Provincial regulator’s committee denied claims of permanent harm, lack of informed consent
In a case arising from a complaint against a doctor who performed a rhytidectomy and other procedures concerning a face/neck lift, the Newfoundland and Labrador Court of Appeal dismissed the doctor’s application for security for the appeal costs.
The doctor – the applicant/intervenor in Mansfield v College of Physicians and Surgeons of Newfoundland and Labrador, 2026 NLCA 17 – treated the appellant patient between October 2018 and January 2020.
In January 2022, before the respondent College of Physicians and Surgeons of Newfoundland and Labrador, the patient alleged that the doctor’s conduct during treatment deserved sanction under NL’s Medical Act, 2011.
The patient complained that the doctor failed to obtain informed consent, caused permanent harm, and breached the standards of practice and ethical standards. The college registrar referred the complaint to the Complaints Authorization Committee, which dismissed the complaint.
The patient appealed the committee decision before the Newfoundland and Labrador Supreme Court. The doctor applied to intervene. The Supreme Court judge denied the patient’s contest against the application and permitted the doctor to intervene.
The judge dismissed the patient’s appeal and ordered her to pay the doctor’s costs. The college did not pursue costs. The patient challenged the dismissal of her appeal and the cost award, while the doctor applied for security for the appeal costs.
The doctor asserted that there was a very real possibility that the patient could not pay the appeal costs if her appeal failed. He argued that she refused to pay his taxed costs for the Supreme Court proceedings and lacked a registered interest in real estate in NL.
The patient opposed the doctor’s application for security, while the college took no position.
Security for costs denied
The Court of Appeal of Newfoundland and Labrador dismissed the doctor’s application for security for costs. The appeal court ordered the doctor to pay the patient’s application costs, given that the doctor did not succeed in the application he had initiated.
First, the appeal court ruled that the doctor failed to establish that the patient could not pay his costs if her appeal failed. The appeal court pointed out that the patient had asked the Supreme Court to stay its cost order or let her pay costs pending her appeal’s outcome, rather than refusing to pay costs.
The appeal court added that the patient’s lack of a registered interest in real property was insufficient to prove her inability to pay costs.
The appeal court found it uncertain that the doctor would obtain an appeal cost award even if the patient’s appeal failed. The appeal court explained that courts generally did not award costs against or to intervenors.
Next, the appeal court determined that the patient met the standard of showing that it was “reasonably or fairly apparent” that her cost appeal had merit.
On a preliminary assessment, the appeal court saw good arguments that the judge erred in principle by letting the doctor intervene due to his interest in the proceeding, without considering:
- the nature of the interests at stake under Connolly v. Law Society of Newfoundland and Labrador, 2011 NLTD(G) 152
- the potential outcomes of the patient’s appeal pursuant to Tilley v. Law Society of Newfoundland & Labrador, 2010 NLTD(G) 187
- whether the doctor’s intervention would unduly delay or prejudice the adjudication of the parties’ rights
- whether the doctor would usefully contribute to the proceedings
- whether to limit or set conditions on the doctor’s participation
On a preliminary basis, the appeal court also found good arguments that the judge committed errors in principle by:
- awarding the doctor costs as the “successful” party without applying the general rule that intervenors should bear their own costs, or the factors to consider when determining whether to depart from the general rule
- failing to address the potential chilling effect of ordering complainants resorting to the disciplinary process to pay medical professionals’ costs
