Carlos Huerto Appellant (Applicant) v. The Registrar of the College of, 2019 SKCA 139

Court of Appeal for Saskatchewan Docket: CACV2912 Citation: Huerto v College of Physicians and Surgeons of Saskatchewan , 2019 SKCA 139 Date: 2019-12-20 Between: Carlos Huerto Appellant (Applicant) And The Registrar of the College of Physicians and Surgeons of Saskatchewan Respondent (Respondent) Before: Ottenbreit, Schwann and Tholl JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Ottenbreit In concurrence: The Honourable Madam Justice Schwann The Honourable Mr.

Justice Tholl On Appeal From: QBG 1578 of 2015, Saskatoon Appeal Heard: April 16, 2019 Counsel: Julian Falconer and Molly Churchill for the Appellant Bryan Salte, Q.C., for the Respondent Ottenbreit J.A. I. Introduction [ 1 ] Dr.

Carlos Huerto appeals the unreported decision made in Court of Queen’s Bench Chambers ( Huerto v College of Physicians and Surgeons of Saskatchewan (17 May 2016) Saskatoon, QBG 1578/2015 [ Chambers Decision ]) dismissing his application to set aside the decision of the Council of the College of Physicians and Surgeons of Saskatchewan [Council] delivered on September 21, 2015 [ Council Decision ]. The Council Decision denied Dr.

Huerto’s request under s. 86 of The Medical Profession Act, 1981 , SS 1980-81, c M-10.1 [ Act ], for restoration of his licence to practice medicine and reinstatement to the register of the College of Physicians and Surgeons of Saskatchewan [College]. For the reasons hereinafter set forth, the appeal of Dr. Huerto is dismissed. II. facts and background [ 2 ] Dr. Huerto’s history of interactions with and discipline by the governing bodies of his profession looms large in this appeal and is referred to pejoratively by him in many, if not most, of his arguments before this Court.

That history was considered by the Council in the hearing that resulted in the Council Decision . The following is a short

summary of it. [ 3 ] In 1977, Dr. Huerto was found guilty of gross professional misconduct by the College of Physicians and Surgeons of Manitoba, in that he performed a surgery without any indication it was required, without appropriate training and recent experience, and in circumstances that endangered the life of the patient. [ 4 ] Thereafter, Dr. Huerto was first licenced as a physician in Saskatchewan in 1984. In 1988, the College found him guilty of unprofessional conduct for having performed an unprofessional pelvic exam on a patient. [ 5 ] In 1988, Dr. Huerto applied for licensure in the State of Ohio.

The State Medical Board of Ohio denied him a licence to practice because he had not truthfully answered the questions on his application. That Board had decided he did not meet the requirements for good character. [ 6 ] In 1993 and 1994, the College required Dr. Huerto to practice under supervision. A report dated February 4, 1994, from his supervisor, Dr. A.E. Somerville, disclosed numerous problems with the way Dr. Huerto practiced medicine, including concerns that he had caused physician-induced complications in his patients by prescribing multiple medications and that he had placed patients at risk.

In that report, Dr. Somerville noted that his observations of Dr. Huerto were that he had reverted back to his pre-supervision patterns. He commented on the steps that the College would need to take to oversee Dr. Huerto’s practice: What, if any, are the solutions that one would recommend for Dr. C.D. Huerto’s “maverick” pattern of medical practice?

Since he does not recognize the normal constraints and restraints that the majority of his peers do and since there are no firm guidelines in place to cover the widely differing exigencies of medical practice, any policy evolved to modulate and modify his pattern will have to be enforceable, and enforced, rather than based on voluntary participation and the honour code. [ 7 ] In 1998, the College did a review of Dr. Huerto’s practice.

The review identified deficiencies in patient care including poor record-keeping, inappropriate prescribing, using a protocol for exercise stress-testing that put patients at risk, and diagnosing patients without evidence in the charts or follow-up to support the diagnosis. The physicians doing the review concluded that Dr. Huerto’s practice fell significantly below the standard of medical care expected in Canada.

[ 8 ] In 2000, Dr. Huerto was again found guilty by the College of professional misconduct related to two patients. The misconduct included charging for medications he had not provided, falsifying clinical notes, failing to maintain proper records, providing treatment that put the patient at unnecessary risk, writing a prescription for narcotics in a patient’s name without intending the patient to receive the narcotic, and failing to advise Saskatchewan Government Insurance of a patient’s inability to drive as required by law. [ 9 ] In 2003, the College found Dr.

Huerto guilty of professional misconduct arising out of a sexual relationship he had had with a vulnerable patient, K.H., who also became his employee, swearing a false affidavit, and three instances of prescribing medication in K.H.’s name that was not intended to be used by her. [ 10 ] The 2003 discipline committee found Dr. Huerto’s testimony about his relationship with K.H. unacceptable and unbelievable. The committee concluded that the sexual relationship began shortly after K.H. became a patient in 1989 and lasted until 2000, that K.H. was “used” by Dr. Huerto, and that he had “preyed on her vulnerability”.

It also concluded that the circumstances revealed “in essence, sexual abuse of a patient” and a serious breach of fiduciary duty. This characterization of his conduct by the committee and reference to it by the Council continues to be challenged by Dr. Huerto in this appeal. [ 11 ] As a result of the 2003 hearing, Dr. Huerto was struck from the register of the College. The council stated that the penalty was based on the seriousness of Dr. Huerto’s conduct, his refusal to accept responsibility for his actions, the lack of likelihood of rehabilitation, and his previous record of unprofessional conduct.

That decision was upheld on appeal. [ 12 ] Dr. Huerto applied unsuccessfully in 2006 to have his licence restored. The council at that time determined he had not met the threshold of showing that its decision in 2003 was no longer appropriate. [ 13 ] In 2010, the Washington State Medical Board – through which Dr. Huerto had also been licenced to practice medicine – revoked his licence based on various factors, including the findings of professional misconduct in Saskatchewan. That Board found that his evidence was not credible and that he was evasive, self-serving, obfuscatory, and his statements contradictory.

Aggravating factors included his “failure to take responsibility for his conduct”, “lack of remorse or awareness of why his conduct was wrong and the impact of his conduct on the patient”, and “minimal efforts at rehabilitation”. [ 14 ] In 2011, Dr. Huerto applied to the College again for restoration of his licence to practice medicine in this province but was refused. The council at that time concluded that he had difficulty in submitting to the regulation and oversight of the College. [ 15 ] In 2015, Dr. Huerto applied again to the College for restoration of his licence.

The determination of that application is the subject matter of this appeal. [ 16 ] At his hearing in 2015, in addition to his own testimony, Dr. Huerto called two expert witnesses to address concerns of the College about the restoration of his licence that had been raised at the hearing in 2011 and in his correspondence with the College between 2010 and 2012. He also called a character witness. [ 17 ] Dr. Huerto’s first witness was Dr. Thomas Gutheil, an expert forensic psychiatrist who deals with boundary violations and sexual misconduct. Dr. Gutheil provided a written report about Dr.

Huerto and testified in person at the hearing. His evidence was that Dr. Huerto’s relationship with K.H. did not fit the profile of sexual abuse of a patient and that it was a “one-off”. He stated that Dr. Huerto understood in any event that it was both wrong and harmful to engage in a sexual relationship with a patient. He stated that Dr. Huerto was unlikely to engage in future unprofessional conduct with respect to a sexual boundary issue. [ 18 ] Dr. Gutheil found no psychiatric contraindications to the restoration of Dr. Huerto’s licence.

He acknowledged that, apart from the sexual boundaries issue, he was unable to testify as to Dr. Huerto’s ability to practice safely because it was outside of his area of expertise. Dr. Gutheil was also unable to opine as to whether Dr. Huerto would be able to demonstrate integrity in terms of how he practiced medicine, how he dealt with patients, how he dealt with the Council or his regulatory body (i.e., the College), or as to whether Dr. Huerto would “be able to be truthful”, because it was out of his area of expertise. [ 19 ] Dr. Huerto’s second witness, Dr.

