In Morzaria v. College of Physicians and Surgeons of Ontario, 2017 ONSC 1940, a pediatrician faced serious allegations of isolating and sexually abusing a 13 year-old patient. While criminal charges were pending, the College negotiated an undertaking with Dr. Morzaria to ensure that a monitor was present when patients under the age of 16 were seen. The criminal charges were later stayed on the basis of delay and the Inquiries, Complaints and Reports Committee (ICRC) completed its investigation, referred the matter to discipline and imposed an interim order. The interim order went further than the original undertaking in two material respects: the monitor could not have other duties while Dr. Morzaria was seeing a patient, and patients had to be expressly informed in advance of the monitoring requirement. Dr. Morzaria challenged the increased measures, indicating that nothing had changed since the undertaking was in place. The evidence was that he fully complied with the undertaking for years. The majority of the Divisional Court gave deference to the ICRC, holding that the undertaking did not prevent the ICRC from re-evaluating the degree of risk particularly since there had been an earlier allegation of a similar nature.
However, one judge issued a strong dissent expressing concern that there was no evidence (let alone no new evidence) to justify the increased, intrusive requirements. The dissenting judge also expressed concerns that Dr. Morzaria was not really told why the ICRC was more concerned now than in the past, that there was a material delay by the College in investigating and referring the case, and that the previous allegation was quite old and never established.
Even though the interim order was upheld by the majority, regulators should be mindful of the concerns raised by the dissenting judge when crafting interim orders and managing investigations and referrals in which interim orders are made.
It should be noted that a recent Newfoundland and Labrador case dealt with a similar issue. In Wentzell v. Law Society of Newfoundland and Labrador, 2017 CanLII 15042 (NL SCTD), a lawyer had given a number of undertakings to address concerns about alcohol impairment. However, a screening committee then imposed a more onerous interim suspension of his ability to practise on the basis of new concerns about his conduct. The Court set that suspension aside on the basis that the practitioner had not been alerted to the new concerns and had not been given an opportunity to respond to them before the decision was made.