Oct 27, 2020

Regulators always need to be, and appear to be, fair. Regulators need the confidence of registrants in order to discharge their mandate to serve and protect the public interest. When a regulator detects that a registrant has not been treated fairly, it needs to rectify that concern. This occurred in Shamess v College of Physicians and Surgeons of Ontario, 2020 ONSC 4108, http://canlii.ca/t/j8k2z. The practitioner was alleged to have “engaged in inappropriate sexual and physical contact with a patient and that he made inappropriate comments to the patient.” The discipline panel found the practitioner’s “evidence of what occurred during the examination at issue was credible, while the patient’s evidence was not credible.” So those allegations were not proved. However, the panel went on to make a finding that the practitioner “should have conducted the examination in a manner that had more regard for the patient’s privacy concerns. These allegations were neither set out in the Notice of Hearing nor raised at the hearing.”

The practitioner appealed on the basis that this outcome was procedurally unfair because he had not been given notice of this “theory of liability” and had no opportunity to present a defence to it. The regulator agreed. As did the Court. The finding and penalty was set aside. However, no costs were awarded against the regulator, on agreement, because of the regulator’s acknowledgment of the apparent.