No one can doubt that the College of Physicians and Surgeons plays an important role in supervising the behavior of doctors by, among other things, prosecuting doctors who commit professional misconduct by breaching the legislation that governs their behavior.

It might be suggested, however, that the rules governing that behaviour are so extreme that they lend themselves to abuse by unscrupulous patients.

The draconian nature of these rules is illustrated by the recent decision of the College’s Discipline Committee to revoke the medical licence of Dr. Sammy Sliwin, a prominent Toronto plastic surgeon. Dr. Sliwin continues to practice because he has launched an appeal to the Divisional Court. He has been permitted to continue to practice until the appeal is heard. However, the circumstances surrounding the revocation of his licence lend themselves to a certain amount of head scratching if not outright disbelief.

Dr Sliwin’s trouble involves a woman who cannot be identified as a result of a publication ban. The decisions of the Committee refer to her to as Ms. A.

Ms. A met Dr. Sliwin in 1988 when she was a 29 year old married mother of two. She began to work for Dr. Sliwin from 1992 to 1995 and again from 2000 to 2005.

In the meantime, other elements of the relationship were developing, both professionally and personally.

Dr. Sliwin performed plastic surgery on Ms. A, at no charge, in 1992, 2001, 2002, 2004, 2007 and 2008.

It can be suggested that the reason that Dr. Sliwin performed these surgeries at no charge went beyond the fact that Ms. A was one of his employees. On March 8, 2001, Dr. Sliwin and Ms. A first had sex. While both testified before the College that they regarded this event as a “one time thing”, it appears that their mutual sexual attraction remained strong and they continued to have sexual encounters through 2007.

Ms. A testified before the Committee that their relationship ended badly. In 2008, she commenced a civil action against Dr. Sliwin, which was eventually settled. She also filed a complaint with the College which ultimately resulted in the proceedings before the Committee.

The problem is that the Health Professions Procedural Code, which is a schedule to the Ontario Regulated Health Professions Act, 1991, prohibits sexual abuse of a patient.

The definition of sexual abuse of a patient by a doctor is extremely broad. Sexual abuse is defined as:

1. sexual intercourse or other forms of sexual relations;
2. touching of a sexual nature of the patient; or
3. behaviour or remarks of a sexual nature by the doctor towards the patient.

In order to find wrongdoing, the Discipline Committee must find a concurrence between the sexual relationship and the doctor-patient relationship. It does not matter which relationship began first. If they carried on simultaneously, an infraction has been committed.

The reasoning behind this legislation is quite straightforward. Patients are deemed to be vulnerable, by definition, and therefore in need of protection.

In this case, for example, one of the defences raised by Dr. Sliwin was that Ms. A was a “sophisticated consumer” of cosmetic surgeries who should not be considered vulnerable in the usual sense. She did not consider herself to have been sexually abused although she was not aware of the legal definition of that term and she had made it clear to the Committee that the relationship had been consensual.

This particular argument was rejected by the Committee. The Committee noted that courts have accepted that there is a power imbalance between a doctor and a patient so that as far as the court is concerned, no sexual relationship between a doctor and a patient can ever be truly consensual. The fact that Ms. A was sophisticated in matters of cosmetic surgery or that she considered the relationship to be consensual was irrelevant.

Dr. Sliwin also put forward the defence that the two relationships had not been concurrent. This was also rejected. It was found that sexual relations had taken place, although intermittently, between 2001 and 2007 and during that same period, Dr. Sliwin was Ms. A’s doctor and performed a number of surgeries. In fact, sex occurred in close proximity to some of these procedures on a number of occasions and certainly within the timeframe of the preoperative and postoperative treatment periods. Dr. Sliwin had been Ms. A’s doctor even before the start of their sexual relationship and after the first surgery, he chose to continue the sexual relationship while performing more procedures over the following years. In so doing, Dr. Sliwin was found to have engaged in sexual abuse.

The Committee went on to find that Dr. Sliwin’s conduct would reasonably be regarded by member of the College as “disgraceful, dishonourable and unprofessional” within the meaning of the Medicine Act, 1991, and therefore constituted professional misconduct.

The Health Professions Procedural Code provides for certain mandatory penalty provisions and one of them is mandatory revocation in instances such as those found by the Committee in the case of Dr. Sliwin. The Committee reconvened a penalty hearing a number of months later. At that time, Dr. Sliwin moved for an order that the mandatory penalty provisions in the Code were contrary to the Charter of Rights and therefore unconstitutional and unenforceable.

His first argument was that the mandatory revocation regime was never meant to apply to preexisting relationships. The idea behind this argument was that concern about the exploitation of the power dynamic between a doctor and a patient does not arise where the personal relationship predates the doctor-patient relationship.

Unfortunately for Dr. Sliwin, the Ontario Court of Appeal had considered exactly that argument in three earlier cases and dismissed it. There is no exception carved out for preexisting relationships.