Michael Bradford, was also an expert in forensic psychiatry. In order to prepare his report, Dr. Bradford conducted an in-person interview with Dr. Huerto and reviewed all of the documentation pertaining to Dr. Huerto’s sexual relationship with K.H., his history of discipline with the College, and his disciplinary history generally. Dr. Bradford also reviewed test results from a psychometric test done on Dr. Huerto in 2013. Those tests determined that he was an individual who “is generally well socialized but who lacks insight to deal with his problems”. [ 20 ] Dr. Bradford also reviewed Dr.

Huerto’s 2004 self-report personality assessment test. On that test, the only relatively elevated scales were the Narcissistic Personality Pattern subscale and the Alcohol Dependence subscale. There were no elevations on the Severe Personality Pathologies or Severe Clinical Syndromes subscales. [ 21 ] Dr. Bradford addressed some, but not all, of the College’s impediments to restoration. He indicated that he would not be giving an opinion on Dr.

Huerto’s past conduct which demonstrated an unwillingness to follow normally accepted medical treatments when dealing with patients because they appeared to be resolvable in a practical way. He stated he was not able to give any opinion on whether Dr. Huerto was a good practitioner or a poor one, on standards of practice, or on Dr. Huerto’s truthfulness under oath or otherwise. Dr. Bradford also stated that there were credibility issues about Dr. Huerto’s relationship with K.H. that he could not sort out, but he accepted the credibility findings and fact-finding of the College on that matter. [ 22 ] Dr.

Bradford said he was only able to express an opinion as to whether Dr. Huerto was a sexual deviant suffering from hypersexuality or a psychiatric disorder in the area of sexual behaviour. He noted that there was no evidence Dr. Huerto’s sexual relationship with K.H. flowed from a sexual deviation or sexual disorder. He concluded it was extremely unlikely that Dr. Huerto would engage in any sexual activity with a patient in the future. He opined Dr. Huerto did not have a mental illness that would affect his judgment. He found that although Dr.

Huerto had features of a narcissistic personality trait/disorder, that in its own right would not be a barrier to the practice of medicine. In his opinion, Dr. Huerto did not have a psychiatric illness which would be a barrier to practice medicine and would put patients at risk from the viewpoint of professional sexual misconduct.

[ 23 ] Dr. Huerto also testified, giving four reasons why he should be reinstated. They are summarized as follows ( Chambers Decision at para 22): • He understood it was wrong to have a relationship with a patient, and he would not do it again; • He had kept up with medical advances via courses; • He would use electronic record keeping to provide transparency in his practice; • If he could get working again he would some day pay the College its costs, and in the meantime there was adequate security for the costs. [ 24 ] James Penna, a retired philosophy professor who knew Dr.

Huerto from an ecumenical prayer group, testified to Dr. Huerto’s good character. [ 25 ] The College did not call any witnesses or file any new evidence. It placed before Council the record of hearings in previous council procedings as well as the records of previous regulatory hearings in Manitoba, Ohio, and Washington State. [ 26 ] The Council denied Dr. Huerto’s application for restoration of his licence and provided written reasons for doing so. III. The Council decision [ 27 ]

Section 86 of the Act reads as follows: Restoration of licence, permit 86 The council may restore the licence or permit, as the case may be, of any person where it considers that the interest of the public has been adequately protected, and it may require that person to pay a restoration fee, the amount of which is not to exceed the amount of the registration fee. [ 28 ] In its decision, the Council first reviewed the criteria relevant to a restoration application:

Section 86 does not provide any principles, guidelines or specific factors that establish the criteria on which such a decision shall be made. The wide discretion given has been subject of numerous judicial and professional tribunal decisions which have guided the Council and others in similar cases.

In Re Seidman 2013 OCPSD, a decision of The Discipline Committee of the College of Physicians and Surgeons of Ontario in a reinstatement application at page 5 looked at two general issues, being the risk of further misconduct and whether the applicant is suitable to practice “in terms of protection of the public and the confidence of the public in the profession's ability to govern itself.” 6. Factors identified in that restoration application, accepted in other jurisdictions and applicable in Saskatchewan are: a. The nature and circumstances of the misconduct that led to the revocation (sexual abuse); b.

Other past behaviour of concern that is relevant to the practise of medicine; c. Character, including personal driving forces, honesty integrity and vulnerabilities; d. Whether the applicant has demonstrated insight, understanding and appreciation for the impact of his actions on the victim; e. Changes in behaviour since revocation; f. Current health; g. Proposed plan for reinstatement; h. Competency to practise; and i. The effect of reinstatement on the public and profession. [ 29 ] The Council then addressed the mandatory standards for a certificate of registration: 7.

The non-exemptible [ sic ] Standards for a certificate of registration under the Ontario Regulations and the Saskatchewan College bylaws,

Section 2.3(

a) are accepted as necessary for a restoration application and are “that the applicant’s past and present conduct afford reasonable grounds for the belief that the applicant is: i. mentally competent to practice medicine ii. will practise with decency, honesty and in accordance with the law iii. has sufficient knowledge, skill and judgement to engage in the kind of medical practise authorized in the certificate; and iv. can communicate effectively and will display an appropriately professional attitude[.]” [ 30 ] The Council stated that Dr.

Huerto had the burden of establishing the “experience, character and attitudes” that were, on the balance of probabilities, capable of convincing it that the public interest would be protected if he were restored to the register (at para 8). It

noted that it was possible to meet that burden “even in the face of the substantial past history of discipline matters such as those involving [Dr. Huerto]” (at para 8). The Council remarked, however, that Dr. Huerto’s past record was still important in establishing the relevant matters that he must show to be rectified so that it could be confident the public interest was secure. [ 31 ] The Council stated that in making its decision it had considered the past record of proceedings, but had not, in any way, considered any past criminal charges against Dr. Huerto given that they were dismissed.

The Council noted previous findings made by the College against Dr. Huerto, including that he lacked good character and the quality of honesty, and that he had failed to practice medicine in accordance with the standards of the medical profession. [ 32 ] The Council considered the evidence of Dr. Gutheil, Dr. Bradford, Dr. Huerto, and Mr. Penna. It concluded that, given Dr. Huerto’s age and what he had experienced, it was satisfied the likelihood of unprofessional conduct by him involving a sexual relationship with a patient was not reasonably foreseeable. Nevertheless, the Council found that Dr.

Huerto had not discharged his burden under s. 86 of the Act . The Council indicated that its main concern was the public interest. [ 33 ] The reasons for the Council concluding that Dr. Huerto’s licence could not be restored can be summarized as follows: (

a) Dr. Huerto had a perception, borne out of the evidence of Drs. Gutheil and Bradford, that because there was no indication of psychopathology regarding sexual boundary issues, nothing needed be done by him “as far as rehabilitation for crossing of professional boundaries/sexual improprieties” (at para 16); (

b) The Council noted that “[Dr. Huerto] is simply concerned [about the boundary violations regarding his relationship with K.H.] because Council is concerned, and not because he truly acknowledges that he did something wrong” (at para 17). The Council was not satisfied that his answers about this issue were a true acknowledgement that he had done something wrong in his relationship with K.H. It believed his response was a clear sign of a refusal to recognize the facts; (

c) When it was pointed out to Dr. Huerto in cross-examination that there had been numerous findings in past disciplinary proceedings that he had lied under oath or that his testimony was unbelievable and incredible, Dr. Huerto denied having been found to be lying and maintained he was just telling his side of the story (at para 20); (

d) Dr. Huerto’s “credibility issues” and his “muddled” descriptions to the Council displayed an attitude that was not conducive to following the medical standards of the profession or the authority of the College where it differed from his own assumptions (at para 23); (

e) Dr. Bradford concluded Dr. Huerto’s psychological profile revealed an individual who was generally well socialized, but who lacked insight to deal with his problems (at para 23); (

f) Dr. Huerto displayed a fundamental character flaw shown by lack of insight that his sexual relationship with K.H. was wrong. Dr. Bradford found Dr. Huerto had “credibility issues” and provided a “muddled” response because Dr. Huerto felt “he’s been badly done by”. It was not clear to the Council that as long as that state of mind existed, the public would not suffer in some way (at para 29); (

