2022 MBCA 66, 2022 MBCA 66

Citation: Warraich, Re, 2022 MBCA 66 Date: 20220817 Docket: AI21-30-09626 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Marc M. Monnin Madam Justice Diana M. Cameron Madam Justice Janice L. leMaistre BETWEEN : ) R. L. Tapper, Q.C. and DR. NASSER AHMED WARRAICH ) J. D. Kendall ) for the Appellant Appellant ) ) J.

D. de Jong - and - ) for the Respondent ) THE COLLEGE OF PHYSICIANS AND ) Appeal heard: SURGEONS OF MANITOBA ) March 4, 2022 ) Respondent ) Judgment delivered: ) August 17, 2022 NOTICE OF RESTRICTION ON PUBLICATION : Pursuant to section 56(3) of The Medical Act , CCSM c M90 , no one may publish any information that would identify any patients. COVID-19 NOTICE: As a result of the COVID-19 pandemic and pursuant to r 37.2 of the MB, Court of Appeal Rules , MR 555/88R , this appeal was heard remotely by videoconference.

On appeal from 2020 CarswellMan 935 (CPS) ; and 2021 CarswellMan 391 (CPS) LEMAISTRE JA [ 1 ] The appellant appeals the findings of a panel (the panel) of the Inquiry Committee of the respondent (the College) that he was guilty of professional misconduct, displayed a lack of skill, knowledge and judgment in the practice of medicine, and breached the College’s by-laws (see 2020 CarswellMan 935 (the conduct decision) ). He also appeals the penalty imposed, as well as the order of costs (see 2021 CarswellMan 391 (the penalty decision) ) . [ 2 ] For the reasons that follow, I would dismiss the appeal.

Background [ 3 ] The appellant was licensed and registered as a physician with the College on February 28, 2001. Over the years, he has worked at various hospitals, clinics and personal-care homes. In 2014, the College began its investigation of the appellant and, in January 2016, he undertook to restrict his practice and practice under supervision. [ 4 ] On December 7, 2018, the College issued a notice of inquiry pursuant to

Part X of The Medical Act , CCSM c M90 (the Act ), as repealed by The Regulated Health Professions Act , SM 2009, c 15,

section 261 , on January 1, 2019. The notice of inquiry was amended on June 3, 2019 (the amended notice of inquiry). [ 5 ] The amended notice of inquiry contained six specific allegations which can be summarized as follows: • count 1—the appellant was unable to demonstrate that he was providing adequate care to his patients by failing to create adequate medical records; • count 2—he failed to meet the standard of care regarding a patient (patient 1);

• count 3—he failed to meet the standard of care regarding another patient (patient 2); • count 4—he routinely submitted claims for services he did not provide; • count 5—he created medical records which indicated he provided care to patients that he did not provide; and • count 6—as a result of his conduct, the appellant displayed a lack of skill, knowledge and judgment in the practice of medicine. [ 6 ] The appellant pleaded guilty to counts 1, 4, 5 and 6 and acknowledged that he had “displayed a lack of skill, knowledge and judgment in the practice of medicine in that . . . his record keeping [was] deficient . . . and . . . he [had] been unable to demonstrate . . . that he [was] providing adequate care to his patients.” He contested counts 2 and 3 and a hearing was conducted to inquire into his conduct regarding the allegations in those counts (the conduct hearing). [ 7 ] In a written decision, the panel found the appellant guilty of failing to meet the standard of care in his management and treatment of patient 1; breaching the College’s by-laws on record keeping regarding patient 1 and patient 2; and displaying a lack of knowledge, skill and/or judgment in the practice of medicine and committing acts of professional misconduct regarding patient 2 (see

section 59.5 of the Act ). [ 8 ] After receiving submissions from the parties regarding the appropriate orders to be issued pursuant to sections 59.6(1) and 59.7(1) of the Act , the panel imposed a reprimand and a fine of $10,000, cancelled the appellant’s registration with the College and ordered costs of $90,000.

Count 2—Patient 1 The Allegations [ 9 ] In count 2 of the amended notice of inquiry, the College made the following alle gations against the appellant: • The appellant failed to meet the standard of care in his management and treatment of patient 1 by failing to adequately diagnose, manage and treat patient 1’s tuberculosis and congestive heart failure. • He failed to create and maintain adequate medical records in breach of the College’s by-laws. • He displayed a lack of knowledge, skill and/or judgment in the practice of medicine. [ 10 ] The facts, which grounded these allegations, are as follows. [ 11 ] On November 24, 2017, patient 1, who was a patient of the appellant’s at his medical clinic, presented with symptoms of a respiratory illness.

