Osif v. College of Physicians and Surgeons of Nova Scotia

Osif v. College of Physicians and Surgeons of Nova Scotia Court Court of Appeal Date 2009-03-19 Citation 2009 NSCA 28 Docket CA 299088 Judge/Registrar/Adjudicator Fichaud, Joel E. (Honourable Justice) (CA); Saunders, Jamie W. S. (Honourable Justice) (CA); Bateman, Nancy J. (Honourable Justice) (CA) Document Type Decision Relations Library Sheet - Osif v. College of Physicians and Surgeons of Nova Scotia - 2009 NSCA 28 - 2009-03-19 - Library Sheet Decision Content NOVA SCOTIA COURT OF APPEAL Citation: Osif v. College of Physicians and Surgeons of Nova Scotia, 2009 NSCA 28 Date: 20090319 Docket: CA 299088 Registry: Halifax Between: Dr. Stani Osif Appellant v. The College of Physicians and Surgeons of Nova Scotia Respondent Judges: Bateman, Saunders and Fichaud, JJ.A. Appeal Heard: January 28, 2008, in Halifax, Nova Scotia Held: Appeal dismissed per reasons for judgment of Saunders, J.A.; Bateman and Fichaud, JJ.A. concurring. Counsel: Thomas P. Donovan, Q.C. and Clare E. Bilek, for the appellant Marjorie A. Hickey, Q.C., Alex Benitah and Alison Buchanan, Articled Clerk, for the respondent Edward A. Gores, Q.C., for the Attorney General of Nova Scotia (Not participating) I N D E X Page Background 2 - 12 Grounds of Appeal 13 Issues 14 Standard of Review 14 (i) Privative Clause 17 (ii) Purpose of Tribunal 18 (iii) Expertise 20 Restatement of the Issues 21 Issue # 1 Admissibility of Evidence and Inclusion of Charges based on such Evidence 22 Testimony of Dr. MacLeod 23 Testimony and Report of Dr. Ross 25 Issue # 2 Misapprehension of Relevant Evidence Relating to Credibility 30 Issue # 3 Sufficiency of Evidence to Establish Professional Incompetence 34 Issue # 4 Allowing Charges Based on a Compulsory Assessment 39 Charter Argument 40 Fundamental Justice/Procedural Fairness 43 Issue # 5 Costs 46 Issue # 6 Penalty 50 Conclusion 52 Reasons for judgment: [1] Dr. Osif has appealed the decisions of a hearing committee appointed under the Medical Act, S.N.S. 1995-96, c. 10 to hear charges of professional misconduct and professional incompetence against her, claiming that its procedures were unfair, that its findings were unfounded, and that its sanctions were unfit. [2] She asks that we quash the committee’s findings of guilt and incompetence as well as its subsequent decisions relating to penalty and costs. In the alternative, Dr. Osif asks that the matter be remitted to the committee “to impose a penalty based on the scope of proper convictions” as determined by this court. [3] Largely for the reasons advanced by Ms. Hickey in her outstanding submissions on behalf of the respondent College, I would dismiss the appeal. Background [4] To provide context for my review of the issues, and my subsequent analysis of the various errors alleged to have occurred in the College’s handling of the appellant’s case, it will be necessary for me to describe in some detail Dr. Osif’s professional history as well as the circumstances which led to these proceedings. [5] What follows is a somewhat reduced version of the very detailed account provided in the appellant’s factum and which the respondent College accepts as “an accurate summary of relevant facts necessary for the consideration of this appeal.” [6] Complaints concerning the conduct and competence of Dr. Osif led the College of Physicians and Surgeons of Nova Scotia (the College) to conduct an investigation. The results of the investigation caused the College to appoint a hearing committee under the Medical Act to hear charges of professional misconduct and professional incompetence against Dr. Osif, an emergency room physician at the Northside General Hospital in North Sydney, Nova Scotia. [7] After a 14 day hearing, in a decision dated January 18, 2008 the hearing committee found Dr. Osif guilty of charges of professional misconduct and professional incompetence. I will refer to that decision of the hearing committee as its decision on the merits. On May 26-27, 2008 the committee conducted a hearing to consider matters of disposition under s. 66, and costs under s. 67 of the Medical Act. The committee’s decision on these matters is dated June 26, 2008. I will refer to this second decision as the committee’s penalty decision. [8] The effect of both of these decisions was to find professional misconduct and incompetence on the part of Dr. Osif, and to impose significant directives and restrictions before she would be permitted to return to the practice of medicine as a licenced physician. [9] To protect Dr. Osif’s patients and safeguard their personal medical histories, the committee imposed a ban on publication of their names or any other identifiers which might reveal their involvement. Initials were employed to anonymize those individuals. Readers are cautioned that this publication ban was maintained by order of this court for the purposes of this appeal, and remains in effect. [10] Dr. Osif was born and educated in Bratislava, in the former Czechoslovakia. She graduated as a doctor of medicine in 1978 and obtained her certification in anaesthesia and resuscitation in 1981. [11] She came to Canada as a refugee in 1987 and commenced work in Newfoundland in April 1988 as an emergency room physician. She then moved with her two children to North Sydney, Nova Scotia where she began full time work in the night shift at the Northside General Hospital in 1996. [12] Dr. Osif practiced under a defined license issued by the College. This defined license limited her practice to family medicine and emergency medicine and required her to maintain a sponsor who was obliged to report to the College yearly about her medical practice. [13] The appellant did not meet any of the pathways for full licensure pursuant to s. 10 of the applicable regulations. By letter dated May 1, 1998 the College informed the appellant that the only method to obtain full licensure would be for her to complete the College of Family Physicians of Canada Certification (CFPC). [14] Prior to the complaint which led to the process under the current appeal Dr. Osif participated in the CFPC exam process on four different occasions, but was not successful in passing all parts of the exam in the same sitting. She continued to practise under the defined license, as she was entitled to do. [15] The discipline process against the appellant began when an Investigation Committee of the College was constituted to investigate a complaint made by D.B. relating to the care provided by the appellant to D.B.’s daughter, A.B., in the emergency department of Northside General Hospital on December 13, 2005. On that date Dr. Osif assessed A.B. in the emergency department and diagnosed her with having a urinary tract infection. She prescribed antibiotics. [16] On December 15, 2005 A.B. returned to the emergency department and was seen by a different physician who diagnosed A.B. with acute appendicitis. She was transferred to hospital where she underwent an appendectomy. [17] A.B.’s mother, D.B. initiated a complaint against the appellant on January 9, 2006. Dr. Tom Currie, chief of the emergency department sent a copy of the complaint to Dr. Osif on January 18, 2006 and requested a response. [18] Prior to sending the written complaint to Dr. Osif, Dr. Currie telephoned Dr. Osif at her home unannounced on January 12, 2006. He told her about the complaint and asked for her response. Dr. Currie made notes of the telephone conversation. [19] Dr. Osif responded in writing to the D.B. complaint by letter to Dr. Currie dated January 23, 2006. [20] On February 2, 2006 D.B. filed a complaint against Dr. Osif with the College. Dr. Osif responded to the College complaint by her letter dated February 19, 2006. [21] By letter dated July 20, 2006 Dr. Osif was asked to appear before the investigation committee of the College on September 7, 2006. [22] The next day the College advised the appellant that an audit of her emergency room records would be conducted. The College also asked Dr. Osif for her consent for the College to review her complaint profile. [23] A few days later the College retained Dr. Simon Field, an emergency medicine physician at the QE II Hospital in Halifax to audit Dr. Osif’s emergency room records. [24] In August 2006 Dr. Osif gave her consent for the College to review her complaint profile. [25] On August 8, 2006 the College received a fax from Dr. Naqvi, Medical Director for the Cape Breton Regional Health Authority enclosing a nine page document later referred to by the hearing committee as the “Complaint File Summary.” This summary had been prepared by Dr. Naqvi’s office and purported to summarize the appellant’s complaint history at that institution. The complaint file is 351 pages long spanning a period of time from 1999 to 2006 and contains portions of patients’ charts, emails, letters of complaint, and responses. This hospital file had been maintained by Drs. Naqvi and Currie, without Dr. Osif’s knowledge, over that seven year period. [26] While Dr. Osif was aware of some of these complaints or issues she was not aware of all of them. Consequently the appellant did not have an opportunity to address the concerns contemporaneously with the events upon which the complaints or issues were based. [27] None of these complaints or issues resulted in any restriction placed upon her hospital privileges. Each was resolved without disciplinary action or referral to the College. [28] On August 21, 2006 the College provided Dr. Osif with a copy of Dr. Simon Field’s audit report. Dr. Field concluded that Dr. Osif was practising at an acceptable standard and did not fall below the standard set by her peers. Dr. Field did not receive the complaint file or the complaint file summary prior to completing his audit. [29] On September 7, 2006 the Investigation Committee interviewed the appellant and questioned her concerning the A.B. complaint. Dr. Osif was unaware that the College had received a copy of the Cape Breton District Health Authority complaint file prior to her appearance. [30] On September 11, 2006 the College wrote to the appellant regarding the D.B. complaint and said they continued to have serious concerns regarding her clinical competency. The College advised her that a restriction had been placed on her licence and that she would no longer be able to practice in the emergency room (which had formed the exclusive focus of her work). The College also advised her that she was to undergo a clinical assessment of her emergency room skills. [31] Dr. John Ross, Chief of the Emergency Department at the QE II Hospital in Halifax was later retained to assess the appellant’s clinical competence. Included with the retainer letter to Dr. Ross were several attachments, one of which was the entire complaint file summary. The appellant never consented to the summary being sent to the College or for the College to send it on to Dr. Ross. [32] There were inaccuracies in the complaint file summary. The College had not provided Dr. Ross with a copy of the complaint file itself. Since Dr. Ross had been provided with the (inaccurate) complaint file summary, the appellant sought to provide context concerning those inaccuracies. Through her legal counsel, she provided Dr. Ross with a copy of the full 351 page complaint file as well as a compilation of comments that she herself had prepared for her own purposes. She did this to provide Dr. Ross with a better context of the issues in light of the inaccuracies contained in the complaint file summary. [33] Certain comments in Dr. Osif’s commentary later formed the basis for charges against her, specifically Charge No. 6, which was ultimately dismissed by the hearing committee. [34] Dr. Osif underwent the mandatory clinical assessment by Dr. Ross and two other physicians on February 5 –9, 2007. She was not advised that Dr. Ross’ assessment could form the basis for charges of professional misconduct or incompetence. Charges 4(ix) to (xiii) were laid against Dr. Osif in relation to findings made by Dr. Ross in his assessment. [35] In April 2007 the College retained Dr. Bruce MacLeod to perform a chart review of the complaints contained in the hospital complaint file which the College had had in its possession since August 2006. The appellant was not advised that such a review was underway. [36] Dr. MacLeod was provided by the College with a three page document prepared by the College, which purported to condense the complaint profile summary. However, this profile summary also contained inaccurate summaries of the disposition of the complaints contained in the hospital complaint file. [37] The College provided Dr. MacLeod with a copy of the appellant’s commentary, together with copies of patients’ charts. [38] Dr. MacLeod prepared a report dated April 25, 2007 in which he indicated that he had read these summaries, and patient charts. [39] Following delivery of Dr. MacLeod’s report to the College on May 10, 2007 the College advised the appellant that effective May 11, 2007 her license to practice medicine was suspended. [40] On May 11, 2007 the College provided the appellant with a copy of Dr. MacLeod’s report. [41] In August 2007 the Registrar of the College provided the appellant’s counsel with a written notice of hearing containing eight sets of charges against Dr. Osif and advised that a hearing would be held on September 27, 2007. This notice was later amended by withdrawal of some of the charges and by changing the first day of the hearing to October 1, 2007. I will reproduce the material parts of that notice here, with the amendments as they appear in the evidence, verbatim: Dear Dr. Osif: On behalf of the College