g) The Council believed nothing had fundamentally changed from Dr. Huerto’s reinstatement application in 2011. In observing Dr. Huerto and his responses, the Council found that he was simply trying to tell the Council what he thought they would like to hear, leading the Council to think he did not truly believe what he was saying and, therefore, he was not credible (at para 31); (

h) Even though Dr. Huerto may not have had a narcissistic personality disorder, the presence of narcissistic traits coupled with a lack of insight suggested the distinct possibility of continuing difficulties with the public (at para 32); (

i) Dr. Huerto’s past disciplinary record of instances of “dishonest, untruthful and incompetent conduct” could not be overlooked as contributing factors to the clear potential of harm to the public merely because of promises to not repeat the offences. The Council found that his conduct was a manifestation of significant character flaws of someone who does not acknowledge them and, therefore, these traits cannot be remedied by additional training, therapy, or licence supervision. The Council could not expose the public to a real risk of repetition in his medical practice (at para 33); (

j) The Council’s significant concerns with respect to both practice standards and dishonesty could not be met merely by assurances of good conduct. Dr. Huerto’s testimony was not believable – he had ample occasions in the past to correct his conduct and practice and did not do so (at para 35); (

k) Dr. Huerto still felt there were professional disagreements over standards and, thus, did not accept the weight of the knowledge of (several) practice examiners in the past. However, the evidence pointed to much more than “disagreements”, and Dr. Huerto’s assertions simply did not overcome the actual evidence about problems with his practice. His self-assessment amounted to “a fundamental lack of genuine willingness to accept the governance and authority of the standards of the College” (at para 35); (

l) Dr. Huerto’s serious practice problems could not be overcome by the extensive training courses taken by him while he was banned from practice. Nor was it reasonable to presume that they would be rectified by any measures prescribed by the Registrar required under the bylaws due to an absence from practice. Although Dr. Huerto clearly had the intellectual capacity to practice medicine, “knowing what to do when watched is one thing, but engrained habits of neglect or deliberate over-treatment for gain and the altering of records are not eliminated necessarily after such assessments are over” (at para 36); (

m) The Council was unsettled by Dr. Huerto’s comment that there had never been a single death in his clinic as a justification for his practices. Whether Dr. Huerto’s mistakes were the products of workload pressures, a desire to increase revenue by any means, or simple oversights in his practice, it was highly unlikely to improve in the future if he absolved himself from responsibility by setting such a low standard (at para 36); and (

n) The Council was not convinced that Dr. Huerto’s offer to keep electronic records was itself a satisfactory means of ensuring a higher standard of practice given the number of observations in previous hearings of inadequate charting by misstatement or omission which could also occur with electronic records (at para 37).

[ 34 ] The Council concluded: 38. The Council of the College of Physicians and Surgeons of Saskatchewan, for the above reasons, finds that Dr. Huerto has failed on the balance of probabilities to satisfy the onus placed on him under

Section 86 of The Medical Profession Act, 1981 that “the interest of the public has been adequately protected” and there is no risk to public safety if he is restored to the register of the College to practice medicine. Council finds that it is not in the public interest to accept unsupported assurances of ethical, honest and competent practice when there is a significant record of repetitive conduct to the contrary. Council cannot allow further opportunities to see such conduct continued. 39.

Council hereby denies this request for reinstatement and restoration to the Register of the College of Physicians and Surgeons of Saskatchewan. [ 35 ] Dr. Huerto applied to the Court of Queen’s Bench to set aside that decision. IV. The Chambers decision [ 36 ] Dr. Huerto couched his application in terms of a judicial review but argued, in the alternative, that it was also an appeal.

The Chambers judge determined the application before him was a judicial review and that the statutory appeal provisions under s. 62 of the Act did not apply. [ 37 ] The Chambers judge determined that the standard of reasonableness applied to a review of the Council Decision and he referred to the touchstones of reasonableness as defined by the jurisprudence: “justification, transparency, and intelligibility within the decision-making process” ( Dunsmuir v New Brunswick , 2008 SCC 9 at para 47 , [2008] 1 SCR 190 ). [ 38 ] He then set out the reasons for the decision of the Council.

The Chambers judge approached the analysis of the reasonableness of the Council Decision on the basis of the various subheadings set out in Dr. Huerto’s Chambers brief. He turned first to Dr. Huerto’s assertion that the Council erred in finding that his personality traits were a risk to the public. After a review of paragraphs 29–36 of the Council Decision , the Chambers judge noted that the decision was a careful

summary of the evidence relied upon by the Council, which adequately displayed the basis for its conclusion and was supported by the evidence. [ 39 ] Dr. Huerto had also submitted that the Council erred in finding he lacked insight. The Chambers judge noted that Dr. Huerto was simply challenging the outcome and that it was up to him to establish the criteria under s. 86 that were required for reinstatement. The Chambers judge referred to the same remarks he made under the first issue. [ 40 ] With respect to Dr.

Huerto’s assertion that the Council had erred in finding that he had a repetitive record of conduct that was unethical and dishonest, the Chambers judge noted that paragraph 36 (and elsewhere) in the Council Decision satisfactorily addressed the issues of ethics and dishonesty. [ 41 ] Dr. Huerto had submitted that the Council erred in finding he provided unsupported assurance of future conduct. The Chambers judge noted that the Council’s reasons on that issue were addressed in a clear and open fashion at paragraphs 31, 33, and 35 of the Council Decision and were supported by the evidence.

He stated that “the Council was simply not satisfied with Dr. Huerto’s bald assertion that his practice would be rendered transparent by electronic note keeping” ( Chambers Decision at para 35). He noted that the onus was on Dr. Huerto to satisfy Council that he was able to self-regulate and it was not for Council to devise “elaborate regimes of supervision” (at para 35). [ 42 ] With respect to Dr.

Huerto’s assertion that the Council had exceeded its jurisdiction by refusing to reinstate him for reasons other than the protection of the public interest, the Chambers judge found no basis in the transcript or written materials to support that contention. [ 43 ] Dr. Huerto had argued that there was a reasonable apprehension of bias in the Council because various members of the College were defendants in a lawsuit brought by him, and because the Council misused their professional knowledge.

The Chambers judge noted that, on the basis of DeMaria v Law Society of Saskatchewan, 2015 SKCA 106 , [2016] 2 WWR 589 [ DeMaria ] , the onus of demonstrating bias lay with the person who was alleging its existence, and that Dr. Huerto had not proven his complaint. [ 44 ] Dr. Huerto had alleged that the Council acted in bad faith and failed to provide him with any understanding as to what new practice he would have to adopt to satisfy it, and to ensure that his record-keeping would be such that the public interest would be adequately protected.

The Chambers judge found that the Council did not have to prescribe a form of practice that it would accept and that it had not manifested any bad faith. He noted the onus was on Dr. Huerto to establish under s. 86 that the interest of the public would be adequately protected and that it was therefore up to him to show how he could conduct his practice. The Chambers judge stated that Dr. Huerto’s suggestions were heard and considered by the Council. [ 45 ] The Chambers judge concluded that the Council Decision clearly fell within the range of reasonable outcomes and dismissed Dr.

Huerto’s application. [ 46 ] It is from this decision that Dr. Huerto appeals. V. Standard of review [ 47 ] The governing standard of review of the Chambers Decision is set out in Dr. Q v College of Physicians and Surgeons of British Columbia , 2003 SCC 19 at para 43 , [2003] 1 SCR 226 . It is summed up by asking whether the reviewing judge (i.e., the Chambers judge) correctly chose and applied the proper standard of review.

