FPSLREB Decisions
Decision Information
Suspension (3 days) - Offensive comments by physician to patient - Employer's authority over a professional governed by provincial legislation - Constitution Act, 1867 - Employee file - Disciplinary measure reduced because based in part on a disciplinary measure from more than 25 months earlier - the grievor, a physician, had examined a patient to assess his degree of disability for pension purposes - following the examination, the patient complained that the grievor had made comments that amounted to personal criticisms and made him feel like a "social parasite" - the grievor's supervisor suspended him for 5 days, partly on the basis of a disciplinary measure from more than 25 months earlier - the suspension was reduced to 3 days once the employer learned of this fact - there was no meeting between the supervisor and the grievor before the disciplinary measure was imposed - the evidence at the hearing showed that the grievor had neither lashed out at nor insulted the patient, but had rather made comments that belittled the patient's claims about his disability - counsel for the grievor argued that the employer was not entitled to punish the grievor, since the Ordre des médecins du Québec had exclusive authority to punish a physician pursuant to provincial legislation regulating a field of exclusive provincial jurisdiction - the adjudicator reserved her decision on the objection made by counsel for the grievor and ultimately found that the employer was entitled to discipline a physician for misconduct - the employer was not questioning his competence as a physician or his right to practise his profession - the adjudicator found that there were shortcomings in the procedure that led to the imposition of the disciplinary measure, but ruled on the basis of Tipple that the procedure by which the grievance was referred to her had remedied any shortcomings in the internal grievance procedure - on the merits, the adjudicator found that the grievor was guilty of misconduct but substituted a written reprimand for the suspension. Grievance allowed in part.
Decision Content
File: 166-2-27311 Public Service Staff Before the Public Service Relations Act Staff Relations Board BETWEEN NICOLAE TANCIU Grievor and TREASURY BOARD (Veterans Affairs Canada)
Employer Before: Muriel Korngold Wexler, Deputy Chairperson For the Grievor: Luc Quesnel, Counsel, The Professional Institute of the Public Service of Canada
For the Employer: Agnès Lévesque, Counsel
Heard at Montreal, Quebec, January 9 and 10, 1997.
Decision Page 1 DECISION On January 18, 1996, Dr. Nicolae Tanciu filed a grievance disputing a five-day suspension imposed by the employer for his comments and attitude during the medical examination of a client. The suspension was reduced to three days at the internal proceeding of the Department. This grievance was duly referred to arbitration on June 5, 1996, and heard on January 9 and 10, 1997.
The Evidence The employer was represented by Ms. Agnès Lévesque, and Dr. Nicolae Tanciu was represented by Mr. Luc Quesnel. The employer called four witnesses: Mr. Bernard Parker, Ms. Louise Cléroux, Ms. Claudette Richer, and Dr. François Déziel. The counsel for Dr. Tanciu called no witnesses, and the parties submitted 11 exhibits.
Dr. Tanciu is Senior District Medical Office for the department of Veterans Affairs Canada. The undisputed evidence showed that Dr. Tanciu is an experienced physician. The employer does not dispute his competence. On the contrary, Dr. Tanciu has an excellent medical reputation.
The clients of the department of Veterans Affairs are veterans of World War I and World War II, the Korean War and the Gulf War, as well as members of the Active Forces and the Royal Canadian Mounted Police. This department is one of “recognition,” and the clients have a special status.
The incident leading to the disciplinary measure occurred July 19, 1995. Mr. Bernard Parker is a 36-year-old professional photographer. Having served with the Canadian Forces between August 1983 and October 1985, he was entitled to apply for a pension from the department of Veterans Affairs. Mr. Parker had foot probleMs. In 1990, he took steps to obtain a pension from the department of Veterans Affairs. His first application was denied. He appealed twice, without success. Finally, on June 7, 1995, his application was granted and the following conditions were deemed pensionable: “Pes Planus Right Foot, Pes Planus Left Foot” (Exhibit 3). In order to assess the extent of Mr. Parker’s disability and the pension percentage to which he was entitled, on July 6, 1995, Mr. Parker was asked to undergo a medical examination by Dr. Tanciu (Exhibit 4). This medical examination was carried out on July 19, 1995, at 9:30 a.m., at 4545 Chemin Queen Mary, in Montreal.
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Decision Page 2 Mr. Parker testified that he had gone to the office and was seated in the waiting room. Dr. Tanciu came to get him and asked him, “What’s a young man like you in perfect health doing here?” Mr. Parker found this question and Dr. Tanciu’s tone of voice offensive, denoting a lack of respect and criticism of his pension application. While he acknowledged he was in good health, he was offended by the question, which he took as criticism. He felt he had not been well received. Dr. Tanciu asked him a number of personal questions, which Mr. Parker answered. He found the questions about his age, the number of brothers and sisters he had, and whether he was married, normal but did not see their relevance. Mr. Parker told him that he had been married for three years, and Dr. Tanciu asked him whether he had any children. When Mr. Parker said no, Dr. Tanciu, who was taking notes, sat up, looked at him and said, “Married three years and no children? . . . from three to six children in the case of twins.” Mr. Parker took these comments as criticism. He wondered what connection they had with the medical examination. Mr. Parker saw none, and did not think it was the doctor’s business how many children he had. Mr. Parker told him that he did not see the relevance of this question. According to Mr. Parker, the exchange lasted five or ten minutes.
Dr.Tanciu then gave Mr. Parker the physical examination. He checked his pulse, his breathing, his chest, weight and height, and so on. The doctor asked him to remove his shoes and walk in front of his desk for about 20 seconds.
Dr. Tanciu also asked him the reason for his appointment. Mr. Parker told him it was because of “his flat feet.” Dr. Tanciu tried to explain to him that he did not have flat feet, but fallen arches. Mr. Parker was surprised to hear this, as two doctors had mentioned flat feet. He took offence at Dr. Tanciu’s remark. Dr. Tanciu then told him that in any case, he would not get a large pension. The doctor took out documents to show him that the percentage margin for such a “disability” was 0 to 10 percent. Mr. Parker interpreted Dr. Tanciu’s comments as criticism of the fact that he was applying for a pension because he had flat feet.
Mr. Parker then put his shoes back on and sat down. All the while, Dr. Tanciu was writing and “holding forth” on the charitableness of the Canadian Forces and what a fine institution it was. This lasted from five to eight minutes. Mr. Parker felt this conversation was directed at him. He took the remarks to mean he was in a way “taking advantage” of the pension plan. Dr. Tanciu had said nothing in this regard, but this was
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Decision Page 3 the impression Mr. Parker got from the tone and sense of what was being said. Dr.Tanciu also advised him to do exercises. Mr. Parker also took this advice badly. In addition, Dr. Tanciu suggested he no longer wear arch supports because in his case it was better not to.
Mr. Parker added that several times, Dr. Tanciu asked him if he was furious with him because Mr. Parker did not agree with the diagnosis concerning flat feet. Mr. Parker was furious, “at the way Dr. Tanciu had treated him.” Mr. Parker was “shocked” by Dr. Tanciu’s attitude. Mr. Parker thought his visit to Dr. Tanciu had lasted 50 minutes: 10 minutes to take his pulse, and so on, and 30 minutes of questions and note taking.
During his testimony, Mr. Parker tried to explain what it was that angered him during Dr. Tanciu’s medical examination. Mr. Parker felt he was being judged by Dr. Tanciu. The doctor did not raise his voice, but Mr. Parker perceived his tone as reproachful. The doctor did not directly insult him. No abusive language was used. Mr. Parker’s feeling was owing to the tone, the questions asked and the comments made. When Dr. Tanciu said “three to six children,” Mr. Parker took that as an insult, “the tone of a priest in 1950.” Mr. Parker considered Dr. Tanciu’s conduct and attitude towards him derogatory. Dr. Tanciu never used the term “parasite of society,” but Mr. Parker took Dr. Tanciu’s comments to mean that. Mr. Parker concluded, on the basis of Dr. Tanciu’s remarks, that the doctor was saying he was a parasite and that he thought so too. Mr. Parker understood from his exchange with Dr. Tanciu that the doctor was critical of him for not having any children. Mr. Parker also felt that Dr. Tanciu did not agree with the pension claim. He was therefore afraid that the doctor’s attitude might affect the pension amount he could receive.