of Physicians and Surgeons of Nova Scotia, notice is hereby given to you that in consequence of complaints made against you, a Hearing is to be held into the following matters: THAT being registered under the Medical Act, R.S.N.S., 1995-96, c.10, and being a medical practitioner in the Province of Nova Scotia during the periods listed below, it is alleged that: 1. You failed to demonstrate adequate skill, care, and knowledge: (i) on April 5, 2001, during the emergency room management of a fracture-dislocation of the shoulder where there was evidence of neurological compromise; and (ii) on May 29, 2006, during the emergency room management of a fracture-dislocation of an ankle by failing to perform immediate and effective reduction, and failing to provide appropriate pain management; 2. On or about June 15 and June 23, 2003, you failed to demonstrate adequate skill, care, and knowledge during the emergency room management of a patient with significant pre-existing medical problems, who presented with generalized pain, breathing problems and slurred speech, including the failure to: (i) provide adequate investigative tests; (ii) correctly interpret the results of investigative tests; (iii) properly diagnose the patient’s medical condition; (iv) refer the patient to an appropriate expert; and/or (v) establish proper follow-up management; 3. On December 13, 2005, you failed to demonstrate adequate skill, care, and knowledge during the emergency room examination of an eleven year old patient presenting with fever, vomiting, and abdominal pain, including: (i) the failure to take an appropriate history, including the failure to take into account information from nurses’ notes; (ii) the failure to perform an appropriate physical examination; (iii) the failure to request the necessary investigative tests; (iv) the failure to properly analyze a urinalysis, resulting in a misdiagnosis of a urinary tract infection; (v) the failure to properly diagnose a serious medical condition; (vi) the failure to refer the patient to an appropriate expert; and/or (vii) the failure to establish proper follow-up management. 4. In the following cases you failed to demonstrate the appropriate assessment, request the necessary investigative tests, take the appropriate histories, and/or have sufficient evidence available prior to reaching a diagnosis: (i) An 11 year old female complaining of asthma, who you diagnosed with pharyngitis; (ii) A 3 year old female with sore throat x 3 days, temperature of 37.9 who you diagnosed with pharyngitis; (iii) A 9 year old female with sore throat and temperature of 37.5 who you diagnosed with pharyngitis; (iv) A 14 year old male with diarrhea and vomiting and temperature of 36.0, who you diagnosed with pharyngitis; (v) A 12 year old female with earache and a history of asthma with a temperature of 36.8, who you diagnosed with Otitis Media and pharyngitis; (vi) An 8 year old female with sore throat and a temperature of 37.4 who was diagnosed with bilateral Otitis Media and pharyngitis; (vii) A 2 year [old] female with fever, sore throat and cold symptoms, temperature of 37.8 who you diagnosed with pharyngitis; (viii) A 33 year old male with sore throat and cough for one week, temperature 37, and chest clear who you diagnosed with pharyngitis; (ix) three cases on February 5, 2007 where you conducted examinations in the Emergency Department of the QEII in the presence of an assessor; (x) a case on February 6, 2007 at the Dartmouth General Hospital where you conducted an examination in the presence of an assessor on a patient with a history of ischemic heart disease who presented with shortness of breath and where you reached a worked diagnosis of anxiety/depression; (xi) a simulated case on February 7, 2007 where a 6 year old patient presented with a seizure and you assumed this was a febrile seizure and did not give appropriate consideration to the child’s history and did not consider the differential diagnosis of meningitis; (xii) a simulated case on February 7, 2007 where you failed to consider a differential for unknown altered level of consciousness in the case of a 49 year old unconscious patient; (xiii) a case on February 8, 2007 at the QEII where you conducted a disorganized and incomplete examination in the presence of an assessor of a 50 year old patient with an altered level of consciousness. 5. In the following cases you inappropriately ordered or failed to order the appropriate recommended first line of antibiotics in response to your diagnosis: (i) An 11 year old female complaining of asthma, whose chest was clear; where there was no documented ENT exam, but who you diagnosed with pharyngitis and treated with Amoxil; (ii) A 5 year old male with earache, no fever and URTI x one week who you diagnosed with Otitis Media and treated with Amoxil; (iii) A 3 year old female with sore throat x 3 days, temperature of 37.9 who you diagnosed with pharyngitis and treated with Amoxil; (iv) A 9 year old female with sore throat and temperature of 37.5 who you diagnosed with pharyngitis; and treated with Ceclor; (v) A 14 year old male with diarrhea and vomiting and temperature of 36.0, who you diagnosed with pharyngitis; and treated with Amoxil and fluids; (vi) A 12 year old female with earache and a history of asthma with a temperature of 36.8, who you diagnosed with Otitis Media and pharyngitis and treated with Clindamycin; (vii) An 8 year old female with sore throat and a temperature of 37.4 who was diagnosed with bilateral Otitis Media and pharyngitis and treated with Ceclor; (viii) A 2 year old female with fever, sore throat and cold symptoms, temperature of 37.8 who you diagnosed with pharyngitis and treated with Zithromax; (ix) A 33 year old male with sore throat and cough for one week, temperature 37, and chest clear who you diagnosed with pharyngitis and treated with Ceclor; (x) A 24 year old female with dysuria and a temperature of 36.3 who you diagnosed with a UTI and treated with a 7 day course of Norfloxacin; and (xi) A 26 year old female with PV spotting and a negative urinalysis who was treated with Norfloxacin. 6. In a document provided to a College assessor addressing complaints lodged with the Cape Breton Health Authority you provided an inappropriate explanation: (i) as the basis of your referral of a patient to a specialist on April 9-10, 2002; (ii) by diagnosing a patient on June 15, 2003 with otitis and stating “This complaint reflects unavailability of hospital beds”; and (iii) by stating in response to a complaint of a failure to locate and remove a foreign body in a patient’s arm, “This was likely case of self administration of Oxycontin tablet intramuscular way. The method of drug abuse is known in this area, however I did not think about this possibility when this girl presented to ER.” 7. With respect to your medical care provided to a patient on December 13, 2005 you provided an inaccurate account of an emergency room physical examination conducted on a patient, both on the patient’s chart and when asked to do so by the Supervisor of the Emergency Department. 8. On a number of occasions you failed to communicate with others in an effective and/or courteous manner, specifically you failed to: (i) uphold adequate professional courtesy to another emergency room physician on June 15, 2003; (ii) appropriately respond to reasonable concerns raised by a family member of a patient on June 23, 2003; (iii) appropriately respond to reasonable concerns raised by a family member of a patient on December 13, 2005. AND in relation to any or all of the above it is alleged that the conduct amounts to professional misconduct and/or professional incompetence and you therefore may be guilty of a disciplinary matter within the meaning of the Medical Act. Notice is further given to you that commencing at 9:30 in the forenoon on September 27, 2007, and continuing on September 28, 2007, October 1 to October 5, 2007, October 9, 2007 October 10, 2007, and November 5 to November 9, 2007, and November 13 to November 15, 2007, a Hearing Committee will convene at the Residence Inn by Marriott, 1599 Grafton Street Halifax Nova Scotia, to consider the above charges against you, and to determine whether action should be taken pursuant to Section 66 of the Medical Act. You have a duty to appear before the Hearing Committee with or without legal counsel at the place and time specified above for the purpose of answering charges. If you do not appear, the Hearing Committee has the authority pursuant to Section 58(8) of the Medical Act to proceed with the Hearing and render its decision on the charges in your absence. Any answer, admission or statement or communication which you may wish to make with respect to the charges should be addressed to the legal counsel for the College. The provisions of Section 59 of the Medical Act are to be observed with respect to disclosure of written documentary evidence including expert evidence. A copy of Sections 58 – 60 of the Medical Act, relating to Hearing Committees, is enclosed for your information. [42] In effect, some of the charges against Dr. Osif related to D.B.’s complaint, but others arose out of the random chart reviews conducted by Dr. Simon Field; the clinical assessment by Dr. Ross; the review of 15 cases from the complaint file by Dr. MacLeod; and from Dr. Osif’s comments on the complaint file. The College alleged that in relation to those charges, Dr. Osif’s conduct amounted to professional misconduct and/or professional incompetence. [43] Specifically charges 1(i) and (ii), 2 (i) to (v), and 6 (i) to (iii) were laid against Dr. Osif in relation to findings made by Dr. MacLeod in his report. [44] Charges 1, 2, 4 ((ix) to (xiii)), 6 and 8 ((1) and (ii)) arise directly or indirectly from the Complaint Profile Summary. In addition to the entirety of charge 6, charges 1(i), 2(iv), 4(xi), 4(xii), and 8(i) were also dismissed. Grounds of Appeal [45] In her notice of appeal the appellant lists six grounds. She says: 1. that the Hearing Committee erred in law and failed to afford the Appellant natural justice by failing to exclude charges based on prejudicial and false evidence, by admitting prejudicial evidence, and by allowing testimony of expert witnesses who had been given the impugned prejudicial and false evidence; 2. that the Hearing Committee erred in law and fact in failing to consider and misapprehending relevant evidence of College experts and evidence relating to the credibility of witnesses; 3. that the Hearing Committee erred in law in determining that the guilty findings were sufficient to establish professional incompetence; 4. that the Hearing Committee erred in law, exceeded its jurisdiction and failed to afford the Appellant natural justice by allowing charges based on a compulsory statutory assessment; 5. that the Hearing Committee erred in law and exceeded its jurisdiction in ordering a quantum of costs that is unreasonable and arbitrary; 6. that the Hearing Committee erred in law in ordering penalties which are disproportionate to and not justified by the findings of the Hearings Committee. Issues [46] The way in which the appellant has framed her grounds of appeal does not easily lend itself to a precise or sequential analysis. Grounds one and four allude to questions of jurisdiction, procedure and natural justice. Grounds two and three target the hearing committee’s treatment of the evidence and whether the committee’s findings were sufficient to support its conclusions of professional competence. Grounds five and six relate to the penalties imposed which are said to be disproportionate, arbitrary and unfair. I will restate what I consider to be the relevant issues on appeal when I analyze the appellant’s submissions beginning at [76] infra. [47] In terms of relief, the appellant asks that the findings be quashed and that we substitute our own decision on disposition and costs on any remaining proper guilty findings. In the alternative she asks that we remit such remaining charges to the hearing committee for disposition, or in the further alternative that we remit the case to a newly constituted hearing committee based on proper charges. Standard of Review [48] The parties are not in agreement as to the standard of review we ought to apply in this appeal. First, with regard to the alleged errors relating to breach of procedural fairness and natural justice, the appellant says the hearing committee was obliged to ensure that the requirements of natural justice were met, and that its failure to do so is enough to warrant our intervention. Second, the appellant says that most of the remaining issues relate to rules of evidence; the legal standard for proof of incompetence; and public policy considerations related to the imposition of penalties said to be disproportionate to the offences committed. The appellant says these are questions of law and must attract a standard of correctness. Finally, the appellant says that only her fifth ground of appeal concerning the quantum of costs imposed attracts a standard of reasonableness, as informed by the leading jurisprudence on matters relating to professional discipline. [49] I prefer the standard of review analysis proposed by the respondent. It seems to me that the appellant has attempted to cast practically all of her complaints as questions of law which, she says, trigger an assessment based on correctness. I do not accept the appellant’s classification of the impugned findings or conclusions of the hearing committee. In any event, not all questions of law require a correctness standard on judicial review. See for example Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77; as well as Dunsmuir, and Creager, infra. [50] Choosing the appropriate standard will depend on how one characterizes the question or the issue in dispute. In this case different aspects of the hearing committee’s decision will invite different standards of review. C.R. Falkenham Backhoe Services Ltd. v. Nova Scotia (Human Rights Board of Inquiry), 2008 NSCA 38, at ¶ 19. [51] Since the decision of the Supreme Court of Canada in New Brunswick (Board of Management) v. Dunsmuir [2008] 1 S.C.R. 190, the principles of which were most recently revisited by the Court in Canada (Citizenship and Immigration) v. Khoza, 2009 SCC 12, there are now only two standards of review applicable to the decisions of administrative tribunals: correctness and reasonableness. Abandoning its customary model used to gauge the bandwidth of appropriate judicial deference as being “too difficult to apply to justify its retention,” the Court has adopted a framework referred to as the “standard of review analysis.” [52] The Supreme Court explained the steps to be followed in conducting such an analysis: [62] In summary, the process of judicial review involves two steps. First, courts ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question. Second, where the first inquiry proves unfruitful, courts must proceed to an analysis of the factors making it possible to identify the proper standard of review. . . . [64] The analysis must be contextual. As mentioned above, it is dependent on the application of a number of relevant factors, including: (1) the presence or absence of a privative clause; (2) the purpose of the tribunal as determined by interpretation of enabling legislation; (3) the nature of the question at issue, and; (4) the expertise of the tribunal. In many cases, it will not be necessary to consider all of the factors, as some of them may be determinative in the application of the reasonableness standard in a specific case. [53] The Court provided a working definition for “reasonableness” at ¶ 47: 47 . . . Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision‑making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [54] The Court went on to define “correctness” as: 50 . . . When applying the correctness standard, a reviewing court will not show deference to the decision maker's reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer. From the outset, the court must ask whether the tribunal's decision was correct. [55] Dunsmuir explains that the reasonableness of a tribunal’s decision must be tested from two perspectives: the first deals with transparency in the sense that the tribunal’s reasoning path must be apparent; the second deals with outcomes, in other words whether the conclusion fits within a tolerance or “margin of appreciation” accorded the tribunal. In this case there is no challenge to the first aspect, that being the transparency or intelligibility of the hearing committee’s decision-making process. We are able to restrict our inquiry to whether the committee’s findings and conclusions fall within a range of possible, acceptable outcomes which are factually and legally defensible. [56] Dunsmuir tells us that an exhaustive inquiry may not be necessary in every case in order to decide the appropriate standard of review. Existing jurisprudence may be helpful in characterizing the nature of the question under scrutiny and which of the two standards ought to be applied. [57] I am satisfied that the leading jurisprudence has already satisfactorily resolved the degree of deference to be accorded the principal issues in dispute in this case. [58] In Provincial Dental Board of Nova Scotia v. Dr. Clive Creager, (2005) NSCA 9, which of course was a pre-Dunsmuir decision, Justice Fichaud analyzed the standard to be invoked in a case where disciplinary proceedings had been taken against a dentist. Most recently, the correct methodology to be applied in such circumstances was addressed by Murphy, J. (ex officio) for this court in Hills v. Nova Scotia (Provincial Dental Board), 2009 NSCA 13. I need not repeat what was canvassed so thoroughly in both of those cases. Rather, I simply intend to briefly describe how the approach taken in those and similar cases would suggest a corresponding outcome here in disciplinary proceedings taken against an emergency room physician. [59] In my opinion, once the presence or absence of a privative clause, the purpose of this tribunal, and the expertise of this tribunal are all taken into account, the necessary review analysis concerning most of the issues decided by the hearing committee investigating Dr. Osif’s conduct warrant the application of a reasonableness standard. [60] I will now explain my approach by briefly considering each of the requisite factors as informed by the current leading authorities. (i) Privative Clause [61] There is no privative clause in the Medical Act. However, the right of appeal is circumscribed in that it is restricted to questions of law only. Section 68(1) provides: The member or associate member complained against may appeal on any point of law from the findings of the Hearing Committee to the Nova Scotia Court of Appeal. [62] The absence of a privative clause is not in itself determinative of the standard of review. As the Court observed in Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 at ¶ 29: . . . as Bastarache J. noted in Pushpanathan, supra, at para. 30: "The absence of a privative clause does not imply a high standard of scrutiny, where other factors bespeak a low standard." The specialization of duties intended by the legislature may warrant deference notwithstanding the absence of a privative clause . . . (ii) Purpose of the Tribunal [63] The second factor to be considered in applying the standard of review analysis is the purpose of the tribunal as determined by an interpretation of its enabling legislation. As noted by the Court in Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226 at ¶ 30-31. 30 . . . As a general principle, increased deference is called for where legislation is intended to resolve and balance competing policy objectives or the interests of various constituencies: . . . 31 A statutory purpose that requires a tribunal to select from a range of remedial choices or administrative responses, is concerned with the protection of the public, engages policy issues, or involves the balancing of multiple sets of interests or considerations will demand greater deference from a reviewing court: see Pezim, supra, and Southam, supra. . . . [64] In considering the purpose of the legislation in Dunsmuir, the Court concluded that where the legislative purpose offered an alternative to a judicial determination of the issues, it supported a more deferential approach to the decisions of the tribunal, thereby suggesting a reasonableness standard of review. [65] In Ryan, supra, the Court found that a major objective of the statute in that case was to create a self-regulating professional body with the authority to set and maintain professional standards of practice, which then enabled the Law Society to fulfill its principal role of protecting the interests of the public. The Court said that this purpose, when taken into account with the other factors under analysis, invoked the more deferential standard of review of reasonableness. [66] In this case the legislative purpose of the Medical Act is set out in its objects clause: In order that the public interest may be served and protected, the objects of the College are to: (a) regulate the practice of medicine and govern its members in accordance with this Act and Regulations; (b) establish, maintain, and develop standards of knowledge and skill among its members; (c) establish, maintain and develop standards of qualification and practice for the practice of medicine; (d) establish, maintain and develop standards of professional ethics among its members; and (e) administer this Act and perform such other duties and exercise such other powers as are imposed or conferred on the College by or under the Act. [67] The Act goes on to set out legislative provisions for the conduct of investigations and for the holding of hearings on issues of professional misconduct, conduct unbecoming a medial practitioner or professional incompetence. [68] The hearing committee is given specific authority to render a disposition “as it considers appropriate in accordance with the objects of this Act.” [69] The Medical Act invests a hearing committee with a broad discretion to act in accordance with the objects of the legislation. Such a mandate engages important policy issues and implicitly evokes a considerable level of deference. Based on my analysis of such cases as Dunsmuir, Ryan, Creager and Hills, I believe the legislative purpose of the Medical Act supports a standard of review of reasonableness. (iii) Expertise [70] The next step in the Dunsmuir analysis calls for an evaluation of the expertise of the tribunal. Expertise is a relative term and must always be considered in the context of the specific question under review. See, for example, Dr. Q., supra, at ¶ 28. [71] In Ryan, at ¶ 31 the Court held: Practising lawyers are uniquely positioned to identify professional misconduct and to appreciate its severity (see Pearlman v. Manitoba Law Society Judicial Committee, [1991] 2 S.C.R. 869 at p. 890). [72] The Court went on to note at ¶ 32 that: . . . lay persons may be in a better position to understand how particular forms of conduct and choice of sanctions would affect the general public’s perception of the profession and confidence in the administration of justice. [73] In Dhawan v. College of Physicians and Surgeons of Nova Scotia, [1998] N.S.J. No. 170, this court considered the composition of a committee similarly constituted as the hearing committee in this case. In both matters the committee was comprised of three physicians and two non-physicians. This court stated: [11] . . . it is useful to keep in mind that deference is owed towards decisions of discipline bodies of self governing professions. As Cory, J. noted in Re Milstein v. College of Pharmacy, et al. (No. 2) (1976), 13 O.R. (2d) 700 (H.C.) at 707: ... The power of self‑discipline perpetuated in the enabling legislation must be based on the principle that members of the profession are uniquely and best qualified to establish the standards of professional conduct ... [12] In Pearlman v. Manitoba Law Society, [1991] 6 W.W.R. 289 (S.C.C.), Iacobucci, J. for the Supreme Court of Canada at p. 297 quoted with approval the statement in Law Society of Manitoba v. Savino (1983), 1 D.L.R. (4th) 285 (Man.C.A.) that no one was better qualified to say what constitutes professional conduct than a group of practicing barristers who are themselves subject to the rules established by their governing body. [13] I am not prepared to consider this principle inapplicable to the deliberations of the Committee here simply because two of its members out of five were not medical doctors. The Legislature, in its wisdom, has provided for the appointment to committees of persons other than medical doctors. Such persons constituted a minority of the Committee. The principle approved by Iacobucci, J. should still be the general approach where, as here, the majority of the members of a panel belong to the profession whose member is in judgment before it. [74] In Creager, supra, at ¶ 17 we said that because that tribunal was composed of professional peers, such individuals were more expert than members of the court in matters related to standards of professional conduct. [75] The remaining contextual factor from Dunsmuir is the nature of the question at issue. I will consider this feature in the analysis which follows. From all of this I am satisfied that a reasonableness standard is the appropriate measure to gauge most of the impugned issues in this case. Restatement of the Issues [76] For convenience I prefer to modify the substance and sequence of the several grounds of appeal advanced by the appellant, and present them instead as six discrete issues. Then I will identify what I consider to be the proper standard of review for each one. [77] I would distill the host of complaints and errors alleged by the appellant to the following six issues: Issue # 1 Admissibility of evidence and inclusion of charges based on such evidence Issue # 2 Misapprehension of relevant evidence relating to credibility Issue # 3 Sufficiency of evidence to establish professional incompetence Issue # 4 Allowing charges based on a compulsory assessment Issue # 5 Costs Issue # 6 Penalty. [78] While I acknowledge that in the administrative law context a tribunal may develop its own procedures as to admissibility without the recognized strictures found in the judicial rules of evidence, whereas issues # 1 and # 4 principally involve specific questions of law and concurrent issues involving breaches of natural justice or procedural fairness, I will apply a standard of correctness. The law is clear that issues of procedural fairness do not involve any deferential standard of review. [79] By contrast, based on the contextual factors set out in Dunsmuir, and as explored in such cases as Dr. Q., Ryan, Creager, and Hills, issues # 2, # 3, # 5 and # 6 will be reviewed on a deferential standard of reasonableness. Issue # 1 Admissibility of Evidence and Inclusion of Charges Based on such Evidence [80] The question here is whether the hearing committee was correct in admitting the evidence of Dr. Ross and Dr. MacLeod both through their testimony and through their written reports, and whether the hearing committee was correct to make findings based on charges arising from such