Jurisdiction Remains the Queen of Legal Error: Rosenfeld v. College of Physicians and Surgeons [1970] 2 O.R. 438

   Legal scholars, jurists and even lawyers have hailed the Supreme Court of Canada's decision in Dunsmuir   v.  New Brunswick as a new era of deference to administrative tribunals.  Many observers have suggested that administrative tribunals have now come of age and that Superior Courts ought to "back-off" and allow them to discharge the wish of the democratically elected law-makers.  Much of this discourse makes for interesting scholarly writing and debates in the legal education setting but conveniently overlooks the obvious reality that our Superior Courts and our Superior Courts alone are vested with the constitutional power to adjudicate excesses of jurisdiction by inferior tribunals.

   As one who has been litigating these issues for some twenty years now, I have observed the temptation on the part of litigants to assert claims that the statutory actor was unreasonable in their fact-finding or conclusions.  This may be so.  However, what is unreasonable to me may be reasonable to someone else.  Our history of judicial review decision-making is rampant with decisions that are inconsistent and irreconcilable when resort is made to errors evaluated against a purely subjective standard.

   From time to time I am consulted on these questions.  My advice is always to explain to clients that there is in fact a hierarchy of errors in judicial review of administrative tribunals.  On some issues the tribunal must be correct.  There is no deference.  Those issues are jurisdiction, natural justice, fairness and areas of law that are of general importance.  Accordingly, I make it my practice to focus on the following issues first and foremost when consulted on judicial review matters:

1.  Did the tribunal have jurisdiction to make the decision or decisions it made ?

2.  Were the decision-makers properly constituted under the subject legislation ?  In
     circumstances where the enabling legislation mandates a quorum - for example
     - a judge, a justice of the peace and a lawyer or community person and is silent on
     the power to substitute members in the event of incapacity or conflict substitution
     may call into question the legality of the panel.  In addition, where the persons who
     are to make up a hearing panel are required to be "members" of a specific body
     non-members will not suffice in the proper constitution of the panel.

3.   Did the tribunal exhibit any bias - perceived or real in the adjudication of the matter ?

4.   Did the tribunal err in interpreting the Constitution, quasi-constitutional
      legislation or a question of law which is important to the general development
      of the law ?

   Even with the advent of Dunsmuir(supra) there is no deference owed where the tribunal commits errors on these questions.  The decision must be quashed by a Superior Court and is a nullity.  The following decision in Re Rosenfeld and College of Physicians and Surgeons [197] 2 .O.R. 438 illustrates the point that - Jurisdiction remains the Queen of legal error in the realm of judicial review of administrative action.  Waiver, said the court can not vest a tribunal with jurisdiction where it has none.  That is a powerful statement of law which is sound to this day.

Re Rosenfeld and College of Physicians and Surgeons

[1970] 2 O.R. 438-458

ONTARIO   [HIGH  cOURT  OF  JUSTICE] 

FRASER, J.

23rd DECEMBER 1969.

Physicians and surgeons -- Right to practise -- Limitation on right imposed as penalty -- Change in composition of discipline committee between hearing of evidence and imposition of penalty -- Confirmation of penalty by Council of College of Physicians and Surgeons -- Lack of proper notice to physician -- Whether disciplinary decision invalid -- Medical Act.

Administrative law -- Boards and tribunals -- Disciplinary proceedings against physician -- Change of composition of discipline committee between hearing of evidence and imposition of penalty -- Confirmation of penalty by Council of College of Physicians and Surgeons -- Inadequate notice to physician

-- Validity of penalty -- Medical Act.

 Under s. 34 (rep. & sub. 1962-63, c. 80, s. 1) of the Medical Act, R.S.O. 1960, c. 234, the Council of the College of Physicians and Surgeons is required to "appoint five members of the Council as a committee to be known as the dsicipline committee for the purpose of exercising the disciplinary functions designated by this Act" and is empowered to "made by- laws governing the tenure of office of members of the discipline committee . . . ". The by-law passed pursuant to s.

34 provides for the annual appointment of the discipline committee with members to be eligible for reappointment and with a provision for the continuation in office of the committee beyond the expiry of its normal term in the event of  any case or application being only partially heard.    Where the committee finds a physician guilty of two charges of negligence but directs that the imposition of a penalty be postponed for one year subject to good professional conduct, where before the hearing on the matter of penalty a new committee has been appointed consisting of three members of the former committee and two new members, and where it is the latter committee which considers the matter of the penalty, the order imposing a penalty is a nullity.    The second committee lacks jurisdiction to dispose of a matter partly heard by its predecessor.  Hence, where the committee refers the matter to the council, confirmation by the council of the committee's recommendation is also invalid.  Furthermore, where a copy of the report to council is not transmitted to the physician as required by the by-law, where the physician is told of the council meeting, but is also told that he will receive formal notice of it and does not receive such notice, and where council is unintentionally led by the solicitor for the College to believe that the physician is satisfied with the recommendation of the discipline committee, there is a failure to conform to the substantial requirements of natural justice and the decision of the council is invalid on that ground as well.

 [R. v. Huntingdon Confirming Authority, Ex p. George and Stamford Hotels, Ltd., [1929] 1 K.B. 698; Mehr v. Law Society of Upper Canada,    [1955] S.C.R. 344, [1955] 2 D.L.R. 289; Re

Ramm and Public Accountants Council for the Province of Ontario, [1957] O.R. 217, 7 D.L.R. (2d) 378; R. v. Public

Accountants Council, Ex p. Stoller, [1960] O.R. 631, 25 D.L.R. (2d) 410 sub nom.    Re Public Accountancy Act and Stoller,

refd to]

 APPEAL pursuant to s. 41(b) of the Medical Act (Ont.), from an order from the Council of the College of Physicians and Surgeons of Ontario.

