ARTICLES/CASE LAW

Articles/Case Law

Articles/Case Law

Gore v. CPSO and Investigatory Powers

Nina Bombier of Lenczner Slaght Royce Smith Griffin LLP provided an overview of Gore v. College of Physicians and Surgeons of Ontario, which held that the College of Physicians and Surgeons of Ontario (CPSO) could observe a physician treating a patient as part of its investigations.

This expansive interpretation of the College's powers emerged in the context of the 2007 death of a Toronto real estate agent, Krista Stryland, after Dr. Behnaz Yazdanfar performed liposuction on her Toronto Cosmetic Clinic.

Section 76 of the Health Sections Procedure Code empowers CPSO to compel observations of surgeries when inquring or examining a physician's practice when there was a concern about competence, despite the risk of self-incrimination for physicians.

There are some privacy implications from the decision, especially if investigators chose to observe therapy and counseling sessions as well.

Although the case is scheduled to be heard by the Ontario Court of Appeal in June 2009, the new Ontario Bill 141 would essentially provide CPSO the same powers.

Duty of Care to Fetus

Anne Posno of Lenczner Slaght Royce Smith Griffin LLP discussed

Paxton v. Ramji, an Ontario Court of Appeal decision that held that there was no duty of care owed to a fetus. Leave to appeal the decision to the Supreme Court of Canada is currently sought.

The basis of the ruling was on two main principles:

There is insufficient proximity between the physician and the potential child, who is not a separate legal entity until it is born

There is a unique relationship between a woman and her potential child, and the law specifically recognizes a woman's complete autonomy over her body

McLachlin J. explained the unique relationship in the SCC case of Winnipeg Child and Family Services v. G.(D.F.) at para. 27,

Before birth the mother and unborn child ...