Compelling a Reluctant Witness to Testify in a Sexual Abuse Matter

This issue has again come up, this time in the context of an investigatory summons. In College of Physicians and Surgeons of Ontario v Dr. Kayilasanathan, 2019 ONSC 4350, <http://canlii.ca/t/j1hq9>, a mandatory report was filed by another physician that an unnamed patient had been sexually abused by the practitioner. The patient had refused to consent to her name being included in the mandatory report (as was her right). The regulator, upon receiving the mandatory report used its investigative powers to summons the reporting physician’s chart to learn of the identity of the patient. It then summonsed the patient to give a statement. She complied. At the discipline hearing the regulator again summonsed the patient to testify, as she was reluctant to do so voluntarily. The patient attempted to quash the summons on the basis that she had never consented to being part of the investigation. However, the discipline panel upheld it because the patient had highly relevant evidence and that there had been no abuse of process in the manner of the College’s investigation of the matter.

The Divisional Court held that the practitioner had no standing to challenge the discipline panel’s ruling on the validity of the summons. That challenge only affected the patient’s legal rights. Even if the practitioner had standing, there was no abuse of process. The right of the patient to refuse the inclusion of her name in the mandatory report did not prevent the College from using its investigative summons to obtain her identity and question her. So long as the College considered her reluctance at the time, it was open to the College to conclude that the public interest outweighed the patient’s privacy interests.

The Divisional Court made short shrift of the practitioner’s argument that the person was not really his patient. The practitioner had made clinical notes for the visits, had billed for the services and had issued a medical report excusing her from an examination.

The Court also upheld the discipline panel’s right to make an adverse inference from the failure of the practitioner to testify once a prima facie case had been established.

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