Mr. Parker went on to say that Dr. Tanciu had no reason to meddle in his personal life. Mr. Parker considered their whole exchange, from the start of the medical examination and the moment the doctor spoke to him, as criticism from Dr. Tanciu. Mr. Parker acknowledged that Dr. Tanciu did not insult him.
Mr. Parker admitted that at the medical examination on July 19, 1995, he signed the statement taken down by Dr. Tanciu:
(Translation) On my enlistment, no one indicated to me that I had flat feet and it is in the Army that, I think, because of the rigorous
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Decision Page 4 training carrying a load and without proper shoes (or boots) (with no arch support at all). The shoes we were forced to wear for runs (training in the gymnasium) had no arch supports such as athletic shoes generally have.
Now, I have sore feet, ankles and knees, and have to wear shoes with arch supports.
I have no other health problems other than a few allergies. (Exhibit 5) When Mr. Parker left Dr. Tanciu’s office, he was furious and went to see Claudette Richer, a lawyer with the Bureau of Pensions Advocates Canada, Veterans Affairs Canada, and the lawyer who handled his file at Veterans Affairs Canada. He told her about his visit to Dr. Tanciu described above. He said he wanted to file a complaint against Dr. Tanciu. Mr. Parker felt anxious, upset and insecure about his pension assessment. He felt hurt.
Ms. Richer testified that the Bureau of Pensions Advocates Canada provides free services to veterans, service personnel and members of the Active Forces and the Royal Canadian Mounted Police. When Mr. Parker came to see her at her office on July 19, 1995, he seemed quite upset. He told her that Dr. Tanciu had made him feel like a parasite of society and that the medical examination had been very brief, about five minutes. Mr. Parker therefore wondered whether Dr. Tanciu’s assessment was proper and fair.
Ms. Richer recommended that Mr. Parker contact Ms. Louise Cléroux, District Director, Veterans Affairs Canada, and that if he was not satisfied with the pension amount, he was entitled to appeal the assessment. The meeting between Mr. Parker and Ms. Richer lasted 10 minutes. Ms. Richer testified that Dr. Tanciu’s assessment of Mr. Parker had been proper and she did not recommend that Mr. Parker appeal it.
After this meeting, Mr. Parker went home and, a few hours later, wrote a rough draft of the letter of complaint he sent to the District Director. This letter was finalized and sent to Ms. Cléroux on September 6, 1995. Mr. Parker stated he received a reply to his pension application a week to 10 days later. Mr. Parker’s complaint of September 6, 1995, reads as follows:
(Translation) Public Service Staff Relations Board
Decision Page 5 I wish to inform you of an incident that occurred during my medical examination at the veterans centre last July. At the time, I was to be examined by Dr. Tancaeu [sic] for foot traumatisms caused during my military service.
At our meeting, it became quite apparent, from Dr. Tancaeu’s [sic] comments, that he did not at all agree with the fact that I was seeking damages from the Department of National Defence. Phrases such as “What’s a young man like you in perfect health doing here” in a barely concealed tone of reproach. Dr. Tancaeu [sic] also preceded my medical “examination” with questions that were more like an inquisition followed by reprimands and sermons.
After several questions about my personal and family life, Dr. Tancaeu [sic] was critical, and made no attempt to hide it, of the fact that I did not have at least 3 to 6 children after 3 years of marriage, among other things. He also took the liberty of ordering me to exercise regularly without ever finding out whether I already did, claiming that this would solve my problems. Throughout the interview, he accused me of being “furious” with him because I did not agree with his diagnosis, which is incorrect. I was, however, and still am, outraged by this man’s attitude. He carried on with the whole story of HIS military service, for over a quarter of an hour, and comments about the charitableness of the Armed Forces.
The “medical” examination lasted about 10 minutes, the other 30 minutes were as described above.
I feel Dr. Tancaeu’s [sic] attitude and conduct were derogatory towards me and my case, and wish to file a complaint against this individual and his total lack of professionalism.
(Exhibit 2) Mr. Parker explained that the reason for his complaint was the unacceptable attitude of Dr. Tanciu and the way in which he treated him. Mr. Parker added that he filed a complaint because he did not want anyone else to undergo “such a verbal attack.” He explained that he had not taken action between July 19 and September 6 because he knew what he was like and wanted to wait until he calmed down, and that he had other demands on his time.
Ms. Cléroux began her job as District Director at Veterans Affairs Canada on July 17,1995. She received Mr. Parker’s complaint on September 12, 1995, and notified Dr. Tanciu of it on October 23, 1995.
On October 23, 1995, Ms. Cléroux wrote to Dr. Tanciu as follows: Public Service Staff Relations Board
Decision Page 6 (Translation) This is to inform you that we have received a complaint from a client you examined last July.
In order to complete the administrative process, I am sending you a copy of the letter he wrote me. Please read it and send me your written comments regarding these allegations by October 30. I will then meet with you and the Human Resources manager to clarify the situation and determine whether administrative action is necessary. Your union representative can accompany you if you feel it appropriate.
In the meantime, I would ask you not to contact the client, and thank you for your co-operation.
(Exhibit 6) When Ms. Cléroux received the complaint, she consulted the Human Resources manager, Marcel Gauthier. Subsequently, in October 1995, Mr. Gauthier and Ms. Cléroux met with Mr. Parker to determine whether there were grounds to pursue the case. Ms. Cléroux decided, however, not to meet with Dr.Tanciu about the complaint. On October 23 and 24, 1995, she ran into “Dr. Tanciu twice in the hallway” and on both occasions, Dr. Tanciu told her she should believe him since he was a doctor. Also, sometime between September 12 and October 23, 1995, Dr. Tanciu sent her a 15-page document he had written on March 15, 1994, in which he expressed his opinion of the pension system, the role of a physician in the Department, the administration and the structure for making health and pension decisions (Exhibit 8). It is Dr. Tanciu’s opinion that only physicians are competent to decide any health problem and, as 90 percent of the Department’s activity is geared to the health of veterans (the Department’s clients), the structure of the Department should reflect this reality. Dr. Tanciu went on to say in this document that it was necessary to avoid “the existence of something that appears quite common . . .: district directors who have not completed highschool; regional directors general who have no university education . . .” (Exhibit 8). Ms. Cléroux read this document sometime in August 1995 and it had quite an effect on her.
Dr. Tanciu told her that this document reflected his thinking. She did not ask him what reasons had prompted him to write this document. Nor did she ever discuss with Dr. Tanciu the content of this document. She did, however, carefully analyse the text of Exhibit 8. And on July 27 and August 4, 1995, she had met with Dr. Tanciu and they had discussed the fact that a non-physician or non-professional was the
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Decision Page 7 supervisor of a physician. (Ms. Cléroux does not belong to any professional order and no evidence was submitted as to her qualifications, schooling, university studies, and so on.)
Ms. Cléroux testified that she began working for Veterans Affairs Canada on July 17, 1995. (She had previously been in Human Resources in another department, and had never supervised physicians or other health professionals.) As Dr.Tanciu’s supervisor, she looks after administrative matters. However, she is to refer any matters of a medical nature to Dr. François Déziel (regarding pension) and Dr. Rolland Chiasson (regarding treatment). Ms. Cléroux met with Dr. Tanciu on July 27 and August 4, 1995, to get to know him, since she had become his immediate supervisor. They discussed the philosophy and structure of the Department and he expressed certain views to her. Ms. Cléroux stated that on both occasions, she had told him what she expected of him as Senior District Medical Officer and how he was to conduct himself with clients. She had these discussions because she had had negative comments in this regard. Ms. Cléroux added, however, that she had never had any specific complaint other than Mr. Parker’s of September 6, 1995. Dr. Tanciu’s response was that “if people reacted that way, it’s because he denied them benefits.” Ms. Cléroux therefore concluded that Dr. Tanciu did not want to adjust to her directives regarding the treatment of clients. She did not see in Dr. Tanciu’s responses of July 27 and August 4, 1995, any effort to want to change his attitude towards clients (“to put them at ease”). Ms. Cléroux expects the physician to treat the client with respect.
