) ) DR. NASSER ZAKI Applicant – v. –, 2017 ONSC 1613

CITATION : Zaki v. Ontario College of Physicians and Surgeons, 2017 ONSC 1613 DIVISIONAL COURT FILE NO.: 187/16 DATE: 20170314 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT SACHS, NORDHEIMER & GILMORE JJ. BETWEEN: ) ) DR. NASSER ZAKI Applicant – and – ONTARIO COLLEGE OF PHYSICIANS AND SURGEONS Respondent )) )) )) )) )) M. Henein & M. Gourlay , for the applicant A. Block & E.

Graham , for the respondent ) ) HEARD at Toronto: March 1, 2017 NORDHEIMER J. : [ 1 ] This is an application for judicial review of a decision of the Inquiries, Complaints and Reports Committee (the “ICRC”) of the College of Physicians and Surgeons of Ontario (the “College”).

The ICRC made an order, under s. 26(3) of the Health Professions Procedural Code (the “ Code ”), that, among other things, required the applicant to complete a specified continuing education or remediation program. [1] [ 2 ] The applicant received his medical degree in 1991 from the Faculty of Medicine at the University of Ain Shams in Cairo, Egypt. The Applicant immigrated to Canada in 1996, completed his residency at the University of Alberta, and commenced practice in Ontario in 2002.

Currently, the applicant works as a family doctor, splitting his time between a private clinic he operates in Windsor, Ontario, and a walk-in clinic in Toronto. [ 3 ] The proceedings began with a 2012 complaint to the College concerning a fee that the applicant quoted to provide a transcription of a patient’s medical record. The complainant was the lawyer for a defendant in a personal injury case. He complained that the medical record was illegible and that Dr. Zaki quoted an unreasonably high fee for transcribing it. [ 4 ] The ICRC reviewed the complaint.

On July 10, 2013, the ICPC rendered a decision, in which it found that Dr. Zaki’s notes were becoming increasingly illegible over time; that the patient record at issue was incomplete, as it contained “inadequate details of the care Dr. Zaki provided and the record did not include a Cumulative Patient Profile”; and that the quoted transcription fee was excessive.

As a consequence, the ICRC required the applicant to complete a specified continuing education or remediation program, consisting of a Record Keeping Course, and a “reassessment” with an assessor selected by the College, consisting of a review of twenty-five charts. [ 5 ] The applicant complied fully with the ICRC’s directive. He successfully completed the Record Keeping Course in November of 2013. He then provided twenty-five charts for the purposes of the reassessment ordered by the ICRC. [ 6 ] Dr.

Sarah Reid, a family physician, was appointed by the ICRC as the assessor for the purpose of conducting the reassessment. She reviewed the twenty-five patient charts. The assessor did not speak with Dr. Zaki.

[7] In her report dated September 23, 2014, the assessor concluded that, in twenty-two of the twenty-five charts, Dr. Zaki did notmeet the standard of practice with respect to record keeping. However, the assessor went beyond just the issue of record keeping. Shealso reported on various issues of patient care, opining that, in some instances, the care provided by the applicant failed to meet thestandard of practice of the profession.

These latter reports are consistent with the terms of her appointment, which stipulated that theassessor should advise the College, if she became concerned that the care provided by the applicant failed to meet the standard ofpractice of the profession, and/or displayed a lack of knowledge, lack of skill or lack of judgment. [8] Upon receipt of the assessor’s report, the College requested that the applicant provide a response to it. On January 12,2015, the applicant provided a detailed response to the assessor’s report, including detailed comments on the assessor’s criticisms ofeach patient chart.

The applicant also expressed disappointment, and surprise, that the assessor had chosen not to communicate with himin respect of any of her concerns. [9] A week after providing this response, the applicant’s counsel wrote to the College to request that any concerns remaining,following a review of the applicant’s response, be brought to his attention. Counsel offered to provide a response to any remainingconcerns. [10] On April 8, 2015, the assessor provided a response to the applicant’s response, by way of a second report.

