Patient X v. College of Physicians and Surgeons of Nova Scotia

Patient X v. College of Physicians and Surgeons of Nova Scotia Court Supreme Court Date 2013-05-29 Citation 2013 NSSC 165 Docket Hfx 407509 Judge/Registrar/Adjudicator Hood, Suzanne M. (Honourable Justice) Document Type Decision Relations Library Sheet - Patient X v. College of Physicians and Surgeons of Nova Scotia - 2013 NSSC 165 - 2013-05-29 - Library Sheet Decision Content SUPREME COURT OF NOVA SCOTIA Citation: Patient X v. College of Physicians and Surgeons of Nova Scotia, 2013 NSSC 165 Date: 20130529 Docket: Hfx No. 407509 Registry: Halifax Between: Patient X Applicant v. College of Physicians and Surgeons of Nova Scotia Respondent Judge: The Honourable Justice Suzanne M. Hood Heard: April 9, 2013, in Halifax, Nova Scotia Written Decision: May 29, 2013 Counsel: Shawna Hoyte,Q.C.; Simon Turner and Stefan Currie Roberts, for the applicant Marjorie Hickey,Q.C. and Danielle Kershaw, for the respondent Andrew Sowerby, Watching brief for Brian Downie,Q.C., counsel for Dr. Y By the Court: [1] The applicant, Patient X, was referred to a physician, Dr. Y, for a consultation. She alleges that during the consultation, Dr. Y fondled her breasts and made inappropriate racial comments. She complained to the respondent, the College of Physicians and Surgeons of Nova Scotia ("the College"), but Investigation Committee "C" dismissed the applicant's complaint. She now applies to this Court seeking judicial review of that decision. ISSUES [2] 1. Did the Investigation Committee breach the requirements of procedural fairness by failing to let Patient X cross‑examine Dr. Y? 2. Was the decision of the Investigation Committee reasonable? BACKGROUND [3] In April of 2009, Patient X went to see Dr. Y because she was experiencing breathing problems. He asked her to change into an examination gown, which she did, and he proceeded to examine her lungs. [4] This examination was the subject of a complaint that Patient X later made to the College on September 12, 2011. She alleged that: (1) Dr. Y sexually violated her by rubbing her breasts and moving them around during the examination; and (2) Dr. Y made inappropriate remarks by referring to her ethnicity by the word "black" and by negatively comparing her lung size to that of a white person. Although not one of her complaints, she also mentioned that she suffers from post‑traumatic stress disorder ("PTSD"). [5] The complaint was forwarded to Dr. Y by the Investigations Coordinator of the College, and he denied the allegations. Although he did not remember the specifics of his consultation with Patient X, he reconstructed the visit by referring to Patient X's chart, his report of the visit, and his common practice. He said that the examination might have involved incidental contact with Patient X's breasts, but that he has never fondled a patient's breasts. Further, he said his comments about her race were to explain that her breathing test results, which could be interpreted as low, were only low when compared to Caucasian patients of the same sex and build who have, on average, greater lung capacity. He said that when the results were adjusted for her ethnicity, the results were normal and likely not disease‑related. [6] The Investigations Coordinator then afforded Patient X an opportunity to comment on Dr. Y's response. Patient X sent another letter to the College. In it she stated that other doctors had performed the same tests on her and none had required her to undress or touched her breasts the way that Dr. Y had. Finally, she said that his explanation regarding her lung capacity was not engaged in as tactfully as Dr. Y had said. She said that it was more along the lines of: "you're black so your lungs are of lower value." She described again the grave impact this visit has had on her life, causing her to mistrust every physician she now goes to see. [7] Finally, Dr. Y was given another chance to respond, and he did so briefly in a letter. He insisted that his examination was appropriate and ordinary. With regard to the racial comment, he reiterated that Patient X’s ethnicity was directly relevant to his conclusion that her breathing test results were not related to any disease. [8] The Investigations Coordinator forwarded all of this material to Investigation Committee "C". On June 1, 2012, and July 24, 2012, the Committee met to discuss the case and on the second occasion they interviewed both Dr. Y and Patient X. Following that meeting, the Committee dismissed the complaint. [9] The reasons for its decision were sent to the parties on August 20, 2012. With respect to the allegations of sexual abuse, the Committee noted that in examinations of the kind conducted by Dr. Y, contact with a patient's breasts may be unavoidable. It concluded that: "[t]here was no evidence of any sexualized behaviour by Dr. [Y]." [10] It also found that Dr. Y's racial comments were medically appropriate since average lung capacity does vary between ethnicities. With regard to language, the Committee accepted that Patient X prefers the term "African‑Canadian" to describe her ethnicity, but the Committee decided that it was not unprofessional for Dr. Y to have used the word "black." Although the topic is sensitive and words describing ethnicity change, the Committee