarily subject to correctness review because of the unique role of s. 96 courts as interpreters of the Constitution” (at para. 58); 4. “Administrative bodies must also be correct in their determinations of true questions of jurisdiction or vires ” (at para. 59);

5. “Questions regarding the jurisdictional lines between two or more competing specialized tribunals have also been subject to review on a correctness basis” (at para. 61). [ 22 ] The majority in Dunsmuir also made it clear that “[s]ome legal issues, however, attract the more deferential standard of reasonableness” (at para. 51).

Bastarache and LeBel JJ. went on to provide the following guidance, regarding when the reasonableness standard may be appropriate to the review of a question of law: 1. “Deference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity” (at para. 54); 2. “Deference may also be warranted where an administrative tribunal has developed particular expertise in the application of a general common law or civil law rule in relation to a specific statutory context” (at para. 54); 3.

Deference may also be the appropriate standard in the face of a “privative clause,” a “discrete and special administrative regime in which the decision maker has special expertise” and a question of law that does not rise to the level of a question of “central importance to the legal system…and outside the…specialized area of expertise” of the decision maker (at para. 55). [ 23 ] With the above by way of background, I will proceed to consider the applicable standard of review in relation to the question of the

interpretation of the applicable bylaw. C. Did the Reviewing Judge err by applying a Standard of Review of Correctness to the Committee’s

Interpretation of the Bylaw? [ 24 ] The reviewing judge’s written reasons in this case do not reflect that he conducted a standard of review analysis. The judge also does not state what standard of review he applied. The judge simply commented on the fact that he had before him an “appeal by Dr. Mohammed Shamsuzzaman,” and that it was not “styled as an application for judicial review” ( 2009 SKQB 45 at para. 1 ). He quashed the Committee’s decision, however, based on his construction of the applicable bylaw.

It is implicit, from his reasoning on this point, that he treated the construction of the Bylaw as a question of law, and appeared to conclude that the Committee’s decision was presumptively reviewable on a correctness standard. [ 25 ] According to the reviewing judge, if the conduct is not sexually gratifying and the examination is for a medically-necessary purpose, there can be no finding of unbecoming conduct. The judge held on this basis that Dr. Shamsuzzaman could not be guilty of unbecoming conduct, because the Committee had found that: (

i) Dr. Shamsuzzaman had not engaged in “conduct with a patient which is sexual”; and (ii) the examination was for a “medically necessary purpose.” [ 26 ] In determining whether the Queen’s Bench judge erred in so concluding, the first step is to determine the nature of the Bylaws. The Bylaws are “regulations” within the meaning of s. 2 of The

Interpretation Act, 1995 , S.S. 1995, c. I-11.2, but they are not passed by the Lieutenant Governor in Council. The Council, continued under the Act , has the authority to pass bylaws falling into two categories: “administrative” (see: s. 6(1) of the Act ) and “regulatory” (see: s. 6(2) of the Act ). The bylaw to be construed in this case is contained in what the Council has described as “the regulatory bylaws.” All bylaws passed by the Council are filed with the Minister of Health, who has a certain approval authority. They are also filed with the Director of Corporations (see: s. 88(1) of the Act ).

In addition to being the body that passes the bylaws, the Council determines whether a discipline committee should be constituted and who the members of that committee will be. Those are the hallmarks of a self-regulating profession. [ 27 ] The charge against Dr. Shamsuzzaman was that he was guilty of “unbecoming, improper, unprofessional or discreditable conduct contrary to the provisions of

Section 46 (

o) and/or

Section 46 (

p) of The Medical Profession Act, 1981 , S.S. 1980-81, c. M-10.1 and/or bylaw 51(2)(

j) and/or bylaw 51(2)(

q) of the bylaws of the College.” Those sections are quoted above. Bylaw 51(2) (

j) and (

q) bear repeating: 51(2) The following acts or failures are defined to be unbecoming, improper, unprofessional or discreditable conduct for the purpose of

Section 46 (

p) of The Medical Profession Act, 1981 . The enumeration of this conduct does not limit the ability of Discipline Hearing Committees to determine that conduct of a physician is unbecoming, improper, unprofessional or discreditable pursuant to

Section 46(o): ... (

j) Failing to maintain the standard of practice of the profession. ... (

q) Committing

an act of sexual impropriety with a patient or

an act of sexual violation of a patient. The definition of “sexual impropriety” provides a long list of prohibited behaviours: 51(1)(g) “Sexual impropriety” and “sexual violation” include, but are not limited to:

