) ) Rasiklal Narshidas Morzaria Applicant – v. –, 2017 ONSC 1940

CITATION : Morzaria v. College of Physicians and Surgeons of Ontario, 2017 ONSC 1940 DIVISIONAL COURT FILE NO.: 013/17 DATE: 20170327 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT SACHS, NORDHEIMER AND GILMORE JJ. BETWEEN: ) ) Rasiklal Narshidas Morzaria Applicant – and – College of Physicians and Surgeons of Ontario Respondent ) ) ) ) ) ) ) ) ) Paul-Erik Veel , and Laurel D. Hogg , for the Applicant Carolyn Silver , for the Respondent ) ) ) HEARD at Toronto : February 28, 2017 GILMORE J.: NATURE OF PROCEEDING: [ 1 ] Dr. Rasiklal Narshidas Morzaria (“Dr.

Morzaria”) applies for judicial review of an interim order of the Inquiries, Complaints and Reports Committee (the “ICRC”) of the College of Physicians and Surgeons of Ontario (the “College”) dated December 21, 2016 (the “Interim Order”). The Applicant seeks an order quashing paragraphs (ii)(

c) and (viii) of the Interim Order. [ 2 ] The College asks that the application be dismissed. BACKGROUND: [ 3 ] The Applicant is a paediatrician practising in Scarborough. He is currently a Respondent in a proceeding before the Discipline Committee of the College. [ 4 ] In June 2013, the Applicant was arrested and criminally charged with sexual assault, sexual interference, and two counts of invitation to sexual touching in relation to allegations of inappropriate sexual behaviour between the applicant and a 13-year-old male patient (“Patient A”). Patient A had alleged, among other things: (

a) that in 2008 and 2009, the Applicant would take him to his office on weekends and after hours, when the office was closed and there were no staff members present; (

b) that during both after-hours visits and regular appointments, the Applicant would engage in sexual touching and other behaviour of a sexual nature with him; and (

c) that the Applicant took him out for food and gave him, or promised to give him, gifts for visiting him. [ 5 ] According to Patient A, the Applicant advised him that if he told anyone about the above, he and his family would spend the rest of their lives in jail because he was an undercover police officer. This made Patient A afraid to tell his parents. Patient A’s mother provided the police with information that was consistent with her son’s account.

[ 6 ] In 2005, the Applicant faced similar allegations from another young male patient, Patient B. Patient B alleged that while alone in the Applicant’s office he was fondled and touched inappropriately by the Applicant. The Applicant admitted that he took Patient B to his office when no one else was present and that he bought him a donut and a drink at Tim Horton’s. He denied the other allegations. [ 7 ] In 2007, the Complaints Committee found that the Applicant had engaged in a clear boundary violation in picking up Patient B at his home and taking him to his office after hours.

The Applicant was formally cautioned about his conduct and given specific direction as to steps he was required to take to avoid such violations in future. The Criminal Proceedings and the Undertaking [ 8 ] On June 24, 2013, the Applicant was arrested and charged with sexual assault, sexual interference and two counts of invitation to sexual touching in relation to Patient A. The police informed the College of the allegations shortly thereafter.

On January 16, 2014, at the College’s request, the Applicant responded to the allegations, categorically denying that he had sexually abused the patient. [ 9 ] On January 20, 2014, the Applicant signed an undertaking with the College (“the Undertaking”) requiring him not to conduct any patient encounters with patients under 16 years of age except in the presence of a practice monitor.

The practice monitor was required to provide reports to the College each month, which included a log (initialled by the monitor) of all patient encounters. [ 10 ] In addition, the Applicant was required to post signs in his waiting and examination rooms advising of the restriction that he was not to be alone with any patient under 16 years of age without the presence of a health professional approved by the College. [ 11 ] The Applicant complied with the Undertaking between January 20, 2014 and December 21, 2016.

The Applicant was subject to an unannounced compliance visit during this period and was found to be in full compliance with the Undertaking. [ 12 ] The criminal charges against the Applicant were stayed on September 8, 2015, on the basis of unreasonable delay contrary to s. 11(

b) of the Canadian Charter of Rights and Freedoms . The ICRC’s Interim Order [ 13 ] On November 23, 2016, the ICRC considered the report of the College’s investigation into the Applicant and referred specific allegations of professional misconduct to the Discipline Committee. The ICRC also gave notice to the Applicant that it intended to make an interim order under s. 37 of the Health Professions Procedural Code ,

Schedule B to the Regulated Health Professions Act, 1991 , S.O. 1991, c. 18 (the “Code”). The relevant part of s. 37 reads as follows: Interim suspension 37.

(1) The Inquiries, Complaints and Reports Committee may, subject to subsection (5), make an interim order directing the Registrar to suspend or impose terms, conditions or limitations on a member’s certificate of registration if, (

a) an allegation is referred to the Discipline Committee; and (

b) it is of the opinion that the conduct of the member exposes or is likely to expose his or her patients to harm or injury. [ 14 ] Following communications between the College and the Applicant, the College decided to defer making an order to allow the Applicant to execute an undertaking to supersede the January 2014 Undertaking. The Applicant indicated that he was agreeable to most of the terms of an undertaking proposed by the College, including certain terms that were more onerous than those in the January 2014 Undertaking. However, the Applicant objected to two terms in the proposed undertaking: (

a) a term requiring that the Applicant’s practice monitor refrain from performing other functions while observing the Applicant’s encounters with patients under 18 years of age; and (

b) a term requiring the Applicant to ensure that each patient who scheduled an appointment with him is directly notified before the appointment takes place that the Applicant is restricted from engaging in encounters with patients under 18 years of age unless supervised by the practice monitor. [ 15 ] These terms correspond to the terms of the Interim Order that the Applicant is challenging before this court. [ 16 ] On December 21, 2016, the ICRC considered the Applicant’s response to the College’s proposed undertaking, and whether to make an interim order pursuant to s. 37 of the Code.

The ICRC noted the Applicant’s position that the two practice restrictions noted above were not necessary to achieve the College’s purpose of protecting the public. [ 17 ] However, the ICRC concluded that the Applicant’s submissions on this point did not eliminate the ICRC’s concern about exposure of patients to harm. Specifically, the ICRC highlighted the following: (

a) the seriousness of the allegations, relating to sexual acts that occurred “on many occasions between 2006 and 2012,” which the ICRC viewed as constituting grooming behaviour; (

b) that the patient’s and his mother’s accounts were consistent with each other and supported in part by other evidence; and (

c) that the Applicant, as a paediatrician, serves a particularly vulnerable group of patients.

[ 18 ] The ICRC also noted that the Applicant had been criminally charged with sexual assault on a different 13-year-old male patient in 2005, on the basis of allegations that bore factual similarities to the present complaint.

Those earlier charges were stayed by the Crown in 2007 and the ICRC disposed of the matter by requiring the Applicant to be cautioned on maintaining appropriate physician- patient boundaries. [ 19 ] The ICRC was therefore unwilling to accept the Applicant’s proposed changes to the terms of the undertaking and noted specific reasons why it felt that each of the two terms to which the Applicant objected were necessary. [ 20 ] The ICRC therefore issued the Interim Order, placing restrictions on the Applicant.

The Interim Order included the following restrictions to which the Applicant objects: Practice Monitor and Patient Log (ii)(

c) Refrain from performing other functions, except those required in the Practice Monitor’s undertaking attached to the Order as Appendix “A”, while observing all Patient Encounters with patients under eighteen years of age; … Notifying Patients (viii) Dr. Morzaria is to directly notify each patient scheduled for an appointment with him, prior to the appointment, and at least within seven (7) days after the appointment is booked, of the details of the restriction described in

section (

i) above. KEY ISSUE AND STANDARD OF REVIEW: [ 21 ] The sole issue in this case is whether the ICRC’s decision to impose the above restrictions was reasonable. The parties agree that the standard of review is reasonableness. [ 22 ] It is also accepted that under s. 37 of the Code, the ICRC may make an interim order imposing conditions or limitations on a physician, pending the completion of the discipline hearing.

Such restrictions may be imposed where the ICRC is of the opinion that “the conduct of the member exposes or is likely to expose his or her patients to harm or injury.” [1] [ 23 ] An order made under s. 37(1) of the Code is done so on a paper record without the benefit of viva voce evidence from witnesses or an oral hearing.

Section 37 orders are reasonable if there is “some evidence” to justify imposing the order. [2] Further, because s. 37 orders are both interim and result from a

summary procedure, the court should be more tolerant in scrutinizing such decisions. [3] WAS THE ICRC INTERIM DECISION REASONABLE?

i) Were the Impugned Provisions of the Order Made Based On Some Evidence? [ 24 ] The ICRC decision must be one based on some evidence of a likelihood of harm ensuing to current or future patients. [ 25 ] The Applicant does not challenge the order as a whole, only the two impugned provisions. The Applicant reminded the court that this matter evolves from an allegation dating back eight years.

Further, the criminal charges resulting from the allegations were dismissed for delay and no complaints have arisen since the allegations or during the period of the Undertaking. [ 26 ] In determining reasonableness, a committee with expertise such as the ICRC must be given deference when it comes to imposing measures to protect the public. [4] Further, such deference must extend to the choice of modality through which practice restrictions are imposed. As the Supreme Court of Canada explained in Law Society of New Brunswick v.

Ryan , 2003 SCC 20 , [2003] 1 S.C.R. 247, at para. 55 : A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere.

This means that a decision may satisfy the reasonableness standard if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling. [Citations Omitted.] [ 27 ] The facts in the case at bar involve a serious and detailed complaint by a young and vulnerable patient which was corroborated by his mother.

The allegations involved boundary violations and sexual touching in situations where the Applicant arranged to be alone with the patient. [ 28 ] In the face of these serious allegations, the ICRC imposed restrictions which allowed the Applicant to continue to practice pending the discipline hearing. In my view, those restrictions were within the reasonable range of outcomes when balanced with the ICRC’s legislative mandate to protect the public interest, the deference owed to the expertise of the ICRC and the interim and

summary nature of the proceeding. [ 29 ] With respect to the individual restrictions, the order was reasonable because:

(

a) The chaperone restriction prevents any situations in which the Applicant would be alone or unsupervised with a young patient, even for a moment. It also ensures that the practice monitor’s attention is entirely focused on the interactions between the Applicant and his patient. The point of having a practice monitor is to ensure that all such interactions are observed and to accomplish this objective it is not unreasonable for the ICRC to remove a known risk that the monitor could be distracted from fulfilling their mandate by virtue of their need to perform other duties. (

b) The notice restriction ensures that all of the Applicant’s patients become aware of the restrictions and make decisions accordingly. A sign posted on the wall (as was required in the Undertaking) is a passive measure. It is inherent in the ICRC decision that a more active step was required based on the committee’s review of the record, its expertise and its knowledge of other cases involving the sexual abuse of patients. Again, the point of the condition is that all patients are notified of the fact that the Applicant cannot see young patients except in the presence of a monitor.

A sign on a wall may accomplish this objective, but there is a risk that the sign will not be seen. It is not unreasonable for the ICRC to require a more active step to ensure that the same objective is accomplished. [ 30 ] The Applicant argues that the ICRC must have concrete evidence of actual or likely harm to current or future patients based on the Liberman case. [5] I disagree. In Liberman , the court found no evidence of any probable exposure to harm. In that case there was evidence of below standard conduct relating to a clinical issue.

Further, the s. 37 order in that case had the effect of shutting down the physician’s practice. [ 31 ] In the case at bar, there were serious allegations regarding sexual abuse. The pattern of isolating young patients and then allegedly engaging in sexual fondling was repeated. Further, the interim order in this case did not shut down the Applicant’s practice.

It necessarily imposed reasonable restrictions to protect the public interest. ii) Actual Versus Likely Harm [ 32 ] The Applicant submitted that, in the absence of evidence of any actual harm or elevated risk resulting from the less onerous provisions of the Undertaking, imposing more serious restrictions at this point is unreasonable. [ 33 ] Two points are raised from this submission. First, it would be highly inappropriate for the College to wait until actual harm occurred before taking steps to protect the public.

So long as the restrictions imposed by the ICRC fall within the reasonable range of outcomes, the ICRC must follow its legislatively mandated purpose and, using its expertise, impose conditions which address the issue of protecting patients from exposure or likely exposure to harm or injury. [ 34 ] Second, evidence that the Applicant scrupulously followed the terms of his undertaking does not mean that the ICRC was bound to conclude that he no longer posed a risk of harm to patients. The ICRC was not in a position to impose any restrictions until the matter was referred to the Discipline Committee.

Further, the ICRC properly considered the evidence before it once the investigation was concluded, including the evidence that the Applicant had not breached his undertaking. [ 35 ] In Bygrave v. Royal College of Dental Surgeons of Ontario , [6] Dr. Bygrave, a general dentist who offered orthodontic treatment to some of his patients, appealed a decision of his College’s Discipline Committee. One of the grounds of appeal was that an earlier undertaking given by the dentist gave rise to an issue estoppel or was res judicata.

The court found no error by the panel and quoted the Discipline Panel with approval as follows; “the undertaking was a voluntary action by Dr. Bygrave. It was not a judicial or quasi-judicial determination. Furthermore, the Undertaking could not and did not preclude the College from the fulfillment of its legislative mandate to protect the public interest through the investigation of any subsequent complaints.” [7] [ 36 ] It is true that the Applicant in this case did not argue that the Undertaking should be treated as a form of issue estoppel.

He did, however, argue that it was unreasonable for the ICRC to impose more onerous restrictions in the face of unblemished compliance with the Undertaking. This argument infers that evidence of a breach of the Undertaking is required before the ICRC can reasonably impose different, additional or more onerous terms of an order. This does not accord with the ICRC’s legislative mandate to protect the public interest nor the Applicant’s clear admission that all other terms of the order were reasonable.

By virtue of these terms the Applicant accepted that it was reasonable for the ICRC to require him to practice under the continuous supervision of a practice monitor during all encounters with minor patients, and that it was reasonable for patients to be notified of this restriction.

Absent a condition that is unrelated or disproportionate to these objectives, a reasonableness standard requires the court to defer to the ICRC’s decisions as to the detailed operational means that they decide will best accomplish these objectives. [ 37 ] Further, if Undertakings such as this were intended to bind the ICRC in some way, the resulting mischief in terms of the ICRC’s ability to prevent harm or likely harm to patients is obvious.

Physicians facing College investigations would have great incentive to voluntarily agree to minimal practice restrictions, and then use the absence of positive evidence of a breach to assert that when the College does acquire the power to impose an interim order, it is precluded from imposing any restriction that is more onerous than what the physician previously agreed to. [ 38 ] As clearly stated in Farbeh v.

College of Pharmacists (British Columbia) , [8] “that a risk has not materialized in actual harm does not mean that the risk does not exist.” [ 39 ] Finally, a question arises as to why the ICRC would accept an Undertaking which notionally may not have been sufficient to protect the public given the more stringent terms imposed in the s. 37 order. The response to this concern is clearly that the ICRC did not have all of the information it needed to assess risk at the time the Undertaking was given.

Once the investigation was complete, it was of the opinion that certain additional restrictions were needed to protect the public interest. That decision, arrived at with the benefit of the completed investigation and expertise of the ICRC, must be given deference. CONCLUSION: [ 40 ] In

summary, the Applicant has not met his onus to positively show that the decision of the ICRC is unreasonable. Given that the conditions imposed by the ICRC were within the range of reasonable and acceptable outcomes, the application for judicial review is dismissed.

[41] As per the agreement of counsel, the Applicant shall pay $5,000 in costs to the Respondent. GILMORE J. SACHS J. NORDHEIMER J. (dissenting): [42] I have read the reasons of my colleagues in which they would dismiss this application for judicial review. With respect, Idisagree with that conclusion and with their analysis of the issues.

While my colleagues have set out the factual background to thismatter, some repetition of those facts is necessary to explain the basis for my disagreement. [43] Allegations of sexual abuse were made against the Applicant by a young patient regarding conduct that was said to haveoccurred between September 2008 and December 2009.