said that "black" is still an appropriate term, citing as an example "Black History Month.” [11] The Investigation Committee did not comment on whether Dr. Y knew that Patient X had PTSD. [12] It is this decision for which Patient X now seeks judicial review. She says that the failure to permit her to cross‑examine Dr. Y was unfair, and she also states that the reasons given were insufficient to show why her version of events was rejected. Originally, Patient X had also raised an allegation that there was a reasonable apprehension of bias since one of the physicians on the panel had previously treated her, but that issue was withdrawn at the hearing. Issue 1: Cross‑examination of Dr. Y Standard of Review [13] Whether Patient X should have had an opportunity to cross‑examine Dr. Y is an issue of procedural fairness. As noted by Justice Saunders at para.78 of Osif v. College of Physicians and Surgeons of Nova Scotia, 2009 NSCA 28: "[t]he law is clear that issues of procedural fairness do not involve any deferential standard of review." A tribunal must correctly accord to all participants the procedural rights to which each is entitled. Analysis [14] Patient X admits that the statute does not give her any right to cross‑examine Dr. Y, but she submits that such a right arises under a common law duty of fairness. For its part, the College does not contest that the Committee owed Patient X a duty of fairness, but it says it was satisfied in this case without permitting Patient X to cross‑examine Dr. Y. As such, the dispute on this ground is not over the existence of a duty of fairness, but rather its content. [15] In Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, Justice L'Heureux‑Dubé said in para.46 that: “the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case.” [16] She expanded on this in Baker v. Canada (Minister of Citizenship and Immigration), [1999] S.C.J. No. 39 [Baker], where she identified at paras.21‑28 a non‑exhaustive list of five factors that are helpful to consider when deciding the level of procedural fairness that must be accorded to a party. These factors are: (1) the nature of the decision; (2) the nature of the statutory scheme; (3) the significance of the interests; (4) the legitimate expectations of the person challenging the decision; and (5) the previous procedural choices of the administrative decision maker. The overarching requirement, however, is fairness, and those factors are not a rigid formula. As Justice L'Heureux‑Dubé said in para.22: ...underlying all these factors is the notion that the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision‑maker. [17] Still, the factors provide a helpful guide for identifying those participatory rights, and both parties advanced their arguments under that rubric. The Statutory Scheme [18] It is useful to begin this analysis with the second factor: the statutory scheme. Patient X notes that a decision to dismiss a complaint ends the process entirely, and the complainant has no ability to challenge that decision within the statutory scheme. Ordinarily, as pointed out by Justice L'Heureux‑Dubé at para.24 of Baker, supra, that points to greater procedural fairness. However, the College contests this, saying at para.28 of its brief that "the role of the Investigation Committee is not to make final determinations, but rather to act as the reviewer of first instance." In the College's view, the Investigation Committee only "performs a gate‑keeper function, essentially determining which complaints should proceed to a full hearing before the Hearing Committee." [19] To settle this dispute, it is necessary to sketch out the complaints procedure in the Medical Act, S.N.S. 1995‑96, c. 10. Section 48 permits any person to make a complaint, which is then considered by an investigation committee. Section 53 governs the basic structure of investigation committees, and ss.(5)(a) provides that: 53 […] (5) The committee shall (a) investigate complaints regarding a disciplinary matter concerning any member or associate member of the College; [20] An investigation committee can dispose of complaints in a number of ways. Section 53(12) sets out most of them, and it provides that: 53 […] (12) The Committee may (a) dismiss the complaint; (b) attempt to resolve the matter informally; (c) with the consent of both parties, refer the matter, in whole or in part, for mediation; (d) refer the matter, in whole or in part, to a hearing committee; (e) counsel the member or associate member; (f) caution the member or associate member; (g) counsel and caution the member or associate member; (h) reprimand the member or associate member with the member's or associate member's consent; or (i) with the consent of the member or associate member, require the member or associate member to undergo such treatment or re‑education as the committee considers necessary. If a counsel or caution is being considered, then the investigation committee must give the member or associate member an opportunity to appear pursuant to s.53(13). No corresponding right is given to a complainant if a committee is considering dismissing the complaint. [21] The role of a hearing committee differs from that of the investigation committee. It is governed by s.58. Subsection 58(5) provides for a full hearing: 58 […] (5) Subject