(

i) Acts or behaviours which are seductive or sexually-demeaning to a patient or which reflect a lack of respect for the patient’s privacy, such as examining a patient in the presence of third parties without the patient’s consent or sexual comments about a patient’s body or underclothing; (ii) Making sexualized or sexually-demeaning comments to a patient; (iii) Requesting details of sexual history or sexual likes or dislikes when not clinically indicated; (iv) Making a request to date a patient or dating a patient; (

v) Initiation by the physician of conversation regarding the sexual problems, preferences or fantasies of the physician; (vi) Kissing of a sexual nature with a patient; (vii) Physician-patient sex whether initiated by the patient or not; (viii) Conduct with a patient which is sexual or may reasonably be interpreted as sexual such as touching any sexualized body part of a patient except for the purpose of an appropriate examination or treatment; (ix) Touching any sexualized body part of the patient where the patient has refused or withdrawn consent; (

x) Sexual acts by the physician in the presence of the patient. [ 28 ] It is important to note that the exercise before the Committee required the Committee to determine whether Dr. Shamsuzzaman had exceeded the boundaries of appropriate medical care. As in Dunsmuir , it can also be said that the Committee was interpreting a legislative instrument “closely connected to its function, with which it will have particular familiarity” ( Dunsmuir at para. 54 ). As part of that exercise, the Committee was obliged: (

i) to interpret the Bylaws; and (ii) to consider, and to some extent, fix the limits of acceptable medical practice. The question of the construction of the Bylaws is not one of central importance to the legal system, to use the words of Dunsmuir , but it is also inextricably linked with the task of considering appropriate medical practice. In conclusion, deference should be given to the Committee’s

interpretation of Bylaw 51(1)(g)(viii). The standard of review that connotes deference is reasonableness. D . Application of the Standard of Review to the Committee’s

Interpretation of the Bylaw [ 29 ] These are the reasons of the Committee regarding the

interpretation of the Bylaws: [25] In the opinion of the Committee, Dr. Shamsuzzaman’s actions described above constituted a breach of the standard of conduct expected of a physician and amounted to unbecoming, improper, unprofessional or discreditable conduct pursuant to

section 46 (

o) and (

p) of the Act as well as Bylaws 51(2) (

j) and (q). Bylaw 51(2)(

q) requires a finding of the commission of

an act of sexual impropriety with a patient or sexual violation of a patient. In making our findings in this regard, we rely on the

definitions contained in Bylaw 51(1) (g)(viii). Specifically, while we are not satisfied on the evidence presented that Dr. Shamsuzzaman engaged in “conduct with a patient which is sexual”, being the first branch of this definition section, we are satisfied that he did engage in “ conduct with a patient which ... may reasonably be interpreted as sexual such as touching any sexualized body part of a patient except for the purpose of an appropriate examination or treatment,” within the meaning of the second branch of the section.

In this case, while a chest examination was appropriate and indicated given the patient history, we are nevertheless satisfied that Dr. Shamsuzzaman’s conduct in this case exceeded the boundaries as those that would be generally recognized as incorporated within an “appropriate examination or treatment.” [Italics and bolding in original.] [ 30 ] The Committee found that Bylaw 51(1)(g)(viii) targeted behaviour that was sexual and behaviour that might be reasonably interpreted as such. This tracks the wording of the Bylaw, and is a completely reasonable

interpretation of it. The Committee then construed the words “except for the purpose of an appropriate examination or treatment” as containing a limiting component. When a sexualized body

part is touched, as part of an otherwise appropriate examination, a physician must respect certain boundaries. The physician must not touch in a manner that may reasonably be interpreted as sexual; otherwise an appropriate examination would become a justification for touching in any manner at all. The Committee’s reasons are clear. The

interpretation is one that the clause can bear, and it is a reasonable

interpretation. The College’s appeal on this point succeeds. VI. Dr. Shamsuzzaman’s Alternative Basis to Sustain the Decision of the Reviewing Judge A. Introduction [ 31 ] In the usual course of events, the College’s success on the previous ground of appeal would mean that the appeal from the reviewing judge’s decision would be allowed. However, given Dr. Shamsuzzaman’s other grounds of appeal that were not considered by the reviewing judge, I must now determine whether some other defect in the Committee’s reasons prevents its decision from being restored. Leaving aside the question of delay, the substance of Dr.