As a consequence of those allegations, from January 2014 until December 2016,the Applicant was subject to restrictions on his practice, that he voluntarily agreed to, by way of an Undertaking with the College thatrequired him, among other things, to have a practice monitor with him at all times. He also agreed to post signs in his office explainingthat he was not allowed to see patients, under sixteen, without the presence of a practice monitor. The terms of the undertaking werenegotiated between the Applicant and the College.

The Applicant has complied with that Undertaking, without incident, for the pastthree years. [44] The interim order was made under s. 37(1) of the Health Professions Procedural Code which is

Schedule 2 to the RegulatedHealth Professions Act, 1991, S.O. 1991, c. 18 (the “Code”). Section 37(1) reads: The Inquiries, Complaints and Reports Committee may, subject to subsection (5), make an interim order directing the Registrar tosuspend or impose terms, conditions or limitations on a member’s certificate of registration if, (

a) an allegation is referred to the Discipline Committee; and (

b) it is of the opinion that the conduct of the member exposes or is likely to expose his or her patients to harm or injury. [45] The ICRC bears the burden of establishing that an order under s. 37(1) is justified based on the requirement set out in thesubsection, that is, that “the conduct of the member exposes or is likely to expose his or her patients to harm or injury”.

In order for theICRC to reach that conclusion, there must be some evidence that an interim order under s. 37(1) is necessary to address that exposure.Otherwise, there is no foundation established by which that statutory authority may be invoked. My colleagues appear to accept thatevidence is a necessary prerequisite to making the order. In any event, it is clearly set out in Liberman v. College of Physicians andSurgeons of Ontario, 2010 ONSC 337 , [2010] O.J. No. 227 (Div.

Ct.) where Jennings J. said, at para. 34: The Committee is clearly entitled to form its own opinion but it must do so on “some evidence”, not evidence of below standard conduct,but evidence of probable harm. [46] It is accepted that an interim order, of the type made here, ought to be the least restrictive order possible to protect the public.That approach accords with the reality, that exists at the time that the interim order is made, namely, that all that the ICRC has areunproven allegations. [47] The Respondent takes the position that, notwithstanding the appropriateness of that general approach, the ICRC does not haveto show that each term of the interim order is the least restrictive.

I do not agree. The effect of the order is a direct result of its componentparts. If each of the parts is not the least restrictive, then it is hard to see how the order as a whole could be the least restrictive. TheRespondent’s concern, that having to show that each

part is the least restrictive would involve arguments over each part, seems to ignorethat that is the very nature of the exercise in which the respondent has chosen to engage. Since each term of an interim order placesrestrictions, on a physician’s ability to engage in the practice of his profession, each of those terms should be shown to be necessary toachieve the goal of s. 37(1), namely, the protection of patients. [48] With respect to the notice requirement, the ICRC justified that term on the basis that “Patients (or their parents) do not alwayssee or read signs in their physician’s office”.

I first note that the ICRC did not refer to any evidence that would substantiate thatconclusion. It also did not reference any evidence that, to the degree that some patients (or parents) may not read signs, this failing is aserious and prevailing problem that undermines the effectiveness of that requirement as a proactive condition on a physician’s practice.As I have already said, while the ICRC is entitled to form its opinions, and make judgment calls, in the process of developing an interimorder, it must do so based on evidence.

The ICRC cannot rely on unproven facts, or on conjecture, or on speculation, when imposingterms that restrict a physician’s ability to practice his/her profession. The ICRC also cannot use its cloak of expertise as a substitute forhard evidence.

I repeat that, in this case, the Applicant has been under the terms of the existing undertaking for three years, without anysuggestion that the existing notice condition was not fulfilling its purpose. [49] With respect to the monitor restriction, the ICRC justified that term on the basis that “practice monitors are sometimesdistracted from their duty of supervising physicians, even when they are in the same room, and they also sometimes leave the room for

various reasons”. With respect, if the respondent has a problem with how persons conduct themselves as Practice Monitors, then it ought to address that issue directly, through education or other means, and not by penalizing physicians through the imposition of burdensome provisions.