In terms of the constitutional validity of the mandatory revocation provisions, the Ontario Court of Appeal in earlier cases also made it clear that “when it comes to sexual relations between a doctor and a patient, there is a black letter, bright line prohibition with a drastic sanction and no exceptions or exemptions… a patient’s consent is irrelevant”.

Dr. Sliwin also put forward the proposition that in a sense, his relationship with Ms. A was akin to a relationship between spouses and accordingly should be favoured with an exemption from the mandatory revocation provisions. This raises another interesting point in theory although the Committee dismissed this argument as well.

In 2013, a Bill entitled Regulated Health Professions Amendment Act (Spousal Exception), 2013 was enacted. Under that legislation, individual regulatory health colleges were given the authority to determine if a limited spousal exception to the mandatory sexual abuse provisions is appropriate for the members of the health profession governed by the College. There was an “opt-in” provision with a limited spousal exception. Remarkably enough, the College of Physicians and Surgeons of Ontario did not opt in and accordingly, there is no limited spousal exception that applies to physicians in Ontario.

This means, in essence, that a doctor is prohibited from providing medical treatment to his or her spouse (although the College does have a policy that provides an extremely limited exception for minor or emergency situations). Somehow, if you are a doctor and you are providing medical treatment to your spouse, normal marital relations with your spouse constitutes sexual abuse by definition.

While one might logically ask why on earth any spouse would lodge a complaint with the College in these circumstances, one must bear in mind that marriages end and angry ex-spouses do all of kinds of nasty things to each other.

Both the Ontario Court of Appeal and the College have made it abundantly clear that there is a zero tolerance policy when it comes to sexual relations between a doctor and a patient. However, I do have one anecdote that might cast the situation in a somewhat different light.

A number of years ago, I was approached by a woman with a complaint that her doctor had sexually abused her. She indicated that she had put a personal ad into the newspaper which was answered by a doctor who had only just become accredited as a doctor. They went out on a date during which time she complained of a massive headache. He rather foolishly prescribed a pain reliever for her. She filled the prescription, took some of the pills, and fairly shortly thereafter engaged in sexual relations with him.

This went on for several weeks until she ended it. She then approached me complaining that during a particularly vigorous sexual encounter, he had injured her. She asked me to demand compensation from him and insisted that I put forward the threat of a complaint to the College if he failed to pay up.

This struck me as a shakedown and I declined to take the matter on. However, I was deeply disturbed by the idea that this zero tolerance policy is open to abuse by unscrupulous patients. While I initially assumed that recent graduates would be the most likely victims of this type of behavior, I am not so sure that this is true.

While I have no doubt that the policy reasons behind this legislation are sound, and that patients who are vulnerable do require protection through the threat of drastic sanctions, I find it difficult to accept the idea of a zero tolerance policy. Surely spouses and predators like the woman I have described do not fall into the same category as a typical patient and I would suggest that a more flexible approach would be preferable.

In the meantime, the Committee’s ruling on the constitutionality of the Code provisions is on its way to the Divisional Court so the final chapter in this saga has yet to be written.

Morgan v. Vitran Express Canada Inc. provides a useful reminder as to the state of the law on constructive dismissal in Ontario.

Vitran employed Morgan as a dock supervisor for almost 25 years.  In that capacity, Morgan had supervised 22 men on a dock, sharing that responsibility with other dock supervisors. Vitran then changed his job to “freight analyst”, a position created specifically for him, which was described by the trial judge as a job that involved checking on two part-time workers.  She described the position as being of less importance and prestige with very little supervisory function and little opportunity to make decisions and exercise discretion.

As a result, the trial judge found that Vitran had altered the essential terms of Morgan’s employment in a substantial way.

Morgan left the company rather than accept the new position and sued for damages for constructive dismissal.

He was successful at trial.  The trial judge rejected Vitran’s argument at trial that a reasonable person in Morgan’s situation would have accepted the opportunity to continue working at Vitran as a freight analyst, thereby mitigating his damages.

Vitran appealed, arguing both that there had been no constructive dismissal and also that if there had been a constructive dismissal, Morgan had acted unreasonably in refusing to mitigate his damages by continuing to work at Vitran.

Both of these arguments were dismissed by the Court of Appeal.

On the constructive dismissal issue, the Court of Appeal referred to the state of the law as articulated by the Supreme Court of Canada earlier this year in Potter v. New Brunswick Legal Aid Services Commission and reiterated the two-part test for constructive dismissal.  Firstly, the court must determine whether or not there has been a substantial alteration of an essential term of the employment contract.  Secondly, the court must consider whether the conduct of the employer in making that alteration would lead a reasonable person to conclude that the employer no longer intended to be bound by the terms of the contract.

In this case, the Court of Appeal agreed with the trial judge that Vitran had indeed substantially altered the essential terms of the employment contract and furthermore, that the circumstances viewed objectively would have made it clear to any reasonable person that Vitran no longer intended to be bound by the terms of the employment agreement.