After receiving Mr. Parker’s complaint on September 12, 1995, and after consulting Mr. Gauthier on October 23, 1995, Ms. Cléroux asked Dr. Tanciu for his comments regarding this complaint. On October 23 and 24, 1995, Ms. Cléroux and Dr. Tanciu ran into each other twice “in the hallway,” and on those occasions, Dr. Tanciu told her she should believe him because of his status as a physician. Dr. Tanciu also added “that she (Ms. Cléroux) could be his daughter (in terms of age). Also, since she was not a physician, she should not act as though she had authority over him and should give him full credibility over Mr. Parker.”
On October 24, 1995, Ms. Cléroux received Dr. Tanciu’s written comments about the events of July 19, 1995:
(Translation) Public Service Staff Relations Board
Decision Page 8 I am extremely surprised by the letter this young client wrote on September 6, 1995, a month and a half after my examination of July 19, 1995.
Before I explain (or clarify the points of his complaint), I am compelled to believe that he wrote this letter because he was frustrated with what headquarters told him 45 days later: a disability percentage of 5% (far too little, according to him, for this disability). I myself suggested this percentage, being as generous as possible for this type of problem. To be honest, he did not really have flat feet, but moderately fallen arches; I allowed that this could produce pain in his feet, and likened his condition to that of true flat feet, of the first degree.
I believe that his frustration also comes from the fact that I told him flat feet is an innate condition that military service may, at the very most, aggravate. This statement upset him greatly because this young client would have liked the army, military service, to be the sole cause of his condition.
This explains the real basis of his complaint. Now, I will explain in detail what happened chronologically, as I remember it:
1- When I greeted him and invited him into my office, I said to him, jokingly, of course, “What’s a young man in such fine shape, and apparently in excellent health, doing here?” Apparently, this question did not “sit well” with the client, and I am sorry about that.
2- He was asked to come in and sit down, and he told me that the rigours of service (his strenuous training carrying heavy, awkward loads, without proper equipment) had caused the current problems: considerable pain in the feet, and the need to wear shoes fitted with supports.
It was at this point that I told him that orthopaedic specialists in sports medicine today no longer consider flat feet to be necessarily debilitating. Top professional or Olympic athletes (weight lifters, baketball [sic] players) who perform perfectly well have flat feet. This was to reassure him of the lack of risk, if he should prove to have this condition.
Obviously, this client did not accept this very friendly attempt (and very correct, professionally) and became aggressive.
3- If, to calm his aggressiveness, I then told him the army is still a good school with a fairly positive influence on young people, and that I myself had been in the military for many years (and it had given me not only good memories, but also considerable psychological benefits in life, such as learning to
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Decision Page 9 get along in a group, mutual aid and solidarity, learning to follow orders, etc.), it is now evident that he took this as a reprimand. I am sorry, this young man wanted to hear nothing about this.
4- When I asked him about his personal life (family, children), obviously it was to learn of any possible difficulties in civilian life. And of course, his assessments about the number of children, the “orders” I apparently gave him to do exercises, and so on, are of his own invention. He is trying to prove that a doctor is not entitled to be (so deeply) interested in a patient’s life, or to advise him in any way. Obviously, this can only be the view of a patient who is upset and frustrated.
Furthermore, the way in which he judges my professional competence and, in general, my attitude (exactly the opposite of my intentions) prove his vexation and bad faith.
Now, I will try and dissect, if I may use the term, what this gentleman describes as an “incident.”
a- If, at the end of our session, he had been so irritated and upset by my examination, he would have complained right away. It is obvious that 45 days later, after receiving the letter from the Department giving him only a 5% pension (which, as I already said, was my most generous recommendation), he suddenly felt frustrated and, like many psychologically fragile people, believed I was the reason he had been unsuccessful. He simply transferred his troubles and vexation onto me. Such people always see their problems as being caused, quite often, by their physicians who are called on to solve them for them, alleviate them or explain them (in fact, to reassure them, and comfort them). They need a scapegoat.
b- It must be acknowledged that the physician, generally having the most direct contact with a patient’s private life, can easily be perceived as the cause of his troubles or, at least, the resonance chamber for his troubles, their amplifier, and therefore, in a way, at fault.
How fortunate, then, to be a public servant and never have to deal head-on with the painful problems of others. And how many physicians give the best of themselves and receive only ingratitude and disdain in return.
c- Also, veterans are certainly in a rather special category owing to the fact that some, unlike the usual patient who wants to be reassured, to hear his doctor give him the good news that his condition is not serious, is not disturbing. . . that some veterans are unhappy to learn that their condition is good and poses no risk.
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Decision Page 10 This behaviour is, of course, paradoxical in appearance only. We all know what is going on! They see the risk of not having enough of a pension, of seeing it decrease, rather than increase. And what is one to do?
I cannot close without saying what our employees, who have known me for over 15 years, already know: I am too caring a physician, too concerned to have the deepest understanding of the illnesses and sufferings of our clients and, because of that, too insistent in my anamnesis (questioning), the history of the problem and my examination. “Too detailed,” some say, thinking instead of their weariness on reading me.
But in the end, they are right, and in the end I am not so right: my efforts are wrongly taken, misinterpreted and, why not say it, as my name is foreign sounding, I am the ideal whipping boy of the discontented. I become the cause, I must suffer their revenge. I am an unsympathetic foreigner!
And all for having wanted to serve them. This will most certainly lead me, too, to act quickly in future.
(Exhibit 7) Based on her experiences with Dr. Tanciu, the views he expressed in Exhibit 8 and the written comments about Mr. Parker’s complaint (Exhibit 7), Ms. Cléroux decided not to meet with Dr. Tanciu to discuss the complaint. She held neither an administrative nor a disciplinary meeting. Also, in her testimony, Ms. Cléroux stated that she did not distinguish between administrative and disciplinary measures. To her, they were the same thing. She even went on to say that to her, an administrative process and disciplinary action are the same thing. Ms. Cléroux stated that before beginning her job on July 17, 1995, at Veterans Affairs Canada, she had worked at Public Works and Government Services Canada in Human Resources. She was in a “position 4” in the Management Development Program.
To determine the severity of the disciplinary penalty, Ms. Cléroux consulted Mr. Gauthier and Dr. Déziel about what the physician’s approach should be. At Ms. Cléroux’s request, Dr. Déziel wrote to Dr. Tanciu about what the Department expected of him. This letter of guidance is dated November 22, 1995, and delivered to Dr. Tanciu appended to Ms. Cléroux’s disciplinary letter of December 20, 1995 (Exhibit 1).
Ms. Cléroux decided that Dr. Tanciu should receive a five-day suspension. She imposed the five-day suspension “because she had already discussed, on July 27 and
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Decision Page 11 August 4, 1995, with Dr. Tanciu his approach with clients of Veterans Affairs Canada and Dr. Tanciu had not changed this approach.” She also took into account a previous disciplinary action more than 25 months earlier and two evaluation reports. These two evaluation reports covered the periods November 30, 1992, to December 31, 1993 (Exhibit 9), and January 1, 1994, to December 31, 1994 (Exhibit 10). In the one for 1992-1993 (Exhibit 9), Ms. Cléroux made the following comment:
(Translation) It should also be said that we have received several complaints from clients about inappropriate comments made by Dr. Tanciu during his examinations, two of which proved particularly embarrassing for the Department.