Bernard Cohn, Q.C., for applicant.

J.   Reed Hunter, for respondent.

FRASER, J.: -- This is an appeal by Jacques Rosenfeld, from an order made on April 30, 1969, by the Council of the College of Physicians and Surgeons, to whom I will refer as the Council and the College respectively. The Council is the governing body of the College.

By the order appealed from the appellant was erased from the register of the College and placed upon the special register with full practice privileges, with full employment restricted to an institution where his medical practice might be kept under observation.

The appellant is a medical doctor, aged 40 years, married and has a family.     He graduated from medical school in Israel in July, 1959. He did a total of two and one-half years' internship and residency in Israel and four years in various hospitals in the United States.    He came to Canada in July, 1963, and complied with the regulations of the College by spending a total of two and one-half years in internship and residency in Ontario.    He received his licence in November, 1965, and started to practise in Windsor on January 3, 1966.

The College laid three charges against the appellant alleging negligence, or incompetence, or both, in his treatment of a patient. Before discussing these charges further it will be convenient to refer to the relevant statutory provisions.

Under the Medical Act, R.S.O. 1960, c. 234, as amended, to which I will refer as the Act, every doctor practising in Ontario must be a member of the College of Physicians and Surgeons. The Act provides for a Council of the College -- partly appointed and partly elected. The Council is the governing body of the medical profession.

The Medical Act, as amended, reads in part as follows:

30(1) The Council shall from time to time as occasion may require, make such orders, regulations or by-laws as may be necessary.

(a)      respecting the registers to be kept under this Act, and the fees to be paid for registration;

33(1) In this section and in sections 34 to 41c, "member" means a medical practitioner registered on any register now or hereafter maintained by the College pursuant to this Act.

(2) A member of the College who is alleged to be guilty of professional misconduct is subject to the disciplinary action and liable to the penalties hereinafter provided. (3) A member is guilty of professional misconduct,

(a)      if he has been convicted in Canada of an indictable offence, or elsewhere of an offence that, if committed in Canada, would be an indictable offence, upon proof of such conviction;

(b)      if his rights or privileges under the Narcotics Control Act (Canada) or the Food and Drug Act (Canada) or the regulations under either of them have been restricted or withdrawn, upon proof thereof; or

(c)      if he has been guilty, in the opinion of the discipline committee or Council, of misconduct in a professional respect or of conduct unbecoming a medical practitioner or of incompetence. [am. 1965, c. 69, s. 3]

(4)   Except in cases under subsection 5, the Council or the executive committee thereof may direct that an inquiry be made by the discipline committee into any alleged professional misconduct, and, upon the written application of any four members of the College setting forth particulars of any alleged professional misconduct, an inquiry shall be directed, if in the opinion of the Council or the executive committee there appears to be sufficient evidence of professional misconduct to warrant the making of an inquiry.

(5)   In the case of a conviction after registration under

this Act for a criminal offence committed in connection with the practice of his profession, the member shall be deemed to be guilty of professional misconduct and his name shall be erased from the register by the registrar forthwith upon proof of such conviction.   [rep. & sub. 1962-63, c. 80, s. 1]

34(1) The Council shall appoint five members of the Council as a committee to be known as the discipline committee for the purpose of exercising the disciplinary functions designated by this Act.

(2)   Three members of the discipline committee constitute a quorum, whether or not a vacancy exists on the committee.

(3)   In the case of a vacancy in the membership of the discipline committee or if a member is unable or unwilling to act as the result of illness or for any other reason, the president or, in his absence, the vice-president may appoint a member in his place.

(4)   The Council may make by-laws governing the tenure of office of members of the discipline committee, the appointment of a chairman, the summoning and conduct of its meetings, and the practice and procedure and the transaction of business thereat.

(5)   The College shall provide the discipline committee with a suitable place for holding its meetings, the services of counsel and a reporter, and such other assistance as is necessary or proper to enable it to properly perform its duties. [rep. & sub. 1962-63, c. 80, s. 1]

36(1) The discipline committee shall, when so directed by the Council, executive committee or complaints committee,

(a)      inquire into the conduct of any member;

(b)      hold hearings into charges of professional misconduct against any member; and

(c)      inquire into and report to the Council upon an

application by a former member to have his name restored to the register, and shall perform such other duties as are assigned to it by the Council.

(2)   In the case of hearings into charges of professional misconduct, the discipline committee shall,

(a)      consider the charge, hear the evidence and ascertain the facts of the case;

(b)      determine whether upon the evidence and the facts so ascertained the charge has been proved;

(c)      determine whether in respect of the charge so proved the member is guilty of professional misconduct; and

(d)      determine or recommend the penalty to be imposed as hereinafter provided in cases in which it finds the member guilty of professional misconduct.

(3)   The inquiries and hearings of the discipline committee shall be conducted in accordance with this Act and the practice and procedure prescribed by the by-laws.      [rep.

& sub. 1966, c. 85, s. 3]

37(1) The registrar shall cause a notice to be served upon the person whose conduct is the subject of inquiry at least two weeks before the hearing, and the notice shall embody a copy of the charges made against him or a statement of the subject-matter of the inquiry, and shall also specify the time and place of the hearing.

(2)   The notice required by subsection 1 shall be deemed to have been duly served if sent by registered mail to the address of the person required to be served, as last known to the registrar, and proof of such service may be made by affidavit.

(3)   Upon a hearing, the member whose conduct is the subject of the inquiry is entitled to be present and to be represented by counsel.