The appellant sent her for an x-ray. The x-ray indicated that her symptoms were possibly caused by tuberculosis. Two days after receiving the x-ray results, the appellant spoke to patient 1. While his chart note in patient 1’s medical records made no mention of tuberculosis, it indicated that he instructed patient 1 to provide a sputum sample for testing. Over the next number of months, despite seeing patient 1, the appellant did not document any follow up regarding laboratory testing or the possible tuberculosis diagnosis.

In March 2018, patient 1 was diagnosed with tuberculosis by another physician. [ 12 ] On January 1, 2018, patient 1 presented with “leg edema+” (the conduct decision at para 189). Over the next number of weeks, she continued to suffer from persistent shortness of breath and increasing leg edema. Several weeks after the appellant saw her on March 27, 2018, another physician recognized that patient 1’s symptoms were caused by congestive heart failure. The Conduct Hearing [ 13 ] During its investigation of the appellant, the College retained Dr.

Carol Scurfield as a consultant to provide an opinion regarding the appellant’s management and treatment of patient 1. [ 14 ] At the conduct hearing, the parties filed as exhibits a statement of agreed facts and a book of agreed documents. The book of agreed documents contained two expert reports: one prepared by Dr. Scurfield and relied on by the College, and one prepared by Dr. Larry Reynolds and relied on by the appellant. In addition to tendering her report, the College sought to qualify Dr. Scurfield as an expert in family medicine.

Patient 1 did not testify. [ 15 ] The appellant called Kiranjeet Gill who worked at the appellant’s clinic when the concerns arose regarding his treatment of patient 1. The appellant also called Dr. Reynolds as an expert in family medicine and testified in his own defence about his care and management of patient 1. The Panel’s Conduct Decision [ 16 ] In lengthy reasons, the panel carefully considered and critically assessed the evidence. Relying on Dr.

Scurfield’s expert opinion regarding the standard of care applicable to family physicians, the panel concluded that the appellant had “failed to meet the standard of care in his management and treatment of . . . Patient 1’s tuberculosis” (the conduct decision at para 182).

It also concluded that, while the College had not proven the allegations regarding the appellant’s management and treatment of patient 1’s congestive heart failure or his lack of knowledge, skill and/or judgment in the practice of medicine, the appellant was guilty of failing “to create and maintain adequate medical records and breach[ing] the recordkeeping requirements of [the College’s by-laws]” (at para 192).

[17] Although the panel noted that the appellant did not object to Dr. Scurfield’s qualifications as an expert, the admissibilityof her report or her expert testimony, it accepted that some of the appellant’s criticisms of her impartiality were legitimate and should betaken into account in the overall assessment of her evidence. The panel acknowledged that Dr.

Scurfield’s “past audits of [theappellant’s] practice which were critical of his charting practices, raise[d] questions about her impartiality” and that “[t]he frequency withwhich she ha[d] performed audits for the [College] over many years, also raise[d] questions with respect to her independence” (at para101). Regardless, the panel concluded that Dr.

Scurfield’s “description and explanation of the responsibilities of a reasonably competentfamily physician with respect to the diagnosis, management and treatment of tuberculosis, were reasonable and . . . accurately reflectedthe standard which currently applie[d] . . . in Manitoba” (at para 163). [18] The panel accepted the evidence of the appellant’s expert, Dr. Reynolds, that the appellant’s management and treatmentof patient 1’s tuberculosis met the standard of care “up to, and including, December 6, 2017” (at para 171).

However, it found that, afterthat point, the evidence demonstrated a failure to follow up. [19] The panel rejected Dr.

Reynolds’s evidence that systemic failures “lessen[ed] [the appellant’s] individualresponsibilities” (at para 173) because they were not particularized and “family physicians such as [the appellant], are an integral part ofthe health care system’s response to communicable diseases” (at para 174). [20] In dismissing the allegation that the appellant displayed a lack of knowledge, skill and/or judgment in the practice ofmedicine, the panel acknowledged that “[t]uberculosis is a relatively rare disease in urban Manitoba” (at para 184) and that patient 1’s“presentation was complex” (at para 194) such that it would have been “unfair and unreasonable” (at para 184) to conclude that hismanagement of patient 1’s tuberculosis and congestive heart failure issues was deficient.

Issues on Appeal [21] On appeal, the appellant argues that the panel erred by finding that he failed to meet the standard of care regardingpatient 1. [22] He raises the following issues regarding the panel’s findings on count 2: • Dr. Scurfield’s report was inadmissible due to bias and, without her evidence, there was no evidence to support count 2 becausepatient 1 did not testify. • Dr.