evidence. [81] In considering the question of admissibility, the provisions of the Medical Act provide the starting point. Section 66(2)(a) of the Medical Act provides: A hearing committee shall hear each case in such manner as it deems fit. [82] Administrative tribunals are not restricted by the rules of evidence applicable to court proceedings. In many ways, administrative tribunals are the masters of their own procedures. Prassad v. Canada (Minister of Employment and Immigration), [1989] 1 S.C.R. 560 at ¶ 16. Administrative tribunals may receive evidence of doubtful relevance and admissibility. Questions of admissibility and weight can be decided in deliberations after the hearing is complete, as was the decision of the hearing committee in this case. Kelly v. Nova Scotia Police Commission, 2006 NSCA 27 at ¶ 36-37, and 74. [83] The evidence of Dr. MacLeod and Dr. Ross will be considered separately. Testimony and Report of Dr. MacLeod [84] It will be recalled that Dr. Bruce MacLeod was retained by the investigation committee to provide a review of certain charts found in the complaint file. For this purpose Dr. MacLeod was given the modified complaint file summary, Dr. Osif’s commentary and relevant patient charts. [85] Dr. MacLeod provided the investigation committee with a report of his findings. He subsequently gave evidence on eight of the sub-charges advanced against Dr. Osif in the revised notice of hearing. [86] Prior to the commencement of the hearing in this matter the hearing committee was asked as a preliminary matter to exclude the evidence related to both the chart review conducted by Dr. MacLeod, and the clinical assessment conducted by Dr. Ross (which will be addressed in greater detail later in these reasons). In the preliminary application for exclusion of evidence, counsel for Dr. Osif argued that Dr. Osif had been treated unfairly at the investigative stage on the basis that the complaint file summary and the modified complaint file summary were misleading. [87] On the preliminary application, the hearing committee ruled that it was unable to address the issues on a pre-hearing basis stating: The question of whether or not Dr. Ross or Dr. MacLeod were tainted or unduly influenced by misleading material provided to them could be fully explored in cross-examination. We also believe that we could not make any finding about the Complaint File or Dr. Osif’s comments on the Complaint File without having that file and hearing her evidence. The hearing committee has very considerable scope to determine its own procedure. We are entitled to conduct the hearing as we see fit so long as the process is fair and allows the parties full scope for their rights under the Act. (Merits decision, ¶ 72-73) [88] During testimony at the hearing, Dr. MacLeod confirmed that while he was asked to review the care of the patients named in the modified complaint file summary, he was provided with the corresponding patient charts for each patient named therein. It was on the basis of the actual charts that Dr. MacLeod was asked to, and in fact did, provide his assessment. [89] The hearing committee enumerated several aspects of the modified complaint file summary that were misleading. For example, the committee found that the summary relating to the patient M.S. was misleading as it began with the label “Inappropriate Treatment.” This made it appear that the District Health Authority considered that Dr. Osif’s care of M.S. in 2003 was somehow inappropriate, when in fact the opposite conclusion had been reached. [90] The committee concluded that the provisions of the misleading documents was a failure in the investigative process, but that the question it was obliged to decide was whether it was unfair for Dr. Osif to be required to answer the charges arising out of the M.S. case in proceedings before the hearing committee. [91] Further, a review of the language found in Dr. MacLeod’s report confirms his reliance upon the chart information rather than the modified complaint file summary. Also instructive is Dr. MacLeod’s testimony where he clearly identified the failures of Dr. Osif based on his analysis of the charted medical information, rather than any misleading material he may have received from the College. [92] A further illustration of Dr. MacLeod’s independence and objectivity may be seen in his report with respect to one aspect of the M.S. case. Dr. MacLeod notes: I am unable to comment on the complaint that she told the patient to stop wasting her time. But obviously this would have been inappropriate if said. This comment makes it clear that Dr. MacLeod was not tainted by the content of the modified complaint file summary. He expressly stated that he could not comment on an undocumented allegation. Another illustration of the fact that Dr. MacLeod’s conclusions were based on his independent and objective review of the documented allegations found in the patients’ chart information may be seen with the patient R.M. The evidence presented at the hearing confirms that Dr. MacLeod relied upon the medical chart rather than any information found in the modified complaint file summary. His report documents information from the chart itself, and in both direct and cross-examination Dr. MacLeod confirmed that his focus was on the chart rather than the contents of the complaint file summary. Dr. Osif also gave complete testimony on the matter. [93] I am satisfied that the hearing committee was correct in concluding that in the context of the case as a whole, Dr. Osif had not suffered any prejudice through Dr. MacLeod’s receipt and review of any misleading information provided by the College. Testimony and Report of Dr. Ross [94] It will be recalled that Dr. John Ross was retained by the investigation committee to conduct a clinical assessment of Dr. Osif’s emergency room skills. He enlisted the help of two colleagues (Drs. Howlett and Wren) who added their input to the assessment. Dr. Ross provided the investigation committee with a report on their collective findings, and subsequently gave evidence on five sub-charges advanced against Dr. Osif, as contained in the revised notice of hearing. [95] Here the appellant advances a similar argument. She says that because Dr. Ross received the complaint file summary which contained some inaccurate and misleading information, the assessment he conducted was biased resulting in an unfair process to Dr. Osif. The appellant argues that by failing to exclude Dr. Ross’ testimony and report, and by concluding that certain findings had been established on the basis of Dr. Ross’ report, that the hearing committee erred in law. Dr. Osif says the opportunity to cross-examine the College’s witnesses and point out such procedural defects was not enough to safeguard her interests and professional livelihood. [96] I am not persuaded by the appellant’s submissions. Dr. Osif’s rights to procedural fairness during the hearing were fully met by allowing rigorous cross-examination of Drs. Ross and MacLeod so as to challenge the inaccuracies in the documentation, and to test the independence and objectivity of their evaluations and opinions. A careful reading of Dr. Ross’ report and testimony as well as that of his colleagues, makes it clear that each relied upon personal observations during their actual assessment of Dr. Osif’s emergency room skills. While the hearing committee found that some of the information contained in the complaint file summary was inaccurate and misleading, the lack of reliance placed on this document, as well as the specific personal observations of Drs. Ross and Howlett when viewing Dr. Osif’s performance, establishes the correctness of the hearing committee’s decision to allow charges based on those assessments. [97] Before leaving this issue I wish to address a hearsay-style argument advanced by Dr. Osif in her factum. She argues that the complaint file summary and the modified complaint file summary supplied to Drs. Ross and MacLeod were not necessary to assist them with their inquiries and were, in any event, unreliable. Dr. Osif then concluded that: . . . under the Khan analysis, the Complaint Profile Summary and its condensed version do not meet the principled exception to the rule against the admission of hearsay evidence or evidence based on hearsay. [98] With respect this argument is flawed. Neither the summary nor the modified summary were admitted at the hearing for the truth of their contents. It would appear that the College did not intend to introduce either of these documents at the hearing, and only did so at the direction of the hearing committee to permit the committee to make rulings on their admissibility. In other words, neither document was admitted for the truth of its contents, but rather to allow the committee to assess the admissibility of the evidence of Drs. MacLeod and Ross. Accordingly, Dr. Osif’s hearsay arguments are inapplicable. R. v. Starr, [2000] 2 S.C.R. 144, at ¶ 161-162. [99] In conclusion, I am satisfied the hearing committee was correct in not excluding charges based upon the evidence and reports of Dr. Ross and Dr. MacLeod. Dr. Osif’s rights to procedural fairness were not infringed. [100] Before turning to the next issue I wish to make a more general comment about what lies at the heart of the appellant’s appeal. Underlying practically all of the appellant’s submissions is the overarching complaint that the physicians who were engaged by the College to review Dr. Osif’s work were supplied inaccurate and misleading information such that the hearing committee was wrong to admit any of this “tainted” evidence and further erred in law in permitting charges to proceed against Dr. Osif based upon such evidence. [101] Herein lies the appellant’s difficulty. We are not a court of first instance. The case has already been tried and decided by the hearing committee. Our limited role is to review for error. It is not the function of this court to retry the case or substitute our view of the evidence for the findings and conclusions of the hearing committee. It seemed to me that many of the appellant’s submissions amounted to complaints about the hearing committee’s factual findings and inferences under the guise of alleged legal errors. With respect, such an approach misapprehends the role of this court. [102] Counsel for Dr. Osif was right to forcefully challenge the manner in which this impugned evidence was gathered, characterized and distributed, and to carefully probe the effect such dissemination may have had on the objectivity of those physicians who were engaged to evaluate Dr. Osif’s performance. Each of these claimed flaws were pursued with commendable vigor, precision and tenacity. However, the question before us is whether the hearing committee was alive to those significant issues, and correct in disposing of them. [103] In this I have no hesitation in saying the hearing committee was right. The hearing committee in this case was comprised of five persons, three of them physicians, all under the chairmanship of Raymond Larkin, Q.C. The committee’s decisions both on the merits and on penalty set an exemplary standard. The committee’s comprehensive reasons reflect a clear understanding of the issues, a careful assessment of the evidence, a proper application of the law to the facts as found, and an effective management of the proceedings to ensure fairness throughout. The work and diligence of this committee – through its chairman – might be seen as a harbinger for the caliber of decision-making one anticipates from disciplinary bodies, or administrative tribunals generally. [104] Let me offer two illustrations to make my point. A reading of the committee’s detailed decision on the merits, for example the appellant’s challenge concerning Dr. MacLeod’s investigation of the matter relating to M.S., amply demonstrates the committee’s acceptance of Dr. Osif’s submission that some of the information supplied by the College was misleading. That said, the issue before the hearing committee was, in the committee’s words: 175. . . . The question that we need to decide is whether this failure in the investigation process makes it unfair for Dr. Osif to be required to answer the charges arising out of the M.S. case in this hearing. 176. The Hearing Committee has concluded that despite the misleading nature of the documents provided to Dr. MacLeod, the hearing before us was a fair hearing in which Dr. Osif had a complete opportunity to answer the charges related to the M.S. matter. 177. Furthermore, we find that Dr. MacLeod was not actually misled by the documents relating to M.S. that were presented to him. His report on the M.S. case relies on the medical records. His reasoning and conclusions appear to us to be based on the medical records not on the Complaint File Summary. 178. In his report, Dr. MacLeod does make one comment which referred to the Complaint File Summary. He says “I am unable to comment on the complaint that she told the patient to stop wasting her time, but obviously this would have been appropriate if said.” In our view, Dr. MacLeod was not tainted by the misleading comment because he expressly did not rely on an undocumented allegation. 