to the regulations, the hearing committee may do all things necessary to provide a full and proper inquiry. Subsection 58(6) goes on to give a hearing committee all the powers, privileges, and immunities of a commissioner appointed pursuant to the Public Inquiries Act, R.S.N.S. 1989, c. 372. It can also issue subpoenas (s 58(7)). [22] The hearing committee can impose serious penalties on a physician after a hearing. These are set out at s.66(2)(e), and they include the power to revoke, suspend, or restrict a physician's licence. [23] Attendant on those serious consequences, the hearings themselves are also fairly formal. With some exceptions, s.62 provides that hearings are open to the public, and s.65 requires them to be recorded. Significant procedural rights are also afforded to physicians; s.66(1) provides: 66 (1) At a hearing of the hearing committee, a member or associate member is entitled to all the rights of natural justice, including the right to be represented by legal counsel, to know all the evidence considered by the hearing committee, to present evidence, and to cross examine witnesses. [24] Finally, ss.68(1) gives a physician the right to appeal to the Court of Appeal from a decision of a hearing committee. [25] As can be seen, the penalties that a hearing committee can order are far more substantial than the limited penalties available to an investigation committee. That said, an investigation committee can take immediate action to suspend or restrict the practice of a physician without a hearing if it is in the public interest pursuant to s.54(1). If that is done, then a hearing to finally resolve the matter must occur without undue delay (s.54(3)). [26] Further, if an investigation committee learns that a member or associate member has had his or her licence revoked in another province or has committed a crime, then it can itself hold a s.66 hearing pursuant to s.52. It can order any of the penalties that a hearing committee can pursuant to s.66(2)(e). Such an action is final, but it would also attract all of the same procedural rights as an ordinary s.66 hearing. As such, major penalties are usually ordered only after a full hearing, and an investigation committee can only make such orders on an emergency basis otherwise. [27] This tends to support the College's contention that investigation committees primarily perform a screening role, and the College essentially makes two submissions flowing from that: (1) decisions of an investigation committee are not final since it is only a screening process; and (2) the legislated structure of the complaints procedure would be defeated if significant procedural rights were granted to a complainant at the investigation stage. [28] The College says its first argument is supported by Ruffo v. Conseil de la magistrature, [1995] 4 S.C.R. 267 [Ruffo], where Justice Gonthier considered a disciplinary process for judges. He said at para.89 that: [I]t cannot be argued in this case that the duty to act fairly meant the appellant had to be given the opportunity to express her views during the initial examination of the complaint, despite the possible consequences of the decision to hold an inquiry concerning her and perhaps to suspend her during that inquiry... [29] If such rights are denied to even the subject of a complaint, who faces a possible loss of livelihood, then the College asserts they should also be denied the complainant. However, Ruffo is not on point. The subject of a complaint does not need substantial procedural rights at the investigation stage since he or she will have an opportunity later to fairly defend the claim before any consequential adverse finding is made. The same is not true of a decision to dismiss the complaint. Dismissing the complaint was as adverse a decision as could be made against Patient X. The decision was final, and alone it would point to a higher level of procedural fairness. [30] However, the College's second argument has merit. It relies on Walker v. Ontario (Health Professions Appeal & Review Board), 2008 CarswellOnt 1025 (S.C.J. (Div Ct)) [Walker]. That case was similar to the one before me, in that a complaint to the College of Physicians and Surgeons of Ontario was dismissed at an investigatory stage, partly on the basis of a report of an independent assessor whom the complainant was given no opportunity to cross‑examine. The complainant alleged that was a breach of procedural fairness,. Accordingly, the Divisional Court was required to assess the level of procedural fairness due the complainant. On the gate‑keeping function, the Court noted at para.16 that: [T]he central feature of the procedure is that the [Complaints] Committee was exercising a screening function: it was an investigation and a decision as to the existence of sufficient evidence to warrant referral. It was not a hearing to determine with finality what the facts were and whether punishment should be imposed. As a result, the Court found that the procedural rights of the complainant "may be limited for the reasons permitted by the statute, including the protection of the interests of persons not parties" (at para.16). [31] Arguably, Walker, supra, may also not be strictly on point. Counsel for Patient X pointed out in their oral submissions that the witness in that