Scurfield assumed that, if the appellant had not documented something in his chart notes, then it was not done and the paneladopted the concept of “not documented, not done” in assessing his evidence. • The panel failed to limit Dr. Scurfield’s evidence to her area of qualification. • The panel disregarded Dr. Reynolds’s evidence and ignored the appellant’s testimony. Standard of Review [23] This is a statutory appeal pursuant to

section 59.10(1) of the Act. Therefore, the appellate standards of review, asdiscussed in Housen v Nikolaisen, 2002 SCC 33, apply (see Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65at para 37; and Law Society of Saskatchewan v Abrametz, 2022 SCC 29 at paras 27-29). As explained by Spivak JA in Histed v LawSociety of Manitoba, 2021 MBCA 70, the applicable standard of review depends on the nature of the question in issue (at para 35): . . . Questions of law, which include questions of statutory

interpretation, are reviewed on the correctness standard. Findings of fact,including inferences drawn from the facts, are reviewed for palpable and overriding error. Absent an extricable error of law, the standardof palpable and overriding error also applies to mixed questions of fact and law.

Whether a set of facts satisfies a legal test is a questionof mixed fact and law reviewable on that deferential standard (see Housen at paras 8, 10, 26-27, 37). [24] A discipline tribunal’s ultimate finding of professional misconduct is a question of mixed fact and law (see Histed atparas 36-37). [25] The admissibility of expert evidence is a discretionary decision entitled to deference (see R v Woodard, 2009 MBCA 42at para 14). As explained by Mainella JA in R v Pearce (ML), 2014 MBCA 70 (at para 74): Appellate deference will be afforded to determinations as to the admissibility of expert opinion evidence.

The balancing of its potentialprobative value, reliability, significance to the trial, necessity and its potential prejudicial effect to the trial process, if admitted, in thecontext of the particular case “does not involve the application of bright line rules, but instead requires an exercise of judicial discretion”(Abbey [R v Abbey, 2009 ONCA 624] at para. 79).

Therefore, absent an error in law, a misapprehension of evidence, a failure to considerrelevant evidence or abdication by the trial judge of his or her gatekeeper function, an appellate court should decline to interfere with atrial judge’s admissibility decision (K. (A.) [R v K (A) (1999), (ON CA), 137 CCC (3d) 225 (Ont CA)] at para. 93;D.D. [R v DD, 2000 SCC 43] at paras. 12-13, 70; J.-L.J. [R v J-LJ, 2000 SCC 51] at para. 61; and R. v. Woodard (J.), 2009 MBCA 42 atpara. 14, 240 Man.R. (2d) 24).

Discussion [26] At the hearing of the appeal, there was argument about whether the parties’ written submissions provided to the panelduring the conduct hearing should be part of the record. The issue arose in the context of the appellant’s assertion that the panel erredwhen it stated that he did not object to the admissibility of Dr. Scurfield’s report. The College suggested that this Court could infer thatthe submissions do not contain anything relevant to this issue or the appellant would have filed them. Counsel for the appellant pointedout that ordinarily the submissions are not filed on appeal.

However, with the concurrence of counsel for the College, he offered toprovide them if we wished to see them.

[ 27 ] In my view, this issue can be resolved by a review of the record and the panel’s reasons. The record reflects and the panel found that the appellant did not object to Dr. Scurfield’s qualifications as an expert, the admissibility of her report or her expert testimony. [ 28 ] The statement of agreed facts contained a lengthy excerpt from Dr. Scurfield’s report and it was one of the documents filed as an exhibit in the book of agreed documents.

When the book of agreed documents was filed, the appellant’s lawyer indicated her consent when she stated: And if I might just say that with respect to the book of documents and the agreed facts that, although there’s opinions and other sorts of things within there, either party had agreed that they could take issue with the matters that are in those documents, but otherwise can rely on them. [ 29 ] The appellant’s lawyer also conceded Dr.

Scurfield’s qualifications when she stated, “We have no problems with her being qualified as an expert in family medicine.” [ 30 ] Any argument in the appellant’s written submission regarding the admissibility of Dr. Scurfield’s evidence would have been inconsistent with his lawyer’s position that the report in the book of agreed documents could be relied on. In these circumstances, I do not believe that the submissions would assist in resolving this issue. [ 31 ] I see no error in the panel’s conclusion on the record before it that the appellant did not object to Dr.

Scurfield’s qualifications as an expert, the admissibility of her report or her expert testimony. [ 32 ] Even though the appellant did not object to Dr. Scurfield’s qualifications and the admissibility of her evidence, he argued that she was not impartial or independent because of the prior audits she had done for the College generally and regarding the appellant’s practice, as well as the timing of her retainer by them as an expert. His position was that Dr. Scurfield’s potential bias should affect the weight given to her evidence.

