Regulators are being given increased authority to impose remediation to address concerns about a practitioner’s practice at the complaints screening stage. While there are concerns, the regulator makes no finding of wrongdoing and no discipline hearing is commenced. But at what point does repeated remediation become an abuse of process?
In Dr. Luay Ali Al-Kazely v. College of Physicians and Surgeons of Ontario, 2022 ONSC 44 (CanLII), https://canlii.ca/t/jlmb3 there were ongoing concerns about a practitioner’s record keeping. After issuing advice on two separate occasions, a third concern resulted in a remediation program involving completing educational courses, self-study and assessment by a colleague. The re-assessment revealed ongoing concerns. The practitioner declined voluntary additional remediation. As a result, the Registrar appointed an investigator. The screening committee imposed a further, more intensive remediation program including additional educational courses, some clinical supervision, and a further re-assessment. The practitioner challenged the ongoing remediation.
The Court noted that there had been procedural unfairness in that the practitioner’s third and final written submission had not been provided to the screening committee. However, that omission had no impact on the decision. The submission was quite similar to the previous two submissions.
Where a breach of procedural fairness has had no impact on the decision, the matter need not be returned to the decision-maker for reconsideration. As set out by the Federal Court of Appeal in Nagulathas v. Canada (Minister of Citizenship and Immigration), 2012 FC 1159, at para. 24; and the Supreme Court of Canada in Canada (Minister of citizenship and Immigration) v. Khosa, 2009 SCC 12, at para. 43), “Where there may be a breach of the rules of fairness, the court should assess whether the error ‘occasions no substantial wrong or miscarriage of justice’ …… The breach of procedural fairness must affect the outcome for the court to find a reviewable error”.
The Court also rejected the argument that the appointment of an investigator because the practitioner refused to accept a proposal for voluntary remediation was inappropriate:
The Registrar is not barred from initiating an investigation if a member refuses voluntary remediation. In fact, it is a necessary step for the College to use its statutory powers to address the evidence of substandard practice. It would be a dereliction of the College’s duty to protect the public if it failed to act in the face of evidence that a physician was practicing below the standard and was unwilling to voluntarily engage in the required remediation.
The Court also accepted the suitability of a course of escalated remediation:
This is the ICRC’s second attempt to remediate Dr. Al-Kazely, which is directly related to the record-keeping concerns identified by the Assessor and represent a targeted escalation of educational intervention aimed at remediating the Applicant’s lack of success with lower-level remediation. In the circumstances, this is a reasonable and proportionate intervention.
The Court noted that establishing an abuse of process is difficult:
In order to constitute an abuse of process, proceedings must be “unfair to the point that they are contrary to the interests of justice”. An abuse of process is established only where: “(1) the proceedings are oppressive or vexatious; and, (2) violate the fundamental principles of justice underlying the community’s sense of fair play and decency.” (Toronto (City v. Canadian Union of Public Employees (C.U.P.E.), Local 79, 2003 SCC 35 (CanLII), 2003 SCC, at para. 35).
In fact, the situation was quite the opposite:
To quash the 2020 SCERP [remediation] and permit Dr. Al-Kazely to forgo any further remediation and reassessment would run contrary to the community’s sense of fair play and its interest in the proper regulation of physicians (Abdul v. Ontario College of Pharmacists, 2018 ONCA 699 (CanLII) paras. 16, 18, 22). It was not an abuse of process for the ICRC to find that Dr. Al-Kazely be further remediated.
While remediation efforts must, at some point end, reasonably escalated remediation efforts are appropriate.