(4)   Where a member fails to attend a hearing after receiving due notice thereof, the discipline committee may, upon proof of service of such notice, proceed with the inquiry in his absence without further notice to such member. [rep. & sub. 1962-63, c. 80, s. 2]

39(1) Where the discipline committee finds that a member is guilty of professional misconduct, it may by order,

(a)      suspend the member for a period not exceeding twelve months from the register on which he is registered;

(b)      direct that the member be reprimanded and, if deemed warranted, that the fact of such reprimand be recorded on the register;

(c)      direct that the imposition of a penalty be suspended or postponed for such period and upon such terms as it may designate;

(d)      in cases reported to the Council for determination of the penalty, if the professional misconduct consists of incompetence,

(i)   direct that the member's registration be suspended,

or

(ii)   direct that the member's registration be transferred to the   Special Register with such restrictions and conditions as the committee may designate, and that he discontinue the use of any specialty designation, provided that any such direction shall remain in effect only until the final determination of the case by the Council or upon appeal; and (e)     direct that the member pay to the College the costs of and incidental to the inquiry, which may include the cost of reporting and transcribing the evidence.    [rep. & sub. 1966, c. 85, s. 5(1)]

(2)   The costs shall be taxed on the Supreme Court scale by the taxing officer of the Supreme Court at Toronto, upon whose certificate execution may issue out of the Supreme Court for the collection of such costs by the College, as upon a judgment in an action in such court.      [enacted

1962-63, c. 80, s. 2]

(3)   If the discipline committee is of the opinion that the name of the member should be erased or that the term of suspension should exceed twelve months, it shall make a report to the Council, of the facts and its findings and recommendations as to penalty, and may transmit therewith a transcript of the evidence taken at the inquiry. [rep. & sub. 1966, c. 85, s. 5(2)]

40(1) The powers and duties of the Council in disciplinary matters are,

(a)      to receive and record reports of the discipline committee in respect of the cases that have been completely dealt with by the committee, and the decision upon any appeal taken therefrom; and

(b)      to receive, record and consider reports, findings and recommendations of the discipline committee in cases in which the committee has found a member guilty of professional misconduct and is of the opinion that the penalty imposed should be the erasure of the name of the member, or that he should be suspended as a member for a period in excess of twelve months, and to impose such penalties as the Council considers proper.

(2)   The Council may impose upon a member any penalty that the discipline committee is authorized to impose, or may direct that the name of the member be erased or that he be suspended as a member for such period as the Council considers proper. [rep. & sub. 1966, c. 85, s. 6; am. 1968, c. 69, s. 1]

41(1) Any member aggrieved may appeal,

(a)      from the order of the discipline committee in a case that the committee has fully disposed of, to a judge of the Supreme Court, at any time within thirty days from the date of the order complained of, with a further right of appeal to the Court of Appeal from the order of the judge; and

(b)      from the orders of the discipline committee and the Council, in a case that the discipline committee has referred to the Council for determination of the penalty, to a judge of the Supreme Court at any time within thirty days from the date of the order of the Council, with a further right of appeal to the Court of Appeal from the order of the judge.

(4) Upon the hearing of an appeal the judge or Court of Appeal, as the case may be, may make such order in the matter and as to costs as the judge or Court of Appeal deems proper. [rep. & sub. 1966, c. 85, s. 7; am. 1968, c. 69, s. 2]

The Act also provides that while the name of a member is erased, or during his suspension from membership, it is unlawful for him to practise medicine:   s. 41c [enacted 1962-63, c. 80, s. 2].

By-law 26 is a by-law relating to the discipline committee. That by-law, omitting only s. 11 relating to publication of the proceedings of the committee, reads as follows:

1.   At each Annual Session the Council shall appoint the five members of the Discipline Committee and designate one of them as the Chairman. The members so appointed shall hold office until the next Annual Session or until their successors are appointed. Members of the Committee may be re-appointed. In the event that at the time of an Annual Session the Discipline Committee then in office has before it any case or application only partially heard, that Committee shall continue in office until every such case or application has been disposed of.

2.   The Discipline Committee shall hold meetings at such intervals as may be necessary to deal with inquiries directed by the Council and the Executive Council without undue delay. In the absence of the Chairman at any meeting the members present shall elect a Chairman from amongst their number.

3.   The time and duration of meetings shall be determined by the Chairman after consultation with the Registrar-Treasurer and the Solicitor for the College.

4.   Except in the case of a member appointed to replace a member who is unable to attend, each member of the Committee is entitled to five days' prior written notice specifying the date, time and place of the meeting. Members present at the meeting shall be deemed to have accepted the notice given them and to have waived any irregularity in respect thereof.

5.   The hearings of the Committee shall follow such procedure as the Chairman considers most conducive to the proper ascertainment of the facts and the determination of the charge made or subject matter of the inquiry, and may be in accordance with the practice and procedure followed in the trial of a civil action in a Court.

6.   The member whose conduct is the subject of the inquiry and his Counsel are entitled to be present during the reception of evidence and the presentation of argument, but are not entitled to be present during the deliberations of the Committee. Subject to the foregoing provisions, the Chairman may direct that any complainant, witness or other person may be present or shall be excluded during a hearing or any part thereof.

7.   All questions shall be decided by a majority vote upon a show of hands and such majority vote is the decision of the Committee in respect of the matter in question.   Each member present shall be entitled to one vote.   In the event of a tie, the Chairman is entitled to a second or casting vote.                A member of the Committee who dissents from the majority vote is entitled to have his dissension recorded if he so requests.

8.   The Committee may reserve its decision in any case and may give its reasons for the decision reached, but it is not necessary that it do so.    The decisions of the Committee and the text or substance or any admonishment or reprimand given shall be announced to such persons in such manner and at such times as the Committee may direct.

9.   In cases referred by the Committee to Council the Committee's report shall be settled by the Chairman and the Solicitor after consultation with the other members of the Committee.  The report shall be signed by the Chairman and a copy transmitted to the member whose conduct was the subject of the inquiry or to his Counsel.