. . . . . . [E]ven though Dr. Tanciu has been informed of this, he has not mended his ways and continues in the same way.
Ms. Cléroux did not go into these complaints and commented that Dr. Tanciu had not mended his ways.
As for the 1994 evaluation report (Exhibit 10), Ms. Cléroux noted as follows: “In my opinion, Dr. Tanciu should improve his interpersonal relationships.“ But she did not take this into account when imposing the disciplinary action.
Ms. Cléroux “saw Mr. Parker’s complaint as confirmation of the contempt Dr. Tanciu expressed for certain clients.” According to Ms. Cléroux, Dr. Tanciu had specific ideas which he openly shared. According to him, people with no veteran status should not receive social benefits. Dr. Tanciu told her he had made the comments jokingly to Mr. Parker.
Ms. Cléroux took into account the fact that the pension percentage was not known on July 19, 1995. Ms. Cléroux also consulted Ms. Richer, who told her about Mr. Parker’s visit, the fact that he had seemed furious and that he had complained about Dr. Tanciu. It is the Senior District Medical Officer who recommends the percentage, but the decision as to pension entitlement is now made by Veterans Affairs Canada, and in 1995 was made by the Canadian Pension Commission.
In December 1995, Ms. Cléroux therefore concluded that Dr. Tanciu did not want to acknowledge that he had a problem. In the context of the Department, the way a
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Decision Page 12 client is treated is important. The Department’s commitment is to serve clients respectfully and promptly. According to Ms. Cléroux, Dr. Tanciu rebuked Mr. Parker and admitted to her having noticed that Mr. Parker was ill at ease but, according to her, the physician had continued with his comments. Ms. Cléroux pointed out to Dr. Tanciu that for the client he was an authority figure, to which the doctor replied that he was not the authority. As Dr. Tanciu blamed Mr. Parker, she had no choice but to favour Mr. Parker’s version of events.
On December 20, 1995, Ms. Cléroux wrote the letter of disciplinary action prompted by the grievance:
(Translation) This is further to the complaint Mr. Bernard Parker has sent us concerning his medical examination for pension purposes.
With the collaboration of the chief medical advisor and the Human Resources manager, we have taken into account both your submission and that of the client in reviewing this incident. Your written comments and the comments you made at our meeting on this matter show that you attribute little importance to Mr. Parker’s action. Considering your experience with the Department and your knowledge of our clientèle, I am surprised at your position and cannot accept it.
Our department has always made it a point of honour to watch over veterans and provide the quality services they have a right to expect. The approach you used with Mr. Parker is not only contrary to our commitment to our clientèle, it is also unacceptable from a professional standpoint.
Your comments and attitude during Mr. Parker’s medical appointment were offensive and humiliating to him and his pride as a veteran. Moreover, the purpose of the examination, namely, a pension examination for flat feet, does not explain the comments about his personal life. You have already been criticized for similar situations in the past, and I must consider this a recurrence following the disciplinary action already imposed on you.
In this context, I am obliged to suspend you for a period of 5 days. This suspension will be effective January 15, 16, 22, 23 and 24, 1996. On these days, you are forbidden from coming in to work without my written permission. You will understand that in no circumstances can I tolerate such a situation again. I expect you to adopt a courteous and
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Decision Page 13 respectful approach towards our clientèle; otherwise, harsher disciplinary action, even dismissal, may result. I am enclosing an orientation document prepared by Dr. Déziel and expect it will help you better discharge your responsibilities.
(Exhibit 1) It is interesting to note that it was Ms. Cléroux who heard Dr. Tanciu’s grievance contesting the five-day suspension at the first level of the grievance procedure. She testified that she had to reduce the five days to three because she was not allowed to take into account the disciplinary penalty from 25 months earlier. In fact, Dr. Tanciu had an unblemished disciplinary record. She added that Dr. Tanciu had “bawled her out” at the grievance hearing, and that had he not, and had he acknowledged his wrongful approach, she might have reduced the disciplinary penalty even further. Ms. Cléroux acknowledged that Dr. Tanciu has an excellent medical reputation and that she never questioned this; what she was critical of was his attitude towards clients. Also, the five percent pension he had recommended in Mr. Parker’s case was appropriate. Ms. Cléroux was of the opinion that she was entitled to intervene when the physician lectured about the pension entitlement of some clients and thought the Department overly generous. She was critical of the way he dealt with Mr. Parker. Her criticism was not medical, but concerned his conduct. There was therefore no reason to file a complaint with the order of physicians. Ms. Cléroux accepted Mr. Parker’s version as to Dr. Tanciu’s use of a tone of reproach.
Ms. Cléroux added that Dr. Tanciu is highly thought of and that is why “she even offered him part-time work to allow him to continue working at the Department.”
Ms. Cléroux acknowledged that Dr. Tanciu is someone who speaks loudly and can sometimes be difficult when discussing certain programs. Ms. Cléroux and Dr. Tanciu are, however, able to talk; there is no personality conflict between them.
Dr. François Déziel testified that he has been the chief medical advisor at head office (Charlottetown), Veterans Affairs Canada, since October 1989, and that before that, he was a medical advisor at the same office in Charlottetown from 1984 to 1989. Dr. Déziel has known Dr. Tanciu since 1984.
Dr. Déziel explained that the physician’s role is to assess the client and determine whether he is entitled to a pension. If it is decided he is, this recommendation goes to a departmental adjudicator. Once the client’s pension
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Decision Page 14 entitlement has been determined, the physician must examine the client to determine the monthly pension amount to which the client will be entitled and provide a figure. The purpose of this medical examination is to assess the severity of the disability and recommend an amount to the Department (head office). The physician therefore explains to the client the purpose of the examination, but does not discuss the amount. The medical examination lasts about 45 to 60 minutes, after which the physician prepares a report. This report is a recommendation. Dr. Déziel reviews the recommendations of the district medical officers. There are about 30 districts, and about one medical officer per district.
Dr. Déziel wrote Exhibit I, appended to the letter of suspension, at Ms. Cléroux’s request. Dr. Déziel’s document is dated November 22, 1995, and reads as follows:
(Translation) As you are an experienced physician, and have worked at Veterans Affairs Canada for many years, I have no intention of explaining to you in great detail the nature of your duties in the Montreal District.
However, owing to a number of misunderstandings that have arisen over the years and even recently, I believe it is necessary to provide some clarification concerning your role with regard to pension examinations.
The sole purpose of the pension examination is to determine the degree of disability resulting from pensionable conditions.
Of course, the amount of detail provided about the pension examination depends, generally, on the number, nature, complexity, and severity of the pensionable conditions. As a rule, far more detail must be provided about these conditions than about a condition which, though serious and debilitating for the client, is not pensionable.
It is important, before conducting a pension examination, to read the client’s record and determine his status with regard to the disability pensions he receives or may have been denied in the past; also, as a guideline, it is necessary to reread any previous examination reports, and be aware of the duration and nature of the military service in question.
In each case, the report should begin with a description of the veteran’s complaints, emphasizing the current disability rather than the history of the illness or traumatism which led to the current disability.
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Decision Page 15 A general description should then be provided of the individual: appearance, behaviour, gait, speech, degree of orientation, and other such observations. In each case, pulse, blood pressure and heart rate should be noted.
With regard to the pensionable condition, as much detail as possible should be provided, so that we can make a fair assessment. In addition to the thorough physical examination, any current treatments, medication, recent hospitalizations and consultant clinical reports should be mentioned.
It is advisable to mention non-pensionable conditions, but not necessary to provide all the details, unless the information gathered bears indirectly on the pensionable condition or treatment benefits.
For example, let us take the case of a client who suffers from arteriosclerosis and multiple sclerosis.