When I refer to burdensome provisions, I note that this term, in the interim order, would, for example, preclude the Practice Monitor, who happens to be a nurse, from doing something as simple and basic as weighing a patient, or measuring his/her height, while the applicant makes notes in the patient’s record. [ 50 ] The imposition of this additional restriction is also problematic, in a case such as this, where there is no evidence that the existing monitor provision has been shown to be inadequate. The Respondent has not received any complaints of any type since this condition was imposed on the Applicant.

In addition, the Respondent did not discover any issues when the Applicant was subject to an unannounced compliance check. [ 51 ] I reiterate that the ICRC can only impose an interim order, under s. 37, if “it is of the opinion that the physician’s conduct exposes or is likely to expose his or her patients to harm or injury.” The terms of the interim order must be directed to that purpose, and there must be an evidentiary foundation for the opinion, that would justify the imposition of additional terms, in order to achieve that purpose.

Whether there was justification in this case must be considered in the context of the salient fact that there was an existing undertaking between the Applicant and the Respondent. The Respondent quite clearly accepted that the terms of that Undertaking were adequate to protect patients of the Applicant, at the time that the Undertaking was agreed to. Any suggestion to the contrary, that the Respondent now tries to advance, would be tantamount to an admission, by the Respondent, that it never should have agreed to accept the Undertaking in the first place, because it did not protect patients.

The Respondent has not made any such admission, nor did it, at any time during the three years that the Undertaking was in place, ever suggest, or even hint, that the Undertaking was inadequate for the purpose of protecting patients. [ 52 ] What does appear to have happened in this case is that, once the criminal charges were stayed, the ICRC’s attitude towards the Applicant changed. Its attitude became one where it assumed that the Applicant was guilty of the allegations, absent any proof that he was innocent.

On that point, it is of some moment to observe that it was not until late 2016, and apparently for the first time, that the ICRC fastened on the early allegation that had been made against the Applicant in 2005, as somehow justifying a need for more restrictive conditions. The majority also places significant reliance on these prior allegations but, like the ICRC, they fail to mention three salient facts respecting the 2005 allegations. [ 53 ] First, the criminal charges, in that case, were stayed by the Crown, on the basis that there was no reasonable prospect of conviction.

Second, the Respondent itself did not pursue disciplinary action against the Applicant, because it found “that the College would have no chance of succeeding” if it were to commence a prosecution. Third, these allegations were known to the Respondent, when the undertaking was entered into, in January 2014. It is clear that the Respondent did not view those earlier allegations as undermining, or rendering ineffective, the Undertaking that it proceeded to accept in the terms that it did.

As I have already mentioned, the respondent cannot now credibly suggest that it did not view the Undertaking as adequately protecting patients. [ 54 ] In addition to noting that the Applicant had been under the terms of the Undertaking for three years, before this interim order was imposed, I also note that it took the Respondent more than a year, after the criminal charges were stayed, to even refer this matter to a discipline hearing.

If the ICRC had concerns regarding the state of the restrictions on the Applicant’s practice, and the need for additional protection for patients, it is puzzling why the ICRC took more than a year to refer the matter to the Discipline Committee, given that that step is the necessary prerequisite to the imposition of new conditions through the interim order. [ 55 ] Most importantly on this point, however, is the fact that there is no evidence that anything changed, throughout the entire three year period from January 2014 to December 2016, that would justify the need to increase the restrictions on the applicant.

Bear in mind, in this regard, that the Applicant has been, and remains, subject to unannounced compliance checks at the instance of the Respondent. [ 56 ] The majority seeks to explain away this problem by saying, in part: The response to this concern is clearly that the ICRC did not have all of the information it needed to assess risk at the time the Undertaking was given. Once the investigation was complete, it was of the opinion that certain additional restrictions were needed to protect the public interest.

That decision, arrived at with the benefit of the completed investigation and expertise of the ICRC, must be given deference. (see para. 39 above) [ 57 ] With due respect to my colleagues, they fail, just like the ICRC did, to point to any additional information, that the ICRC acquired as a result of its investigation, that could possibly justify these additional restrictions. [ 58 ] It is somewhat telling, on this same point, that the Respondent acknowledges that it did not tell the Applicant, at any time, what information it had that was causing the concerns that led the ICRC to want to increase the restrictions on the Applicant.