case was an independent assessor, not the physician. As such, the rationale of protecting third parties does not apply. [32] Further, there could be relevant differences between the Complaints Committee in Ontario and investigation committees in Nova Scotia. In Walker, supra, the Court said that: "[t]he Committee does not make findings of fact nor impose any penalty..." (para.15). As described above, our investigation committee can impose minor penalties, and it is difficult to see on what basis it could caution a member without making any finding of wrong‑doing. [33] Ultimately, however, I conclude that Walker, supra, remains relevant and its reasoning is persuasive. Where a committee is performing a screening role, as it was in this case, extensive procedural rights could impede the efficiency of the process. As it is, s.53(13) only requires an investigation committee to hold a hearing if it is considering ordering a penalty under s53(12)(e‑g). It is meant to be a simple, expeditious process to investigate complaints and screen out those where it concludes there is not sufficient evidence to warrant referral to a full hearing. [34] There is no oral hearing required to dismiss a complaint; thus neither direct nor cross‑examination of the physician is even contemplated in the legislation. To read in such procedural rights would essentially convert the investigation stage into an additional hearing stage. That is impractical and undermines the entire structure of the complaints process that the legislature intended. Overall, therefore, this factor points to a lower level of procedural fairness. Nature of the Decision [35] Turning now to the nature of the decision factor, Justice L'Heureux‑Dubé described it at para.23 by saying that the more that the function of the tribunal and the decision being made "resemble[s] judicial decision making, the more likely it is that procedural protections closer to the trial model will be required by the duty of fairness." [36] Patient X submits in her brief that a decision of an investigation committee "closely resembles the party‑on‑party trial process, where parties present evidence and the decision‑maker makes a decision based on findings of fact." I disagree. It is not "evidence" which a complainant puts before an investigation committee. It is his or her written or oral version of events. It is not sworn testimony, as in a trial. Further, a complainant is not expected to conduct his or her own investigation into the conduct of the physician or call expert witnesses to assist. In essence, the role of a complainant is that of a witness, not a prosecutor. [37] It is true that complaints may initiate the process, but carriage of the matter then falls to the College. It has a duty to advance it in accordance with its objectives set out in section 4(3): 4 […] (3) 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 the 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 any Act. In light of those obligations the college cannot thrust the entire burden of the investigation onto complainants, as would be the case if the process were adjudicative. [38] Further, s.51 explicitly gives a "disciplinary committee" (which is defined at s.2(I) as "an investigation committee or a hearing committee") an independent mandate to explore any issues that arise, whether they are advanced by the complaint or not. It says: 51 A person or disciplinary committee investigating a disciplinary matter concerning a member or associate member may investigate any other disciplinary matter concerning the member or associate member that arises in the course of the investigation. That suggests the process is inquisitorial. Therefore, this factor indicates that complainants should not be accorded a high level of procedural fairness. Significance of the Interests [39] As to the importance of the decision, Justice L'Heureux‑Dubé described this factor at para.25 of Baker, supra, by saying that: "[t]he more important the decision is to the lives of those affected and the greater its impact on that person or those persons, the more stringent the procedural protections that will be mandated." [40] Patient X submits that it is important not only to her but to the public in general. In particular, her written submissions note at para.19 that: Patient X has alleged that she was the victim of sexual misconduct at the hands of someone in whom she placed a great deal of trust. Taking the step to file a complaint of this kind is challenging, particularly for individuals from marginalized communities such as Patient X, due to fear that their complaints will not be believed or taken seriously. It is important that such complaints be given a high level of fairness to ensure that individuals feel as though they are being heard. [41] Patient X refers to the importance of making complaints of sexual misconduct. She cites Canadian Newspapers Co. v. Canada (A.G.), [1988] 2 S.C.R. 122, where Justice Lamer (as he then was) said at para.18: “When considering all of the evidence adduced by appellant, it appears that, of the most serious crimes, sexual assault is one of the most unreported.” [42] At the hearing, the College countered that every complainant believes their complaint to be important, and that therefore this factor cannot suggest a higher degree of