If the heart condition is pensionable, then it is necessary to carry out a detailed examination of the cardiovascular system, determine the stress tolerance, and describe in detail any current treatment, and the prognosis. The mandatory review date should also be set based on the condition’s rate of evolution. If the sclerosis is not thought to be pensionable, a summary of the main neurological deficits concerned would suffice, without the need to do a thorough neurological examination.
However, if the sclerosis is pensionable, it would be necessary to provide a history of the disease and do a very thorough neurological examination, including all motor, sensory, cerebellar, and visual functions; it would also be necessary to talk about current treatments, recent neurological consultations, hospitalization, and the prognosis. Assuming the heart condition is not pensionable, a questionnaire and a brief examination of the cardiovascular system would suffice.
Accompanying your examination should be a recommendation as to the assessment of the disability resulting from the pensionable condition. This recommendation, which we at head office consider to be very important, must be based on the Table of disabilities, and be very careful to distinguish between pensionable and nonpensionable conditions.
If, during the questionnaire or the examination, you learn of a non-pensionable condition and believe it would be worthwhile making an application in this regard, the appropriate action should be taken through the district pensions officers.
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Decision Page 16 I wish to point out to you that your reports have always seemed to me to be very detailed, meticulous, and reflect above-average medical knowledge; I commend you for this.
Given the unfortunate situations we have recently experienced, I must point out certain practices you should avoid as much as possible.
First of all, it must be realized that a pension examination is not at all the same as the examination a physician would carry out in his private office; the examination techniques are certainly the same, but the context is entirely different; the sole purpose of the examination is to assess the disabilities resulting from pensionable conditions.
It is not advisable, during a pension examination, to “reassure” the client as to the minor nature of his pensionable condition; such a comment will only be taken to mean that the condition in question is common, and not deserving of much attention. Such comments create a degree of uneasiness, which is quite understandable.
It is also important not to comment on the validity of granting the disability pension; the decision had already been made by other authorities, and it is not up to the physician or anyone else to make judgments about it.
Finally, I must warn you there is a possibility that clients are likely to misinterpret any casual comment or “joke” on your part; therefore, it is simply better to avoid making any.
I hope that you will heed these recommendations to assure us that your interventions with our clientèle meet our expectations and proceed harmoniously.
I remain at your disposal to assist you in carrying out your duties as Senior District Medical Officer.
Yours truly, Dr. Déziel explained that he read Mr. Parker’s written complaint on the eve of November 22, 1995, “but that Ms. Cléroux had spoken to him about it on the telephone before going to Montreal.” He discussed the complaint with Ms. Cléroux. Dr. Déziel’s role in Dr. Tanciu’s disciplinary case was “to study the complaint and ensure that this not happen again.” It was up to Ms. Cléroux to take any disciplinary action. Dr. Déziel never met with Mr. Parker; he relied on the text of his letter of September 6, 1995 (Exhibit 2). He stated that he believed he had discussed Mr. Parker’s case with Dr. Tanciu informally.
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Decision Page 17 Dr. Déziel concluded from his reading of Mr. Parker’s letter of September 6, 1995, that Mr. Parker felt hurt. The incident resulted from the fact that Dr. Tanciu had not put Mr. Parker at ease during the medical examination. The medical examination was proper, the problem was with the client’s reaction to the examination. Dr. Déziel noticed nothing irregular in the report and Mr. Parker’s medical record.
Dr. Déziel explained that any patient is apt to misinterpret a joke. The patient is consulting the physician because he considers his problem serious. The physician’s role in private practice is to comfort the patient. However, when a client consults a Veterans Affairs Canada physician, it is to convince this physician of his disability. This client is therefore even more sensitive; the last thing he wants to hear is that there is nothing wrong with him, or jokes to that effect. The Department expects clients to always be treated courteously and their complaints to be taken seriously. Dr. Déziel added that the Department does not often receive complaints from clients. The questionnaire is an integral part of the medical procedure. In Mr. Parker’s case, something made Mr. Parker uneasy and Dr. Tanciu recognized that Mr. Parker felt hurt. The questionnaire upset him.
The witnesses appeared in the following order: Mr. Parker, Ms. Cléroux, Dr. Déziel, and Ms. Richer. Following the testimony of Mr. Parker, who was the first witness, Dr. Tanciu’s counsel, Mr. Quesnel, filed a motion seeking the dismissal of the disciplinary penalty and disputing Ms. Cléroux’s right and competence to impose a disciplinary penalty on Dr. Tanciu. Mr. Quesnel argued that only the professional order, the Ordre des médecins du Québec, had the right and was competent to impose a disciplinary measure on Dr. Tanciu.
I heard the parties on Mr. Quesnel’s motion and decided to take it under advisement. I allowed the presentation of evidence to continue, and decided to render my decision on this motion along with my ruling on the merits of the grievance.
Motion Filed by Mr. Quesnel Mr. Quesnel pointed out that the criticism of Dr. Tanciu concerned his conduct during a medical examination. There is no reference to events unrelated to this medical examination. The criticism therefore concerns an action by Dr. Tanciu as a physician. The exercise of the medical profession is a matter of provincial jurisdiction. Subsection 92(16) of The Constitution Act, 1867, was cited:
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Decision Page 18 92. In each province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next herein-after enumerated; that is to say,⎯
16. Generally all Matters of a merely local or private Nature in the Province.
Mr. Quesnel pointed out that the collective agreement applicable to the Medicine Group (Code: 217/89) provides a second element of interpretation. Clause 1.02 stipulates:
1.02 The parties to this Agreement share a desire to improve the quality of the Public Service of Canada, to maintain professional standards and to promote the well-being and increased efficiency of its employees to the end that the people of Canada will be well and effectively served. Accordingly, they are determined to establish within the framework provided by law, an effective working relationship at all levels of the Public Service in which members of the bargaining units are employed.
(Exhibit 11) Mr. Quesnel went on to say that the collective agreement leads us to the Quebec legislation governing the practice of medicine, namely, the Professional Code, R.S.Q., c. C-26, as amended in 1994. He cited the following sections of the Professional Code:
2. [Application of Code.] Subject to the inconsistent provisions of a special act, this Code applies to all professional orders and to their members.
3. [Office constituted.] There shall be a body called the “Office des professions du Québec”.
. . . 12. [Functions of Office.] The function of this Office shall be to see that each order ensures the protection of the public. For that purpose the Office may, in particular, in collaboration with each order, monitor the operation of the various mechanisms established within the order pursuant to this Code and, where applicable, the Act constituting the professional order.
. . . 12.2 [ ] The Office may, in a regulation that it is authorized to make under this Code or under an Act constituting the professional order, make compulsory a standard established by a government or body. It may
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Decision Page 19 provide that reference to such a standard includes any subsequent amendment made to it.
. . . 23. [Function.] The principal function of each order shall be to ensure the protection of the public.
[Supervision of practice.] For this purpose, it must in particular supervise the practice of the profession by its members.
. . . 26. [Exclusive right to practise.] The members of an order shall not be granted the exclusive right to practise a profession except by an act; that right must not be granted except in cases where the acts done by these persons are of such a nature and the freedom to act they have by reason of the nature of their ordinary working conditions are such that for the protection of the public they cannot be done by persons not having the training and qualifications required to be members of the order.
. . . 32. [Professional permit obligatory.] No person shall claim in any manner to be an advocate, notary, physician, dentist, pharmacist, optometrist, veterinary surgeon, agrologist, architect, engineer, land-surveyor, forest engineer, chemist, chartered accountant, radiology technician, denturologist, dispensing optician, chiropractor, hearing-aid acoustician, podiatrist or nurse, or use one of the above titles or any other which may lead to the belief that he is one, or engage in a professional activity reserved to the members of a professional order, claim to have the right to do so or act in such a way as to lead to the belief that he is authorized to do so, unless he holds a valid, appropriate permit and is entered on the roll of the order empowered to issue the permit, unless it is allowed by law.