Shamsuzzaman’s alternative grounds of appeal is that the reasons of the tribunal reflect fundamental errors, regarding how to assess the credibility of the accused and accuser, particularly when the accused has no memory of the events in question. I have not addressed the question of delay because this issue was not raised with the

Committee. [32] With respect to credibility, Dr. Shamsuzzaman alleges that: (

i) the Committee dealt with the complainant’s testimony in aconclusory manner, without stating why it found her evidence to be “cogent, clear and convincing”; (ii) the Committee did not addressthe inconsistencies in the testimony of the complainant; (iii) the Committee determined that the complaint had been established entirelybased on the testimony of the complainant and gave no reasons for rejecting Dr. Shamsuzzaman’s testimony as to his usual practice; and(iv) the Committee did not consider the question of Dr. Shamsuzzaman’s lack of memory.

Of these concerns, the last two requireappellate intervention in this case. B. Appropriate Standard of Review [33] The Court in Dunsmuir has made it abundantly clear that a reviewing court need not undertake an exhaustive review of thelegislation and case law in every case to determine the proper standard of review (see: para. 57). If the analysis has been performedbefore in relation to a particular tribunal and similar issue, it need not be repeated.

Further, the pre-Dunsmuir case law is still relevant indetermining the level of curial deference to be applied. [34] The appropriate standard of review to apply to the determination of credibility, in the context of a disciplinary tribunal, has beenconsidered before. Questions of credibility are classically questions that attract a standard of review of reasonableness (see: Dr. Q,supra at paras 38-39; and Young v. College of Physicians and Surgeons of Saskatchewan, 2005 SKCA 118, 259 D.L.R. (4th) 323). C.

Content of the Reasonableness as it relates to the Committee’s Assessment of Credibility [35] The Supreme Court of Canada in Dunsmuir provides this guidance to a court determining the reasonableness of a tribunal’sdecision: [47] … A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to theprocess of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence ofjustification, transparency and intelligibility within the decision-making process.

But it is also concerned with whether the decision fallswithin a range of possible, acceptable outcomes which are defensible in respect of the facts and law. Most recently, the Supreme Court of Canada emphasized that reasonableness “encompasses a quality requirement that applies to …reasons and to the outcome of the decision-making process” (see: Montréal (City) v.

Montreal Port Authority, 2010 SCC 14, [2010] 1S.C.R. 427 at para. 38). [36] Many cases stand for the general proposition that deficiencies in one aspect of a tribunal’s reasons will not necessarily render theentirety of the decision unreasonable (see: David Phillip Jones, Q.C. & Anne S. de Villars, Q.C., Principles of Administrative Law, 5thed. (Toronto: Carswell, 2009) at pp. 381-82; S.E.I.U., Local 333 v. Nipawin District Staff Nurses Association, (SCC),[1975] 1 S.C.R. 382 at 390-91; and Woolaston v.

Canada (Minister of Manpower and Immigration), (SCC), [1973]S.C.R. 102 at 108.) In Ryan, supra the Court stated (at para. 56) that there is no need for “every element of the reasoning given [to]independently pass a test for reasonableness ... a reviewing court should not seize on one or more mistakes or elements of the decisionwhich do not affect the decision as a whole.” Rather, the issue is whether “the reasons taken as a whole, are tenable as support for thedecision” (at para. 56). [37] The difficulty in this case is that the issue of credibility was central to the Committee’s determination of guilt.

It is not possible toconsider the reasonableness of the outcome without knowing why the Committee reached its conclusion regarding credibility. [38] The Ontario Court of Appeal considered the issue of the adequacy of a tribunal’s reasons regarding credibility in Law Society ofUpper Canada v. Neinstein, 2010 ONCA 193, 317 D.L.R. (4th) 419. The Court’s assessment of the tribunal’s credibility analysis in thatcase dealt with the exact concerns raised by Dr. Shamsuzzaman. Also in that case, as in this one, the outcome turned on the issue ofcredibility.