10.   In cases referred by the Committee to Council, the member whose conduct is the subject of the inquiry and his Counsel are entitled to be present when the member's case is dealt with by the Council and to make representations to the Council, but are not entitled to be present during the deliberations of the Council.

12.   A copy of this By-law shall be enclosed with every notice of Hearing sent to a member of the College.

From October 21, 1966, to November 2, 1966, the appellant treated a 17-year-old girl. On the latter date she died in hospital.

The first notice of any charge received by the appellant was the receipt on November 14, 1967, of a notice of the hearing of three charges against him based on his treatment of this patient.

On December 12th and 13th the discipline committee of the College had a hearing on the three charges. The doctor was present with his counsel. The committee found the appellant not guilty of charge B but guilty of charges A and C, and therefore guilty of professional misconduct.   Those two charges were as follows:

(a)   In the months of October and/or November 1966 or a part thereof, while having a patient, one Jo-Anne Putinta, under your care, you failed to carry out and/or cause to be carried out sufficiently thorough and extensive tests to determine the cause of her condition.

(c) The patient Jo-Anne Putinta was admitted to Grace Hospital, Windsor, and after being advised of the result of the urine test taken on the said patient and also after being informed of the general condition of the patient, you exhibited incompetence and/or gross neglect of duty to a patient, in not

(i)   attending or having some other qualified medical practitioner attend on the patient forthwith,

(ii)   ordering further tests to confirm the presence of sugar and acetone in the urine,

(iii)    directing a change in the treatment of the patient, forthwith.

The committee directed that the imposition of a penalty be postponed for one year subject to good professional conduct and that the appellant pay $1,500 costs of the hearing.

Exhibit 2 in the proceedings of a later hearing of the discipline committee on March 12, 1969, is a resum] of the [445] proceedings on December 12th, including the charge, a summary of the evidence, findings of the committee, and the disposition of the charges.

The committee delivered no reasons. From a perusal of the resum] of the evidence it would appear that the gravamen of the charges against the appellant was that he failed to recognize and treat diabetes when he should have done so and that as a result his patient went into a diabetic coma and died. 

It was the responsibility of the committee to make findings of fact.

In my opinion there was ample evidence to support the finding of the committee.   The appellant does not question the conduct of that hearing or the propriety of what was done by the committee at that time.

The appellant paid the costs awarded against him and that his subsequent professional behaviour was good has not been questioned.

Nothing further developed with respect to these charges until January 17, 1969.     On that date E.P. Newcombe, solicitor for the appellant, wrote to the registrar of the College reminding him that the imposition of a penalty had been postponed for a year and asking if there was anything further the appellant should be doing.     The text of that letter is set out in the appellant's affidavit of May 16, 1969, filed in support of this appeal. I also note that p. 2 of that affidavit has been inadvertently omitted from the record.

In reply to that letter the appellant's solicitor received a letter from the solicitor for the College dated January 24, 1969, notifying the appellant of a metting of the committee on Wednesday, March 12th, to consider the penalty to be imposed. The appellant and his counsel attended at this meeting when there was a further hearing. The following oral decision was delivered:

ORAL DECISION

CHAIRMAN:   Dr. Rosenfeld, the Committee has deliberated and this is the motion that has come forward from the deliberations:

"This matter, coming on for hearing on this date, for determination of the penalty to be imposed on Dr. Rosenfeld, by means of the findings made by the Discipline Committee herein on December 13th. 1967:

(1)   We recommend to Council that Dr. Rosenfeld be erased from the Register of the College and his name placed

upon The Special Register with full practice privileges, with employment restricted to an institution where his medical practice may be kept under observation.

(2)   We further recommend that the provisions of By-law 26(11) (a) of the College in this case be suspended." Now Dr. Rosenfeld, what this really means to you is, that we are pleased with what you have been doing during the last year.   Your course of action is noted and it has improved as far as the College is concerned.

Now this will allow you to carry on your programme of training at the University of Detroit; this will allow you to proceed to a higher degree in diagnostic radiology.  You will, of course, as you get near the end, or at the end of your training, be able to re-apply for reinstatement on the regular Register.   This can be done without hindering the progress of your training.

It also means that in working in an institution this will be allowable providing you are under supervision.

The next part has to do with By-law 26(11)(a) and this means in the report of the College your name will not appear, so that may be of some assistance to you.

We have discussed the idea of working in an institution under supervision and we agree that you can continue working in the emergency department of the Metropolitan Hospital in your present capacity.

A transcript of the proceedings at that meeting, in so far as the charge against the appellant was concerned, was filed as part of the material for this appeal.

Section 34 of the Act and By-law 26 provide for the appointment of the committee. The members of the committee which sat on December 12, 1967, were appointed in April, 1967. The members of the committee which sat in March, 1969, were appointed in April, 1968.  The chronology in the appendix to

the record shows the composition of the discipline committee on each occasion.  From this it is apparent that not only had a new committee been appointed between the two hearings, but two of the members on December 12, 1967, were not present at the meeting on March 12, 1969, and had been replaced by two members who had not been at the earlier meeting.

When counsel for the appellant addressed the comittee after the evidence had been heard he mentioned that the chairman and other members of the committee had not been present when the evidence was taken at the first hearing in December, 1967, but he said he was not suggesting they were not qualified to sit. The doctor admitted on cross-examination that he made no objection.

At the second hearing the evidence as to character was all favourable. There was also evidence that the appellant had given up general practice gradually and that he had done so entirely by the middle of 1968. He had been taking post- graduate work in radiology in Detroit and working part time in the emergency ward of a Windsor hospital.

The recommendation of the committee came before the Council on April 30, 1969.  In the intervening time there were some communications between Mr. Hunter, the solicitor for the College, and Mr. Newcombe, who represented the appellant.

From the material it would appear that the appellant had received formal notices of the previous hearings but he had received none for the April 30th meeting of the Council.