In the event he did not do so, this Court can assess the Council Decision in light of the correct standard of review (see also: Professional Conduct Committee of the Saskatchewan College of Paramedics v Bodnarchuk,

2015 SKCA 81, 465 Sask R 36). As noted below, Dr. Huerto also challenges the original decisions of the Chambers judge relating to biasand fairness. The parties agree that these decisions are reviewable on a correctness standard. VI. issues [48] The issues raised by Dr. Huerto can be restated as follows: (

a) Did the Chambers judge err in law by finding that Dr. Huerto did not have the right to appeal the Council Decision under s. 62of the Act? (

b) Did the Chambers judge err in finding the Council Decision reasonable? (

c) Did the Chambers judge err in law by failing to apply the standard of correctness to the issue of alleged breaches of the dutyof fairness? (

d) Did the Chambers judge err in finding that the Council did not breach the duty of fairness? VII. ANALYSIS [49] I turn first to some preliminary observations. [50] Much of Dr. Huerto’s argument in this Court attempted to demonstrate the unfairness visited upon him in past disciplinaryproceedings. As well, he focused on factual matters in the Council Decision and the view taken by the Council of the evidence before it.Additionally, many of his arguments in this Court were not made before the Council or even before the Chambers judge. Some mattersand facts were misrepresented.

None of this assists him in discharging his burden of demonstrating that the Chambers judge erred. [51] Before this Court, Dr. Huerto challenged the factual findings made by the council in his 2003 hearing. Examples of thosefindings are the nature and the extent of his sexual relationship with K.H. and whether revocation of his licence was justified in thecircumstances. Those determinations are binding on both Dr. Huerto and the College and cannot now be challenged in this appeal. [52] Throughout his factum, Dr.

Huerto also refers to information from court decisions related to him and the College which wereneither before the Council nor before the Chambers judge, including Huerto v College of Physicians and Surgeons, 2002 SKQB 252,220 Sask R 235; Huerto v College of Physicians and Surgeons of Saskatchewan, 2004 SKQB 423, 256 Sask R 293; and Huerto vSaskatchewan (Minister of Health), (SK KB), [1999] 1 WWR 471 (Sask QB). [53] As an example of a new argument brought before this Court, Dr.

Huerto had argued before the Council that an oral judgmentrelated to his criminal charges, wherein Kovach J. found there had been an illegal search, was relevant to explain his decision to sue K.H.(R v Huerto (4 September 2009) Saskatoon, QBJ 14/2005 (Sask QB)). However, in his Chambers argument, Dr. Huerto made no referenceto Kovach J.’s decision. Dr.

Huerto now argues in his factum that Kovach J. found the College had committed a “flagrant” breach of hisCharter rights in 2001 and, therefore, the Council’s assessment of the evidence in his 2003 hearing was tainted because it failed toconsider that he had a legitimate grievance against the College arising from that breach. Unsurprisingly, in keeping with the approachtaken in his factum, there is no support in the record for that argument. [54] Dr.

Huerto argues as well that the Council and the Chambers judge failed to consider evidence of hearings which did not resultin a finding of unprofessional conduct or such findings that had been set aside on appeal. Evidence of these proceedings was not before theCouncil. The fault for this cannot be laid at the feet of the College since it was incumbent on Dr. Huerto, who bore the onus of proofunder s. 86, to tender all evidence he believed to be relevant. That said, such evidence would have been irrelevant to the Council’sdeliberations as to whether, at the date of the hearing, Dr.

Huerto was fit to have his licence restored. Moreover, such evidence waspotentially prejudicial to Dr. Huerto. [55] With these general comments, I turn now to the issues raised by Dr. Huerto in this appeal. A. Did the Chambers judge err in law by finding that Dr. Huerto did not havethe right to appeal the Council Decision under s. 62 of the Act? [56] Dr. Huerto argues that the Chambers judge’s finding that he did not have a right of a statutory appeal under s. 62 and that hisonly avenue of relief was judicial review was in error.

He submits that, although appeals are governed by s. 62 of the Act, the absence of aspecific appeal provision in s. 86 dealing with reinstatement is not indicative that there was no right of appeal for someone whoseapplication for licence reinstatement had been denied. Dr. Huerto argues that the Council Decision effectively prohibited him frompracticing medicine in Saskatchewan and thus he had a right of appeal pursuant to s. 62(1)(b). [57] Section 62(1) reads as follows: Right of appeal 62(1) A person may, in the manner provided in this Part, appeal a decision of the council to the court if: (

a) the person’s name is struck from a register; (

b) the person is prohibited from practising in Saskatchewan;

(

c) the person’s application for registration is rejected; (

d) the council has not notified the person of a decision with respect to the person’s application within 90 days after the receipt by theregistrar of evidence that the person meets the requirements for registration; (

e) the person’s licence or permit is issued subject to terms and conditions; (

f) the person’s licence or permit is revoked; (

g) the person is suspended from practising or reprimanded; or (

h) the person’s practice is restricted or the person has otherwise been disciplined pursuant to

section 54 or 54.01. [58] On this point, the Chambers judge concluded that: [10] I find no basis in the reading of the two sections, the use of statutory

interpretation or any case authority that suggests s. 62applies. Clearly s. 86 is the governing section. It speaks directly and plainly to the need to apply to Council for restoration. No appealprovision is stated. Therefore Dr. Huerto can only apply by way of judicial review as provided by The Queen’s Bench Rules. [59] A correctness standard of review applies to this decision. Applying that standard of review, I find the Chambers judge wascorrect in making that decision. I will explain. [60] Given Dr.

Huerto’s submissions, it is necessary to determine whether s. 62, properly interpreted, provides a right of appeal withrespect to the decision denying restoration of his licence under s. 86. [61] The basic approach to statutory

interpretation is well-known. It was described as follows by the Supreme Court in Rizzo &Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 SCR 27: [21] ... Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. Herecognizes that statutory

interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states: 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. [62] For convenience, I will again set out the text of s. 86: Restoration of licence, permit 86 The council may restore the licence or permit, as the case may be, of any person where it considers that the interest of the public hasbeen adequately protected, and it may require that person to pay a restoration fee, the amount of which is not to exceed the amount of theregistration fee. [63]

Section 86 is situated in the “miscellaneous”

section near the end of the Act. No particular appeal provision is attached orreferable to that section. This is significant. It is trite law that there is no right of appeal unless grounded in statute: Dagenais v CanadianBroadcasting Corp., (SCC), [1994] 3 SCR 835. [64] However, Dr. Huerto submits s. 62 provides a statutory foundation for his right of appeal.

Section 62 does indeed provide aright of appeal for certain decisions of council. A review of the categories of decisions referred to in the

section discloses that they are oftwo kinds. The first category deals with registration or licensure. For example, ss. 62(1)(c), (d), and (

e) provide for an appeal where anapplication for registration has been rejected, where the applicant has not been notified that registration requirements have been met, orwhere a licence has been issued subject to terms and conditions. Those subsections, in my view, refer to initial applications for registrationand licensure. Section 6(2)(

a) of the Act provides authority for council to prescribe requirements, qualifications, and procedures forregistration of members. The numerous provisions of

Part III which refer to registration do so primarily in the context of a person applyingfor initial licensure with the College. [65] The second category of decisions deal with or are the potential result of findings by council that there has been unbecoming,improper, unprofessional, or discreditable conduct by a doctor. These are found in ss. 62(1)(a), (b), (f), and (g). Notably, s. 62(1)(h)appears to be a catch-all subparagraph referring to just those kinds of decisions, i.e., where a doctor’s practice has been restricted ordisciplined. [66] Based on the foregoing, I find the words “a decision of the council”, as found in the

preamble of s. 62(1), must be read in theirentire context to refer to a decision which is the result of or in the course of an application for initial licensure by a doctor or somediscipline imposed on a licenced physician. The ordinary sense of the words of s. 62 suggests that only decisions listed in s. 62(1) areappealable. Denial of an application under s. 86 to restore a licence is not a decision listed in s. 62(1).

Such a decision concerns neitherinitial licensure nor discipline in the sense that it has resulted in a doctor’s existing right to practice being extinguished or attenuated insome fashion. [67] The Council Decision is not a decision concerning initial licensure. Nor is it one that has resulted in Dr. Huerto beingprohibited from practicing and/or his name being struck from the register, as he argues. The decision prohibiting Dr. Huerto frompracticing was made by council in 2003. I am satisfied that the Council Decision denying Dr.