. . . 59. [Derogatory acts.] Every professional who contravenes section 57 or 58 commits an act derogatory to the dignity of his profession.
59.1 [ ] The fact of a professional taking advantage of his professional relationship with a person to whom he is providing services, during that relationship, to have sexual relations with that person or to make improper gestures or remarks of a sexual nature, constitutes an act derogatory to the dignity of his profession.
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Decision Page 20 59.2 [ ] No professional may engage in an act derogatory to the honour or dignity of his profession or to the discipline of the members of the order, or practise a profession, carry on a trade, enterprise or business or hold an office or function that is inconsistent with the honour, dignity or practice of his profession.
59.3 [ ] A professional must, within 10 days from the day on which he is himself informed, inform the secretary of the order of which he is a member that he is or has been the subject of a judicial or disciplinary decision referred to in section 55.1.
. . . 60.1 [Advertisement.] A service or product provided by a professional must conform with any statement he makes, or advertisement he places, concerning that service or product; the professional is bound by such statements or advertisements.
60.2 [False representations.] No professional may, by whatever means, make false, misleading or incomplete representations to a person having recourse to his services, in particular as to his level of competence or the scope or effectiveness of his services or of those generally offered by members of his profession.
60.3 [False claims.] No professional may, falsely, by whatever means,
(a) ascribe particular advantages to a service or product; (b) claim that a pecuniary benefit will result from the use or acquisition of a service or product;
(c) claim that a service or product complies with determined standards; or
(d) ascribe certain performance characteristics to a service or product.
60.4 [ ] Every professional must preserve the secrecy of all confidential information that becomes known to him in the practice of his profession.
He may be released from this obligation of professional secrecy only with the authorization of his client or where so ordered by law.
. . .
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Decision Page 21 62. [Powers of Bureau.] The Bureau shall have the general administration of the affairs of the order and shall see to the application of this Code, the act or the letters patent constituting the order and the regulations made under this Code or such act. It shall exercise all the rights, powers and prerogatives of the order, except those within the competence of the members of the order in general meeting.
. . . 87. [Code of ethics.] The Bureau must make, by regulation, a code of ethics governing the general and special duties of the professional towards the public, his clients and his profession, particularly the duty to discharge his professional obligations with integrity.
Therefore, no person can authorize the practice of medicine: this is the preserve of the Ordre des médecins du Québec. Moreover, physicians must hold a permit. Mr. Quesnel pointed out that Mr. Parker did not release Dr. Tanciu from his obligation of professional secrecy. According to the evidence, Mr. Parker and Ms. Cléroux attacked Dr. Tanciu’s professionalism, but Ms. Cléroux does not have either the competence, experience or qualifications to assess Dr. Tanciu’s professionalism and rule on this point.
Mr. Quesnel referred also to the following sections: 112. [Functions.] The committee shall supervise the practice of the profession by the members of the order and it shall in particular inspect their records, books, registers, medications, poisons, products, substances, apparatus and equipment relating to such practice, and inspect the property entrusted to them by their clients. For that purpose, the Bureau may appoint inspectors to assist the committee; the committee may also act on its own initiative by selecting from among those whose names appear on a list that may be established by the Bureau.
[Inquiry into professional conduct.] At the request of the Bureau, the committee or one of its members shall inquire into the professional competence of any member of the order indicated by the Bureau; the committee or one of its members may also act of his own initiative in this regard. The committee or one of its members may, with the authorization of the Bureau, retain the services of experts for the purposes of such inquiry. The Bureau may also appoint investigators to assist the committee in the exercise of its functions or one of its members in the performance of his duties; the committee may also act on its own initiative by selecting investigators
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Decision Page 22 from among those whose names appear on a list that may be established by the Bureau.
The inspectors and investigators must be members of the order.
[Report to Bureau.] The committee shall make a report to the Bureau on its activities with the recommendations it considers appropriate.
In addition, the committee shall inform the syndic where it has reasonable grounds to believe that a professional has committed an offence referred to in the second paragraph of section 116.
116. [Committee constituted.] A committee on discipline is constituted within each order.
[Complaints.] The committee shall be seized of every complaint made against a professional for an offence against this Code, the Act constituting the order of which he is a member or the regulations made under this Code or that Act.
The committee shall also be seized of every complaint made against a former member of an order for an offence referred to in the second paragraph that was committed while he was a member of the order. In such a case, every reference to a professional or a member of the order in the provisions of this Code, the Act constituting the order of which he was a member or a regulation under this Code or the said Act shall be a reference to the former member.
117. [Composition.] The Committee shall consist of at least three members, including a chairman who shall be appointed by the Government, after consultation with the Barreau du Québec, from among the advocates who have at least 10 years’ practice; the Government shall fix the duration of the chairman’s term. At least two other members shall be designated by the Bureau of the order from among the members of the order; the Bureau shall fix the duration of their terms.
[Chairman to be chosen.] In choosing the chairman, the Government may consider to be years of practice the years during which a person acquired pertinent legal experience after obtaining a permit to practise the profession of advocate, a diploma of admission to the Barreau du Québec or a certificate of competence to practise the profession of advocate.
Whenever possible, the person appointed by the Government as the chairman of a committee shall also be
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Decision Page 23 appointed as the chairman of the committee on discipline of other orders.
. . . 149. [Answering questions.] A witness or professional testifying before the committee shall be bound to answer all questions. His evidence is privileged and cannot be used against him in any judicial or quasi-judicial proceedings. He may not invoke his obligation to protect professional secrecy as a ground for refusing to answer.
[Secrecy of evidence.] Where in camera proceedings are ordered under section 142, every person conversant with such evidence shall be personally bound to secrecy saving the right of the president of the order of which the professional is a member and of the members of the Professions Tribunal.
. . . 152. [Decision as to guilt.] The committee shall decide to the exclusion of any court, in first instance, whether the respondent is guilty of an offence referred to in section 116.
Where there is no provision in this Code, the Act constituting the order of which the respondent is a member or a regulation or by-law under this Code or that Act which applies in the particular circumstances, the committee shall decide to the exclusion of any court
(1) whether the act with which the respondent is charged is derogatory to the honour or dignity of the profession or to the discipline of the members of the order;
(2) whether the profession the respondent practises, or the trade, enterprise or business he carries on, or the office or position he holds, is incompatible with the honour, dignity or practice of the profession.
He also referred to sections 2, 3, 31, 32 and 42 of the Medical Act, R.S.Q., c. M-9: 2. All the physicians qualified to practise the medical profession in Québec constitute a corporation called the “Corporation professionnelle des médecins du Québec” or “Ordre des médecins du Québec”.
3. Subject to this act, the Order and its members shall be governed by the Professional Code.
. . .
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Decision Page 24 31. Every act having as its object to diagnose or treat any deficiency in the health of a human being constitutes the practice of medicine.
The practice of medicine shall comprise, in particular, medical consultation, prescribing of medication or treatment, radiotherapy, attendance at confinements, establishing and controlling diagnosis and treatment of illnesses or diseases.
32. A physician may, in the practice of his profession, give advice that may prevent illness and promote the means to ensure good health.
. . . 42. No physician may be compelled to declare what has been revealed to him in his professional character.
and to the Code of ethics of physicians, R.S.Q., c. M-9, r.4: 2.01.01 The violation of any section of this Chapter is an act derogatory to the honour and dignity of the profession.
2.02.01 The physician’s paramount duty, in the performance of his medical functions, is to protect the health and well-being of the persons he takes care of, both individually and collectively.
. . . 2.03.18 A physician must make his diagnosis with the greatest care, using the most appropriate scientific methods, and, if necessary, consulting knowledgeable sources.
. . . 2.03.31 The medical assessor or medical expert who examines a patient must:
(a) acquaint that patient with the purpose of his work; (b) avoid requesting from that patient or giving him information or interpretations which are not pertinent to his work;
(c) refrain, without just cause, from any word or gesture that could lessen the confidence of the patient in his physician;
(d) communicate his report to the person or agency that requested the medical assessment or expertise.