In essence, a demotion will constitute a substantial change to the essential terms of an employment contract which will warrant the finding of constructive dismissal if it can be reasonably said that the employer simply does not want the employee around anymore.  The court agreed that this was the case with Morgan.

On the mitigation point, the trial judge had dismissed Vitran’s argument because she found that Morgan had been subject to an unfriendly work environment and that his personal relationships with several of his superiors were acrimonious.  As a result, according to the trial judge, Morgan was justified in walking out the door and starting this lawsuit.

There is well established Supreme Court of Canada case law on the circumstances in which a dismissed employee must mitigate damages by returning to work for the same employer.  It is clear that there is no such obligation where the work environment is unfriendly, where the new position is of lesser importance than the previous position and where the employee will suffer a loss of dignity in the eyes of those who had previously worked under his supervision.  That was all true in this case.

Furthermore, as the freight analyst position had not been posted, the court agreed that other employees would have known that it was a position created especially for him because of perceived ineptitude.  The court also agreed that his personal relationships with his supervisors were acrimonious in the sense that no matter what he did, they continued to criticize him.

As a result, Morgan was justified in leaving rather than accepting the demotion.

As Mr. Justice Graeme Mew of the Superior Court of Justice pointed out in the recent case of Bernstein v. Poon, “defamation litigation is a high-stakes business”.  The Bernstein case was truly a perfect example of defamation litigation being not only a high-stakes business, but also a very uneconomical one.

In this case, two prominent Toronto diet doctors got into the ring with each other in a big way.

In 2008, Dr. Bernstein sued Dr. Poon for an injunction to stop the publication of the book “Dr. Poon’s Metabolic Diet”, an injunction requiring the retraction of allegedly defamatory statements posted on Dr. Poon’s diet website, $5 million in damages and $5 million in punitive damages.

By the time of the 7½ day trial, about six years later, Dr. Bernstein had restricted his claims to damages only.

After the dust had settled, Dr. Poon was ordered to pay Dr. Bernstein the grand total of $10,000 in general damages for defamation.

As the judge indicated, “the amounts spent in this litigation are truly breathtaking”.  The plaintiffs incurred legal fees of almost $550,000. The Defendant spent about $250,000.

The judge pointed out that the parties in this case were able to afford to go to trial. But the cost of doing so was exorbitant. In fact, as the judge pointed out, in defamation cases, the costs incurred by the parties will often exceed the monetary recovery. A study of 47 libel and privacy cases in the United Kingdom published in 2009 found that the costs to plaintiffs averaged 184 percent of damages and the defendants’ costs averaged 124 percent of damages.

It appears that the fight between these parties on the question of costs was as intense as the fight over the alleged defamation.  Although the judge concluded at the trial that the case was more about ego than actual harm, Dr. Bernstein maintained that the action was a genuine attempt to end the tarnishing of his reputation, that it should not have been necessary for him to go all the way to trial to stop the behaviour complained of, and that he should be awarded 100 percent of his actual costs. This was particularly so, according to him, because even after the action started, Dr. Poon proceeded to publish yet another edition of his book and then posted on his website a Chinese language television broadcast showing Dr. Poon making defamatory remarks about Dr. Bernstein.

On the other hand, Dr. Poon sought an award of costs representing a portion of his actual legal expenses, arguing that given the paltry amount ultimately awarded to Dr. Bernstein, the entire matter had been dealt with in the wrong court. According to Dr. Poon, this action should have been brought in the Small Claims Court which has a jurisdictional limit of $25,000.  Furthermore, Dr. Bernstein’s recovery at trial was less than 0.5 percent of the total amount claimed and the claims for injunctive relief were not pursued.

At trial, the judge found that the case was “more about turf warfare in the competitive world of diet medicine than about reputation”.  In terms of Dr. Bernstein’s choice of court, the judge felt that without question, Dr. Bernstein wanted the litigation to have the maximum possible impact on Dr. Poon and bringing the action in Small Claims Court would not have met that objective. As he put it, Dr. Bernstein tried to use his financial muscle to wrestle with a competitor. The competitor, however, stubbornly refused to back down and went on the attack in terms of the way he carried on his defence in the action.

At the end of the day, Dr. Poon defeated most of Dr. Bernstein’s claims. However, some of Dr. Poon’s comments on which the liability for $10,000 was grounded were made after the litigation began. Accordingly, rather than making an offer containing even a modest monetary element, Dr. Poon “effectively fanned the flames”.

In the result, the court determined that as the overall outcome was close to being a draw, and as the exercise had cost both doctors a lot of money and used a scarce public resource in doing so, each party should bear his own costs.  Both doctors were substantially out of pocket, Dr. Bernstein even more so than Dr. Poon. One can only shake one’s head and wonder whether or not, in retrospect, either one wishes he had done things differently.