Huerto’s application for restoration of hislicence is not a “decision of the council” within the meaning of that phrase in s. 62(1). [68] In short, I conclude that Dr. Huerto’s arguments regarding s. 62 must fail. That

section does not afford him a right of appealwith respect to a decision made under s. 86. The remedy for someone who had made an unsuccessful application for restoration unders. 86 is judicial review. The Chambers judge was correct in concluding there was no right of appeal.

B. Did the Chambers judge err in finding the Council Decision reasonable? [69] I begin with some general comments about the role of professional bodies as it relates to misconduct and incompetence. [70] In Merchant v Law Society of Saskatchewan, 2014 SKCA 56, [2014] 6 WWR 643 [Merchant], this Court commented about theexpertise of the members of a tribunal of a governing professional body: [41] In Merchant (2009) [2009 SKCA 33], supra, this Court also made the following observation: [26] Nothing in recent case law has diminished the force of Justice Iacobucci’s observations in Pearlman v.

Manitoba Law SocietyJudicial Committee, [ (SCC), [1991] 2 S.C.R. 869 at 880] where he stated: I note that courts have recognized that Benchers are in the best position to determine issues of misconduct and incompetence. Forexample, in Re Law Society of Manitoba and Savino (1983), (MB CA), 1 D.L.R. (4th) 285 (Man.

C.A.) the Court ofAppeal said (at pp. 292-93): No one is better qualified to say what constitutes professional misconduct than a group of practicing barristers who are themselves subjectto the rules established by their governing body. [71] Similarly, members of the medical profession are in the best position to determine medical standards and the ethicalrequirements of the profession.

Deference is owed to the expertise of the Council (Coffey v College of Licensed Practical Nurses(Manitoba), 2008 MBCA 33, 291 DLR (4th) 723; Salway v Association of Professional Engineers and Geoscientists of British Columbia,2010 BCCA 94, [2010] 8 WWR 233; and College of Physicians and Surgeons of Ontario v Peirovy, 2018 ONCA 420, 424 DLR (4th)613). [72] In order to determine if the Chambers judge erred, it is also necessary to set out the standard of review for findings of fact andcredibility made by an administrative tribunal.

In DeMaria, this Court said: [10] Findings of fact and assessments of credibility made by an administrative tribunal, such as those made by the A&E Panel, arereviewable on a standard of palpable and overriding error: Housen v Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235; Dunsmuir v NewBrunswick, 2008 SCC 9, [2008] 1 SCR 190 [Dunsmuir], per Deschamps J. (Charron and Rothstein JJ. concurring). Mr.

DeMaria musttherefore demonstrate a palpable and overriding error on the part of the A&E Panel in their findings of fact and assessments of credibility,or an error of approach or analysis on the part of the Benchers or the Chambers judge in their respective reviews of the A&E Panel’sfindings.

In H.L. v Canada (Attorney General), 2005 SCC 25, [2005] 1 SCR 401, the Supreme Court said that the palpable aspect of thestandard may be met where the findings are “unreasonable” or “unsupported by the evidence”. (Emphasis in original) [73] In Merchant, this Court noted that “[t]he presence of a defect or defects in the tribunal’s decision is not necessarily fatal, so longas the reasons as a whole read together with the outcome demonstrates the result is reasonable” (at para 45). I turn now to Dr. Huerto’sarguments. [74] Dr.

Huerto submits the Chambers judge erred by failing to determine the Council made the following errors: (

a) Concluding that he may pose a risk to the public so long as he feels “badly done by” the College; (

b) Finding he was not credible; (

c) Finding he was insincere when he acknowledged past sexual misconduct; (

d) Overlooking and misconstruing the evidence of Dr. Bradford; and (

e) Misconstruing other parts of the evidence. [75] In making these arguments, Dr. Huerto does not point out any specific error of the Chambers judge but asks this Court to thatfind the Chambers judge should have come to a different conclusion than that of the Council. Dr. Huerto focuses primarily on theCouncil’s factual findings and findings of credibility. 1. Concluding that Dr. Huerto may pose a risk to the public so long as he feels “badly done by” theCollege [76] Dr.

Huerto argues it was unreasonable for the Council to find his belief that he had been badly treated by the College in the pastwas an important factor in its conclusion that he could not be reinstated. He submits the Council overlooked the evidence that indicatedthat he had legitimate grievances with the College and that he was justified in feeling the way he did. He argues negative findings madeagainst the College in his disciplinary history were ignored. [77] This part of his argument is mainly focused around the following statement made in the Council Decision: 29.

However, while repetition of a sexual boundary violation is not foreseen it is not a reason to conclude that the fundamentalcharacter flaws underlying such violations have disappeared. Instead, the testimony regarding this issue indicates to Council that there is afundamental character flaw shown by a lack of insight into the wrongdoing caused and its characterization as a boundaries issue that isonly wrong because Council found it wrong. Dr. Bradford finds “credibility issues” and a “muddled” response because Dr. Huerto stillfeels “he’s been badly done by”.

It is not clear to Council that as long as this state of mind exists the public will not suffer in some otherway.

(Emphasis added) [ 78 ] The genesis of the Council’s comments was Dr. Bradford’s testimony that Dr. Huerto accepted that he should not have sex with a patient but that his insight into that point was affected by his belief that he had been and was still being unfairly dealt with by the College: … But I think those two things get a little bit muddled at times because I think he definitely believes he’s been badly done by -- it would by my words, but I think he would feel that -- he has used words that he may have been persecuted or picked on, those type of words.

So -- but, no, I think he has insight into boundary violations. I think so. [ 79 ] I take Dr. Bradford’s statement to mean that Dr. Huerto accepted the principle of why sex with a patient is wrong, but that he could not accept the finding that his relationship with K.H. was wrong and that the College’s finding of impropriety was justified. [ 80 ] At the hearing before the Council, Dr. Huerto resisted the characterization by the College in 2003 of his relationship with K.H. as sexual abuse. He also had trouble saying he had not met practice standards.

However, his counsel in his closing address before the Council argued Dr. Huerto had a deeper understanding of what went wrong in the past, that he accepted the findings of the College, and that he did not try to “argue away” those findings. The Council was obviously not convinced that was the case. Dr. Huerto, in this Court, dispenses with the pretext of accepting the findings of the College.

He has spent many pages of factum and raises copious arguments trying to show that his past dealings with the College demonstrate that he was unfairly dealt with on all levels and that his grievances were legitimate. [ 81 ] Dr. Huerto tries to reargue the minutiae of past proceedings and the justice and fairness of the College’s past discipline on him. He inappropriately adds new evidence that was not before the Council nor the Chambers judge regarding occasions where he has won some battles with the College, and then argues the Council overlooked it.

He also asserts the Council overlooked negative findings made against the College in his disciplinary history. Apart from the questionable relevance of such findings to the issue of restoration, he provided no evidence to the Council in that regard. The submissions he makes in this Court are replete with arguments not made before the Council and with evidence never presented to the Council. In light of this, Dr. Huerto fails to advance his argument that the Council Decision was manifestly unreasonable. All Dr.

Huerto has done is call into question whether, even now, he has a more insightful understanding of what happened in the past. [ 82 ] Clearly, Dr. Huerto had an extensive disciplinary record covering both sexual boundary issues and practice issues. His submissions before us that he had been badly treated by the College in relation to that record minimizes the gravity of many instances of unprofessional conduct and shows a mindset of not fully accepting responsibility for the circumstances of those offences even years later.

More importantly, it points to an individual who may not have a sufficiently accurate and internalized ethical compass when it comes to providing professional services to the public. [ 83 ] It was this mindset that the Council referred to in the excerpt noted above. Whether he was justified feeling the way he did about his dealings with the College is neither here nor there. It is the fact he still strongly felt as he did that was significant in the Council’s deliberations.

It may be inferred that the Council concluded that such a mindset did not demonstrate on the whole the appropriate insight, understanding, and appreciation for what might be inappropriate or wrong in the future with respect to his dealings with the public. Put another way, although he may have some intellectual understanding of the principles and behaviours of appropriate medical practice, the Council was not satisfied he had the ability or willingness to apply them consistently. [ 84 ] It is not an unreasonable finding, when the transcript of Dr. Huerto’s testimony is reviewed in detail, that Dr.