179. Dr. MacLeod did, however appear to be influenced to some degree by Dr. Osif’s comments on the Complaint File. In the last paragraph of his report on M.S. he states as follows: “... Of somewhat more concern is Dr. Osif’s dismissal that this occurred because of unavailability of patient beds. Had she explained that this was a complex patient with vague complaints, I may well have felt that she did meet the standard of care.” This gave rise to the charge against Dr. Osif that she gave an inappropriate response to an assessor from the College. As will be seen later in this decision, we have rejected that charge against Dr. Osif. 180. Despite any influence on Dr. MacLeod’s written report, we conclude that this has not produced any procedural or substantive unfairness in this hearing. Dr. MacLeod was subject to cross-examination on this point. Additional evidence was put to him that had not been provided when he did his written report. He answered the questions put to him in a straightforward manner conceding points where he had insufficient facts when he prepared his written report. Dr. Osif testified about the circumstances of writing her comments. The Committee has decided not to put any weight on statements that she made in her comments on the Complaint file. We were able to assess the evidence that she gave at the hearing and draw our conclusions without being influenced by her comments on the Complaint File or by Dr. MacLeod’s reference to them. 181. Looking at Dr. MacLeod’s evidence as a whole, it does not appear to us that he was misled to any significant degree by the materials provided to him and that, in the context of the case as a whole, Dr. Osif has suffered any prejudice in respect of the M.S. case. It is worth noting that Dr. MacLeod and Dr. Sutton did not disagree significantly on the points in which we have concluded that Dr. Osif did not provide adequate care to M.S. We had the advantage of cross-examination of both physicians, the evidence of K.S. and of Dr. Osif herself. Our conclusions have not been affected by any irregularity in the investigation process. 182. Accordingly, we see no basis to dismiss the charges against Dr. Osif which have been proved by the College and which relate to M.S. [105] A similarly thorough assessment is seen in the hearing committee’s treatment of the matter relating to R.M. I quote from ¶ 213 - 219 of the committee’s decision on the merits. 213. The Hearing Committee finds that Dr. Osif failed to demonstrate adequate skill and care on May 29, 2006 during the emergency room management of R.M. by failing to perform an immediate and effective reduction, and failing to provide appropriate pain management. 214. The Hearing Committee also concludes that the provision of the modified Complaint File Summary and Dr. Osif’s comments on the complaint file to Dr. MacLeod did not prejudice her in these circumstances or deny her a fair hearing before us. 215. We agree that the entry in the Complaint File Summary is misleading. It states as follows: “CBR R.M. 20-May-06 Inappropriate treatment. Patient arrived at ER from NSG with greater amount of pain than before splint applied to right ankle by Dr. S. Transferred with dislocated fracture and vascular compromise. RN feels Dr. Osif should have waited for swelling to go down before applying splint.” 216. Dr. Macleod does not appear to have been misled by this document. In his report and in his evidence Dr. MacLeod relied on the information in the chart at the Northside General Emergency Room, and at the Cape Breton Regional. He expressly rejected the comment in the Complaint File Summary that an RN felt that Dr. Osif should have waited for the swelling to go down before applying a splint. He was subject to cross-examination, and was cross-examined on the basis for his opinion on the treatment of R.M. He gave his evidence in a manner that was clear and objective. We have no reason to conclude that Dr. MacLeod was misled or influenced by the Complaint File Summary. 217. Dr. Osif had the opportunity to give evidence related to R.M. and did so and was able to present Dr. Sutton as an expert witness on the point. In the circumstances, regardless of whether the entry on the modified Complaint File Summary was misleading, it did not deny Dr. Osif a full and fair opportunity to respond to the charges against her, and did not affect the substance of Dr. MacLeod’s testimony. 218. Likewise, the entry in Dr. Osif’s comments on the Complaint File relating to R.M. did not mislead Dr. MacLeod. His report and his evidence were an objective analysis of the material on the chart, and he was subjected to cross-examination on this point. Dr. Osif had the opportunity to present evidence before us. We put no weight on Dr. Osif’s comments on the Complaint File in light of the circumstances in which they were produced. We find that Dr. Osif was not prejudiced in this hearing by the College providing his comments on R.M. to Dr. MacLeod. 219. The Committee finds that providing Dr. Osif’s comments to Dr. MacLeod in the circumstances did not deny her a fair hearing before us and that the College has provided clear and convincing proof of Dr. Osif’s failure to demonstrate adequate skill and care of R.M. by failing to perform an immediate and effective reduction and failing to provide appropriate pain management to her. Let me turn now to a consideration of the second issue. Issue # 2 Misapprehension of Relevant Evidence Relating to Credibility [106] Here, the appellant asks us to in effect reverse the findings of credibility made by the hearing committee when it chose to accept the evidence of D.B. over the evidence of Dr. Osif. [107] Assessments of credibility are “quintessentially” questions of fact. Dr. Q., supra, at ¶ 38. [108] This appeal is restricted by s. 68(1) of the Medical Act to “points of law.” [109] In my opinion, in the absence of any statutory authority to appeal on points of fact, we have no jurisdiction to entertain the appellant’s invitation that we reverse the hearing committee’s credibility findings. [110] In any event I am not at all persuaded that any of the hearing committee’s credibility findings were prompted by palpable and overriding error. [111] A reading of the committee’s decision on the merits demonstrates that it was well aware of the requisite standard of proof required in order to determine whether the charges against Dr. Osif had been proven. The committee concluded that the burden was on the respondent to prove its charges against Dr. Osif on the balance of probabilities. Further, the College’s proof had to be clear and convincing and based on cogent evidence. [112] In her written and her oral submissions the appellant suggested that there was a “higher” standard of civil proof in matters such as this, where the outcome was so serious to the professionally trained individual facing disciplinary proceedings. With respect, the Supreme Court of Canada has explicitly rejected such a notion. There is but one standard of proof. As stated by Rothstein, J. in F.H. v. McDougall, [2008] S.C.J. No. 54 at ¶ 40: 40 . . . I think it is time to say, once and for all in Canada, that there is only one civil standard of proof at common law and that is proof on a balance of probabilities. . . . 46 Similarly, evidence must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test. . . . 49 . . . In all civil cases, the trial judge must scrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged event occurred. [113] In applying this burden of proof, it is clear that the hearing committee analysed the evidence of D.B. and compared it with the evidence of Dr. Osif. The committee’s analysis and comparison was complete, detailed and logical. While not every aspect of the evidence of Dr. Osif and D.B. were mentioned in the hearing committee’s lengthy decision, it need not have done so. As Chief Justice McLachlin recently explained in R. v. R.E.M., 2008 SCC 51 at ¶ 49: While it is useful for a judge to attempt to articulate the reasons for believing a witness and disbelieving another in general or on a particular point, the fact remains that the exercise may not be purely intellectual and may involve factors that are difficult to verbalize. Furthermore, embellishing why a particular witness's evidence is rejected may involve the judge saying unflattering things about the witness; judges may wish to spare the accused who takes the stand to deny the crime, for example, the indignity of not only rejecting his evidence and convicting him, but adding negative comments about his demeanor. In short, assessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization. [114] The hearing committee thoroughly reviewed all of the evidence and summarized its findings as follows: 111. We cannot accept Dr. Osif’s testimony that she conducted a physical examination on A.B. on December 13th. Her accounts of this point are extremely inconsistent in themselves and completely inconsistent with the evidence of D.B. To us, it seems much more probable that D.B.’s account is correct. Her recollection was clear and straightforward. It was consistent with written statements that she made close in time to the event. Her description of the clothes that A.B. was wearing is much more probable than the description of the clothes by Dr. Osif. On the other hand certain aspects of Dr. Osif’s testimony seem unlikely. It would be unusual for a physician to examine an 11 year old child in the absence of their parent. Furthermore, certain aspects of Dr. Osif’s testimony conflict with that of several witnesses. This puts her overall account in doubt. . . . 116. Accordingly, the Hearing Committee accepts the evidence of D.B., and where the evidence of Dr. Osif is inconsistent with the evidence of D.B., rejects Dr. Osif’s evidence. . . . (Decision on the merits) [115] In doing so, the committee referred to the serious inconsistencies within Dr. Osif’s own evidence which provided further support for the committee’s conclusions. The committee found: 108. There are significant inconsistencies between the various accounts given by Dr. Osif of her examination of A.B. on December 13, 2005. In the chart she documents a thorough physical examination including palpation of A.B.’s abdomen. When Dr. Currie first talked to her about D.B.’s complaint to the authority, her response was consistent with the information she had recorded on the chart and she confirmed that she had examined A.B. In her response to the College to D.B.’s complaint, she again reported that she had performed a physical examination “though this might not have been evident for [D.B.] sitting in distance”, indicating that she had examined A.B. in the presence of D.B. 109. In her conversation with Dr. Currie around the same time as her response to the College, she conceded that it was possible that she did not examine the patient. In her direct and cross-examination she attempted to explain this as an attempt to end the conversation with Dr. Currie and get off the phone because he kept asking her whether she examined A.B. 110. In her direct examination and initially in her cross-examination, Dr. Osif claimed that she conducted a physical examination from A.B.’s head to chest when she was interrupted and when she returned to find A.B. alone, she conducted a thorough physical examination of A.B.’s abdomen in the absence of her mother. Later in cross-examination Dr. Osif for the first time described a second physical examination of A.B. and explained this as a effort to demonstrate to D.B. that her daughter had no symptoms of appendicitis. (Decision on the merits) [116] While the committee may not have dealt with every alleged inconsistency in evidence as between Dr. Osif and D.B. (for example, the suggestion by the appellant that if D.B. were complying with hospital policy regarding cell phone use, she could not have been present with her daughter throughout the stay in the emergency room on December 13), it was not necessary for the committee to address each and every individual aspect of the evidence when formulating their conclusions on credibility. See for example F.H. v. McDougall, supra, at ¶ 97 and 100. [117] In the end, as was held in F.H., supra, at ¶ 70, where the decision maker “demonstrates that she is alive to the inconsistencies but still concludes that the witness was nonetheless credible, in the absence of palpable and overriding error, there is no basis for interference by the appellate court.” [118] In summary, I am not persuaded by the appellant’s submissions on this issue. Issue # 3 Sufficiency of Evidence to Establish Professional Incompetence [119] The question of whether certain findings by the hearing committee constitute professional incompetence must be judged on the standard of reasonableness, after giving proper deference to the hearing committee’s findings. [120] Accordingly we would only disturb this committee’s findings of professional incompetence on the part of Dr. Osif, if there were no line of analysis within the committee’s stated reasons that could reasonably have led it to such a conclusion, based on the evidence before it. [121] The hearing committee evaluated Dr. Osif’s competence in five discrete matters or groupings: A.B.; M.S.; the cases related to pharyngitis diagnoses addressed in the Dr. Field audit report; R.M.; and Dr. Ross’ assessment cases. [122] I will quickly consider each of these in turn. [123] Dr. Osif’s care of A.B. has already been mentioned in my discussion of the committee’s credibility findings. After analyzing in detail the evidence of A.B.’s mother, D.B., Deborah Hart, Hannah MacKay, Dr. Tom Currie, Dr. Osif, experts called by both parties, and a significant volume of documentary evidence, the hearing committee accepted the evidence of D.B. where it was inconsistent with the evidence of Dr. Osif. From this evidence the committee was satisfied that Dr. Osif failed to take an appropriate history or to perform a physical examination; misread the urinalysis and came to a diagnosis of urinary tract infection; failed to refer the patient to an appropriate expert or to establish proper follow-up