In Neinstein, the Court found that the Hearing Panel’s reasons on this issue were so deficient as to be “beyond appellatescrutiny” (para. 92). The Court set aside the decision of the Hearing Panel and ordered that a new hearing be held on that basis. Thus, inNeinstein a finding of unreasonableness, regarding the question of credibility, made the tribunal’s ultimate decision unreasonable. [39] There is no formula that must be applied to determine credibility in an administrative law proceeding. As the Supreme Court ofCanada has made clear in F.H. v.

McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, a judge in a civil proceeding is not obliged to follow theprocess set out in R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742. The Court in Neinstein reached the same conclusion withrespect to proceedings before an administrative tribunal. The tribunal is, however, obliged to consider the whole of the evidence anddetermine, on a balance of probabilities, whether the complaint is proven. To that end, the Committee, in this case, was required to

determine the credibility and reliability of both the claimant and Dr. Shamsuzzaman. The onus remained on the College throughout theprocess to prove the complaint. [40] There is an added dimension to this case. The person complained against has no independent memory of the encounter with thecomplainant or the event. A tribunal cannot find that a complaint has been proven because of the lack of memory of the personcomplained against (see: R. v. Podola, [1959] 3 All E.R. 418 (C.A.); R. v. Lowe (1974), (ON CA), 21 C.C.C. (2d) 193(Ont. C.A.); and R. v. Willock (2006), (ON CA), 210 C.C.C. (3d) 60 (Ont. C.A.)).

On the other hand, the fact that aperson does not remember certain events does not mean he or she is not fully responsible for those events (see: R. v. Boylen (1972), (NS PC), 18 C.R.(N.S.) 273). D. Are the Committee’s Reasons regarding the Assessment so Wholly Inadequate as to have resulted in an UnreasonableDecision? [41] It is common ground that Dr. Shamsuzzaman had no independent recollection of A.S., or of the examination. He was examined andcross-examined extensively on the fact that he had no memory of the events in question.

He testified that he would “never, ever” touch afemale patient in the manner described [Transcript, January 27-28, 2005, pp. 68 and 69]. His lack of independent memory presented aparticular issue for the Committee. [42] In analyzing the questions of credibility and reliability of both key witnesses, the Committee reasoned as follows: [24] Having had an opportunity to carefully listen to and observe the demeanor of A.S., the Committee found her to be a very crediblewitness. We accept the evidence of A.S. that there were no other patients visible to her when she attended at the clinic.

Further, apartfrom her recollection as to the time of her attendance, we accept her evidence regarding her attendance on Dr. Shamsuzzaman. Dr.Shamsuzzaman testified to having no recollection of the specific events, the visit or A.S. in any respect. We find that the auscultation ofthe back occurred in the manner that A.S. testified to. The back auscultation was very cursory, involving the patient taking two deepbreaths but with the stethoscope remaining on the same part of her back. Even on Dr.

Shamsuzzaman’s own testimony as to his normalpractice, he appeared to be focused on or preoccupied with the front of the patient. While incidental contact with the breasts would not beunusual in such an examination, as set out in Dr. Kriegler’s report, and as the physician members of this committee are aware from theirown knowledge, we are satisfied that what occurred here exceeded the boundaries of what could fairly be characterized as incidentaltouching.

The acts of pushing in [and] out on the center part of the breasts, the pushing in and out of the nipple area and the cupping ofthe hand in the manner described by A.S. were inappropriate and exceeded the acceptable boundaries of a chest examination in thecircumstances. These acts were neither excused nor minimized by Dr. Shamsuzzaman’s casual behaviour, his use of a stethoscope or hisrepeated inquiries of “are you okay”? The evidence of A.S. in this regard was cogent, clear and convincing.

The Committee is notpersuaded to doubt her credibility despite being clearly mistaken on the time, as it is probable based on the patient list that she would nothave been seen until approximately 8:30 p.m., as we know that Dr. Shamsuzzaman did see 4 patients after she left but before 9:00 p.m.The time was not integral to her testimony. She did record her complaint very shortly after the incident, which adds to her credibilityboth in terms of her sincerity relating to her perception as to what had occurred and her immediate recollection of events.

We do notattach any particular significance to the lack of reference in her email to crying in her vehicle, or the lack of reference to this in the PICreport (in the latter case, A.S. did testify that she had informed Dr. Popkin of this). Nor are we able to conclude that doubt should be caston the reliability of her evidence based on a suggestion that she must have been wrong about other patients being in the reception areawhen she was at the clinic. There is no evidence to contradict her in this regard and she did allow that there may have been patients inthe other examining room.