Huerto’s attitude that he was “badly done by” was a potential risk to the public in the future if he were reinstated. 2. Finding Dr. Huerto was not credible [ 85 ] Dr. Huerto argues that the Council unreasonably made an adverse determination of his credibility and honesty and, in any event, failed to explain how it made that determination. As observed by the Supreme Court of Canada in R v Gagnon , 2006 SCC 17 , [2006] 1 SCR 621 : [20] Assessing credibility is not a science.

It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. That is why this Court decided, most recently in H.L. [2005 SCC 25], that in the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected. [ 86 ] These comments apply equally to the Council . It had the opportunity to see and hear Dr. Huerto testify. With respect to his general credibility it concluded: 31.

To Council nothing has fundamentally changed from Dr. Huerto’s re-instatement application in 2011. In observing Dr. Huerto and his responses, Council finds that he was simply trying to tell Council what he thought they would like to hear, leading Council to think he did not truly believe what he was saying and that therefore he was not credible. [ 87 ] The Council had the opportunity to see and hear Dr. Huerto testify.

Perhaps it was because he tried to recharacterize his misconduct with K.H. or because of his overall demeanour that the Council concluded he was simply telling it what it wanted to hear and that he did not truly believe what he was saying. [ 88 ] The Council’s determination of credibility was within its exclusive purview as trier of fact and is entitled to deference from the Chambers judge and from this Court absent palpable and overriding error. [ 89 ] Dr. Huerto also submits that his commitment to providing full and accurate charts was ignored or not believed. Dr.

Huerto gave no detail on this commitment other than to say he would be using electronic records if his licence was restored. The evidence before the Council was that Dr. Huerto, on several occasions in the past, had difficulty accurately charting and recording the interactions with his

patients. In 1998, he was found to have poor record-keeping and to have been diagnosing patients without evidence in the charts or follow- up to support the diagnosis. Apparently not chastened, in 2000, he was found to have falsified clinical notes and to have not maintained proper records. [ 90 ] The Council did address this issue at paragraph 35 of the Council Decision noting that, when given the opportunity to improve his practice as a result of discipline in the past, Dr. Huerto had failed to do so. Ultimately, the Council was not convinced that Dr.

Huerto’s offer to keep electronic records was by itself a satisfactory means of ensuring a higher standard of practice given the number of findings in previous hearings of inadequate charting by misstatement or omission. The Council noted such poor practices can also occur with electronic records. [ 91 ] I am satisfied that the Council’s findings with regard to Dr. Huerto’s offer to keep electronic records are supportable looking at the evidence as a whole and are, therefore, not unreasonable. 3. Finding Dr. Huerto was insincere when he acknowledged past sexual misconduct [ 92 ] This argument is similar to Dr.

Huerto’s “badly done by” and credibility submissions set forth above. He submits that the Council unreasonably considered his insistence that he did not commit sexual abuse as a major factor in its conclusion that he showed lack of insight and lack of willingness to accept responsibility. He argues that if he had been merely telling the Council what it wanted to hear, he would not have continued to challenge the Council’s characterization of his sexual relationship with K.H. as sexual abuse.

Ergo, he asserts he was being sincere and he was not simply telling the Council what it wanted to hear. [ 93 ] My comments regarding Dr. Huerto’s insight and mindset noted above are apt regarding this issue. However, some further observations can be made. I take the Council’s comments that Dr. Huerto was telling it what they wanted to hear to mean that he was admitting he had committed unprofessional conduct in hopes that it would help his reinstatement, but that he had a questionable understanding that what he had done was wrong. [ 94 ] The Council dealt directly with Dr.

Huerto’s argument that he had truly changed: 17. … When Dr. Huerto was asked specifically when he had come to the understanding that it was wrong to have a relationship with a patient, he could not state when he had come to that realization. He did under questioning later (page 185) state it was when he attended a boundaries course at Vanderbilt. The non-response to the first question may be indicative of the unreliability of the second answer or that there is still no genuine recognition that the relationship was wrong. … [ 95 ] Dr. Huerto was asked directly if he had ever been involved in sexual abuse.

He denied it. The Council dealt with this response as follows: 30. … Council concludes that the [above-described] exchange indicates Dr. Huerto’s inability to take responsibility for the inappropriateness of his

part in the relationship. He remains firm that what occurred does not constitute sexual abuse or misconduct in spite of the previous Council ruling. [ 96 ] These conclusions are reasonable when taken in context. The 2003 decision of the disciplinary committee made clear that, although conceding guilt for the sexual relationship with K.H., “Dr. Huerto still would not take full responsibility for his actions” and “continued to make excuses and attempted to justify his disreputable conduct”. In that decision, the council specifically made a credibility finding against Dr.

Huerto when he said that he had not engaged in a sexual relationship with K.H. while she was a patient. The 2003 decision also rejected the suggestion that the relationship with K.H. was a consensual, long-standing relationship. [ 97 ] By 2015, not much had changed. Dr. Huerto was still not taking responsibility for his actions with respect to K.H. as being wrong.

Before the council in 2015, he proffered experts to testify that his actions were not sexual abuse in the customary sense based on his recitation to them of facts that the disciplinary committee had rejected in 2003. [ 98 ] In this context, the Council’s conclusion that Dr. Huerto continued to lack insight into his actions and to not accept full responsibility for his wrongdoings was reasonable. Its finding that he was insincere about this issue is reasonable. 4. Overlooking and misconstruing the evidence of Dr. Bradford [ 99 ] Dr.

Huerto points to several instances where he alleges the Council erred regarding Dr. Bradford’s evidence. He alleges that the Council ignored that Dr. Bradford had stated that his relationship with K.H. was not sexual abuse. As mentioned above, it was not open to Dr. Huerto to attempt to have a past finding of sexual impropriety against him invalidated through his expert. In any event, whether his relationship with K.H. is characterized as sexual abuse or not does not matter because the Council accepted Dr. Bradford’s opinion that it was unlikely Dr.

Huerto would recommit a similar offence and factored that into its analysis of whether he should be reinstated. [ 100 ] Dr. Huerto also argues that the Council misconstrued Dr. Bradford’s testimony about “credibility issues” set out in the following follow excerpt from his testimony: … there are some credibility issues, which, you know, quite honestly, I couldn’t sort out, and I -- I think they’re complicated […] I think the story about how [the relationship with K.H.] happened, when it happened, and some timeframes [ sic ], I’m not sure about.

I think that’s a matter of credibility and fact finding, so I accept what the -- what the College came up with. [ 101 ] Dr. Huerto asserts that these comments were taken out of context and were given a different meaning from that attributed by Dr. Bradford. He argues Dr. Bradford’s comments relate to his understanding from reviewing documents provided to him that the council and the discipline committee in past proceedings against him took issue with Dr. Huerto’s credibility and that there were competing accounts regarding his sexual relationship with K.H. and the timeline of that relationship.

I disagree. [ 102 ] The above excerpt indicates that during Dr. Bradford’s interview with Dr. Huerto, there was an ongoing credibility issue with

respect to Dr. Huerto’s characterization of his relationship with K.H. Obviously, Dr. Huerto was retelling the tale to Dr. Bradford based on his perspective, otherwise Dr. Bradford would not have said that he (Dr. Bradford) “couldn’t sort [it] out” but that he was willing to accept what the College came up with. [ 103 ] The following excerpt from the Council Decision shows that the Council did not misconstrue the evidence of Dr. Bradford regarding credibility issues: 23.

These “credibility issues” or the “muddled” descriptions to Council display an attitude that is not conducive to following the medical standards of the profession or the authority of the College where it differs from Dr. Huerto’s own assumptions. It is of further concern that the result of one report on the Paulhaus Deception Scale led to the following question and answer: Q - Ms. Wiebe - And right at the bottom, the conclusion is that Dr. Huerto presents as: Overall the profile reveals an individual who’s generally well, socializes, but who lacks insight to deal with his problem.