The registrar had written to the appellant on March 24th. This letter set out the terms of the resolution passed by the committee on March 12th and set out the recommendation of the committee to the council. The last paragraph of that letter read as follows:

The above recommendation will be considered by the Council of the College when it next meets at the end of April 1969. You will receive due notice of this meeting and will be requested to attend accompanied by legal counsel.

Mr. Newcombe who practises in Ottawa was informed by letter dated April 9th from the solicitors for the College that the recommendation of the discipline committee would be considered by Council on April 30th "some time in the forenoon".

On April 21st Newcombe wrote Hunter to ask if the Council was likely to vary the recommendation of the committee.  On April 24th Hunter wrote Newcombe that in most cases the Council accepts the recommendation of the committee but that he (Hunter) could not predict the outcome in the particular

case.  He suggested that to be sure nothing went amiss that the appellant and his counsel attend.

Mr. Newcombe apparently had difficulty getting in touch with the appellant.    In the result he wrote Mr. Hunter on April 28th saying that he did not propose to attend the meeting on the 30th and did not know if the appellant would attend as he could not reach him.     He asked that if Council proposed varying the recommendation that the matter be adjourned so that he could make representations on behalf of his client.

Newcombe spoke to the appellant on the evening of April 28th and the appellant indicated at that time that as he had not been formally notified to attend he would not do so.

From the cross-examination of the appellant and his affidavit it appears that Dr. Wigle had some informal conversation with the appellant's wife in which the date of the meeting was mentioned and this was communicated to the appellant.

The appellant did not appear at the meeting of Council nor was he represented. The transcript of the hearing at Council is filed. When the meeting opened the chairman asked if the appellant was present.   The solicitor for the College replied as follows:

The presentation of the fifth case is that of Dr. Jacques Rosenfeld.

DR. WIGLE:      I wonder if Dr. Rosenfeld is here today?

MR. HUNTER:    I have checked, Mr. President, and have not seen him here at all this morning. I received  a letter from his solicitor, who is in Ottawa, indicating that he did not propose to attend  this hearing.  He was writing to Dr. Rosenfeld and he was suggesting to Dr. Rosenfeld that he might come over and attend, but he didn't know whether or not he, Dr. Rosenfeld, would in fact be here. Dr. Rosenfeld comes from  Windsor, his counsel comes from Ottawa; and  his counsel indicated in his letter that were

it not for the Air Canada Strike, he otherwise          would be here.               That prevented him from attending          and he thought perhaps it might also likewise prevent Dr.

Rosenfeld from attending; in addition to which he felt, his letter comes at a late date -- I got it yesterday afternoon -- and in that he intimated that Dr. Rosenfeld might not  have received his letter for the hearing here   today.

Mr. President, I should advise you, he is quite satisfied with the recommendation of the Discipline Committee, but Mr. Newcombe asked me to indicate to you, sir, that in the event Council wishes to make the terms any harsher, that is, to revise the recommendations so that     more stringent terms might otherwise be imposed, that Mr. Newcombe wished to have the opportunity       of making certain representations, which would entail having to put the final consideration          of this recommendation over to another date.

DR. WIGLE:    I was interested because I want to address myself to this case afterwards, because I think  I have some information that I didn't know at the time of the Discipline Committee Meeting. Dr. Rosenfeld and his wife came to see me sometime ago and asked me for an explanation of what the penalty would involve.

I learned at that time that I had a

misinterpretation about his training, and there    is just a little conflict between the evidence     that we have got here, such as Item H on Page      7, which says: "On July 15th. 1968, he closed     his office and

began studying diagnostic radiology at Wayne State University"; whereas, I have got a photostatic copy of correspondence with the Royal College as to the training he    had acquired, that was first started on July 24th. 1967; and the letter from Wayne State University stated that he had been in their  training program since July 1st. 1967.   I was just wondering whether that could be    cleared up in any way, if he is here. They          called me last week and wanted to know if I  was coming up.   I said I hadn't   got the agenda  yet, but I got it on Friday and I gave them a  call and told him his case would be heard    starting at 9:00 o'clock.        I didn't know when his case would be coming up, but I thought he would be here; but if he is not here, it would be impossible or pretty difficult to clear up that point on the dates.  However, if he is not      here, why we will have to go ahead with it the    way it is.

At a later stage of the meeting after some discussion of the merits consideration was    given to whether the matter should proceed at  that time. The solicitor for the College     reviewed the communications between him and the         solicitor for the appellant.    He then said: --

Mr. Chairman, may I make a few remarks. I  am inclined to agree with the suggestion of Dr.   Hannah, that both Mr. Newcombe and his client  have had ample notice that this matter was coming  on today; and to be doubly sure, as I indicated,    I couldn't assure that everything was going to suit them, that they had better be here -- and         obviously they are not  here; and not to expect         your Council, sir, to defer a decision on this         simply because both Mr. Newcombe and Dr.         Rosenfeld chose not to attend.

It seems to be an imposition on Council.

PRESIDENT:     Thank you very much, sir. Dr. Wigle --

DR. WIGLE:    As far as Dr. Rosenfeld is concerned, he got in touch with me on Friday.   He said they had had

no word from anybody about this meeting today;                             but I did give them the verbal information that  this hearing would come on today.               Now that was Friday

-- it wasn't in Friday morning's mail, because I just got my folder in Friday morning's mail; and it was after that that they called me. Of course, there is no delivery on Saturday or Sunday -- and I don't know whether he received      the notification yet or not.

Dr. Macdonald:  May I ask the Registrar if it was sent by Registered Mail?

REGISTRAR-     It didn't go from this office, but on March 24th. TREASURER:                      a letter went forward to Dr. Rosenfeld, at his            home address, the address that is on our Register here, advising him of this recommendation of                      the Discipline Committee.