It is true that A.S. did not take the initiative to leave the examining room or advise Dr. Shamsuzzaman thatshe was uncomfortable at any time. However, we see no onus upon her to do so and in any case we accept her evidence that she was in astate of shock. She was no doubt feeling the implicit power imbalance between doctor and patient at the time. Counsel for Dr.Shamsuzzaman suggests that the College should not be allowed to rely on Dr. Shamsuzzaman’s lack of memory to support its case,given its failure to notify Dr. Shamsuzzaman of the allegation until close to two months after the attendance.

We are unable to accede tothis argument on the facts before us, particularly given the provisions of

section 69.1 of the Act. … [27] We note that the evidence did not establish that Dr. Shamsuzzaman “assisted A.S. to remove her shirt”, as set out in paragraph 1c) of the charge. Rather, her shirt was lifted up. We also find that he did not “assist her to lift her brassiere to expose her breasts for anexamination”, as alleged in paragraph 1

d) of the Charge. Rather, he lifted the bra up himself, exposing her breasts. Nevertheless, at theend of the day, applying the standards of proof established by the case law, we find that on the evidence before us, the College didestablish each of the essential elements of the charge and we find Dr. Shamsuzzaman guilty as charged. [28] In spite of the relatively straightforward evidence, this was a difficult case. Section 52(2) of the Act permits the Committee “tomake any recommendations that it considers advisable.” In this respect, while the evidence was sufficient to find Dr.

Shamsuzzamanguilty of the charge as defined in the Act and Bylaws, and while we are satisfied that some of Dr. Shamsuzzaman’s actions wereinappropriate, the evidence fell short of persuading the Committee that his intentions were inappropriate or that he in any way derivedsexual pleasure from what occurred in this case. The evidence does support the conclusion that he was not aware of the appropriateboundaries of such an examination. Therefore, it is our recommendation that, in considering any penalty it may deem fit to impose,Council not take any steps that would result in the suspension of Dr.

Shamsuzzaman or otherwise diminish his ability to practice. Instead,it is the Committee’s recommendation that Council consider directing Dr. Shamsuzzaman to participate in professional counselling onthe issue of appropriate boundaries recognition and conduct. [Appeal Book, p. 49a; emphasis in original.] [43] The Committee made no explicit finding regarding Dr. Shamsuzzaman’s credibility. However, its complete acceptance of A.S.’stestimony “regarding her attendance on Dr. Shamsuzzaman” (para. 24) implies that, at the very least, the Committee rejected Dr.

Shamsuzzaman’s testimony to the extent that it conflicted with that of A.S. In McDougall , supra , the Supreme Court stated that in the civil context, “finding the evidence of one party credible may well be conclusive of the result because that evidence is inconsistent with that of the other party” (at para. 86). [ 44 ] The Committee clearly accepted that Dr. Shamsuzzaman had: (

i) pushed A.S.’s breasts in and out; (ii) pushed A.S.’s nipples in and out; and (iii) cupped her breasts in the manner described by A.S. It is implicit in this finding that the Committee rejected Dr. Shamsuzzaman’s evidence that he would not have pushed her breasts in and out or cupped her breasts (evidence summarized by the Committee at para. 21). [ 45 ] Based on the totality of the record, this Court can only conclude that the Committee either rejected Dr.

Shamsuzzaman’s evidence that he never deviated from his normal practice, or rejected his evidence that his normal practice did not involve the above-described inappropriate behaviours. In either case, rejection of his evidence leads directly to a finding of conduct unbecoming. [ 46 ] Despite the significance of this rejection of Dr. Shamsuzzaman’s evidence, the Committee failed to explain the basis of its decision on this point.

Adopting the wording of the Ontario Court of Appeal’s criticism of the tribunal in Neinstein , supra (at para. 80 ), “[t]here is nothing in the content of that evidence or the character of [Dr. Shamsuzzaman] that would make the evidence inherently unreliable and justify an outright, unexplained rejection.” As in Neinstein , it can fairly be said that Dr. Shamsuzzaman, on a reading of the Committee’s reasons, would have absolutely no idea why the Committee had rejected his evidence. [ 47 ] It is also clear that the Committee did not know how to deal with Dr.

