No Procedural Unfairness Unmasked

In Matheson v. College of Physicians and Surgeons of Ontario, 2021 ONSC 7597 (CanLII), the regulator received a complaint that the practitioner saw a patient without wearing a mask shortly after undertaking to comply with public health guidelines including wearing a mask. The Court upheld the interim suspension issued by the regulator. In respect of the argument that the regulator was unfair in not granting a lengthy extension of time to respond to the proposed interim order, the Court said:

In my view, there was no procedural unfairness in this case. When considering whether to extend the 14-day minimum period for submissions, the College is not only concerned with fairness to its members, but also with the public interest. In this case, the College had information that Dr. Matheson was not complying with a requirement that he wear a mask when seeing patients. This was not only contrary to his undertaking but contrary to basic public health advice and directives. In the circumstances, the College had to balance Dr. Matheson’s interests against the public interest. In the absence of any compelling reason for extending the deadline other than the stated need for more time, there was no procedural unfairness.

The Court also said that, while limited findings of fact can be made in interim order matters, none was required in this case because the practitioner did not actually deny the specific complaint of taking off his mask when seeing the complaining patient. Evidence of general compliance with the undertaking also did not detract from the finding on this uncontested point.

The Court also found that the reasons for decision were adequate in the context, including why it did not consider an alternative order short of suspension to be appropriate:

In this context, the Committee’s use of the word “ungovernable” is meant to convey that he cannot be counted on to comply with his undertaking to wear a mask when meeting with patients. In other words, it supports the Committee’s conclusion that less restrictive measures would not be effective to protect the public pending a hearing before the Discipline Committee.

It was also unnecessary for the regulator to discuss the literature submitted by the practitioner about the risks of wearing a mask as the issue was the practitioner’s failure to comply with the undertaking given.

The procedural fairness requirements for interim orders have to take into account the context in which such orders are made.

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