procedural fairness since it would apply equally to every complainant. I do not agree. To consider a symmetrical argument, every physician who faces a complaint could potentially lose his or her livelihood, but the fact that every physician faces equal jeopardy hardly reduces the importance of the decision to Dr. Y. The same is true of complainants. If every decision is important to its complainant, then this factor in every case will point to higher procedural fairness. [43] In this case, I accept that it can be difficult to bring these types of complaints and that the resolution of the complaint is important for Patient X. At the same time, it is a decision with no grave repercussions for the complainant; it does not jeopardize her livelihood, her freedom, or her continued residence in this country, for instance. Still, the fact that her interest is not among the most important interests does not mean it should not attract any higher level of procedural fairness at all. [44] However, the objective of the discipline process is ultimately not to vindicate the complainant or provide compensation; it is only to regulate the practice of medicine by penalizing physicians who fail to meet their professional obligations. Indeed, the Investigation Committee's decision does not affect Patient X's ability to lodge a criminal complaint against Dr. Y, nor does it affect any civil claims she might have against him. Accordingly, the Investigation Committee's decision does not entirely defeat her interests. [45] As mentioned in Walker, supra at para.15, "[t]he stakes for [the complainant] are very low." As such, this factor only weakly indicates a higher level or procedural fairness. Legitimate Expectations and Previous Procedural Choices [46] Both parties agree that there were no legitimate expectations in this case, so the only remaining factor is about the previous procedural choices of the decision‑maker. With regard to that, Patient X admits that the statute gave to the Investigation Committee a lot of leeway, and actually prescribes very few procedural rights either to the complainant or to the physician. This suggests deference to its choices of procedure. [47] Altogether, the factors point to a low level of procedural fairness. Credibility Issue [48] Patient X advanced one more argument that must be considered. In her view, this case hinged on credibility. She argues that a right of cross‑examination was required before making a finding against her. She cites Khan v University of Ottawa, [1997] O.J. No. 2650 (C.A.) [Khan], where Justice Laskin held at para.22 that: Many courts in many different settings have emphasized that when a decision turns on credibility, a decision‑maker should not make an adverse finding of credibility without affording the affected person an oral hearing. [49] The College counter‑argued that credibility was not actually in issue in this case since investigation committees have no authority to make a finding of credibility. In its view, an investigation committee would invariably send the complaint to a hearing if there is any credibility dispute. [50] I am not convinced that the College's position is correct. Putting aside for the moment the question of whether any credibility findings actually were made in this case, nothing in the legislation explicitly prohibits an investigation committee from assessing credibility. Indeed, its ability to deal with minor infractions with a caution may require such findings on occasion. [51] Further, an investigation committee can put itself in a fairly good position to assess credibility. This case is a good example. Both Patient X and Dr. Y attended a meeting of the Investigation Committee. The Committee observed the demeanour of both Patient X and Dr. Y when they were interviewed. Moreover, although there was no cross‑examination, the Committee itself could ask questions and challenge their respective versions of the events. While a hearing committee is in a better position to assess credibility in most cases, I do not believe that every issue of credibility, no matter how minor, must be sent to a hearing committee. [52] That said, I also disagree with Patient X's position that credibility issues alone require a right of cross‑examination. In Khan, supra, there was only a right to an oral hearing, not cross‑examination. Although not mandatory in this case, Patient X had an opportunity to appear before the Committee. [53] Admittedly, a right of cross‑examination is more directly implied in Masciangelo v Spensieri, [1990] O.J. No. 1429 (S.C.), upon which Patient X also relied. In that case, Justice Doherty said on p.6 that: Where the outcome of a law suit [sic] hinges on the assessment of credibility, a trial in which evidence is called and the competing stories are told and challenged before the trier of fact has traditionally been viewed as the ideal forum. [54] However, that case is not really on point. It was a decision on a motion for summary judgment in a lawsuit. Lawsuits typically attract the highest level of procedural fairness. I agree with Justice Finlayson, dissenting in Khan, supra at para.87, where he said that: It would be unwise in the extreme to visit the higher standards of justice required for a civil lawsuit on what is essentially an administrative decision. [55] Some