Individuals of such profiles can appear sanctimonious, can have a tendency for self-enhancement, and can be influenced by situational demands, responding in a socially acceptable manner Is that correct? That was the conclusion you reached -- A - Dr. Bradford - Yes. [ 104 ] Tellingly, Dr. Bradford, at the conclusion of his cross-examination, confirmed that “there are credibility issues. I said that in my report” (emphasis added). [ 105 ] Dr. Huerto also submits that the Council misconstrued the evidence in finding he had a narcissistic personality disorder. Dr. Huerto is simply wrong.

The Council found he had narcissistic traits : 32. In addition the medical reports on Dr. Huerto all mentioned a narcissistic personality. Only one, the PAS report referred to it as a narcissistic personality disorder. The other reports referred to it as a narcissistic trait, which is found in varying degrees in most professionals. To Council, the fact that it may not be a disorder does not detract from its concern that the presence of these traits coupled with a lack of insight suggests the distinct possibility of continuing difficulties with the public. [ 106 ] Dr.

Huerto argues that the Council overlooked that Dr. Bradford stated very clearly on cross-examination that he, Dr. Huerto, did not pose a risk in practicing medicine and that the Council failed to address the substance of this statement. In making such an argument, Dr. Huerto fails to mention that Dr. Bradford was immediately before that speaking to the issue of Dr. Huerto recommitting a sexual impropriety. Dr. Bradford admitted he was offering his opinion on the sole subject of whether Dr. Huerto had a sexual disorder. He accepted that he was not giving any opinion on whether Dr.

Huerto was a good or a bad practitioner. In short, Dr. Huerto is being disingenuous in proffering Dr. Bradford’s opinion that he is not a “risk” as a blanket endorsement he should be reinstated. [ 107 ] On the basis of all the foregoing, I cannot say that the Council overlooked or misconstrued the evidence of Dr. Bradford. 5. Misconstruing other parts of the evidence [ 108 ] Dr. Huerto submits that that the Council wrongly ignored the criminal cases where he was acquitted. He argues this indicated the Council was only interested in making findings against him. There is no merit to this argument. The fact of Dr.

Huerto’s acquittal on criminal charges was irrelevant to whether, at the time of his 2015 council hearing, he exhibited the qualities and abilities that could result in his reinstatement. It was reasonable for the Council to determine that any criminal proceedings were not relevant to its deliberations for reinstatement. [ 109 ] Dr.

Huerto also argues that the Council misconstrued the following excerpt from his testimony as suggesting that the standard for patient care that he set for himself was not killing anyone: Q So are you saying that in order to be found to have practiced substandard medicine, which you have been found to, that someone has to die? A Well -- Q Is that the benchmark? A Yes. Outcome -- in medicine today for everybody, outcome is the measure of goodness. Outcome. Q So anything short of death is good practice? A Well, outcome is not just death, but that is the ultimate. … [ 110 ] Dr.

Huerto submits his comments should have been construed as meaning that he was proud of the success he had had in keeping patients healthy. I disagree. The subject matter of those comments was medical standards. Immediately prior to his comments set forth above, the following exchange took place: A … You – you have to remember that, like, even if you don’t know medicine, that with all those procedures that I did, with all the kind of acute cardiology that I did, there has been not a single [death] in the clinic ever, not in 30 years. … Q And your practice was found on many, many levels by Dr. Smith, Dr.

Fenton, and Dr. Sommerville [ sic ] [supervisors and assessors to Dr. Huerto’s practice] to be, to put it mildly, substandard; is that correct?

A That’s what they put in their report. Q And they’re wrong? And are they right or wrong? A I accept their report. I mean, that’s what they say. That’s what it says. Q Okay. So tell us then, in all the volumes of documents that you’ve filed, where we can find -- where this council can find something that will help them, not with your knowledge -- your academic knowledge, you’ve showed us that -- that will help them to say: yes, this doctor can now practice safely when he couldn’t in 2005. A Well, Ms.

Wiebe, if you define, “safely”, the fact that you hurt people or not hurt people, in my clinic, nobody has been hurt. And secondly, nobody had died in 35 years. Not even the [Mayo] clinic can say that. Not UCLA, not Mount Sinai. [ 111 ] When Dr. Huerto made the comments that he had not killed anyone, he was being cross-examined on the issue of practice competency. When counsel brought up that in 2005, Dr. Huerto had been found not to be able to practice competently and asked him for some evidence that his situation (i.e., his competency) had changed since then, Dr.

Huerto’s response was to raise the fact that he had not killed anyone. Given the fact that he gave this as some evidence of his competency, it was not unreasonable that the Council concluded that he had set this as some benchmark for himself and that this provided an indication of the low bar he had set for himself for this issue. He might well have been proud that he had not killed anyone, but this response to questions about measuring his competency to practice is both unsatisfactory and troubling. [ 112 ] Dr. Huerto also argues that the Council placed little weight on the character evidence of Mr.

Penna and completely overlooked other evidence of his good character, including evidence proffered by him related to his role as an English-as-a-Second-Language tutor. The Council was aware of the evidence of Mr. Penna but noted that this positive evidence could not overcome other factors suggesting a risk to the public if Dr. Huerto were allowed to practice. The Council was entitled to place the weight it did on the evidence of Mr. Penna. 6.

Conclusion on reasonableness [ 113 ] The Council found that the evidence on the whole demonstrated what could be described as a fundamental character flaw that put the public at risk. Dr. Huerto was not able to overcome or attenuate that concern with his witnesses and proposals. [ 114 ] Moreover, the significant disciplinary history of Dr. Huerto encompassed both the sexual boundary issue and practice competency issue. The evidence looked at as a whole suggests that Dr.

Huerto had made some progress on the first issue, although he continued to challenge the underlying facts of the sexual boundary violation offence. Apart from this, there was very little offered by Dr. Huerto to allay concerns of the Council that he had significantly dealt with his past poor practice and record-keeping methodologies. [ 115 ] In the circumstances of this case, deference to the professional expertise of the Council as expressed above on the issue of Dr.

Huerto’s competence and restoration of his licence is warranted. [ 116 ] The Council, at the beginning of its decision, very clearly set out the criteria for restoration. They are set forth above and I will not repeat them. The issue for the Council was whether, in light of all the evidence before it, Dr. Huerto had met his onus to demonstrate that his circumstances had changed such that “the interest of the public [would be] adequately protected” (s. 86) if his licence was restored.

The Council’s conclusion that his licence could not be restored was reasonable. [ 117 ] It was open to the Council to reach the conclusion it did. Arguments about the evidence in this case are simply matters of weight. The Council Decision was intelligible and all conclusions drawn in it were justified by reference to the evidence brought before the Council. Looking at the Council Decision as a whole, it was clear why the Council concluded as it did. [ 118 ] The Chambers judge reviewed the Council Decision in the context of all the evidence before the Council.

In my view, he did so based on the putative errors identified by Dr. Huerto. He correctly identified the standard of review applicable to the merits of the Council Decision . I cannot say that he erred when he found that the Council Decision was reasonable. C. Did the Chambers judge err in law by failing to apply the standard of correctness to the issue of alleged breaches of the duty of fairness? [ 119 ] Dr. Huerto argues that the Chambers judge erred in law by failing to apply the standard of correctness to issues pertaining to the duty of fairness.

He submits the Chambers judge erred in applying the reasonableness standard to the entirety of the review, finding that correctness did not apply. The Chambers judge made no such finding. [ 120 ] The Chambers judge applied the standard of reasonableness to the Council Decision only, then proceeded to deal with new jurisdictional, bias, and bad faith issues. There was no decision of the Council with regard to fairness and reasonable apprehension of bias to review. The Chambers judge’s analysis in this area was made for the first time.

Because there was no decision of the Council on these points, there was no standard of review that he was obligated to apply. Dr. Huerto’s submissions on these issues are really in relation to the conclusions of the Chambers judge, which is the next issue I will deal with. D. Did the Chambers judge err in finding that the Council did not breach the duty of fairness? [ 121 ] Dr. Huerto argues that he did not receive a fair hearing. His arguments in this regard are very focused.

