) ) Joseph Fraser Applicant – v. –, 2023 ONSC 716

CITATION : Fraser v. Damji, 2023 ONSC 716 DIVISIONAL COURT FILE NO.: 514/20 & 517/20 DATE: 20230131 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT Matheson, Akbarali and Nishikawa JJ. BETWEEN: ) ) Joseph Fraser Applicant – and – Ali Nazim Damji, M.D., Health Professions Appeal and Review Board and The College of Physicians and Surgeons of Ontario Respondents -and between- Joseph Fraser Applicant ) ) ) ) ) ) ) )))))))) ) Joseph Fraser, in person Sara. M. Kushner and Erin Chesney, for the Respondents, Ali Nazim Damji, M.D. and Kerrie Anne Shaw, M.D.

Emily Graham for the Respondent, College of Physicians and Surgeons of Ontario David Jacobs for the Health Professions Appeal and Review Board - and- Kerrie Anne Shaw M.D., Health Professions Appeal and Review Board and The College of Physicians and Surgeons of Ontario Respondents ))))))) HEARD at Toronto: November 3, 2022 (by videoconference) REASONS FOR DECISION Nishikawa J. Overview [ 1 ] The Applicant, Joseph Fraser, brings two applications for judicial review challenging two decisions of the Health Professions Appeal and Review Board (HPARB) dated October 8, 2020 (the “Decisions”).

In the Decisions, the HPARB confirmed the reasonableness of the decisions of the Inquiries, Complaints, and Reports Committee (ICRC) of the College of Physicians and Surgeons of Ontario (the “College”) to take no further action regarding the Applicant’s complaints against two physicians, the Respondents, Dr. Ali Nazim Damji and Dr. Kerrie Anne Shaw. Preliminary Issue [ 2 ] Shortly before the hearing, the Applicant sought to adjourn the hearing until after the release of decisions on two complaints that he made to the Information and Privacy Commissioner (IPC).

At the hearing of the applications, the panel denied the Applicant’s adjournment request with reasons to follow.

[ 3 ] Under the circumstances, we were not persuaded to grant an adjournment. The applications for judicial review are based on the record before the HPARB. The IPC decisions, which had not been rendered at the time of the hearing, do not form part of the record before the HPARB. The IPC decisions are irrelevant to the issues before the court in that they do not relate to the Respondents in this case. In addition, the Applicant has not satisfied one of the narrow exceptions for the admissibility of new evidence on an application for judicial review. See: Sierra Club Canada v.

Ontario (Ministry of Natural Resources and Ministry of Transportation , 2011 ONSC 4086 (Div. Ct.), at paras. 13-15 . [ 4 ] The applications for judicial review have been case managed since 2020. When the hearing was scheduled in February 2022, the Applicant did not mention the need to obtain the IPC decisions before the hearing. The issue was not raised until shortly before the hearing date. Accordingly, the Applicant failed to satisfy the panel that an adjournment was warranted.

Background [ 5 ] The Applicant was a patient of the Family Medicine Teaching Unit at the Credit Valley Family Health Team (CVFHT) where he was being treated for depression. The Applicant had struck a pedestrian with his vehicle in November 2017, resulting in a fatality. Between February and March 2018, the Applicant was seen by the Respondent, Dr. Damji, on four occasions. At the time, Dr. Damji was a first-year resident in family medicine and was supervised by members of the CVFHT. [ 6 ] On March 28, 2018, the Applicant’s last appointment, the Applicant told Dr.

Damji that he was concerned about not seeing people wearing dark clothing when he drove at night. As detailed further in these reasons, the parties dispute what Mr. Fraser told Dr. Damji. In essence, Dr. Damji understood the Applicant to be expressing a concern about his visual acuity. Mr. Fraser states that he was referring to his anxiety about not seeing people. Dr. Damji reviewed the case with the Respondent, Dr. Shaw, who was supervising him and had observed the interaction between Dr. Damji and the Applicant remotely through audio and video facilities. After consultation with Dr. Shaw, Dr.

Damji concluded that he had a duty under s. 203 of the Highway Traffic Act , R.S.O. 1990, c. H.8 (the “ Highway Traffic Act ”), to report the Applicant’s visual impairment to the Ministry of Transportation (MTO). [ 7 ] Dr. Damji advised the Applicant accordingly. Dr. Damji told the Applicant that he would not submit a Medical Condition Report (MCR) to the MTO if the Applicant proceeded immediately to an optometrist for a formal assessment of his night vision. The Applicant declined. Dr.