This second report,from the assessor, was not provided to the applicant. [11] In this second report, the assessor revised her earlier opinion, finding that, in two additional charts that she had reviewed, therecord-keeping met the standard of practice. The assessor also withdrew a number of other criticisms, in light of the applicant’sresponse. [12] The College informed the applicant, on September 17, 2015, that the Registrar would report the results of the investigation tothe ICRC, at its October 21, 2015 meeting.

The ICRC considered the applicant’s case at its October 21, 2015 meeting – and its decisionbears that date. After an unexplained delay, the College provided Dr. Zaki, with the decision, in January of 2016. [13] It was not until April 7, 2016, that the College wrote to the applicant’s counsel and acknowledged that the second report of theassessor had never been provided to the applicant. The second report was included with that letter. [14] In its October 2015 decision, the ICRC once again determined that a specified continuing education and remediation programwas appropriate.

It also required the applicant to be subject to clinical supervision by a “Preceptor” that included, among other things: (

a) monthly meetings between the Preceptor and the applicant for a period of three months during which fifteen charts will be reviewedand any issues or concerns discussed; (

b) another meeting after six months between the Preceptor and the applicant during which fifteen charts will be reviewed and anyissues or concerns discussed; (

c) another meeting after nine months between the Preceptor and the applicant during which fifteen charts will be reviewed and anyissues or concerns discussed. [15] In addition to the above, the applicant was required to undergo a “reassessment”, by an assessor selected by the College, sixmonths after the completion of the above, that will also include a review of fifteen charts, and an interview with the applicant. Issues and Analysis [16] The applicant raises two issues in his application for judicial review: (

a) the ICRC failed to provide the applicant with procedural fairness when it failed to provide the applicant with the secondreport of the assessor and an opportunity to respond. (

b) the ICRC exceeded its jurisdiction in ordering a wide-ranging assessment of the applicant’s practice. A. Procedural Fairness [17] Where procedural fairness is at issue, the Court need not engage in a discrete standard of review analysis. While proceduralfairness takes its content from the context, every tribunal is required to act in a manner that is procedurally fair to the person subject to itsprocess: Kalin v. Ontario College of Teachers, (2005), (ON SCDC), 75 O.R. (3d) 523 (Div. Ct) at para. 9. [18] The leading case on the requirements for procedural fairness is the decision in Baker v.

Canada (Minister of Citizenship andImmigration), (SCC), [1999] 2 S.C.R. 817. In that decision, L’Heureux-Dubé J. set out five factors that affect thecontent of the duty of fairness. Three of those factors bear specific mention in this case. One is the importance of the decision to theindividual or individuals affected. The decision in this case is of considerable importance to the applicant, as it directly affects his abilityto carry on his medical practice.

The significance of decisions, relating to a person’s ability to practice in their profession, wasmentioned in the decision in Baker. [19] Another relevant factor is the legitimate expectations of the person challenging the decision. In this case, the applicant had alegitimate expectation that he would receive, and be able to respond to, the report of the assessor.

Having been given the assessor’s firstreport, and asked to respond to it, it should be obvious that the applicant would have had a legitimate expectation that he would receiveany other reports, that the assessor might provide to the College, relating to his matter. [20] Yet another relevant factor is the procedures that were adopted by the decision-maker. In this case, the ICRC decided that itwould provide the assessor’s report to the applicant. Indeed, I note in the letter appointing the assessor, the College advised the assessor:

Your report will be shared with Dr. Zaki, and may be reported to the ICR Committee, along with any submissions from the physician, for direction. [ 21 ] It is clear that the College intended to provide any and all of the assessor’s reports to the applicant. The respondent does not dispute that was the intention. In fact, it provided the second report.

It just did so a year after the report was received, and six months after the ICRC had made its decision. [ 22 ] The respondent’s position on this point is, in essence, that the second report of the assessor did not add anything to the record; that the applicant was aware of the basic issues raised; that the applicant made submissions to the ICRC regarding those issues; and that, consequently, no procedural unfairness was visited on the applicant, through the failure to provide the second report. [ 23 ] In my view, that is not a tenable position.