In its decision, the panel determined that the evidence raised questions about Dr. Scurfield’s independence and impartiality. It concluded that her evidence should not be rejected outright but that issues relating to her potential lack of impartiality, independence and potential bias should be taken into account in its overall assessment of her evidence. Ultimately, the panel relied on Dr. Scurfield’s evidence in finding the appellant guilty of the first two allegations in count 2. [ 33 ] In addition to his argument that he did object to the admissibility of Dr.

Scurfield’s evidence at the conduct hearing, the appellant argues that the panel erred in its gatekeeping function and that its finding of bias on the part of Dr. Scurfield ought to have resulted in her evidence being excluded.

The appellant asserts that, once the perception of bias has been triggered, the expert’s evidence is not admissible. [ 34 ] In making this argument, the appellant relies primarily on the Supreme Court of Canada decision in White Burgess Langille Inman v Abbott and Haliburton Co , 2015 SCC 23 , in which Cromwell J concluded that “at a certain point, expert evidence should be ruled inadmissible due to the expert’s lack of impartiality and/or independence” (at para 35). [ 35 ] The Supreme Court determined that an expert’s lack of impartiality and independence and their bias are relevant to the admissibility of the expert’s evidence, as well as to its weight ( ibid at para 45; see also R v Abbey , 2017 ONCA 640 at para 55 ).

Cromwell J stated that impartiality, independence and bias should be considered at the threshold stage when a party seeks to qualify an expert witness. He explained that, although impartiality, independence and a lack of bias are requirements for a properly qualified expert, a proposed expert’s evidence will rarely be excluded for failing to meet the threshold requirement (at para 49): . . . I emphasize that exclusion at the threshold stage of the analysis should occur only in very clear cases in which the proposed expert is unable or unwilling to provide the court with fair, objective and non-partisan evidence.

Anything less than clear unwillingness or inability to do so should not lead to exclusion, but be taken into account in the overall weighing of costs and benefits of receiving the evidence. [ 36 ] For expert testimony to be excluded, Cromwell J stated that more than a simple appearance of bias is necessary.

Citing Mouvement laïque québécois v Saguenay (City) , 2015 SCC 16 , he clarified that, rather than looking at “whether a reasonable person would consider that the expert is not independent . . . what must be determined is whether the expert’s lack of independence renders him or her incapable of giving an impartial opinion in the specific circumstances of the case” (at para 36). [ 37 ] Cromwell J observed that the threshold requirement is not onerous and will typically be met by an expert testifying that they recognize their duty to the Court.

After the expert has testified to this effect, it is up to the party opposing the evidence to show that there is a realistic concern the expert cannot fulfill this duty, in which case the evidence must be excluded. [ 38 ] Bias must also be considered pursuant to the trier of fact’s gatekeeper function, which continues throughout the trial (see para 54).

Under this duty, the trier of fact must consider any concerns about an expert’s impartiality, independence and bias when weighing the probative value of the evidence against any potential prejudicial effects, and must exclude evidence if the prejudicial effects outweigh the probative value of the evidence. Once admitted, any concerns about bias must be considered by the trier of fact in determining the overall weight to be given to the evidence. [ 39 ] In this case, the panel accepted the admission of Dr. Scurfield’s report by agreement of the parties.

After hearing testimony about her qualifications and the appellant’s consent, it also accepted that she was qualified to give evidence as an expert in family medicine. Despite a trial judge retaining the responsibility of determining the admissibility of expert evidence, White Burgess does not necessarily compel the trial judge to perform any independent analysis about the admissibility of such evidence when the parties concede its admissibility (see R v Soni , 2016 ABCA 231 at para 16 ).

[ 40 ] The panel considered the appellant’s assertions, after a lengthy cross-examination, that Dr. Scurfield was retained by the College to audit his records relating to matters that became the subject of the allegations. The panel was also aware that Dr. Scurfield’s opinion regarding patient 1 was not sought until after the matters in count 2 had been referred to the Inquiry Committee. It considered the appellant’s argument that Dr. Scurfield’s opinion was obtained to “support the [College’s] Investigation Committee’s theory of the case” (the conduct decision at para 45) and was therefore not objective.

The panel was alive to concerns regarding Dr. Scurfield’s potential bias and took them into account in its overall assessment of her evidence. [ 41 ] The panel’s conclusion that Dr. Scurfield’s evidence (including her report) was admissible despite concerns regarding potential bias is entitled to deference. I am not persuaded that it erred by admitting her evidence. [ 42 ] At no point was the usefulness of Dr. Scurfield’s evidence outweighed by any prejudice created by the potential bias found by the panel (see White Burgess at para 54). The fact that Dr.

Scurfield had previously audited the appellant’s records is insufficient to establish bias warranting exclusion of the evidence (see Soni at paras 20-21 ). The letter the College sent to Dr. Scurfield to retain her as an external consultant to review the appellant’s care of patient 1 (the retainer letter) and her testimony refute the suggestion that her report was sought to support the College’s theory of its case against the appellant. The retainer letter clearly delineates a consultant’s duty in the following terms: . . .

It is the duty of a consultant retained by the College to provide an opinion that is fair, objective and non-partisan. The overriding objective of the investigation process is that cases are dealt with in a fair and just manner. . . . Consultants are also required to be entirely neutral and objective. If you are aware of any reason why you cannot be neutral and objective in providing the requested opinion, please notify us promptly. . . . [ 43 ] In her testimony, Dr.

Scurfield confirmed her understanding of her duty to be honest and fair, and she specifically stated that she did not have “any vested interest” in the outcome of the hearing. [ 44 ] In my view, there is nothing on the record which demonstrates a lack of objectivity in Dr. Scurfield’s evidence. [ 45 ] Moreover, apart from finding that Dr. Scurfield’s evidence regarding the standard of care of a reasonably competent family physician regarding the diagnosis, management and treatment of tuberculosis was reasonable, the panel did not rely solely on her evidence in reaching its conclusions.

The panel found that the deficiencies in the appellant’s medical records were “outlined in detail by Dr. Scurfield, acknowledged by Dr. Reynolds, and effectively admitted by [the appellant]” (the conduct decision at para 176). It also found that the appellant’s failure to diagnose, manage and treat patient 1’s tuberculosis was established by the statement of agreed facts and the appellant’s lack of credibility, in addition to Dr. Scurfield’s evidence.

Finally, it concluded that the breach of the record-keeping requirements was proven by the medical records. [ 46 ] The appellant’s additional argument that the panel’s conclusions cannot stand in the absence of patient 1’s testimony is unpersuasive. In my view, the panel’s findings are reasonably supported on the record. [ 47 ] The appellant argues that the panel erred by assuming that, if he did not chart something, it was not done and that it should have accepted his evidence that certain action was taken because it was his usual practice.

The difficulty with this argument is that the appellant never testified about his usual practices. Rather, his testimony regarding his care of patient 1 was based on his recollection of her visits. [ 48 ] In addition, the panel explained the concerns it had with the appellant’s credibility regarding his lack of notes and provided specific examples of these concerns. The panel stated that the appellant provided “detailed testimony at the hearing, expanding on almost all of the notations in his medical record relating to Patient 1” (at para 133).

However, it found that this testimony was “considerably more elaborate and contained more exculpatory information” than his “relatively brief” ( ibid ) written reply to the College’s initial inquiries about his care of patient 1 (the written reply), the statement of agreed facts and Dr. Reynolds’s expert report. [ 49 ] Although the appellant argues that Dr. Scurfield testified outside of her area of qualification, he has provided no examples of this and the record does not support this assertion. [ 50 ] Nor does it support the appellant’s argument that the panel completely disregarded his evidence and that of Dr.

Reynolds. Despite rejecting much of the appellant’s testimony as incredible or unreliable, the panel specifically relied on his and Dr. Reynolds’s evidence in concluding that the appellant “recognized the seriousness of the situation and reacted appropriately up to, and

including, December 6, 2017” (at para 171) and that his actions to that point were “acceptable” (at para 179). I am not persuaded that the panel erred in its assessment of the appellant’s and Dr. Reynold’s testimony. Conclusion [ 51 ] The panel’s decision regarding count 2 is entitled to deference. It carefully assessed the relevant evidence and made appropriate findings that were based on the record. The panel determined that aspects of the allegations in count 2 had not been proven and dismissed them.

However, the panel concluded on the evidence that the appellant knew that patient 1 possibly had tuberculosis but he failed to follow up to ensure that she was properly tested and to obtain the test results. It also concluded that he had no system to do so. I see no basis for appellate intervention. [ 52 ] I would dismiss the grounds of appeal in relation to the panel’s findings regarding count 2.

Count 3—Patient 2 The Allegations [ 53 ] Regarding count 3, the College alleged that the appellant “displayed a lack of knowledge, skill and/or judgment in the practice of medicine, that he created false and/or misleading medical records in breach of [the College’s by-laws] and that he committed acts of professional misconduct” (at para 197). [ 54 ] In the amended notice of inquiry, the College stated that the appellant: • failed to examine and/or assess patient 2 when she was first admitted to the Seven Oaks General Hospital in May 2015; • failed to adequately monitor and/or assess patient 2 while she was under his care in the hospital and failed to consider additional information and to revisit a presumptive diagnosis; and • documented a complete physical examination of patient 2 as part of her admission history when he did not physically examine patient 2 on admission, or at all. [ 55 ] The College asserted the following facts regarding count 3. [ 56 ] Between May 7 and 15, 2015, patient 2 was admitted to the hospital for “abdominal pain, with a working diagnosis of pyelonephritis” (a urinary tract infection).

As of May 8, 2015, she was under the appellant’s care. Patient 2 complained that the appellant did not physically examine her at all while she was under his care. On May 21, 2015, a computerized tomography scan showed that patient 2 had “probable appendicitis.” Later that day, during surgery, it was determined that she did not have a urinary tract infection but, rather, her appendix had ruptured. The Conduct Hearing [ 57 ] At the conduct hearing, patient 2 testified that the appellant did not physically examine her at the time of her admission to the hospital, or at all. The College also called Dr.

Gurswinder Jawanda to provide expert evidence regarding the appellant’s care and management of patient 2. [ 58 ] The appellant testified in his own defence about his care and management of patient 2 and said that he did physically examine her. However, he agreed that, if the panel rejected his evidence that he did physically examine patient 2 and accepted her evidence that he did not, then he failed to meet the standard of care. The Panel’s Conduct Decision [ 59 ] The panel was not satisfied by Dr.

Jawanda’s testimony that the appellant failed to adequately monitor and assess patient 2 while she was under his care in the hospital. [ 60 ] However, the panel was satisfied that the appellant displayed a lack of knowledge, skill and/or judgment in the practice of medicine and created false and/or misleading medical records.

Key to this finding was its conclusion that he did not physically examine patient 2 but documented that he had done so. [ 61 ] After careful consideration, the panel rejected the appellant’s evidence that he physically examined patient 2 on every day that she was in the hospital except May 10.

It expressed significant concerns regarding the credibility and reliability of his evidence for a number of reasons, including that his testimony at the hearing four and one-half years later was more detailed than his chart notes and the written reply, and his chart notes did not demonstrate that physical examinations were conducted. [ 62 ] In contrast, the panel found that patient 2 “provided a plausible explanation for her very specific recollection that [the appellant] had not physically examined her” (the conduct decision at para 207).

It accepted her testimony that, following her admission to the hospital, she was in isolation and anyone entering her room needed to wear a gown and gloves, and that she distinctly remembered that the appellant never wore a gown and gloves when she saw him. In other words, the appellant never entered her room. [ 63 ] Based on patient 2’s testimony, the panel concluded that “[t]he events of May 2015 would have been very unusual and disturbing for her” and that it was “reasonable that her recollection of her stay at the Hospital would [have been] vivid and memorable to her” (at para 210).

Accordingly, it found that the appellant failed to physically examine patient 2 and documented an examination that he did not conduct. Issues on Appeal

[ 64 ] On appeal, the appellant argues that the panel erred in its credibility assessments of his evidence and that of patient 2. Standard of Review [ 65 ] The panel’s credibility findings are owed significant deference on appeal (see Ahmed v College of Registered Nurses of Manitoba , 2017 MBCA 121 at para 34 ; see also R v Gerrard , 2022 SCC 13 ). Discussion [ 66 ] The appellant argues that the panel did not consider the following frailties with patient 2’s evidence:

a) No consideration was given to the administrative review at Seven Oaks Hospital of the situation, which was dismissed without any further involvement;

b) Patient 2 took over two years to even respond to the appellant’s response to the complaint;

c) Patient 2’s memory of the events was less than reliable. She could not, for instance, differentiate between emergency room visits, nor could she substantiate assertions she made with respect to her removal from isolation (asserting that it was the appellant who did so, and then admitting she did not know that);

d) There is documented to be a significant amount of testing undertaken, despite her complaint suggesting otherwise;

e) She chose to leave the hospital despite testing still being ordered and a request by the appellant that she remain to conduct further testing.

Indeed, she testified under oath that she did not even advise that she would not be coming back, notably on the May long weekend, Friday. [ 67 ] Apart from a brief reference in the appellant’s testimony, there is no evidence that an administrative review conducted by the hospital regarding patient 2’s complaint was before the panel and the appellant has not established the relevance of the results of such a review regarding patient 2’s credibility. [ 68 ] As for the appellant’s other arguments regarding patient 2’s credibility, the panel considered each of them. [ 69 ] The panel also carefully considered the appellant’s detailed testimony regarding his treatment of patient 2, including his evidence that he examined her physically every day she was in the hospital except one.

It reiterated its concerns regarding his credibility that his testimony was more detailed than his written reply and his chart notes. The panel also expressed “considerable skepticism” (the conduct decision at para 210) regarding this evidence because his chart notes referred to only one possible physical exam and he was testifying more than four years after the events. [ 70 ] The panel carefully explained why the appellant’s chart notes did not support his testimony regarding the physical exams.

In doing so, it relied on Skeels (Estate of) v Iwashkiw , 2006 ABQB 335 , which held that (at paras 112, 126): The lack of charting does not necessarily mean that procedures were not conducted . . .. However, the lack of charting makes it more difficult for a court to determine matters of credibility where individuals who are trained to chart, did not do so. This failing, despite the opportunity to do so, makes it harder for a court to accept that the correct steps were followed and appropriate procedures were done as it would have been logical for them to be recorded had they been done . . ..

The failure to chart when there is a legal or established hospital practice duty to do so is a breach of the standard of care. Equally important, it removes from the Court, another piece of evidence that may be used to explain or understand what happened. [ 71 ] Moreover, the panel concluded that the appellant’s chart notes did not demonstrate that he conducted any physical examinations of patient 2.

Its review of patient 2’s medical records indicated that the appellant’s chart notes were “identical” (the conduct decision at para 210) to chart notes entered by someone else when patient 2 attended the emergency department and reiterated x- ray results and chart notes made by a nurse.

The panel observed that the medical records did not contain sufficient information regarding the results of physical examinations done by the appellant to confirm that the examinations were conducted. [ 72 ] I see no palpable and overriding error in the manner in which the panel assessed the credibility of the parties or regarding its findings of credibility. The panel was mindful of its duty to consider the totality of the evidence when considering the

effect of inconsistencies on a witness’s credibility (see FH v McDougall, 2008 SCC 53 at para 58). It was also aware of the need toconsider the probability of a witness’s account or whether the story is plausible or in harmony with the way things can and do happen(see Faryna v Chorny, (BC CA), [1952] 2 DLR 354 at 357 (BCCA); see also R v Kiss, 2018 ONCA 184 at paras 30-31). [73] The panel was alive to the concerns regarding patient 2’s credibility and its conclusion that her specific recollectionregarding physical examinations was plausible is supported on the record.

In my view, the panel’s findings regarding the appellant’schart notes and his credibility are also supported on the record. Conclusion [74] I do not see any error in the panel’s credibility assessments and certainly nothing that rises to the level of palpable andoverriding error. I would dismiss the grounds of appeal relating to count 3. Penalty Background [75] After the panel issued its reasons for decision regarding counts 2 and 3, the parties provided detailed writtensubmissions regarding the penalty and costs (see sections 59.6-59.7 of the Act).

The College recommended a reprimand, cancellation ofthe appellant’s registration, a fine of $10,000 and costs of $245,000. The appellant submitted that the appropriate disposition was areprimand, a four to six-month suspension, a remedial education plan, costs of between $40,000 and $50,000 and publication of thepanel’s reasons. [76] In determining the appropriate order to address the appellant’s conduct, the panel considered detailed writtensubmissions from the parties, the objectives of

section 59.6 orders under the Act, the appellant’s professional conduct history, aClinicians’ Assessment and Professional Enhancement report (the CAPE assessment) conducted in 2019 by the director of the ClinicianAssessment Programs at the University of Manitoba (the director), and a proposed remediation plan prepared by the director (theproposed remediation plan). [77] The panel made the following orders (the penalty decision at para 49): 1. Pursuant to ss. 59.6(1)(

a) of [the Act], [the appellant] is hereby reprimanded with respect to the matters of which he has beenfound guilty . . .. 2. Pursuant to ss. 59.6(c)(

g) of [the Act], [the appellant’s] registration with the College is cancelled. 3. Pursuant to ss. 59.7(1)(b) [the appellant] shall pay a fine to the College in the amount of $10,000. 4. There will be publication in the usual course as set out in [the Act], including [the appellant’s] name, as determined by theCollege. 5. Pursuant to ss. 59.7(1)(a) [the appellant] will make a payment to the College representing a contribution to the costs of theinvestigation and hearing in the amount of $90,000.

Issues on Appeal [78] On his appeal of the panel’s penalty decision, the appellant argues that, in cancelling his registration and imposing afine in the amount of $10,000, the panel failed to consider relevant sentencing objectives and, in doing so, imposed a penalty that wasdisproportionate. Specifically, he says that the panel did not consider the principles of rehabilitation, preservation of the public trust orprotection of the public. The appellant also argues that other similar cases resulted in suspensions and that revocation is not warranted inhis case.