Damji submitted a report to the MTO identifying that the Applicant had a visual acuity impairment. [ 8 ] When the Applicant did not follow-up with CVFHT as planned, Dr. Damji contacted him by phone. Mr. Fraser advised that he did not come in for follow-up because he had relocated to Newmarket and was looking for a new family physician. [ 9 ] As a result of the report to the MTO, on April 10, 2018, MTO notified Mr. Fraser that his driver’s licence was suspended. The letter advised Mr.

Fraser that he would need to undergo an individualized assessment of his vision by a health care provider and to submit updated information regarding his visual acuity. The Applicant was eventually able to obtain an assessment through his family physician that resulted in MTO lifting the licence suspension. The Applicant’s Complaints [ 10 ] On January 9, 2019, Mr. Fraser initiated separate complaints with the College against Dr. Damji and Dr. Shaw alleging multiple grounds against each of them. The Applicant alleged that Dr.

Damji submitted the MCR to the MTO without first providing an assessment, diagnosis or treatment plan to him. The Applicant alleged that by concluding that he had a vision impairment without conducting an assessment, Dr. Shaw violated his equality, human and privacy rights, breached her obligations under several statutes, and failed to uphold her ethical and professional obligations. [ 11 ] A CPSO investigator contacted Mr. Fraser. Dr. Damji and Dr.

Shaw responded in writing to the concerns he raised. [ 12 ] On April 18, 2019, the ICRC reviewed the record of investigation and decided to take no further action against Dr. Damji and Dr. Shaw. HPARB’s Decisions [ 13 ] On June 20, 2019, the Applicant requested that the HPARB review the ICRC’s decisions. [ 14 ] Pursuant to s. 33(1) of the Health Professions Procedural Code (the “Code”),

Schedule 2 to the Regulated Health Professions Act, 1991 , S.O. 1991, c. 18 (“ RHPA ”), the mandate of the HPARB in a complaint review is to consider either the adequacy of the ICRC’s investigation, the reasonableness of its decision, or both. After a review of an ICRC decision, the HPARB is limited to: (

i) confirming all or part of the decision; (ii) making recommendations to the ICRC that it considers appropriate; and/or (iii) requiring the ICRC to do anything that the ICRC may do under the RHPA or the Code: Code , s. 35(1). The HPARB does not have jurisdiction to conduct its own investigation, admit evidence, consider new issues, or make findings of misconduct against a member of the College. [ 15 ] On June 30, 2020, the HPARB considered the record of investigation and the parties’ submissions and confirmed the decisions of the ICRC to take no further action.

The HPARB concluded that the ICRC’s investigation was adequate and that the decisions were reasonable. With respect to the complaint against Dr. Damji, the HPARB found that: • The ICRC reasonably found that the Applicant’s disclosure on March 28, 2018 triggered a mandatory duty to report to the MTO under s. 203 of the Act and that Dr. Damji complied with that duty;

• The ICRC appropriately focused on Dr. Damji’s decision to report the Applicant to MTO, not MTO’s decision to suspend theApplicant’s licence. As a result, the ICRC’s decision was not contrary to British Columbia (Superintendent of Motor Vehicles) v. BritishColumbia (Council of Human Rights), (SCC), [1999] 3 S.C.R. 868 [“Grismer”]; and • The record did not support many of the Applicant’s allegations against Dr. Damji including, among other things, the prescribing ofWellbutrin, the suggestion of a Form 1 under the Mental Health Act, R.S.O. 1990, c.

M.7, and the payment of a fee. [16] With respect to the complaint against Dr. Shaw, the HPARB found that: • The ICRC reasonably concluded the Applicant’s disclosure engaged a duty to make a report to the MTO under s. 203 of the Act.There was no requirement to perform an examination prior to making a report; • Even if Dr.