management; and failed to respond to reasonable concerns raised by a family member. The committee concluded that these findings established a failure to provide adequate skill and care. [124] By analyzing the evidence around history taking, the lack of physical exam, the misreading of the urinalysis, the wrong diagnosis, the failure to refer to an appropriate expert and to establish proper follow up management, together with all of the other findings of the hearing committee surrounding Dr. Osif’s care of A.B., the hearing committee adopted a clear line of analysis that could reasonably lead it to its conclusions. Accordingly, these particular findings meet the appropriate standard of review and should not be disturbed. [125] Dealing with the matter involving patient M.S., the committee assessed the testimony of the daughter of M.S., who was in attendance with him on the occasions he was seen by Dr. Osif. The committee reviewed detailed chart information and the evidence of expert witnesses called on behalf of both parties. The committee found that Dr. Osif reached an unsupported diagnosis of otitis and pharyngitis, failed to perform a complete neurological exam and failed to follow up adequately with M.S.’s family doctor as a result of his June 15 visit to the ER. After making these findings, the committee concluded Dr. Osif failed to demonstrate adequate skill and care during the emergency room management of M.S. on June 15, 2003. Once again, there was a clear line of analysis leading the hearing committee to its conclusions. [126] In making its findings with respect to patient M.S., the hearing committee made a credibility finding and determined that it was not able to accept Dr. Osif’s evidence where it conflicted with the evidence of M.S.’s daughter. [127] With respect to Dr. Osif’s care of M.S. on June 23, 2003, the committee once again analysed the medical chart, heard testimony from M.S.’s daughter, and heard the evidence of expert witnesses called on behalf of both parties. After doing so the hearing committee found that Dr. Osif had failed to conduct an appropriate medical examination including a complete neurological exam, failed to order x-rays and generally failed to take seriously the reasonable concerns of M.S.’s daughter. The committee further concluded that Dr. Osif had failed to communicate with the daughter in an effective or courteous manner by not appropriately responding to her concerns. On the basis of such findings the committee then concluded that Dr. Osif had failed to demonstrate adequate skill and care during the emergency room management of M.S. on June 23, 2003. [128] Once again, a clear line of analysis appears within the reasons of the hearing committee that reasonably led to its conclusions based on the evidence. [129] The hearing committee concluded that the charges related to M.S. demonstrated a “pattern of carelessness by Dr. Osif.” These conclusions find ample support in the record and the committee’s reasons and should not be disturbed. [130] I turn next to the cases related to pharyngitis diagnoses addressed in the Dr. Field audit report. After reviewing the chart audit prepared by Dr. Field, the supporting chart documents, the evidence from Dr. Field and the evidence of Dr. Osif and an expert called on her behalf, the hearing committee concluded that with respect to seven different patients Dr. Osif failed to conduct an appropriate assessment or have sufficient evidence available before reaching a diagnosis. [131] The committee then concluded that these findings were part of the “pattern of carelessness” by Dr. Osif. [132] Here too I find that the hearing committee’s conclusions satisfy a reasonableness standard of review and ought not to be disturbed. [133] The hearing committee then considered the matter relating to patient R.M. The committee reviewed this patient’s chart, and heard the evidence of experts called on behalf of both parties before concluding that the College had provided clear and convincing proof of Dr. Osif’s failure to demonstrate adequate skill and care by not performing an immediate and effective reduction and by failing to provide her with appropriate pain management. The committee then concluded that these findings again constituted part of the “pattern of carelessness by Dr. Osif.” [134] An analysis of the hearing committee’s reasoning shows that the committee examined certain inconsistencies with respect to whether or not patient R.M. had a pulse in her right foot, and fully considered the evidence of Drs. Sutton and MacLeod. [135] In reaching its conclusions, the committee did not accept Dr. Osif’s evidence and relied on the chart as an accurate record of her examination of patient R.M. [136] To underscore the soundness of the hearing committee’s reasoning in this matter, the committee went on in its decision to say that even if it accepted Dr. Osif’s evidence about R.M.’s pulse, “the gross nature of the injury in this case, in R.M. required at least an attempt to reduce the dislocated ankle ... .” The inclusion of this type of statement in the hearing committee’s decision strongly reinforces the line of analysis that logically led to the conclusion that Dr. Osif failed to demonstrate adequate skill and care with respect to the emergency room management of R.M. [137] Finally, the committee considered the evidence related to Dr. Ross’ assessment cases. The committee heard from Dr. Ross and Dr. Howlett, both of whom were involved in the clinical assessment of Dr. Osif ordered by the investigative committee of the College. The committee reviewed the charts of the patients seen by Dr. Osif, heard from Dr. Osif, and heard evidence of an expert called on behalf of Dr. Osif. [138] The hearing committee made specific adverse findings against Dr. Osif with respect to patients W.P., A.D., B.S. and E.B. The hearing committee went through a detailed analysis of the charts and comments of the assessors who observed Dr. Osif. In each instance, where there were inconsistencies in the evidence of the assessor and the evidence of Dr. Osif, the hearing committee accepted the evidence of the assessor, explaining its rationale for doing so. [139] In making its findings on credibility, it is obvious that the committee paid particular attention to the evidence of each witness. In one instance where the hearing committee ultimately determined that the charge against Dr. Osif should be dismissed, the committee nonetheless made the following comments relevant to credibility: 288. . . . Dr. Ross was conducting an assessment to measure the clinical competence of Dr. Osif and testified very clearly and in some detail about their interaction with this patient. He gave his evidence in a very fair manner, we found him straightforward and credible. Even though we do not accept the charge against Dr. Osif, the evidence of Dr. Ross is much more consistent with the overall circumstances than Dr. Osif’s bare denial. [140] After going through the detailed analysis described above with respect to each of these negative assessments, the committee then considered whether such findings constituted “incompetence.” After observing that there was no definition of “incompetence” in the Medical Act, the hearing committee held: 44. As to the meaning of “professional incompetence”, there was no real disagreement by counsel that proof of professional incompetence requires evidence of a pattern of carelessness rather than simply an isolated incident. Where there is a pattern of incidents which taken together show inadequate skill knowledge or judgment, that may indicate professional incompetence. Whether it constitutes professional incompetence is a matter of judgment by Dr. Osif’s peers who are the majority of this Hearing Committee, together with the Chair and the lay member, applying the standards of the medical profession to the evidence. [141] The hearing committee then embarked on an analysis as to whether its findings with respect to patients A.B., M.S., the pharyngitis cases, patient R.M. and the Dr. Ross assessment cases constituted such a pattern of carelessness as to constitute professional incompetence. It can be seen that the hearing committee considered the weight of each of its specific findings of want of care provided by Dr. Osif. For example, the committee specifically excluded Dr. Osif’s deficiencies in inappropriately ordering or failing to order first line antibiotics in the pharyngitis cases, from its finding of incompetence. The committee was not convinced that such shortcomings were “part of a pattern of carelessness or incompetence,” when compared to her peers. [142] The committee then assessed the traits common to all the episodes and concluded that Dr. Osif was shown to arrive at a diagnosis too quickly without an adequate history or examination; failed to consider the appropriate diagnosis and made diagnoses not substantiated by the patients’ charts. By identifying these themes of concern with Dr. Osif’s care, it is clear that the hearing committee set out to develop a proper line of reasoning with respect to each of the reviewed patients and only then concluded that an overall pattern of carelessness sufficient to constitute incompetence, had been established. [143] The pattern of carelessness was found to have occurred over a period between 2003 and 2007 and was sufficient to constitute professional incompetence. [144] The committee’s findings of incompetence were not outside the boundaries of reasonableness and should not be disturbed. [145] Before leaving this issue I wish to address the appellant’s complaint that the College failed to identify the alleged acts of incompetence within a reasonable time of their occurrence. I see no merit to the appellant’s submission. The College acts as the Regulator of the appellant’s profession. Its regulatory duties are not constrained by statutory time limits when dealing with complaints. Section 51 of the Medical Act provides explicit authority for disciplinary committees to investigate any matters, without reference to the time of their occurrence: A person or disciplinary committee investigating a disciplinary matter concerning the member or associate member may investigate any other disciplinary matter concerning the member or associate member that arises in the course of the investigation. [146] In any event, there is no suggestion in the present case that the College did not bring forward the incidents relating to the care of A.B., M.S., R.M., the pharyngitis cases and the Dr. Ross cases, within a reasonable time of the College’s receipt of this information. [147] For all of these reasons I would dismiss the appellant’s submissions on this issue. Issue # 4 Allowing Charges Based on a Compulsory Assessment [148] Dr. Osif argues that the requirement for her to attend the assessment conducted by Dr. Ross without knowledge or advice that such an assessment could form the basis for subsequent charges, (a) amounted to a violation of her Section 7 “liberty” rights under the Charter of Rights and Freedoms; and (b) violated the rules of procedural fairness. [149] Given the nature of the issues raised by the appellant I will review the hearing committee’s decision on a standard of correctness. [150] I will start with the appellant’s Charter argument. Charter Argument [151] Section 7 of the Charter states: Everyone has the right to life, liberty and security of the person and has the right not to be deprived thereof except in accordance with the principles of fundamental justice. [152] To find a violation of Section 7 requires a two step analysis: first, there must be a deprivation of the right to “life, liberty and security of the person” and, secondly, that deprivation must be contrary to the principles of fundamental justice. R. v. Beare, [1988] 2 S.C.R. 387. [153] As to the first part of the test, the facts of this case invite an inquiry as to whether the Section 7 protection of “life, liberty and security of the person” arises in the context of the right to practise one’s profession. [154] A review of the leading jurisprudence leads me to conclude that the rights encompassed by Section 7 do not extend to protect the ability to pursue one’s employment or profession. [155] Contrary to the appellant’s submissions I do not view Ruffo v. Conseil de la Magistrature, [1995] 4 S.C.R. 267 as authority for the proposition that the Supreme Court has taken “for granted” that the right to practice one’s profession enjoys Section 7 protection. Ruffo makes no definitive finding that the right to practice one’s profession enjoys Section 7 protection. Rather, Ruffo focuses on the right to be tried by an independent and impartial tribunal, and is silent on the point with respect to whether the “liberty” interest of a member of a profession is engaged in the context of Section 7. [156] In Pearlman v. Manitoba Law Society Judicial Committee, [1981] 6 W.W.R 289 the Court did not find it necessary to decide whether the right to practise the legal profession was embraced within the meaning of right to life, liberty and security of the person. The Court found that even assuming without deciding that there had been a deprivation of the Section 7 interest, such a violation did not contravene the principles of natural justice. [157] The decision of the British Columbia Court of appeal in Waldman v. The Medical Services Commission of British Columbia (1997), 150 D.L.R. (4th) 405 affirmed (1999), 177 D.L.R. (4th) 321 (BCCA) is instructive. The trial decision in Waldman provides a detailed discussion of the applicability of Section 7 in the context of the right to practice one’s profession. There, Levine, J. (as she then was) focussed