College of Physicians and Surgeons entitled to good-faith immunity to perform its mandate
The Ontario Superior Court of Justice has found no bad faith by a regulatory authority during numerous investigations and disciplinary procedures resulting in a doctor losing his license, because the regulatory authority’s structure had multiple layers of checks and balances.
In Savic v. College of Physicians and Surgeons of Ontario, 2022 ONSC 3403, the College of Physicians and Surgeons of Ontario initiated a series of investigations and proceedings relating to the plaintiff physician, most of which began with a complaint that a patient or a member of the public had filed. In 2019, the plaintiff lost his license to practice medicine in the province.
He brought an action against the College based on abuse of process and intentional infliction of mental distress. He alleged that the College – via its officials, committees, prosecutors, and tribunals – acted in bad faith and with malice, and that the personal vendetta of certain staff members led to all of the investigations and disciplinary procedures against him.
Specifically, he contended that Dr. John Bonn – the College’s former registrar and a friend of Dr. Rocco Gerace, then registrar – was motivated to file the first complaint against him because they were competing as medical practitioners in Belleville, ON.
The College brought a motion to dismiss under r. 20.01(3) of Ontario’s Rules of Civil Procedure. It argued that the plaintiff’s action was not viable, was barred by various immunities and admissibility rules, and was frivolous and vexatious.
The court found no serious issue to be tried and dismissed the plaintiff’s action.
First, the court ruled that s. 36(3) of Ontario’s Regulated Health Professions Act was an absolute bar to the admissibility of evidence collected throughout the College’s investigations in most civil proceedings. While the plaintiff alleged that malicious or abusive intent motivated the College’s process, he could not prove this with self-serving affidavit evidence.
Second, by virtue of s. 38 of the Act, the College was entitled to good-faith immunity in performing its mandated duties. The plaintiff’s pleading, which fell short of the standard for bad faith allegations, could not overcome this statutory immunity, the court held.
The doctrine of judicial immunity also barred the plaintiff’s action relating to decisions of the College’s committees and tribunals, as the College’s counsel submitted.
Third, the court determined that the plaintiff could only blame himself for losing the case. His unfavourable result had nothing to do with the alleged bad faith of Gerace 12 years previously or of Bonn about 14 years previously.
Gerace, who served as the College’s registrar until July 2018, was not involved in the disciplinary processes that led to the revocation of the plaintiff’s license and was no longer registrar when the decision was made, the court noted.
Gerace also could not have impacted the proceedings that came afterward, including the plaintiff’s judicial review application regarding the de-licensing decision, which was decided in 2021, or his motion for an extension of time to properly file his appeal, which a Divisional Court judge dismissed last January, the court added.
The court concluded that the plaintiff was grasping at straws in his latest action. Since the Divisional Court already dismissed the plaintiff’s request for an extension of time, the plaintiff could not circumvent this decision with a separate statement of claim, the Superior Court said.