Shaw did not personally interact with the Applicant, her involvement in the decision to make the report was notdiscriminatory or contrary to Grismer; and • The ICRC reasonably concluded that the Applicant’s privacy rights were not violated as there was sufficient evidence to assumethat there was implied consent. Issues [17] This application for judicial review raises the following issues: (

a) What is the applicable standard of review? (

b) Were the HPARB’s decisions confirming the ICRC’s decisions reasonable? (

c) Should this court consider the additional materials submitted by the Applicant? Analysis Standard of Review [18] As agreed by the parties, the standard of review of the HPARB’s decisions is reasonableness. A reasonable decision is “onethat is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain thedecision maker. The reasonableness standard requires that the reviewing court defer to such a decision.”: Canada (Minister ofCitizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 85.

Were the Decisions Reasonable? [19] The Applicant submits that the Decisions are unreasonable and violate his human rights as the report to the MTO was madeon false assumptions about the Applicant’s visual acuity rather than an individual assessment. The Applicant asserts that Dr. Damjimisinterpreted the Applicant’s presentation of anxiety as a visual acuity issue; as a result, he failed to provide the appropriatepsychological care. He also argues that it was Dr. Damji’s responsibility to perform a proper eye examination and not the Applicant’sresponsibility to seek out an optometrist.

The Applicant further submits that the HPARB and ICRC failed to properly consider hisprivacy rights under the Personal Health Information Privacy Act 2004, S.O. 2004, C. 3,

Schedule A. [20] The Respondents, Dr. Damji and Dr. Shaw, submit that the HPARB appropriately reviewed the ICRC’s decisions in light ofGrismer. The ICRC reasonably concluded that Dr. Damji provided appropriate care. The Respondents further submit that the HPARBconsidered and rejected the Applicant’s allegation that his privacy rights were breached based on the ICRC’s determination that it wasreasonable for Dr.

Shaw to conclude that there was implied consent. [21] The College submits that the Decisions are reasonable in that they distinguish Grismer on the basis that that decision imposesa requirement on the licensing authority to assess the driver’s ability to meet the requisite standard; it does not impose this requirementon those operating under a duty to make reports to the licensing authority.

Further, the College submits that the MTO’s decision toremove the suspension upon receiving the eye examination performed by the Applicant’s family doctor does not undermine the HPARBand ICRC’s decisions. [22] In my view, the HPARB’s Decisions confirming the ICRC’s determinations to take no further action are reasonable. TheICRC is a specialized, screening body with expertise in medicine and professional standards and is vested with statutory discretion toinvestigate and screen patient complaints. See: McKee v. Health Professions Appeal and Review Board, (Div. Ct.), atpara. 30.

Subsection 33(1) makes clear that the HPARB, the statutory tribunal that reviews decisions of health regulatory colleges, owesdeference to the ICRC’s screening decisions. [23] Within this framework, the HPARB reviewed the ICRC’s treatment of each of the grounds enumerated by the Applicant. The

HPARB considered whether the ICRC’s decisions were based on a coherent and rational chain of analysis that was justified in relation tothe relevant facts and applicable laws. The HPARB specifically noted that the ICRC identified the documents it relied on in making itsdecisions. The HPARB further observed that the ICRC’s determinations fell within its expertise in the standards of the medicalprofession. [24] The HPARB considered the parties’ disagreement as to what the Applicant said to Dr.

Damji during the March 28, 2018appointment, and was alert to the Applicant’s submission that he was expressing anxiety and not a visual impairment concern. Whileneither the ICRC nor the HPARB are required to determine that issue conclusively, the HPARB concluded that the contemporaneousnotes supported the ICRC’s determination to take no further action.

Moreover, it was appropriate for the Board to defer to the ICRC’sassessment of written medical records in assessing complaints where there are differing recollections as to what was said: Reyhanian v.Ontario (Health Professions Appeal and Review Board), 2013 ONSC 297 (Div. Ct.) at para. 19. [25] In respect of the applicable law, the HPARB found that while the ICRC did not consider Grismer, it considered the lawapplicable to Dr. Damji and Dr. Shaw, namely, s. 203 of the Highway Traffic Act. The HPARB reasonably concluded that the ICRC’sfocus on the legal obligations applicable to the doctors was appropriate.

In any event, Grismer speaks to the duty to accommodate on thelicensing authority and not to a medical professional’s duty to report. [26] In addition, the Applicant’s position that a medical practitioner cannot report a patient unless they fall below national medicalstandards is not supported by the mandatory language of the s. 203, which requires that the medical practitioner report any patient who,in their opinion, is “suffering from a condition that may make it dangerous for the person to operate a motor vehicle[.]” (Emphasisadded.) In this case, the report was not based on an assessment, but on what Mr.

Fraser reported. See: Toms v. Foster, (ONCA). [27] While the Applicant argues that Dr. Damji was not a legally qualified medical practitioner, as required under the HighwayTraffic Act, at the time of the incident at issue, Dr. Damji was registered with the College. He held a postgraduate education certificate ofregistration and thus eligible to practice medicine as required by the postgraduate program, in clinical teaching units or settings affiliatedwith a postgraduate program. Dr.

Damji was in such a postgraduate program with the CVFHT. [28] Certain of the Applicant’s arguments are based on a more recent version of s. 203, which distinguishes between mandatoryand discretionary reports and requires mandatory reporting for certain prescribed medical conditions. However, it is the provision thatwas in force at the time, March 2018, that is relevant to these applications for judicial review. [29] The HPARB’s rejection of the Applicant’s argument that Dr. Shaw could not make a report to the MTO without examininghim was also reasonable.

As noted above, the report was made on the basis of what the Applicant had told Dr. Damji, and not based onan examination. The report was also based on the Applicant’s previous accident and the fact that he had not recently had an eyeexamination. Neither Dr. Damji nor Dr. Shaw suggested that they performed an examination on the Applicant; he was advised to attendan examination with an optometrist. [30] The HPARB considered the Applicant’s submission that Dr. Damji and Dr.

Shaw failed to uphold the values of theprofession, including the principles of honesty and integrity and found that the ICRC’s review of the record did not support that Dr.Damji lacked compassion, competence, altruism or trustworthiness. In respect of Dr. Shaw, the ICRC had no concerns with herprofessionalism or ethics, and found nothing in the file to substantiate such concerns. The HPARB’s conclusion was a reasonable onebased on the record and standards. [31] The HPARB’s remaining findings regarding the care that Dr.

Damji provided to the Applicant are reasonable given theabsence of support in the record to support the Applicant’s allegations. Should this Court Consider the Additional Materials Submitted by the Applicant? [32] The Applicant submitted in his application materials certain documents that were not before the HPARB, including: (

i) a copyof the medical chart that he obtained from the clinic; (ii) an extract of OHIP billings pertaining to him; (iii) his notes of the HPARBreview; and (iv) a copy of the MTO’s new Medical Condition Report. [33] As noted above, however, the record on an application for judicial review is limited to the material before the board ortribunal whose decision is being reviewed: Sierra Club, at para. 13. The case law provides the following limited exceptions for theadmissibility of additional evidence: (

i) general background that might assist the court; (ii) evidence to demonstrate an absence ofevidence to support a material finding of fact; or (iii) evidence to show procedural defects that are not apparent from the record or thereasons. [34] The Applicant has not argued that any of the exceptions for the admissibility of additional fresh evidence apply. He has notraised a procedural defect before the HPARB or an absence of evidence to support a material finding of fact.

The additional material,some of which is irrelevant to the issues in the applications, is not background information that would be of assistance to the court.Because none of the exceptions apply, the additional material submitted by Mr. Fraser is not admissible on the applications for judicialreview. [35] In any event, even if the additional materials were admissible evidence on the applications, they would have no impact on theoutcome. Conclusion [36] For the foregoing reasons, the applications for judicial review are dismissed. At the hearing, counsel for each of the

Respondents advised that in the event that the applications were unsuccessful, they would not be seeking costs. No costs are ordered. “Nishikawa J.” I agree: “Matheson J.” I agree: “Akbarali J.” Released: January 31, 2023 CITATION : Fraser v. Damji, 2023 ONSC 716 DIVISIONAL COURT FILE NO.: 514/20 & 517/20 DATE: 20230131 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT Matheson, Akbarali and Nishikawa JJ.

BETWEEN: Joseph Fraser Applicant – and – Ali Nazim Damji, M.D., Health Professions Appeal and Review Board and The College of Physicians and Surgeons of Ontario Respondents -and between- Joseph Fraser Applicant - and- Kerrie Anne Shaw M.D., Health Professions Appeal and Review Board and The College of Physicians and Surgeons of Ontario Respondents REASONS FOR DECISION

Nishikawa J. Released: January 31, 2023