on the comments of Lamer, J. (as he then was) in Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123 (“Soliciting Reference”), wherein Justice Lamer concluded “the rights under Section 7 do not extend to the right to exercise their chosen profession.” The profession in question in the Soliciting Reference case was of course that of prostitution. [158] As noted in the trial decision in Waldman, Lamer, J.’s views as to the scope of Section 7 have been adopted by various courts of appeal in other cases. For example, in Walker v. Prince Edward Island (1993), 107 D.L.R. (4th) 69, the P.E.I. Court of Appeal stated at page 78: . . . as Lamer J. points out in Reference re: ss. 193 and 195.1(1)(c) of the Criminal Code, supra, at p. 102, the restrictions on liberty that s. 7 is concerned with are those that occur as a result of an individual's interaction with the justice system and its administration. He goes on to state at p. 107 that the rights under s. 7 do not extend to the right to exercise a chosen profession. The trial judge dismissed the statement by Lamer J. because the profession under consideration in that case was prostitution. However, I believe his words apply equally to the accounting or any other profession. . . . [159] The Supreme Court affirmed the decision of the P.E.I. Court of Appeal in Walker, with very brief reasons, stating in Walker v. Prince Edward Island, [1995] 2 S.C.R. 407: In light of our previous decisions as regards ss. 2(b), 6 and 7 of the Canadian Charter of Rights and Freedoms, we are all of the view that there has been no restriction to those rights in this case. . . . [160] After considering these and other leading cases on the applicability of Section 7 to the right to practice a profession, Justice Levine in Waldman concluded at ¶ 293: The comments of Lamer J. in the Soliciting Reference, the decisions of courts of appeal of other provinces and of the Federal Court of Appeal, the affirmation by the Supreme Court of Canada of the decision of the Prince Edward Island Court of Appeal in Walker and the decisions of our Court of Appeal and my colleague Mr. Justice Melnick all persuade me that the weight of authority, since Wilson, is that section 7 does not protect the right of a person to practise a profession. The facts in Wilson and in this case are virtually indistinguishable. In my view, the Supreme Court of Canada, by adopting the reasoning of the Prince Edward Island Court of Appeal in Walker, has effectively overruled Wilson. The result is that section 7 has no application in this case. [161] On appeal, Waldman et al, at 1999 BCCA 508, Hall, J.A., writing for the British Columbia Court of Appeal dismissed the appeal in the context of mobility rights enshrined in Section 6 of the Charter, but went on to say this with respect to the applicability of Section 7: 52 This disposition of the matter as a result of the argument based on s. 6 of the Charter makes it unnecessary to proceed to consider the arguments for invalidity advanced by the respondents under sections 7 and 15 of the Charter. I simply observe that I am not presently disposed to differ from the conclusion the judge reached concerning the applicability of s. 7 of the Charter . . . [162] More recently, while not dealing with the right to practice a profession, the Supreme Court’s decision in Blencoe v. British Columbia (Human Rights Commission), [2000] S.C.J. No. 43, offers guidance on the applicability of Section 7 to administrative proceedings generally. In considering the “liberty” interest protected by Section 7, the Supreme Court quoted from Professor P. W. Hogg’s seminal work, Constitutional Law of Canada, (Loose-leaf ed.) vol. 2, wherein Professor Hogg urged a more cautious approach to the interpretation of Section 7. There, Bastarache, J., writing for the majority at ¶ 53 references Professor Hogg’s caution at p. 44-12: It also requires ... that those terms [liberty and security of the person] be interpreted as excluding economic liberty and economic security; otherwise, property, having been shut out of the front door, would enter by the back. [163] Based on my analysis of these cases I conclude that in terms of the present state of the law, the right to practice one’s profession does not extend to the “liberty” interest protected by Section 7 of the Charter. [164] Alternatively, and assuming without deciding that Dr. Osif’s liberty interest is engaged in the context of the facts before us, I would nonetheless conclude that any deprivation of her liberty arose in accordance with the principles of fundamental justice and the rules of procedural fairness. I will turn to my consideration of the second part of the Beare test now. Fundamental Justice/Procedural Fairness [165] The inquiry here focusses on whether it was fair for the investigation committee to require Dr. Osif to undertake an assessment, the results of which were then used as providing the substance for certain charges filed against her. [166] For the purposes of my review I will treat the concept of “fundamental justice” as equivalent to the appellant’s right to procedural fairness owed to the appellant during the course of these proceedings. [167] While difficult to define, the concept of fundamental justice contemplates a balancing of often competing interests which lie at the very heart of our legal system. Individual rights are juxtaposed with the community’s broader interests. In Rodrigeuz v. British Columbia (Attorney General), [1993] S.C.J. No. 94, Sopinka, J., for the majority, quoted with approval the remarks of McLachlin, J. (as she then was) in Cunningham v. Canada, [1993] 2 S.C.R. 143 where, after finding that the appellant in that case had been deprived of a liberty interest protected by Section 7, she went on to consider whether that deprivation was in accordance with the principles of fundamental justice. The Chief Justice said at pp. 151-52: The principles of fundamental justice are concerned, not only with the interest of the person who claims his liberty has been limited, but with the protection of society. Fundamental justice requires that a fair balance be struck between these interests, both substantively and procedurally . . . In my view the balance struck in this case conforms to this requirement. [168] In Canada the medical profession is self-governing. The right to practice medicine in Nova Scotia is an activity which is regulated by statute. Its regulatory process is assigned to the College of Physicians and Surgeons of Nova Scotia, which is given broad powers under the Act. The College’s discipline authority can lead to anything from suspension to expulsion, so long as necessary procedural safeguards are followed. [169] It is clear from the objects section of the Medical Act (s. 4(3)) that the regulation of the practice of medicine in the public interest is the primary purpose of the Act. [170] By choosing to practice medicine in Nova Scotia, Dr. Osif agreed to be regulated by the College pursuant to the Medical Act. This statute provides for, amongst other things, a disciplinary process where claims of misconduct and incompetence are adjudicated. [171] In the absence of agreement from the physician, the disciplinary process is the only mechanism available to the College to enforce the practice of medicine in the public interest, once a member has been granted a license to practise medicine. The importance of the disciplinary process can not be understated. The investigation committee is granted broad powers to do all things necessary to provide a full and proper investigation of matters that may give rise to findings of misconduct and incompetence. Specifically the investigation committee may require any member who becomes the subject of complaint to engage in examinations, inspections, or audits. The investigation committee is also granted the power to investigate any other matter relevant to the conduct, capacity or fitness of a member subject to a complaint (Subsections 53(5), 53(7), 53(8), & 51(11)). [172] The Medical Act clearly authorized the respondent to order Dr. Osif to engage in an assessment of her practice, following its receipt of a complaint and other material which raised concerns about her professional competence. In considering similar statutory authority in other professions, courts have consistently held that such requirements do not violate principles of fundamental justice. See for example: McPherson v. British Columbia, (1988), 33 B.C.L.R. (2d) 286 para. 43, aff’d [1991] B.C.J. No. 1064; and Charbonneau et al v. College of Physicians and Surgeons of Ontario, [1985] O.J. No. 2673. [173] In my view, the concept of practice reviews and peer assessments are analogous to requiring a clinical assessment of a physician’s skills in the presence of an assessor. The statutory right of the investigation committee to conduct such assessments pursuant to s. 53 of the Medical Act serves as a well recognized and acceptable tool for evaluating a physician’s competence, and one which does not violate the principles of fundamental justice or procedural fairness. [174] Accordingly I am not persuaded that there was any violation of Dr. Osif’s right to fundamental justice when the College exercised its statutory authority under the Medical Act obliging her to complete an assessment conducted by Dr. Ross. [175] Neither am I persuaded by the appellant’s submission that a lack of fairness arose when she was not given notice that the assessment could result in the laying of charges. In my view Dr. Osif knew or ought to have known of the potential use to which the results of her assessment might be put. [176] On January 9, 2007 the College sent a letter to Dr. Ross setting out the parameters of the assessment. Counsel for the appellant was copied with this correspondence. The letter confirmed that Dr. Osif’s counsel had been in discussions with Dr. Ross concerning the upcoming assessment. Further, the letter went on to state: Upon completion of your assessment, the College requests that you prepare your findings in the form of a written report addressed to the College, with a copy to be provided to Dr. Osif and her legal counsel. The report should discuss the methodology of the assessment, the observations of the assessors, and the assessors’ opinion of Dr. Osif’s competence to practice independently or without supervision in an emergency room setting with both adult and pediatric patients. The report prepared by you will be available to both Dr. Osif (and her legal counsel), the College (and their legal counsel), and Committees of the College, for purposes required by the College and its Committees and not for any other purposes. . . . (Underlining mine) [177] The letter establishes that the appellant was well aware that the purpose of the assessment would be to assess her competence to practise medicine. She was advised that the report prepared from the assessment would be made available to the committees of the College, thereby including both the investigation and hearing committees. [178] Dr. Osif was also aware that the assessment was required in the context of the investigation committee’s review of the complaint from D.B., and the other materials received by the College from the Cape Breton District Health Authority. In view of these facts it is difficult to credit the appellant’s assertion that she expected the mandatory assessment would only be used for purposes relating to the original A.B. complaint, or as a teaching or evaluative exercise. [179] Rather than being “conscripted evidence” effectively leading to “self-incrimination” as argued by the appellant, the assessment was based on the exercise of a justified, statutory authority necessary to ensure that the objects of the college were met, and that the public interest was protected. [180] It would lead to an absurd result if the College were prohibited from using the results of its regulatory and investigative work, in subsequent disciplinary proceedings. By choosing to practise medicine in Nova Scotia, the appellant agreed to be bound by the Medical Act as providing the self-regulating statutory regime by which her profession would be governed. The College was obliged to act upon the serious concerns discovered during its assessment and Dr. Osif exercised her rights to fully participate in the process and vigorously defend the charges brought against her. [181] For all of these reasons I would dismiss the appellant’s complaints under this issue. Issue # 5 Costs [182] The appellant says the costs awarded against her are unreasonable and arbitrary. She asks that we vary the award by ordering that no costs be imposed so as to “be commensurate with the outcome of divided success of the parties” or in the alternative award minimal costs to the College. [183] There is no question that very sizable costs were awarded against the appellant. Dr. Osif was ordered to pay $200,000 towards the respondent’s expenses. However, the hearing committee directed that this obligation would be reduced by whatever expenses were incurred by the appellant in completing the required program of re-education and qualification. Further, the hearing committee recommended that the costs be paid over time, on a monthly basis, until any outstanding balance was paid in full. These directives are succinctly stated in the hearing committee’s conclusion on costs: (g) Conclusion on Costs 112. Bearing all of these factors in mind and, subject to a major qualification, the Committee orders Dr. Osif to pay $200,000.00 towards the expenses of the College in this case. The qualification is that this amount will be reduced by the reasonable expenses of Dr. Osif to pay for the cost of successful completion of the program of re-education and assessment required by our disposition of these charges under Section 66. For example, if Dr. Osif spends $100,000.00 on the reasonable costs of a program of high supervision, decreased supervision, assessment and writing of the CCFP exams, the amount of costs that she must pay to the College will be reduced by $100,000.00. 