First, procedural fairness must not only be accorded to a party, in fact, it must also be seen to have been accorded to the party. Providing information to the ICRC, upon which it relied in reaching its decision, that was not provided to the applicant, is neither procedurally fair in fact nor in appearance. The adage “no harm, no foul” is not a principle upon which the respondent can rely to overcome a fundamental failure to ensure that the applicant knew the case that he had to meet.

The suggestion, that the second report was of no consequence, is a conclusion based on shear speculation as to what the applicant might have done, including what submissions the applicant might have advanced, if the second report had been disclosed. It is also a conclusion that does not withstand even a cursory examination when one realizes that, on more than one occasion, the assessor completely reversed her position regarding the applicant’s conduct. [ 24 ] On this basis alone, the decision of the ICRC cannot stand. It is irremediably tainted by the failure to provide procedural fairness to the applicant. B.

Jurisdiction [ 25 ] While technically it may not be necessary to address this issue in light of my conclusion on the first issue, since this issue might reoccur on a reconsideration of this matter by the ICRC, or may well arise in another case, and since it was fully argued, it would promote the efficient administration of justice to deal with it. [ 26 ] The issue is whether the ICRC has the authority to order a practice assessment by an assessor. The ICRC says that a practice assessment is a necessary part of a specified continuing education or remediation program, or “SCERP”.

The ICRC had directed the applicant to complete a SCERP, as part of its decision and disposition dated July 10, 2013. At the time, the applicant did not take issue with that component of the ICRC’s decision and disposition. [ 27 ] The matter progressed from there, as I have outlined above. In the ICRC’s decision and disposition dated October 21, 2015, the ICRC required the applicant, for the second time, to complete a SCERP which, again, required a practice assessment. In this application, the applicant does take issue with the requirement for another assessment.

I note that this assessment is in addition to the requirement that the applicant be subject to clinical supervision by a Preceptor. [ 28 ] The issue of the jurisdiction of the ICRC to require a physician to undergo a practice assessment, by an assessor, arises from the difficulties that are apparent with the structure and wording of the Code . For example, the Code (s. 81) provides expressly for the appointment of an assessor by the Quality Assurance Committee.

That is the only express provision in the Code respecting the appointment of assessors. [ 29 ] The Code (s.75(1)) also provides expressly for the appointment of investigators by the Registrar but, unless the ICRC has referred the matter to the Registrar, the Registrar’s appointment of an investigator must be approved by the ICRC. Investigators have extensive powers that, to some extent, mirror powers that an assessor would exercise on a practice assessment, including the right to look at patient files. [ 30 ] The ICRC has no such express powers. The authority of the ICRC is found in s. 26(1) of the Code .

In particular, under that section, the ICRC has the authority to: 4. Take action it considers appropriate that is not inconsistent with the health profession Act, this Code, the regulations or by-laws. The ICRC also has the authority, under s. 26(3), to require a member to complete a SCERP. [ 31 ] On the one hand, the fact that the Quality Assurance Committee has the express power to appoint assessors might suggest that there was no intention to give the ICRC that power, otherwise it would similarly have been given the power expressly. On the other hand, the above-stated authority of the ICRC is very broad.

It can take any action it considers “appropriate” as long as that action is not inconsistent with the Act or the Code . The respondent says, and it does not appear to be disputed by the applicant, that an assessment is an integral part of a SCERP.

That would seem to make sense, since an assessment would appear to be the necessary mechanism to ensure that completion of the SCERP has had the desired effect of correcting any issues with the physician’s conduct. [ 32 ] I would also note, on this point, that the power of an assessor, to conduct an assessment of a physician’s practice, does not appear to be qualitatively different than what the Preceptor does, under the SCERP, and the applicant has not complained about his obligation to undergo clinical supervision by the Preceptor. [ 33 ] It might be pointed out, on this issue, that, if the Quality Assurance Committee has the power to appoint assessors, and the ICRC believes that an assessment is necessary, the ICRC should simply refer the matter to the Quality Assurance Committee.