Shamsuzzaman’s lack of independent memory, which adds significantly to the inadequacy of the Committee’s reasons on the issue of credibility. They wrote: [24] ... Counsel for Dr. Shamsuzzaman suggests that the College should not be allowed to rely on Dr. Shamsuzzaman’s lack of memory to support its case, given its failure to notify Dr. Shamsuzzaman of the allegation until close to two months after the attendance. We are unable to accede to this argument on the facts before us, particularly given the provisions of s. 69.1 of the Act . [1] These words are not only inscrutable; they are capable of multiple meanings.

Most disturbingly, they indicate the Committee could have drawn the wholly inappropriate conclusion that Dr. Shamsuzzaman’s lack of memory and s. 69.1 of the Act justified shifting the burden of proof. Ultimately, the only definitive statement that may be made with respect to the above passage is that, notwithstanding the centrality of Dr.

Shamsuzzaman’s lack of memory, the Committee’s method of addressing the issue is incomprehensible and cannot be made the subject of meaningful appellate review. [ 48 ] Having regard for the implicit admonition in such cases as Nipawin Nurses regarding appellate scrutiny of a tribunal’s reasons, I am not certain that each of the above errors taken alone would meet the high threshold for intervention based on the standard of review of reasonableness. However, we are faced with these errors: (

i) the Committee’s failure to explain why it rejected Dr. Shamsuzzaman’s evidence; and (ii) the inscrutable comments regarding his lack of memory and the use of s. 69.1 of the Act . These errors have occurred in the context of a two-witness case and the record does not otherwise explain the choices made by the Committee. The reasons fail the test in Dunsmuir of “justification, transparency and intelligibility within the decision-making process” (at para. 47). In this context, I must conclude that the Committee’s reasons are so wholly inadequate that the decision cannot stand. VII.

Remedy [ 49 ] On an appeal from the College or a physician, the Act confers the authority on the Queen’s Bench to direct a new hearing: 62

(3) On hearing the appeal, the court may: (

a) confirm the decision of the council; (

b) vary the decision of the council; (

c) substitute its own decision for that of the council; or (

d) quash the decision of the council; and may make any order as to costs that it considers appropriate.

(4) Where the court quashes the decision of the council, it may direct a new hearing or further inquiry by the discipline committee. [Emphasis added.] [ 50 ] There is no express conferral of such authority on the Court of Appeal. The Act simply provides for a right of appeal on a point of law to this Court:

Appeal to Court of Appeal 66 With leave of the Court of Appeal, the council or a person who makes an appeal pursuant to

section 62 may appeal a decision of thecourt on a point of law to the Court of Appeal. If the reviewing judge had considered Dr. Shamsuzzaman’s alternative grounds of appeal and rejected them, this Court would have hadthe authority to set aside that decision and render the decision that should have been made (see: College of Physicians and Surgeons v.Lambert (1991), (SK CA), 97 Sask. R. 86 (C.A.)), or this Court could have remitted the matter to the reviewing judgefor disposition under s. 62(4) (see: Young, supra at para. 29).

In this case, for the reasons I have outlined earlier, the parties have askedthat this Court address the alternative grounds of appeal. The issue then becomes: whether this Court should quash the decision of theDiscipline Committee outright or remit the matter to the Council for a new hearing. [51] In Neinstein, supra the Court, in a similar regulatory scheme, concluded the matter should be remitted for a further hearing on thebasis that the resolution of the case required a determination of credibility that had yet to be made: [93] The allegations made against Mr. Neinstein raise matters of serious concern.

The proper resolution of the allegations is of significantimportance to both Mr. Neinstein and the complainants. It is not for this court to weigh the competing evidence and make findings offact. Nothing in these reasons should be taken as critical or supportive of the evidence of anyone. Those kinds of decisions can only bemade by a Hearing Panel. For these same reasons, there should be a new hearing in this case. VIII. Conclusion [52] The appeal is allowed. The Committee’s decision is quashed. The matter is remitted for a rehearing.

To a certain extent, successhas been divided such that there should be no order as to costs in this Court. Dr. Shamsuzzaman received his costs in the Court ofQueen’s Bench. That aspect of the decision remains. DATED at the City of Regina, in the Province of Saskatchewan, this 4th day of April, A.D. 2011. _ “Jackson J.A.”______________________ Jackson J.A. __“Richards J.A.”____________________ Richards J.A. __“Ottenbreit J.A.”___________________ Ottenbreit J.A. [1]

Section 69.1 provides: Protection of public