Mr. Quesnel pointed out that Dr. Tanciu complied with these provisions. Furthermore, it falls to the Ordre des médecins du Québec to decide whether or not
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Decision Page 25 Dr. Tanciu discharged his obligations under the Code of ethics of physicians. Also, according to Mr. Quesnel, only the Ordre des médecins du Québec or the express permission of Mr. Parker can release Dr. Tanciu from his obligation of professional secrecy.
Mr. Quesnel asked me to rule that Ms. Cléroux’s decision is illegal under section 152 of the Professional Code because the discipline is governed exclusively by the Ordre des médecins.
Ms. Lévesque’s response was that section 2 of the Professional Code applies because in the case of Dr. Tanciu, it is the federal government that decided to oblige its employee to be a member of the Ordre des Médecins du Québec. As for professional secrecy, once Mr. Parker made his pension application, his medical record became open. Consequently, he automatically waived his right to professional secrecy. Moreover, he complained and testified under oath in this case. This right exists to protect the patient, and Mr. Parker released Dr. Tanciu from his obligation of professional secrecy. What is more, the employer is entitled to sanction a disciplinary infraction by its employee. The disciplinary penalty imposed by Ms. Cléroux is lawful and among her responsibilities.
Arguments on the Merits Ms. Lévesque made the following arguments. The matter I am to rule on is whether Dr. Tanciu conducted himself improperly. If so, I must decide whether the three-day suspension is warranted in the circumstances of this case.
Dr. Tanciu did not have the right to challenge the Department’s decision to grant Mr. Parker a pension for his flat feet. In his written explanations of October 24, 1995 (Exhibit 7), Dr. Tanciu wrote, “What’s a young man in such fine shape, and apparently in excellent health, doing here?” Thus, Dr. Tanciu does not deny the comments mentioned by Mr. Parker. When Mr. Parker went to see Dr. Tanciu, both of them knew that a pension had been granted for flat feet. Mr. Parker consulted Dr. Tanciu to determine the amount of this pension. Mr. Parker, then, was upset by Dr. Tanciu’s remarks. Dr. Tanciu told him that the condition of flat feet was not a cause of disability. Mr. Parker also stated that he believed it was Dr. Tanciu who made the decision regarding his pension. Dr. Tanciu should not have made a joke. Dr. Tanciu’s medical examination and comments were not relevant in the context of Mr. Parker’s
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Decision Page 26 medical examination. Dr. Tanciu created an atmosphere of confrontation. Moreover, even when he noticed that his client was upset, Dr. Tanciu asked him three times if he was furious. Mr. Parker felt like a parasite of society. He felt insecure and belittled. He therefore filed a complaint against Dr. Tanciu, and has explained the reason for the 45-day delay before making his complaint.
In her testimony, Ms. Cléroux stated she began her job on July 17, 1995. She ran into Dr. Tanciu twice, on July 27 and August 4, 1995; they discussed “complaints” and she thought that Dr. Tanciu did not want to mend his ways. Also, this opinion was confirmed when Dr. Tanciu provided Ms. Cléroux with the 1994 document (Exhibit 8) in which he set out in writing his ideas and views on his role as a physician with Veterans Affairs Canada. On October 23, 1995, Ms. Cléroux sent him Mr. Parker’s complaint, and on October 24, 1995, Dr. Tanciu sent her a written comment about this complaint. Dr. Tanciu saw Mr. Parker as a frustrated man.
Ms. Cléroux decided it was not necessary to meet to discuss this complaint. Dr. Tanciu had acknowledged the comments. Therefore, on July 19, 1995, Dr. Tanciu had conducted himself improperly. Ms. Cléroux explained that clients of Veterans Affairs Canada are special and that Dr. Tanciu did not make Mr. Parker’s medical examination easier. This tense atmosphere did not help him obtain proper answers to the medical questionnaire. Dr. Tanciu’s evaluation of the pension percentage to be granted Mr. Parker, however, was not disputed.
In support of her argument, Ms. Lévesque cited the following decisions: Bériau (Board file 166-2-22357); Perigord (Board file 166-2-14670); Metikosh (Board file 166-2-14166); and Tanciu (Board file 166-2-25763). The Tanciu decision is relevant because the grievor received a three-day suspension for a similar offence and the suspension was upheld.
Ms. Lévesque concluded that I must dismiss the grievance. Dr. Tanciu’s conduct must not be repeated. When Dr. Tanciu receives clients, he is representing the Department. The purpose of the Department is to serve these clients. This service must therefore be provided respectfully and courteously. The employer has an obligation to ensure that the occurrence (the inappropriate remarks) of July 19, 1995, do not reoccur and that Dr. Tanciu understands that his conduct on July 19, 1995, was unacceptable.
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Decision Page 27 Mr. Quesnel made the following arguments. The Tanciu decision (supra) is public. However, under the provisions of the collective agreement, Dr. Tanciu has an unblemished record and the employer cannot do indirectly what it has no right to do directly. The Tanciu decision (supra) can only serve as a guide, and I am not to take into account the identity of the grievor in this decision. I must treat this decision anonymously. The use of this decision which precedes the 24-month period is contrary to the labour relations principles in Canada which allow the individual to mend his ways. In Tanciu, the grievor swore, a serious offence, which is not the case in the matter before us here. Mr. Quesnel pointed out that in his complaint of September 6, 1995 (Exhibit 2), Mr. Parker said he was not furious. However, in his testimony, which confirmed Dr. Tanciu’s comments of October 24, 1995, Mr. Parker admitted he was furious. How does one put a furious client at ease? Dr. Déziel talks about this in Exhibit 1 (letter of November 22, 1995). Dr. Tanciu admitted to the comments and several times very clearly wrote in Exhibit 7 of October 24, 1995, that he regretted his comments.
Ms. Cléroux testified that had Dr. Tanciu acknowledged the incident, she would have reduced the disciplinary penalty. Dr. Tanciu expressed his regrets and Ms. Cléroux did not take this into account. It had all been a misunderstanding. Dr. Tanciu tried to explain Mr. Parker’s medical condition to him and wanted to reassure him. But this did not go down well and Mr. Parker became aggressive. Dr. Tanciu’s role was to assess and diagnose Mr. Parker’s medical problem. He went on to say that his efforts had been misinterpreted. Dr. Tanciu did not acknowledge having committed a personal wrong. Moreover, Exhibit 7 was written in response to Exhibit 6, namely, an administrative inquiry. Also, Mr. Parker signed his statement confirming what he had told Dr. Tanciu on July 19, 1995. This statement is Exhibit 5. Dr. Déziel had no blame or criticism of Dr. Tanciu’s assessment of Mr. Parker’s file.
Mr. Parker was furious and felt that Dr. Tanciu was going to assess his pension amount unfavourably. So it was Dr. Tanciu who was the victim. Dr. Déziel relied on Mr. Parker’s letter of September 6, 1995, and believed him. This was a subjective process and a matter of perception. Also, Ms. Cléroux used the 1994 document (Exhibit 8) to interpret Dr. Tanciu’s intentions. Mr. Quesnel asked how someone can be punished for the client’s feelings.
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Decision Page 28 Ms. Cléroux attributed to Dr. Tanciu the intention of wanting to offend and humiliate a client. Even though Dr. Tanciu acknowledged having made the remarks, he had not intended to offend Mr. Parker. Ms. Cléroux based her decision to impose a disciplinary penalty on this alleged intent. Mr. Quesnel added that I must also take into account the decision-making process and the fact that Ms. Cléroux did not distinguish between an administrative process and a disciplinary process. Also, Dr. Déziel found nothing improper from a medical standpoint. He made recommendations at Ms. Cléroux’s request.