However, for policy reasons, that are not at issue in this application, s. 26(3) of the Code expressly prohibits the ICRC from referring matters to the Quality Assurance Committee. [ 34 ] I do appreciate the underlying concern of the applicant that what started out as a complaint about the physician’s handwriting, and his apparently excessive fee to transcribe his records, has been transformed into a wide-ranging assessment of his entire medical

practice. Not only has this occurred but it has been repeated. The applicant might legitimately be asking: “Where and when does this allend?”. After all, it is the applicant who bears the costs of all of these procedures. [35] In the end result, I have to determine what the intention of the Legislature was in enacting these various provisions in theCode. To that end, I must apply the fundamental principle of statutory

interpretation, which is set out, among other places, by GonthierJ. in Barrie Public Utilities v. Canadian Cable Television Assn., 2003 SCC 28 , [2003] 1 S.C.R. 476 at para. 20: The starting point for statutory

interpretation in Canada is E. A. Driedger’s definitive formulation in his Construction of Statutes (2nd ed.1983), at p. 87: Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in their grammaticaland ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. [36] I cannot see anything in the Code that would suggest that the Legislature was intending to limit the authority of the ICRC toaddress complaints about physicians, short of a referral to a full blown disciplinary proceeding.

As I have earlier noted, the respondentsays that an assessment is a necessary part of a SCERP, because it allows the ICRC to determine if concerns, that have been identifiedwith the physician’s practice, have been remedied.

While the requirement of an assessment undoubtedly poses a burden on thephysician, the consequences of that burden must be seen as being secondary to the overarching goal of protecting the public by ensuringpatient safety. [37] Having reached that conclusion, I recognize that finding that the ICRC has the authority to order a practice assessment, as partof a SCERP, carries with it the risk that it could entangle the physician in a seemingly never-ending cycle of assessment afterassessment, as each assessment identifies some new issue not revealed by an earlier assessment.

Another concern is that the ICRC’sauthority to direct an assessment should not be allowed to become a surrogate for referring a matter to the Discipline Committee. Ifthere are serious issues regarding a physician’s practice, the proper place to address those is before the Discipline Committee, not theICRC. [38] Consequently, it seems to me that the authority of the ICRC to order an assessment must always be directly related to, and bea necessary consequence of, its decision to order a SCERP. The assessment ought to be carefully tailored.

The scope of the assessmentshould be rationally connected to the concerns, that have led to the ordering of a SCERP, and be only what is necessary to properlyaddress those concerns. This could include concerns discovered by the assessor that might lead, as it did in this case, to the ordering of asecond SCERP. I should add that, in this case, the assessment requirement appears to meet that standard. It provides only that theassessor will review fifteen charts and conduct an interview with the applicant.

I would also note that, if the ICRC were to attempt tocontinue this cycle of assessments, the applicant still retains his rights of judicial review before this court. Conclusion [39] Given the failure of the ICRC to provide the applicant with procedural fairness, the application for judicial review is granted. The decision of the ICRC dated October 21, 2015 is set aside. The matter is remitted back to the ICRC for reconsideration by a differentpanel. [40] The respondent will pay to the applicant his costs of the application fixed in the agreed amount of $10,000, inclusive ofdisbursements and HST. NORDHEIMER J.

I agree SACHS J. I agree GILMORE J. Date of Release: March 14, 2017 CITATION: Zaki v. Ontario College of Physicians and Surgeons, 2017 ONSC 1613 DIVISIONAL COURT FILE NO.: 187/16

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT SACHS, NORDHEIMER & GILMORE JJ. BETWEEN: DR. NASSER ZAKI Applicant – and – ONTARIO COLLEGE OF PHYSICIANS AND SURGEONS Respondents REASONS FOR JUDGMENT NORDHEIMER J. Date of Release: