The Ontario Superior Court of Justice has ordered the province’s physicians college to reinvestigate allegations of gender discrimination and improper billing against a former Toronto-area emergency department chief, sending a strong signal to all professional regulators to beef up their misconduct probes.
In a unanimous decision, the Superior Court found that the College of Physicians and Surgeons’ complaints committee failed to interview a number of witnesses and its review of medical charts was too limited. The court’s ruling late last month overturns a previous decision of the Health Professions Appeal and Review Board (HPARB), which determined in 2021 that the college’s investigation was adequate.
“It’s exceedingly rare” for the court to quash the decision of a professional regulatory body’s complaints committee, according to employment lawyer Danny Kastner, who asked the college to investigate the allegations against Dr. Marko Duic in 2019. Mr. Kastner appealed the college’s decision to the review board, and then brought an appeal of the board’s decision to the Superior Court.
“The decision confirms that the College failed to conduct a proper investigation into these very serious allegations,” he said.
The college licenses physicians in Ontario and has a mandate to ensure doctors provide quality care and meet professional conduct standards. Mr. Kastner’s complaint to the college was filed on behalf of eight female physicians who wanted to remain anonymous because of fear of professional retaliation. The physicians were concerned by what they called an “open secret” among their colleagues that Dr. Duic didn’t hire women, first as head of emergency at St. Joseph’s Hospital in Toronto and later at Southlake Regional Health Centre in Newmarket, Ont.
The allegations were the subject of a 2018 Globe and Mail investigation that included interviews with 18 sources and billing data obtained through freedom of information requests. Sources alleged that Dr. Duic discriminated against women in his hiring and training decisions, as well as making disparaging comments about female doctors.
People who worked with Dr. Duic also alleged that he encouraged physicians in his department to overuse Ministry of Transportation (MTO) forms and psychiatric assessment forms (Form 1s) to increase their billings. Physicians fill out MTO forms when they think a patient is unfit to drive, which typically results in the ministry suspending patients’ licences. A Form 1 allows hospitals to involuntarily hold patients who could pose risk to themselves or others.
New information was brought to light during the Superior Court hearing. The college was required to disclose Dr. Duic’s complete complaint history, which revealed 19 prior complaints from patients and medical professionals regarding Dr. Duic.
In one case, which was summarized in the court’s decision and resulted in a caution from the college, Dr. Duic filled out an MTO form after a nurse said she smelled alcohol on a patient’s breath and ordered a blood test. Dr. Duic didn’t correct his report after the blood test results found no alcohol, resulting in the patient’s licence suspension. He also didn’t inform the patient he filled out the form.
In its 2019 investigation of the complaint filed by Mr. Kastner, the college’s complaints committee hired an assessor to review 30 charts that Dr. Duic filled out over a 14-month period in 2017 and 2018. Of these charts, four involved MTO forms and 26 involved Form 1s.
HPARB was satisfied with the college’s decision not to take further action on improper billing allegations, based on an interview with Dr. Duic by the college’s committee and the assessor’s chart review.
But Justice Harriet Sachs noted in the unanimous written ruling that the review focused on a small number of charts over a limited period, and that Dr. Duic’s charts alone couldn’t refute or support the allegation that Dr. Duic requested physicians in his department to improperly fill out forms.
As for the gender discrimination allegations, Justice Sachs wrote that the college’s complaints committee should have interviewed at least some witnesses, including those named in The Globe and Mail report as well as a list of 12 witnesses suggested by Mr. Kastner as likely in his view to have relevant information. She also noted that the college’s complaints committee relied heavily on a report by Dr. Steven Beatty, an administrator at Southlake, “who well may have some ultimate legal liability for Dr. Duic’s behaviour.” The Globe contacted Dr. Beatty for comment, and did not hear back.
“In the face of evidence about how much of an outlier Southlake was when it came to the presence and role of women in its emergency department, was it reasonable to accept Dr. Duic’s explanation that this was not by design without inquiring further? To answer ‘yes’ to this question raises a real concern about the treatment of systemic discrimination complaints,” Justice Sachs wrote.
She added that not calling witnesses who may have had knowledge of allegations, in large part because many of the allegations cited in The Globe article were from anonymous sources, has “dangerous implications for the public interest” especially in cases of alleged sexual abuse and gender discrimination.
In their submissions to the court, the college, the review board and Dr. Duic’s lawyer, Keary Grace, emphasized that the college’s Inquiries, Complaints and Reports Committee’s role is to screen complaints, and determine whether a case should be referred for discipline or another remedy like mandatory training, rather than to fully investigate complaints.
Mr. Kastner said the court decision will likely be important for all professional regulators, including in sectors like law, nursing, and education. The ruling, in Mr. Kastner’s view, suggests, “evidence of discrimination may be difficult for complainants to provide because of fears of reprisal, but regulators have the power to collect that information and they have a responsibility to use those powers in an investigation.”
In response to the court’s decision, senior communications adviser Shae Greenfield sent the following statement on behalf of the college: “Although we believed that other bodies would be better positioned to conduct the necessary oversight, we accept the court’s decision and will work to fully and appropriately consider these matters when it returns to the Inquiries, Complaints and Reports Committee.”
HPARB spokesperson Hassan Badreddine, meanwhile, said in an e-mail “it is not the board’s practice to respond to media requests about a court ruling.” Dr. Duic did not respond to a request for comment. Southlake Regional Health Centre said in a statement that while it was not involved in the recent court proceeding, it takes the matter seriously.
“It is why we took the additional step of retaining an outside nationally recognized firm in 2018 to fully investigate and provide direction on implementing recommendations to strengthen our workplace culture further,” said the statement from the hospital’s corporate communications department. “As we have from day one, Southlake will continue to work collaboratively with the College of Physicians and Surgeons of Ontario to ensure a high standard of professional accountability is upheld.”
Dr. Duic resigned as chief of emergency at Southlake shortly after The Globe published its investigation, but still has privileges to practise medicine at Southlake.