The final paragraph of the letter states: --

"The above recommendation will be considered                      by the Council of the College when it next   meets at the end of April 1969.  You will    receive due notice of this meeting and will be   requested to attend, accompanied by legal   counsel."

The question of notice was not further discussed.   The Council discussed the matter fully and accepted the recommendation

-- four members out of the 16 present voting against.

Of the 16 members of Council present on April 30th two had been present at both committee hearings, two had been present at the first one only, two at the second one only and 10 had not been present at either.

The following are two additional excerpts from the transcript of the Council meeting:

DR. BRUCE:    May I ask what was the outcome of the court case?

Registrar- TREASURER:    I don't know.

DR. WIGLE:      If my memory serves me correctly, we inquired  of Mr. Newcombe, who was also the solicitor for the Medical Protective Association in Ottawa who appeared for him; apparently they were going to settle it, or it had been dropped, or something to that effect; that it wouldn't interfere with         that, the way it did a year ago. He didn't state what the outcome of it was going to be, but he  didn't think it would have any effect on the court case at the present time.

PRESIDENT:     For the information of Council, I wish to advise you that our legal advisor states the reason this     was held off in the original hearing was because of the civil action that was on at that time.     So that clarifies this as far as I, personally, am      concerned. Are you ready for the question?

I also note that at the meeting of the discipline committee on March 12th Hunter explained that one of the main reasons that the committee in December, 1967, wished the imposition of a penalty postponed was because a Court action was at the time pending against Dr. Rosenfeld. At the Council meeting on April 30, 1969, one of the members indicated that it was thought that any disposition made would not interfere then with the civil case.

I have found it necessary to discuss the relevant statutory provisions, the rules and the facts in some detail.  Having done so, I now turn to the grounds of appeal.

The appellant submits that the order appealed from i.e., the order of April 30th, was invalid because neither the Council, which made the order, nor the Committee, which recommended that it be made, were properly constituted. Both derive their existence and their powers from the Act.  Both are also bound by their own by-laws.  Therefore, no penalty can be imposed on a member of the College except as provided by the Act and the by-laws.

Section 34 of the Act provides for a discipline committee,

the making of by-laws by the Council as to the tenure of office of members of the committee and the manner in which it is to conduct its business.   Sections 36 to 41c, inclusive, set out, inter alia, the power and duties of the committee and of the council in disciplinary matters. Section 36 requires the committee to inquire into disciplinary matters when directed by Council.  Other than so directing the committee the Act does not appear to contemplate any action by the Council on disciplinary matters until it receives a report from the committee.

In the present case the discipline committee, which first considered the matter in December, 1967, was appointed in the spring of 1967. The committee which sat in March, 1969, and heard further evidence was appointed in March, 1968. As already mentioned, two members who were on the 1967 committee and were at the December, 1967, meeting, were not on the 1968 committee and did not attend the meeting on May 12, 1968. At the latter meeting there were two members of the 1968 committee who were not on that committee in 1967.            Counsel for the appellant addressed the committee just before it sat in closed session to consider its decision.    He commented on the difficulty the chairman and other members might have because they had not heard the evidence at the first meeting, but raised no objection as to the constitution of the committee.

By-law 26(1) provides that members of the committee be appointed at each annual session of Council.   It also provides specifically that, if at the time of an annual session of the College the committee has any incompleted cases before it, it should continue in office until they were disposed of.

No one at the meeting on March 12, 1969, seems to have realized that there might be any objection to the 1968 committee carrying through to completion matters partly heard by the 1967 committee.     Under the Act, and the provisions of the by-law just referred to, the 1968 committee had no jurisdiction to dispose of a matter partly heard by its 1967 predecessor.

Quite apart from the specific requirements of the Act and the by-law, the change in the personnel of the committee on March 12, 1968, from those who had sat at the December, 1967 hearing, is objectionable.    Two of them had not heard the evidence at the prior meeting.   Much of the evidence had been heard by only three of the members who sat.    I will refer to some of the cases in which objections of this character have received judicial consideration: In R. v. Huntingdon Confirming Authority, Ex p. George and Stamford Hotels, Ltd., [1929] 1 K.B. 698, licensing justices decided to grant a licence unconditionally.   This decision required confirmation by the confirming authority which was a committee of quarter sessions. The confirming authority imposed two conditions.  The matter went back to the licensing justices who accepted the first condition but not the second. The confirming authority met again and confirmed the licence subject only to the first condition.             Application for certiorari and quashing was made on two grounds: (1) that no notice of the second hearing of the confirming authority had been given certain parties opposed to the granting of the licence, and (2) that certain justices were present at the second hearing who were not present at the first.

A divisional Court upheld the order but on appeal to the Court of Appeal the latter Court held the order was a nullity primarily on ground (1); but, with reference to ground (2), Lord Hanworth, M.R., said at p. 714:

One more point I must deal with, and that is the question of the justices who had not sat when evidence was taken on April 25, but who appeared at the meeting of May 16.  We think that the confirming authority ought to be composed in the same way on both occasions: that new justices who have not heard the evidence given ought not to attend. It is quite possible that all the justices who heard the case and the evidence on April 25 may not be able to attend on any further hearing, but however that may be, those justices who did hear the case must not be joined by other justices who had not heard the case for the purpose of reaching a decision, on this question of confirmation.

The result will be that this appeal will be allowed with costs, because we think that this appellant had to come to this Court.  With regard to the costs of the previous proceedings, we will hear what Mr. Montgomery has to say about them; and the order will be for the rule to be made absolute, but a clear indication is given by the Court to the confirming justices that they must now proceed to hear the matter, and determine whether or not they will confirm the single condition accepted by the licensing justices.