Even after the Applicant asked for an explanation of the concerns, and asked for the facts underlying those concerns, the ICRC still declined to provide either. Only after the interim order was issued, did the ICRC purport to explain the basis of the concerns, and then only in the vague and unsubstantiated manner that I have dealt with above.

While I appreciate that there is no procedural fairness argument advanced in this case, the manner in which the ICRC went about imposing these new conditions is, nonetheless, a factor to be considered in assessing the reasonableness of the decision made. [ 59 ] I do not quarrel with my colleagues’ point that the ICRC does not have to wait for actual harm to occur before taking steps to protect patients. [9] I also do not quarrel with my colleagues’ point that “evidence that the Applicant scrupulously followed the terms of his Undertaking does not mean that the ICRC was bound to conclude that he no longer posed a risk of harm to patients” (see para. 34 above).

With respect, however, that latter point misstates the nature of the inquiry under s. 37. The issue is not whether the physician poses a risk. The conclusion that a risk is posed would be almost inevitable, given the nature of the allegations. The issue is, whether any interim order that the ICRC seeks to make, under s. 37, is necessary to address the risk. If the mere presence of risk was all that was required, then the ICRC would be free to impose whatever terms that it might be able to dream up. [ 60 ] In addition to these concerns, there is a further due process issue.

Section 37(5) of the Code expressly provides that:

No order shall be made under subsection (1) unless the member has been given, (

a) notice of the Committee’s intention to make the order; and (

b) at least 14 days to make written submissions to the Committee. [ 61 ] The Applicant was given notice of the order that the ICRC intended to make, and he made submissions in response. Part of those submissions was a plea for information regarding the concerns that the ICRC had, and the reasons for those concerns. That plea went unanswered by the ICRC. In deciding whether to impose the terms of the interim order, the ICRC had an obligation to treat the Applicant fairly, and to ensure that his right to make submissions was a meaningful one.

By refusing to tell the Applicant what the concerns were, and the foundation for those concerns, the ICRC turned the Applicant’s statutory right to make submissions into nothing more than a charade. The ICRC left the Applicant entirely in the dark, as to the real reasons for the interim order, and effectively played a game of “gotcha” with the Applicant, only revealing its actual concerns after the interim order had been made. [ 62 ] As the Applicant submitted, the fact that the ICRC may be justified in making some form of interim order does not grant it carte blanche to make any order it wishes.

If a particular restriction, in an interim order, cannot be justified, on the basis of evidence, as being necessary to prevent a risk of harm to patients, which is the statutory prerequisite, the imposition of that restriction is not justified, and it is not reasonable. The Respondent has not been able to point to any evidence, as opposed to speculation or conjecture, as necessitating either of these conditions.

Rather, the decision to impose these additional restrictions appears to be based more on the caprice of the ICRC, than on any demonstrated need for patient safety. [ 63 ] Accordingly, the decision of the ICRC, to impose these two conditions, cannot be seen to be a reasonable one.

As the Supreme Court of Canada has directed, in considering reasonableness, one has to have reference “both to the process of articulating the reasons and to outcomes”. [10] No facts are identified by the ICRC that demonstrate a need for these conditions, nor has the ICRC explained what gap there is, in the protections that are already provided by the existing Undertaking, that these conditions are needed to fill. Thus the decision does not satisfy the requirement for “justification, transparency and intelligibility”. [11] [ 64 ] I would allow the application for judicial review and order that paragraphs (ii)(

c) and (viii) of the interim order dated December 21, 2016 be removed. The respondent shall pay to the applicant costs fixed in the agreed amount of $5,000. NORDHEIMER J. Released: March 27, 2017 CITATION : Morzaria v. College of Physicians and Surgeons of Ontario, 2017 ONSC 1940 DIVISIONAL COURT FILE NO.: DC-17-013-JR DATE: 20170327

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT SACHS, NORDHEIMER AND GILMORE JJ BETWEEN: Rasiklal Narshidas Morzaria Applicant – and – College of Physicians and Surgeons of Ontario Respondent REASONS FOR JUDGMENT GILMORE J. NORDHEIMER J. (Dissenting) Released: March 27, 2017