Mr. Quesnel pointed out that there was tension between Dr. Tanciu and Ms. Cléroux. Doctors and administrators are at opposite poles in their analysis. Dr. Tanciu and Ms. Cléroux therefore did not have the same approach. Mr. Quesnel added that this disciplinary measure was quite excessive. Ms. Cléroux based it on two performance evaluation reports. She then used the 1994 document (Exhibit 8) to assess the incident. And she drew conclusions from it as to Dr. Tanciu’s intentions without ever having met with him formally. Consequently, this is more a case based on assumptions than on facts. Ms. Cléroux believed Mr. Parker, who said he had been the victim of intentionally offensive comments.
Mr. Quesnel asked that the disciplinary measure be overruled because management had not taken into account Dr. Tanciu’s explanations that he regretted the incident of July 19, 1995. He expressed his regrets twice in his letter of October 24, 1995 (Exhibit 7). Furthermore, Dr. Tanciu handled Mr. Parker’s file favourably and Mr. Parker was satisfied with this.
Mr. Quesnel distinguished this case from the decisions cited by Ms. Lévesque, which concerned rudeness, racism and vulgarity. Here, Dr. Tanciu was not rude. Mr. Quesnel added that Ms. Cléroux could not use performance evaluation reports for disciplinary purposes because these are administrative documents. Mr. Quesnel asked me to take into account the regrets expressed by Dr. Tanciu. There is therefore good reason to reduce the penalty.
Ms. Lévesque responded that Dr. Tanciu had been informed that his conduct had given rise to complaints. This notice was noted in exhibits 9 and 10 (his performance evaluation reports for 1993 and 1994). Management informed him of the Department’s expectations. So he knew of them when he examined Mr. Parker on July 19, 1995. The Tanciu decision (supra) is a guideline because it concerns a similar situation. On this Public Service Staff Relations Board
Decision Page 29 point, Ms. Lévesque cited the Bousquet (Board file 166-2-16316) and Hogarth (Board file 166-2-15583) decisions. She pointed out that the end does not justify the means. It is therefore of little importance that the evaluation of Mr. Parker’s file was satisfactory. The fact remains that Dr. Tanciu’s conduct was not.
Reasons for the Decision The evidence has shown that Mr. Parker became angry when: (1) Dr. Tanciu greeted him and asked him, “What’s a young man in such fine shape, and . . . in excellent health, doing here?”; (2) made the comment to him about three to six children; (3) expressed his view about military service; and (4) told him that he did not have flat feet, but rather moderately fallen arches. According to Dr. Tanciu, the first two criticisms were said jokingly and the last two were intended to reassure and calm Mr. Parker, who was furious. For these reproaches, Ms. Cléroux gave him a five-day suspension, which was reduced to three days. The facts show that this medical examination got off on the wrong foot (if I may put it that way). Mr. Parker testified before me and I could see he is very serious person. Dr. Tanciu was therefore lacking in judgment. He chose his audience poorly and misjudged when he thought he could joke with Mr. Parker.
I concur with Dr. Déziel that a physician conducting a pension examination should reassure the client and joke with him because the only reason the client is consulting the physician is to obtain a pension. It is the client who must convince the Department that he has a pensionable disability.
I find that Dr. Tanciu’s comments might be misunderstood, and that that is what happened on July 19, 1995. Dr. Tanciu is a competent physician, highly qualified and with a very fine reputation. However, he should have been more careful and anticipated such a misunderstanding arising one day. On July 19, 1995, he was lacking in judgment. The client felt Dr. Tanciu had received him badly, and complained. This incident should not have occurred. It is my opinion that this incident could justify disciplinary action.
Mr. Quesnel argued that Ms. Cléroux did not have authority to impose a disciplinary measure on Dr. Tanciu. Only the Ordre des médecins du Québec had this authority and this competence. I do not agree with Mr. Quesnel on this.
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Decision Page 30 The penalty was imposed because the employer was not satisfied with Dr. Tanciu’s conduct. The medical examination had been properly carried out, except for the questionnaire. Dr. Déziel stated that the criticism made of Dr. Tanciu was that he had not put Mr. Parker at ease. Dr. Déziel noticed nothing irregular in the report and Mr. Parker’s medical record. The employer has the right to take disciplinary action when it is dissatisfied with the conduct of its employee. This is the case here. What Dr. Tanciu was being asked was not to joke and make comments with clients, and Ms. Cléroux had the authority to require this of Dr. Tanciu. His competence as a physician was not questioned, nor was his right to practise his profession, far from it.
I do agree, however, with Mr. Quesnel’s claims concerning the disciplinary process and the way in which the disciplinary penalty was imposed in this case.
As obiter dictum, I offer the following comments. Ms. Cléroux came to the Department on July 17, 1995. From her testimony and actions, I conclude that she may have lacked experience. She had never supervised health professionals and she seemed to lack knowledge in the area of labour relations. Her letter to Dr. Tanciu of October 23, 1995 (Exhibit 6), refers to “administrative process”. Also, in her testimony she did not distinguish between administrative and disciplinary processes. She said she notified Dr. Tanciu on July 27 and August 4, 1995, about his attitude towards clients. But her statements were vague and ambiguous. We do not really know what she told him. She added that Dr. Tanciu did not adjust to her directives. Now again, we do not know what advice she gave Dr. Tanciu. Furthermore, the complaint was not received until September 12, 1995, and Ms. Cléroux had received no official complaint before then. She based her decision on a document written by Dr. Tanciu in 1994 (Exhibit 8) which she did not discuss with him. Ms. Cléroux did not know the circumstances surrounding the writing of this document (Exhibit 8). Furthermore, she decided not to have a disciplinary meeting to hear Dr. Tanciu’s version; she did not see the need to, since twice she had run into Dr. Tanciu and he had said she should believe him because he was a physician. Ms. Cléroux made her decision without allowing Dr. Tanciu to meet with her accompanied by his union representative to discuss the incident. She should have held such a meeting before imposing the disciplinary action. Furthermore, she took into account a disciplinary action taken over 25 months earlier, in violation of the provisions of the collective agreement. The fact nevertheless remains that while Ms. Cléroux may have overlooked some of her obligations, she correctly decided that this incident warranted disciplinary action.
Public Service Staff Relations Board
Decision Page 31 In the end, Ms. Cléroux imposed a three-day suspension and stated she would have reduced this disciplinary action further had Dr. Tanciu not been rude (not “bawled her out”) at the hearing at the first level of the grievance procedure, and had he expressed regret.
I find that, although Dr. Tanciu did not testify and has not expressed his regrets orally before me, on October 24, 1995, he did so in writing (Exhibit 7). Dr. Tanciu is entitled to his opinions and to express them. I do not blame him for discussing them with his managers and colleagues, and management should not dissuade him from doing so. Dr. Tanciu is a physician with considerable experience and a fine reputation. Also, Ms. Cléroux should not have placed so much emphasis on the 1994 document (Exhibit 8).This document should not have been used to support her disciplinary decision.
I therefore find that the three-day suspension is excessive in the circumstances of this case. The comments made by Dr. Tanciu were not serious. He never insulted Mr. Parker. It is Mr. Parker who took these words as degrading and reprimands. Dr. Tanciu did not use vulgar words or abusive language. On the contrary, the exchange was very polite. It was his tone, which was neither raised nor aggressive, the questions and the comments that angered Mr. Parker. A written reprimand would have sufficed.
Dr. Déziel’s letter of November 22, 1995, explains clearly the role of a senior medical officer and the expectations of the Department. I encourage Dr. Tanciu to follow the directives set out in the letter in order to avoid any further incidents of this kind.
For the foregoing reasons, the grievance is allowed in part. The three-day suspension is cancelled and replaced with a letter of reprimand. Dr. Tanciu is entitled to reimbursement of his lost salary and benefits during the three-day suspension.
Muriel Korngold Wexler, Deputy Chairperson OTTAWA, March 12, 1997.
Certified true translation Serge Lareau
Public Service Staff Relations Board