Discipline tribunal, citing procedural fairness, denies physician's third adjournment request

The public, which places its trust in medical professionals and their regulator, has the right to expect that serious accusations will not languish in procedural limbo without strong reasons, the Ontario Physicians and Surgeons Discipline Tribunal has said.

College of Physicians and Surgeons of Ontario v. Garcia Pan, 2021 ONPSDT 43 involves a physician who was criminally charged with sexual abuse and eventually found by a court to be not guilty beyond a reasonable doubt. The Inquiries, Complaints and Reports Committee of the College of Physicians and Surgeons of Ontario referred the matter to the Ontario Physicians and Surgeons Discipline Tribunal in September 2020. A hearing set for March was adjourned to August.

In June, the Ontario Superior Court of Justice dismissed the physician’s application seeking an injunction to prevent the discipline tribunal’s hearing from moving forward on the basis that the matter should instead be filed with the Ontario Divisional Court. Thus, the physician immediately refiled the matter with the Divisional Court.

In August, the Divisional Court dismissed the physician’s motion for interim relief. The court ruled that there was no serious issue to be tried and that the matter was premature, given that the issues that the physician was raising, including his argument that his acquittal should prevent the College from bringing this matter, should be decided first by the tribunal.

The tribunal granted the physician’s second request for an adjournment. It found that ongoing court proceedings and the need for further case management made it preferable to adjourn the August hearing to November so that the physician could argue his motion requesting the stay of the tribunal’s proceedings.

In the present matter before the tribunal, the physician submitted that he had filed a motion for a three-member panel to set aside or to vary the Divisional Court’s order denying his request to prevent the tribunal’s hearing from proceeding. The physician contended that the tribunal’s hearing should not move forward until the conclusion of the court proceedings and that the court’s “not guilty” finding should prevent a hearing by the tribunal on the sexual abuse allegations.

The Ontario Physicians and Surgeons Discipline Tribunal denied the physician’s latest adjournment request. First, the tribunal held that a judicial review would not automatically stay its proceedings. While s. 25(1) of the Statutory Powers Procedure Act provides that an appeal of a tribunal’s decision to a court should stay the decision, a judicial review like the one filed by the physician is not considered an appeal within the provision’s meaning.

Second, the tribunal determined that there were weak factors supporting an adjournment and strong reasons for the hearing to proceed. The factors favouring the granting of the adjournment included the following:

•  the fact that the physician was not practising.
•  the possibility that the time spent on the motion and on the hearing would be wasted if the Divisional Court prohibits the tribunal from proceeding with this matter.

On the other hand, the factors favouring the denial of the adjournment included the following:

•  the fact that hearing the motion would not cause the physician any irreparable harm.
•  the fact that this matter has been before the tribunal for a considerable time.
•  the fact that this matter has previously been adjourned twice. 
•  the fact that calendar time has been booked and that those involved in the matter have reserved time for the proceedings
•  the fact that the tribunal has notified the public of the upcoming motion hearing on its website.

The tribunal, balancing these factors, concluded that the balance tilted heavily toward denying the adjournment request.

The tribunal agreed with the physician’s submission that whether he is currently practising could be a factor to consider. However, it said that the timeliness of discipline proceedings is important for reasons other than dealing with the potential risk of a physician continuing their medical practice. These reasons include the possibility that witnesses can experience a fading of their memories, become ill or unavailable or die, and the stress potentially experienced by complainants, witnesses, and physicians.