administrative decisions may attract such standards, but it is contrary to Baker, supra, to assert that issues of credibility always require a right of cross‑examination, regardless of the level of procedural fairness required for any particular decision‑maker. Indeed, at a hearing before a Hearing Committee, Patient X would only have been a witness. Counsel for Patient X expressly conceded that she would not have any right of cross‑examination. That is itself an admission that Khan, supra, does not universally apply whenever credibility is in issue. [56] In the complaints context, Patient X is much more like a witness than a party. Complainants in criminal matters, for example, have no right to cross‑examine an accused in order to convince the police to lay charges. Neither should complainants in disciplinary matters have that right. Indeed, even witnesses at trial cannot cross‑examine anyone whose testimony challenges their credibility. In this case, Patient X had an opportunity to respond in writing to Dr. Y's initial response and was interviewed. Nothing in the decision of the Investigation Committee was based on information that could not be found in either of Dr. Y's response letters. [57] Further, although Patient X's interests in the decision are somewhat important, those interests are not entirely defeated by the Investigation Committee's decision. They may still be able to be vindicated in a civil action with all of its attendant procedural rights. Undoubtedly, that is a more difficult route for an individual. One of the major advantages of the College's complaints process is that the College takes over carriage of the matter. However, a complainant cannot benefit from that and still expect to maintain all the procedural rights which she would have in a civil proceeding, especially where that would undermine the basic structure of the complaints process created by the legislature. [58] Altogether, therefore, I find that the complainant is entitled only to a low level of procedural fairness, and it does not include any right to cross‑examination. Issue 2: Sufficiency of Reasons Standard of Review [59] In Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury), 2011 SCC 62, the Supreme Court of Canada considered the argument that a failure to provide sufficient reasons was a breach of procedural fairness. At para.22, Justice Abella said the following: It is true that the breach of a duty of procedural fairness is an error in law. Where there are no reasons in circumstances where they are required, there is nothing to review. But where, as here, there are reasons, there is no such breach. Any challenge to the reasoning/result of the decision should therefore be made within the reasonableness analysis. (emphasis in original) In other words: although a failure to give any reasons at all may in some cases be a breach of procedural fairness, an inquiry into the quality of those reasons should ultimately be done by assessing the reasonableness of the decision. [60] As such, reasons are adequate if, when examined in their context, they tell the parties why the decision was made and permit judicial review. In Dunsmuir v. New Brunswick, 2008 SCC 9 at para.47, Justices Bastarache and LeBel said that: 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. [61] The Supreme Court of Canada later elaborated on these remarks in Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury), supra, where Justice Abella said at para.16 that: ...if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met. [62] It is also important to evaluate those reasons in the context of the particular decision‑maker. Members of an investigation committee are typically doctors, not lawyers. As Justice Murphy, writing ex officio for the Court of Appeal in Hills v. Nova Scotia (Provincial Dental Board), 2009 NSCA 13 said at para.41: "[c]ourts recognize that when members of discipline tribunals are not lawyers, their decisions should not be subject to excessive scrutiny." He went on in paras.41 and 42 to approve a number of other statements to the same effect, including the following passage (at para.42) from Trotter v College of Nurses (Ontario), [1991] OJ No 348 (Div Ct): "[i]t is not fatal to a decision that specific mention is not made of certain evidence; nor is it fatal if specific reasons are not given before its rejection …" Ultimately, an investigation committee is not writing for the court. The sufficiency of its reasons must be assessed in that context. Analysis [63] The reasons of the Investigation Committee in this case are brief. However, I am entitled to also consider the minutes of the July 24, 2012 meeting of the Investigation Committee. In Baker, supra, the notes of the reviewing officer were held to be the reasons for the decision in the absence of any more formal record. Justice L'Heureux‑Dubé explained this at para.44 by saying: Accepting documents such as these notes as sufficient reasons is part of the flexibility that is necessary […] when courts evaluate the requirements of the duty of fairness with recognition of the day‑to‑day realities of administrative agencies... [64] Although in this case there are also formal reasons, I may still look at the minutes and the remainder of the record to assist me in evaluating the decision's