Greer, L.J., agreed in allowing the appeal but expressed no opinion on ground (2), but Romer, J., said at p. 717:

Further, I would merely like to point this out: that at that meeting of May 16 there were present three justices who had never heard the evidence that had been given on oath on April 25.  There was a division of opinion. The resolution in favour of confirmation was carried by eight to two, and it is at least possible that that majority was induced to vote in the way it did by the eloquence of those members who had not been present on April 25, to whom the facts were entirely unknown.

In Mehr v. Law Society of Upper Canada, [1955] S.C.R. 344, [1955] 2 D.L.R. 289, the discipline committee of the Law Society of Upper Canada heard a discipline charge against Mehr, a solicitor, and found him guilty and recommended that he be struck off the rolls.  The Benchers adopted this report and he was struck off the rolls accordingly.  Mehr applied for an order in the nature of certiorari so that proceedings could be quashed.  In the Ontario Court the appellant was refused relief but in the Supreme Court of Canada his appeal was allowed.

The unanimous decision of the Supreme Court of Canada was based on a wrongful admission of evidence. Another ground argued was that on the first day of the hearing six members of the discipline committee were present and on the second day the same six plus two more, and on the third day the same eight as on the second day plus one more.

Cartwright, J., in giving the judgment of the Court, said at p. 351 S.C.R., p. 295 D.L.R.:

While it is not necessary to express any final opinion as to whether such a course would render the report invalid I am much impressed by the reasoning of Lord Hanworth and Romer J. in Rex v. Huntingdon Confirming Authority [supra].

He then quoted the excerpts from their judgments in that case which I have already quoted.

In Re Ramm and Public Accountants Council for the Province of Ontario, [1957] O.R. 217, 7 D.L.R. (2d) 378 (C.A.), the Public

Accountants Council purported to revoke the licence of one of its members.

The Court of Appeal held that the refusal of an adjournment under the particular circumstances was a denial of natural justice. By statute the Public Accountants Council consisted of 15 members.   At the first meeting at which the matter came up 12 members were present.  At the second meeting 11 members were present, two of whom were not present at the first meeting.   The Court held that the presence of two members not present at the first meeting was objectionable.  R. v.  Huntingdon Confirming Authority, Ex p. George and Stamford Hotels, Ltd., supra, and Mehr v. Law Society of Upper Canada, supra, were cited with approval.

In Re Glassman and Council of the College of Physicians and Surgeons, [1966] 2 O.R. 81, 55 D.L.R. (2d) 674 (C.A.), the Council was heard and decided. Schroeder, J.A., in delivering the majority judgment, was of the opinion that the presence of the members of the committee was objectionable but found it unnecessary to rest his judgment on that ground.    The counsel for the College was present during the deliberations of the Council. This caused the Court some concern but Schroeder, J.A., said that in view of the decision of the Court in R. v. Public Accountants Council, Ex p. Stoller, [1960] O.R. 631, 25  D.L.R. (2d) 410 sub nom. Re Public Accountancy Act and Stoller, he was not prepared to hold the presence of counsel constituted a denial of natural justice.    In the result the matter was remitted to the Council of the College.

The reasons in the Glassman case are extensive but should now be read with caution because since that case the Act has been substantially amended. In that case an appeal had been taken from the committee to Council and from there to the Court of Appeal.  In the present case the committee only recommended to Council and the present appeal is from the determination of the Council.

It follows from what has been said that I am of the opinion that the committee that sat on March 12th had no jurisdiction to hear evidence and to determine the penalty.  It was a new and different committee.  I am also of the opinion that even if the Council had been properly constituted under the Act and By- law 26 that the participation of two persons in a total of five who had not heard a substantial part of the evidence was such a departure from natural justice that the recommendation of the committee was invalid.   I find support for that view in the cases to which I have referred. Both these matters were fatal to its legality.  Needless to say, the decision of the Council, being based on the recommendation, also falls.

The appellant also raises other grounds which I will discuss briefly.

At the meeting of Council eighteen persons were present.  

Of these, three had been present at both meetings of the committee; two had been present at the first meeting only, and two had been present at the second meeting only.  It was submitted that the presence of members of the committee at the Council meeting invalidated its proceedings.

While it seems highly undesirable that the Council meeting should be composed of members with varying amounts of prior knowledge, I am not prepared to hold that the presence of members of the discipline committee constituted a denial of natural justice.   Nothing in the Act or Regulations prohibits this.   The committee is a committee of the Council and the latter is not an appellate tribunal.  None of the cases cited satisfy me that the presence of members of the committee at a meeting of Council considering recommendations of the Council is, of necessity, improper. The cases on which the appellant relies are distinguishable in this respect.       In R. v.

Huntingdon Confirming Authority, Ex p. George and Stamford Hotels, Ltd., [1929] 1 K.B. 698, persons sat at the second hearing who had not heard the evidence at the first. In Mehr v. Law Society of Upper Canada, supra, persons who had not heard all the evidence participated in making the decision.  In Re Ramm and Public Accountants Council for the Province of Ontario, supra, there was a similar situation in that attendance varied during the hearing. In Re Glassman, supra, members of a committee were present at a Council meeting when an appeal from a decision of the committee was heard.

In my view there is a marked difference between a body sitting as an appellate tribunal and one that is determining whether it will accept the recommendations of one of its own committees.   However, for present purposes it is unnecessary to decide whether, in a situation of the latter kind, the presence of members of the recommending committee necessarily invalidates a decision.   That question may well be left for decision to a case in which it must be decided.

No formal notice of the hearing was served on the appellant. He was informed by the letter of March 24, 1969, already quoted, of the recommendation of the committee, that it would be considered by Council at its meeting at the end of April and that he would be receiving notice and would be requested to attend. 