He does not appeal the reprimand. [79] The appellant seeks a period of supervision and rehabilitation under reasonable conditions or, in the alternative, asuspension of not more than six months. He also asks that no fine be imposed and that the costs award be reduced to no more than$40,000. Standard of Review [80] Recently, in Dhalla v College of Physicians and Surgeons of Manitoba, 2022 MBCA 7, this Court had the opportunityto consider the appropriate standard of review for penalty decisions made by an administrative tribunal in the context of a statutoryappeal.

Writing for the Court, Cameron JA explained that these decisions are discretionary. Therefore, the civil deferential standardapplies: “absent a misdirection in law or on the facts, an appellate court will not intervene unless the decision on penalty is so wrong asto amount to an injustice” (para 71; see also para 59 and Histed at para 38). [81] The panel’s costs award is highly discretionary and should be set aside only if the panel made an error in principle orthe costs award is plainly wrong (see Dhalla at para 88).

Discussion [82] I am not persuaded that the panel erred when it concluded that the appropriate penalty for the appellant’s conduct wascancellation of his registration and a fine of $10,000, in addition to a reprimand.

[ 83 ] The panel expressed concern regarding “the significant number of deficiencies in [the appellant’s] practice coupled with multiple examples of misconduct” and found that “the nature and character of the deficiencies and misconduct were diverse and variable” (the penalty decision at para 26).

It also found that the appellant’s charting and record keeping remained “seriously substandard” (at para 27) despite efforts to improve. [ 84 ] The panel concluded that it was “very unlikely” (at para 37) that the appellant could be rehabilitated and that the proposed remediation plan “would be inadequate to ensure that [the appellant] would be able to practice safely and competently and in conformity with the prevailing standards of the medical profession” (at para 33).

In doing so, it noted that the CAPE assessment identified significant deficiencies in the appellant’s practice, the proposed remediation plan did not address all of his misconduct, past efforts at remediation through education, practice limitations and supervision were unsuccessful, and his lack of integrity was “stark” (at para 32). [ 85 ] The panel also concluded that suspension would not address the appellant’s deficiencies and misconduct or the principles of protection of the public, specific deterrence and preservation of the public’s trust. [ 86 ] The panel determined that the overriding objective when imposing the penalty for the appellant’s conduct was necessarily protection of the public. [ 87 ] In my view, the panel appropriately weighed the relevant principles.

It clearly considered the appellant’s prospects for rehabilitation but found that protection of the public required cancellation of his registration. The facts as found by the panel support its conclusion that the public trust is best served by the penalty imposed. [ 88 ] The cases relied on by the appellant assist in providing guidance in sentencing. However, in my view, the panel carefully considered the circumstances of this case, including the appellant’s circumstances, in arriving at its decision.

Moreover, its conclusion regarding his prospects for rehabilitation are supported by the record. [ 89 ] Finally, I disagree with the appellant’s assertion that none of the features warranting revocation suggested by the case law are present in this case (see Ontario (College of Physicians and Surgeons of Ontario) v Yazdanfar , 2011 ONCPSD 45 at 14; see also 2013 ONSC 6420 at para 158 ). [ 90 ] The panel found that the appellant’s prior conviction for professional misconduct was “either indicative of a persistent disregard for the standards of the profession or an alarming lack of insight” (the penalty decision at para 42).

It also found, as indicated above, that his record-keeping deficiencies remained seriously substandard, that he was dishonest, and that his lack of integrity was stark. [ 91 ] It is clear from the panel’s reasons that it considered a range of possible outcomes before concluding that cancellation was appropriate due to the seriousness of the misconduct and its impact on the profession and the public.

In its view, “this [was] not a case which the public good [would] be served by allowing [the appellant] to provide medical services to the public” (at para 43). [ 92 ] In the circumstances, I am not convinced that the panel’s decision to cancel the appellant’s registration and to impose a fine in addition to a reprimand is the result of an error in principle or is so clearly wrong as to yield an unjust result.

I would dismiss this ground of appeal. [ 93 ] When imposing the costs award of $90,000, the panel considered the significant costs incurred by the College as a result of the investigation and hearing, that the appellant’s deficient charting practices lengthened the hearing, and that the appellant agreed to the filing of a detailed statement of agreed facts, pleaded guilty to four counts and achieved limited success in defending the contested counts. I see no error warranting appellate intervention. Conclusion [ 94 ] In the result, I would dismiss the appeal and confirm the panel’s decision.

JA I agree: JA I agree: JA