reasonableness. In Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury), supra, Justice Abella endorsed at para.12 Professor Dyzenhaus' comment that: even if the reasons in fact do not seem wholly adequate to support the decision, the court must first seek to supplement them before it seeks to subvert them" (emphasis in original). She went on to conclude at para.15 that: [C]ourts should not substitute their own reasons, but they may, if they find it necessary, look to the record for the purpose of assessing the reasonableness of the outcome. [65] I must not substitute my decision for that of the Investigation Committee. I must assess whether it is reasonable. I am to look at the decision and the result to determine if it is justifiable, transparent and intelligible, and whether it falls within a range of acceptable outcomes. As the Supreme Court of Canada said in Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury), supra, I am not to conduct two separate inquiries – one into the reasons and one into the result. It is a "more organic exercise" (para.14). I must determine if I can understand why the Investigation Committee decided to dismiss the complaint and determine if that is within the range of acceptable outcomes. [66] Patient X does not raise any concern about the Investigation Committee's decision about the racial remarks. Rather, she says in her brief that the reasons are deficient because: (1) they do not reveal why the Investigation Committee discarded Patient X's statements on Dr. Y's sexual misconduct; and (2) they do not mention the PTSD issue at all. a) Complaint of sexual misconduct [67] With regard to the issue of sexual misconduct, the Investigation Committee found as a fact that during the examination, "In examining [Patient X's] lungs, Dr. [Y] was in contact with her breasts." In their analysis, they nevertheless concluded that: There were significant differences between the recollections of Dr. [Y] and Patient [X] with respect to the examination. As described by both, the examination was complete and thorough. Dr. [Y] indicated that any breast contact was done in order to facilitate the examination of the chest wall and lung tissue beneath the breast. There was no evidence before the Committee of any sexualized behaviour by Dr. [Y]. The Committee recognizes that in performing an examination of the [redacted] system, contact with the breasts may be unavoidable. [68] As Patient X pointed out in her submissions, the second paragraph is incorrect. Patient X plainly said in her complaint that the touching was sexually motivated. She consistently described the contact with words like "rubbing," and "fondling," and she compared it to a "lover's intimate touch." [69] Patient X submits, therefore, that the Committee really meant that they did not believe Patient X's statements. She says that makes the reasons deficient because they do not explain why that credibility finding was made. [70] She relies on the decision of the Ontario Divisional Court in College of Physicians and Surgeons of Ontario v. Noriega, 2012 ONSC 4084. In that case, the Discipline Panel of the College had found a physician, Dr. Noriega, guilty of professional misconduct for sexually touching a young patient of his thirty years earlier. Justice Nordheimer, writing for the unanimous court, allowed the appeal on the basis that the reasons were insufficient. In para 4, he noted that: There is no critical examination of [Dr. Noriega's] evidence nor reasons given as to why his evidence was not to be believed. In essence, the reasons simply accepted the complainant's evidence and thus by implication rejected the evidence of the doctor. If Dr. Noriega's evidence was to be rejected by the College, then he was entitled to know why his evidence was being rejected. Some analysis of and reasons for rejecting his evidence was required at a minimum. Otherwise, Dr. Noriega is left with no idea why his evidence was not accepted. [71] Patient X submits that the same reasoning applies here, and she argues that it is particularly unfortunate where the complainant is alleging sexual misconduct. [72] For its part, the College says that the reasons are understandable without inferring any adverse finding of credibility. Notably, there are no explicit credibility findings anywhere in the decision. Seeing that the reasons did conclude that Dr. Y touched Patient X's breasts and the finding that such contact could be medically appropriate, the College submits that the Committee must have simply found that Patient X incorrectly imputed a sexual motive. [73] Indeed, although Patient X characterized the touching as "fondling," she does not appear to have described the extent of the contact in sufficient detail to distinguish it from appropriate incidental contact. According to the minutes of the meeting, Patient X said in her interview that she was "not sure how long Dr. [Y] was touching her breasts. s[sic]he was trying to think of other things..." As such, the College submits that the Committee did not disbelieve Patient X's recollection of the events, just her interpretation of them. [74] While it could be argued that that is simply a credibility finding by another name, it is worth noting that in Devgan v College of Physicians and Surgeons of Ontario, (2005), 193 O.A.C. 357, 2005 CanLII 