He argues that the Council had already made up its mind that it would find him unreasonable and untruthful, and that he should not be reinstated and the Council Decision gives rise to a reasonable apprehension of bias. In support of his bias argument, Dr. Huerto recycles his submissions made in

respect to the reasonableness of the Council Decision and his argument that he is being unjustly persecuted by the College. I will notrepeat them. [122] The governing law with respect to reasonable apprehension of bias has been set forth in DeMaria: [23] I begin to examine the cogency of Mr.

DeMaria’s allegations by identifying the test for a reasonable apprehension of bias, which iscorrectly stated as whether “an informed person, viewing the matter realistically and practically and having thought the matter through,”would hold “a reasonable apprehension of bias” on the part of the decision-maker (Committee for Justice & Liberty v Canada (NationalEnergy Board), (SCC), [1978] 1 SCR 369 at 395, per de Grandpré J. [National Energy Board]). de Grandpré J. also said:“The grounds for this apprehension must, however, be substantial and I entirely agree with the Federal Court of Appeal which refused toaccept the suggestion that the test be related to the ‘very sensitive or scrupulous conscience’.” [24] The National Energy Board test is applied to the facts of a matter in a way that recognises that the integrity of the administrationof justice must give rise to a strong presumption that adjudicators will act fairly and impartially.

The Supreme Court recently reinforcedthis point in Yukon Francophone School Board, Education Area #23 v Yukon (Attorney General), 2015 SCC 25, 383 DLR (4th) 579,where Abella J., for the Court, wrote: [30] In Miglin [(2001), (ON CA), 53 OR (3d) 641 at paras. 29-30 (ONCA)], another case where the allegation ofbias arose because of the trial judge’s interventions, this Court agreed with the Court of Appeal for Ontario that while many of the trialjudge’s interventions were unfortunate and reflected impatience with one of the witnesses, the high threshold necessary to establish areasonable apprehension of bias had not been met.

The Court of Appeal observed: The principle [that the grounds for an apprehension of bias must be substantial] was adopted and amplified in R. v. S. (R.D.) ... to reflectthe overriding principle that the judge’s words and conduct must demonstrate to a reasonable and informed person that he or she is open tothe evidence and arguments presented. The threshold for bias is a high one because the integrity of the administration of justice presumesfairness, impartiality and integrity in the performance of the judicial role, a presumption that can only be rebutted by evidence of anunfair trial.

Where, however, the presumption is so rebutted, the integrity of the justice system demands a new trial. The assessment of judicial bias is a difficult one. It requires a careful and thorough review of the proceedings, since the cumulative effectof the alleged improprieties is more relevant than any single transgression. [Emphasis added] This same approach applies to administrative tribunals; although, perhaps with lesser vigour, depending on the context. (Emphasis in original) [123] Dr. Huerto raised three arguments of bias before the Chambers judge: (

a) The presence of “various members of the College” at the hearing who were defendants in the lawsuit he had brought againstthe College (Chambers Decision at para 37); (

b) The Council misused its professional knowledge (at para 37); and (

c) The Council acted in bad faith by failing to provide him with guidance as to what he would have to do in order to meet thelegislative requirement that the interests of the public would be adequately protected (at para 41). [124] As with much of Dr. Huerto’s case, his bias arguments have changed in this Court. I will first address the Chambers judge’shandling of the arguments before him and then deal with those now made by Dr. Huerto. [125] As a general observation on this issue, it appears the Council approached Dr. Huerto’s application with an open attitude.

TheCouncil clearly stated that it was possible for Dr. Huerto to meet the onus of establishing he could be reinstated “even in the face of thesubstantial past history of discipline matters” (at para 8). As well, the Council noted that several changes in the make-up of Council sinceDr. Huerto’s 2011 application “assured there were ‘fresh ears’ present and that message was in the deliberations of Council throughout”(at para 4). I am satisfied that the Council had not prejudged Dr.

Huerto’s application and that the Chambers judge was correct that therehad been no bias in that regard. [126] In dealing with the arguments made to him, the Chambers judge correctly identified the applicable law. He concluded, in relationto the first two concerns raised by Dr. Huerto, that the onus was on Dr. Huerto to prove his complaint and that he had not done so. TheChambers judge found there was nothing in the transcript or in the Council Decision that supported Dr. Huerto’s arguments. These twoaspects of bias were not argued in this Court.

I am, however, satisfied that given the standard of review set forth above, the Chambersjudge made no error with respect to these two issues. [127] The Chambers judge also responded to Dr. Huerto’s argument that the Council gave him no assistance in setting out what heneeded to do in order to demonstrate that the interests of the public were adequately protected: [43] I do not find that the Council’s decision in any fashion manifests bad faith, nor can I conclude that the Council had to prescribe aform of practice that they would accept. Again the onus is on Dr.

Huerto to establish under s. 86 that the interest of the public has beenadequately protected. This would include Dr. Huerto’s need to show how he could conduct a practice. His suggestions were heard andconsidered. Nothing in all of this points to any sort of bad faith on behalf of the Council. [128] As explained above, Dr. Huerto was asked to point to something in his material filed that provided some indication that he wasable to practice competently. His only response was his comment that no one had died while being treated by him and that he wouldimplement an electronic record-keeping system.

Those two offerings provided little comfort that the public would be protected. I find noerror in this determination by the Chambers judge.

[ 129 ] Dr. Huerto makes several new arguments to this Court that were not made before the Chambers judge and were, therefore, not capable of being addressed by him. He submits that the presence of Dr. Edward Tsoi (who was a member of the council at his penalty hearing in 2003 that resulted in his licence being revoked) on the Council in 2015 gives rise to a reasonable apprehension of bias. There is no merit to this. [ 130 ] Dr. Huerto had an obligation to raise an objection to Dr. Tsoi’s participation as a member of the Council before his hearing started.

Further, there was no attempt to raise this issue before the Chambers judge. His failure to do so until now is fatal to that argument. Even if this Court were to consider that argument, Dr. Huerto has presented nothing but a bare allegation of bias. The fact that one of the members of the Council participated in both the 2003 and 2015 council decisions does not give rise without more to a reasonable apprehension of bias. Administrative tribunals benefit from the same presumption of impartiality as judges ( DeMaria at para 24 ). [ 131 ] Dr.

Huerto also argues for the first time that the Council concluded that he had a “fundamental character flaw” without a basis in the evidence to support that conclusion. He submits this raises a reasonable apprehension of bias. He points out that the expert reports of the two psychiatrists who examined him (Drs. Bradford and Gutheil) contain no evidence of a “personality trait/character flaw” that would prevent him from safely practicing medicine. I disagree. [ 132 ] As explained above, Dr. Bradford raised concerns about Dr. Huerto’s lack of insight. There was no dispute that Dr.

Huerto displayed narcissistic traits. It was open to the Council to describe Dr. Huerto’s personal characteristics in the context of that evidence and past evidence of these traits as a character flaw that would make future practice problematic for him. The Council therefore had a basis in the evidence for that determination. I see no indication of bias in that determination. [ 133 ] Dr. Huerto also argues the Council was biased because it based its decision on personal opinions and improperly applied professional knowledge rather than evidence.

He submits his “notoriety … within the medical community in Saskatchewan, and indeed more widely through media coverage” required members of Council to be careful in making their decision on the evidence before them and not on rumour or personal opinion. He submits that the Council failed to do this. [ 134 ] This argument is without merit. There is absolutely no indication that the Council based any of its deliberations on Dr. Huerto’s notoriety within the medical community.

Likewise, there is nothing in the Council Decision that suggests it was based on personal opinions and improperly applied professional knowledge. This is no more than a febrile variation of Dr. Huerto’s main theme in this appeal that he is being unfairly dealt with and persecuted by the College. [ 135 ] In short, Dr. Huerto’s submissions regarding bias made in this Court cannot succeed. VIII. Conclusion [ 136 ] The appeal of Dr. Huerto must be dismissed with costs under column 3. “Ottenbreit J.A.” Ottenbreit J.A. I concur. “Schwann J.A.” Schwann J.A. I concur. “Tholl J.A.” Tholl J.A.