No such notice or request was sent to him. He lived in Windsor and his lawyer practised in Ottawa.    I have already referred to the communications between the solicitor for the College and for the appellant.  The former was aware that the latter was having difficulty communicating with his client.  Reference is also made to the report of the solicitor for the Council made at the opening of the meeting, already set out. In addition Dr. Wigle was uncertain whether he had notice. By- law 26(9) requires that the committee's report shall be

settled as therein provided and transmitted to the member whose conduct was the subject of the inquiry.  There is nothing in the proceedings to indicate that any such report was so settled and transmitted. The hearing proceeded in the absence of the appellant.  I have already quoted what the solicitor for Council said in opening the matter. I particularly refer to his words "he is quite satisifed with the recommendation of the Discipline

Committee". That was a misleading statement.   Possibly the "he" was meant to refer to the appellant's solicitor but it might well have been taken to mean his client. All the material indicates that the appellant was not satisfied and had at no time said he was.  His solicitor had at no time said he, the solicitor, was satisifed but he had indicated that if the recommended penalty was not going to be included he would not or might not attend. At the same time he made clear that there was a lack of communication with his client by reason of distance and the air strike.   I add that I am sure the solicitor for the College did not intend to mislead the Council but, unintentionally, expressed himself in a way which was likely to cause misunderstanding.

Counsel for the College submitted that the appellant, by his counsel's conduct at the March 12th hearing, had waived his right to object to the jurisdiction. It is fundamental that waiver cannot remedy a nullity nor can it give jurisdiction: see Holmstead and Gale, Ontario Judicature Act and Rules of Practice, vol. 1, p. 221, and cases there cited; 9 Hals., 3rd ed., p. 352, and cases there cited.

While the law required that the appellant be given an

adequate opportunity to be heard it does not require that under all circumstances a formal notice be given.   However, although I have no doubt that he knew the matter would come before the Council on April 30th in the present case it had been indicated to him by the letter of March 24th that he would receive due

notice. The Council had not settled its report and sent him a copy as required by By-law 26(9).  When the Council met it was misinformed of his position.  I am of opinion that the cumulative effect of the matters just mentioned amount to a denial of natural justice.   While the procedural requirements of the Courts should not be imposed on the governing body of a profession it is bound by the statute under which it was created and by its own by-law; it also should be scrupulous to conform to the substantial requirements of natural justice, particularly where the right of one of its own members to practise his profession is in issue. I have concluded that, cumulatively, the matters just referred to constitute such a denial of natural justice that the order of April 30th cannot stand.  I rest my decision on this ground as well as on the improper constitution of the committee making the recommendation.

Counsel for the appellant also argued that when the committee ordered that the imposition of a penalty under s. 39(1)(c) be postponed for a year it could not thereafter report the matter to the Council for determination under s. 39(3).  I doubt if the Act should receive such a restrictive interpretation but as the order must be quashed on other grounds there is no need to consider this.

In reviewing the material I note that a pending Court case is mentioned at pp. 270, 273, 274 and 293 of the transcript of the Council meeting. This was not fully explored but from the transcript it would appear that the long delay in the disposition of this case was due in whole, or in part, to some pending civil action and that the solicitor for the appellant was also solicitor for the Medical Protective Association in connection with that case.  This was not made a ground of appeal and for that reason, and also because all the facts in that connection are not before me, I do not base my conclusion that the order must be set aside and quashed on this but mention it as it appears in the material, and also because in considering whether the matter should be referred back to the Council any reasons given for the delay are relevant.

 As the penalty cannot stand it only remains to decide how the

matter should be disposed of. I have no doubt as to the power of this Court to direct a rehearing in appropriate cases.          As the finding of "guilty" made on December 13th is not impugned, if the subsequent proceedings are quashed and the matter remitted, it would be sent back in the same state as it was after that finding but prior to the April hearing.  That being so the only body that could properly impose a penalty is the 1967 committee.  I will not consider the practical difficulties of sending the matter back to the College as, in my opinion, it would be manifestly unjust to remit the matter.

The event in question occurred in the fall of 1966, a full three years ago. The appellant was not brought before the committee until over a year later. When he was brought before the committee and found guilty, he was ordered to pay $1,500 costs, which were paid, and the imposition of a penalty was delayed for a year.    No action was taken until after a year had expired and the matter was again brought to the attention of the College officials.     The committee made its recommendation in March and the Council disposed of it in April, 1969, almost two and one-half years after the occurrence.    This appeal was then launched.  There is no suggestion that any of this delay was at the request of the doctor, nor can he be blamed for the invalidity of the meeting in March, 1969, and the proceedings subsequent thereto.  From the material it is a reasonable inference that some or all of the delay was due to the desire of the College not to discipline the doctor while civil proceedings, in which the Medical Protective Association was involved, were pending.

The appellant voluntarily ceased practising as a general practitioner and has been doing part-time work in the emergency ward of a hospital and taking post-graduate studies in radiology.  Reports on his professional conduct since the occurrence in question have been favourable.  He has already suffered a substantial punishment.

It is with great regret that I find it necessary to interfere with the decision of the authorities of the College. They are better qualified to determine the penalty than is any Court.  No doubt both the Council and the committee acted in the utmost

good faith. In my view the penalty imposed does not seem on its face to be excessive for the misconduct found against the appellant. However, that penalty was imposed by a body which did not then have jurisdiction and after protracted proceedings in which there were wide departures from the requirements of natural justice. Because of the long delays, for which the appellant was not responsible, and because of all the circumstances, it would be neither fair nor just, at this late date, to remit the matter to the College authorities to hold further hearings and decide on a penalty.

For the reasons indicated the appeal must be allowed and the order made on April 30, 1969, must be set aside and quashed. The appellant has already paid $1,500 under the order of the committee made in December, 1967.    Having regard to all the circumstances I make no further order as to costs.                         An order may issue accordingly.

Appeal allowed; order quashed.