2325 (Ont.S.C. (Div. Ct.)), Justice Then said at para.54 that: “[W]hile it is preferable to give reasons for rejecting the credibility of a witness, a failure to do so does not constitute reversible error.” [75] In my view, that approach to credibility findings is correct since it reflects the reasonableness standard more closely than Noriega, supra, does. It is also more consistent with our own Court of Appeal's guidance in Hills, supra. [76] In any event, this situation is very different from that in Noriega, supra. In that case, the credibility dispute was about whether the event even happened, not just whether the physician had an inappropriate intent. Further, the complainant's version of events in that case suffered from a number of inconsistencies that were glossed over by the tribunal. As well, the decision‑maker in that case was the Discipline Committee, and the physician faced severe legal sanctions. In my view, someone facing a loss of livelihood after a court‑like process may be entitled to more detailed reasons than someone whose complaint is dismissed. [77] It is true that the reasons of the Investigation Committee in this case leave something to be desired. However, I must be careful not to assess these reasons as if they were written by a lawyer. It is clear enough from the reasons that the Investigation Committee concluded that the material before them could not prove that Dr. Y's contact with Patient X's breasts was sexually motivated. Whether it was implicitly based on a credibility finding or not, the decision in this case reaches an intelligible conclusion within the range of acceptable outcomes. b) The PTSD issue [78] Finally, Patient X suggested that the reasons were also deficient because they failed to comment on whether Dr. Y knew that Patient X had PTSD. The College counters that the PTSD issue is not relevant since it was not squarely before the Committee. Although it was mentioned in the first complaint, the College notes that it was only in reference to the damage that Patient X alleged she suffered as a result of Dr. Y's misconduct. [79] To the extent that the College's argument suggests that the Investigation Committee had no jurisdiction to consider anything outside of the initial complaint, I disagree. Section 51 of the Medical Act, quoted above, plainly gives investigation committees discretion to consider any matter that arises in the course of the complaints process. That discretion should not be fettered by imposing a strict requirement that every issue be identified in an initial complaint. Indeed, the Committee itself said in its reasons that: [T]he Investigation Committee is not limited to investigating only the concerns set out in the complaint. The Committee has the responsibility to look into all aspects of a physician's conduct and practice. [80] If a complainant should advance some new and legitimate ground in response to a physician's defence, I see no reason that the Investigation Committee should not address it simply because it was not advanced initially. [81] However, that discretion belongs to the Investigation Committee. Patient X only referred to PTSD in the context of the effect that Dr. Y's alleged misconduct had on her. Her words were: "I suffer PTSD …" and "he triggered things in my life…". She did not allege that Dr. Y misconducted himself with regard to her PTSD. She cannot complain now that it was unreasonable for the Investigation Committee not to explain why it found no fault in that regard. It is true that she later said that Dr. Y knew about her PTSD, but at no point did she allege that this was a reason that he was incompetent. [82] Further, the only matter that she raised to support her claim that Dr. Y knew about her PTSD was the consultation report about the visit that he prepared on May 11, 2009. In that letter, Dr. Y said that Patient X told him what medication she was taking, and he noted that one of the drugs was "for depression/anxiety." In Dr. Y's second response, he noted that depression and anxiety are not the same as PTSD. Nowhere in his May 11, 2009 report, the referral letter from her family doctor, or the remainder of his file is there any indication that Patient X had PTSD. As a result, the Committee was left with only Patient X's own statement that he knew she had PTSD. Judging by the minutes of the meeting, she did not repeat that allegation when she was interviewed. [83] Given that, I do not think the Committee was required to address the PTSD issue. The reasons are therefore sufficient without those comments. Conclusion [84] The applicant had no right to cross‑examine the accused physician. Accordingly, the Investigation Committee cannot be faulted for failing to permit it. [85] Overall, I conclude that I am able to understand why the Investigation Committee decided as it did. The Committee had the authority, as part of the College's screening process, to dismiss the complaint. In considering the minutes and the decision, I conclude the Committee explained why it dismissed the complaint in a clear, albeit concise, fashion. [86] This application for judicial review is dismissed. [87] Costs ordinarily follow the result, but Patient X is represented by Dalhousie Legal Aid. In these circumstances, I exercise my discretion not to award costs against her. J.