113. Our whole disposition is aimed at allowing Dr. Osif to re-educate herself, to remedy the incompetence demonstrated in this hearing and to show by objective standard that she is able to meet the requirements of a licensed medical practitioner. To the extent that Dr. Osif does this successfully, her costs will be reduced. While, in effect, this requires the College to pay for her remedial program by foregoing costs, we consider it to be in the public interest that Dr. Osif be given the opportunity to remedy her deficiencies and to meet the standards of the medical profession. This will be a costly enterprise for her because she will remain on suspension other than for educational purposes, having already served a long period of administrative suspension pending disposition of these charges. 114. If Dr. Osif does not successfully engage in the program of re-education that we have stipulated or is unsuccessful in meeting the requirements of the CCFP exams the cost order will not be reduced. We acknowledge the financial burden on the College from the investigation and prosecution of the case but, having considered all of the factors discussed above, we believe that a reduction in costs to reflect the expense of successful rehabilitation is warranted in the circumstances of this case. 115. We recommend to the Council of the College that Dr. Osif be required as a condition of licence to pay $2,000.00 per month starting at the end of the month in which her licence is reinstated until the balance of the order for costs is paid in full. We further recommend to the Council that in the event that Dr. Osif does not complete the program of re-education we have ordered under Section 66 or cannot complete the CCFP exams successfully within the two years of this order the costs be made payable forthwith at that time. [184] I see no basis for disturbing the hearing committee’s decision. In my opinion, there is a clear line of analysis within the committee’s stated reasons which could reasonably lead it to its conclusions based on the evidence before it. The committee’s costs award falls within a range of possible acceptable outcomes which are defensible in respect of both the facts and the law. [185] The committee appropriately began its analysis of costs by reviewing the enabling provisions under the Medical Act. Section 67 of the Act gives the hearing committee the discretion to award costs in whole or in part, where costs are broadly defined to include expenses incurred by the College, its Council, its committees, together with honoraria paid to members of the committees and solicitor and client costs and disbursements. [186] The hearing committee noted that it had a wide discretion with respect to the amount of costs to be awarded and that it was obliged to consider whether there were any public interest factors which might deprive the College of reimbursement of some or all of its costs. [187] The committee accepted that the costs of the College were very high. It also accepted that by the very nature of the charges laid against Dr. Osif, a significant investigation and a lengthy hearing were required to prove the claims alleged. [188] The committee chose not to include in the costs potentially awardable against Dr. Osif, the legal fees resulting from time expended with the College’s own experts, and the corresponding disbursements. The committee did this “in an effort to give every possible benefit of the doubt to Dr. Osif, as some of the Hearing Committee’s adverse findings against Dr. Osif arose from a consideration of the evidence of these experts which was intertwined with evidence resulting in dismissal of certain charges.” [189] The committee assessed the degree to which the College was substantially successful in establishing guilt, and it analysed the relative success of the parties respecting various submissions on procedural issues. [190] The committee also went through the exercise of looking at the days of the hearing to roughly estimate the amount of time spent on issues involving any of the College’s experts and the portions of Dr. Osif’s testimony that corresponded to theirs. [191] The committee reviewed all of the expenses submitted by the College totalling approximately $400,000 and then went on to determine the amounts which it considered were reasonable and properly fell within the categories included within the relevant provisions of the Act. [192] After going through this exercise the committee concluded that the actual cost to the College in successfully proving the charges of professional misconduct and incompetence amounted to $265,000, which then became the starting point for the consideration of public interest factors which might reduce the order to pay costs further. [193] The committee referred specifically to this court’s comments in Creager, supra, about the reasonableness of any costs award in cases involving disciplinary proceedings surrounding allegations of professional misconduct. As well, the committee specifically addressed each of the factors enumerated in Jaswal v. Newfoundland Medical Board, [1996] N.J. No. 50 (Nfld. SC-TD). [194] The committee carefully considered the effect of a large order to pay costs on Dr. Osif and referenced the evidence she provided concerning her own financial circumstances when deciding whether any costs award would effectively bar her from practice. [195] After considering all of these factors the committee devised a creative solution to the appellant’s unique situation and awarded costs in the amount of $200,000, which would be reduced by the reasonable expenses incurred by Dr. Osif in fulfilling the remediation requirements ordered by the committee. [196] The hearing committee’s costs decision is largely discretionary and reveals a line of analysis that falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law. The award fits within the margins of reasonableness, thus immune to appellate variation. Issue # 6 Penalty [197] Here the appellant argues that the hearing committee erred “in law” in ordering penalties said to be disproportionate to and not justified by its findings. Dr. Osif says the disposition is excessive and unfit. As already explained, the proper standard of review to be applied when assessing the “penalties” imposed by the hearing committee in this case is a reasonableness standard, and one that ensures a high degree of deference paid to the directives imposed by the committee against her. [198] Dr. Osif complains that the committee imposed a disproportionate penalty in two respects: first, by restricting her from practice in an emergency room; and second, by requiring her to successfully pass the CCFP examination. [199] I am not persuaded by the appellant’s submissions. [200] The committee undertook a principled analysis of its statutory powers and broad discretion with respect to disposition. Guided by text and case authority, and its findings on the merits, the committee considered the possibility of revoking Dr. Osif’s licence, before ultimately concluding that the findings of professional misconduct and incompetence in this case did not justify revocation, where other measures such as re-education, conditions of licence, and restrictions placed on scope of practice would have a reasonable chance of success. [201] The committee then reviewed the overall pattern of carelessness exhibited by Dr. Osif as particularized in considerable detail in its decision on the merits, and emphasized Dr. Osif’s lack of insight as to her quality of care and her deficiencies as a physician. [202] The committee referred to the significant evidence which demonstrated that the appellant should not practice alone. The committee concluded that Dr. Osif should not return to practice in the same circumstances where she had engaged in a pattern of conduct amounting to professional incompetence. The committee did not close the door on the possibility that the appellant might one day return to emergency room practice, but it noted that such an eventuality could only arise after a reasonable period in practice and further time spent in training and re-education. The committee resolved that the appellant’s path back to the requisite level of competence sufficient to function safely in an emergency department should be a gradual one marked by appropriate evaluation and supervision. [203] In this the committee’s conclusion was well within the range of possible acceptable outcomes which would be defensible in respect of the facts and the law. It meets a standard of reasonableness. [204] Before leaving this issue I would reject the appellant’s assertion that the hearing committee “erred in law by transferring to the College its jurisdiction” regarding any renewed application to practice emergency medicine. Section 66(2)(e) of the Medical Act gives the hearing committee explicit authority to impose limitations or restrictions on the member. This is precisely what the committee did when it barred the appellant from engaging in practice in an emergency room setting until she was able to “justify a limited emergency room practice as a family medicine practitioner.” [205] I turn now to the appellant’s complaint that the hearing committee erred by requiring her to successfully pass the CCFP examination. This submission too is without merit. [206] The committee determined that Dr. Osif’s licence to practise medicine should remain suspended, except for the appropriate limited education licence needed to participate in the program of re-education, until she successfully completed the CCFP exams. The committee specifically noted that successfully passing the CCFP exams would demonstrate in an objective manner that a physician meets the requirements of an entry level family physician. [207] The committee had before it extensive evidence concerning the value of the CCFP exams. I believe it was entirely reasonable for the committee to require an objective measure of competence prior to allowing Dr. Osif to return to practice. In this regard the committee recognized the paramountcy of the public interest and said: . . . Given our finding of Dr. Osif’s professional incompetence, protection of the public interest requires that she be able to demonstrate that she is qualified and able to fully meet the requirements of a fully licensed medical practitioner. In our opinion, passing the CCFP exams is the appropriate way to demonstrate her qualifications. The CCFP exams are a standard examination of knowledge and skills in family medicine. If Dr. Osif is unable to pass the CCFP exams we cannot be assured that she has the knowledge and skills required to safely function as a licenced medical practitioner. [208] Finally, I would dismiss the appellant’s suggestion that the requirement for the CCFP exam is tantamount to revocation and that the committee’s disposition should be overturned on that basis. The committee explicitly addressed this notion when it reviewed Dr. Osif’s history and her previous unsuccessful attempts to pass the full series of CCFP exams: While it may be difficult for Dr. Osif to sit the CCFP exams because she lacks confidence in its administration, we think that it is essential that she do so to assure the public that she meets at least the entry level competency expected of a physician in family practice in Nova Scotia. [209] The committee then concluded that with the benefit of the re-education program as required by its decision, the appellant should be greatly assisted in the clinical portion of the exam, and that the written portion was, in any event, a standardized test of what a family physician needed to know to practice competently. [210] I am satisfied that the requirement imposed upon Dr. Osif to successfully complete the CCFP exam follows logically from the evidence, and meets the reasonableness standard of review. Conclusion [211] The initial discipline hearing against Dr. Osif lasted 14 days. The transcript and documentary record is voluminous. The hearing committee’s decision on the merits is 122 pages long. The hearing to consider disposition and costs pursuant to ss. 66 and 67 of the Act took 2 days and the committee’s penalty decision fills an additional 44 pages. The transcript reveals a vigorous and thorough defence of Dr. Osif’s interests, and a completely engaged tribunal whose chair and members were never hesitant to pose their own questions. [212] The hearing committee did not err in law in admitting the evidence of Drs. Ross and MacLeod or in making findings based on charges arising from their evidence. Neither was the appellant denied procedural fairness or fundamental justice throughout the course of these proceedings. None of the hearing committee’s findings, inferences or conclusions were shown to be outside the margins of reasonableness. I am satisfied the hearing committee’s decisions fall within a range of possible, acceptable outcomes which are entirely defensible in respect of the facts and the law. [213] I see nothing in this case which would cause us to depart from our usual practice that generally costs are not payable by or to a party in a tribunal appeal. CPR 90.51. [214] For all of these reasons I would dismiss the appeal but decline to order costs. Saunders, J.A. Concurred in: Bateman, J.A. Fichaud, J.A.