Judicial review application is premature and does not raise serious issue to be tried, court says
The Ontario Divisional Court, finding no exceptional circumstances justifying judicial interference with an administrative tribunal proceeding, has declined to stay a disciplinary hearing relating to a physician who had been criminally charged then later acquitted of sexually assaulting his patient.
In Pan v. College of Physicians and Surgeons of Ontario, 2021 ONSC 5325, a physician was criminally charged in 2011 with sexually assaulting a patient and was found guilty of sexual assault by the Ontario Superior Court of Justice in 2013. The doctor signed an undertaking in 2015 stating that he would give eight weeks’ notice to the College of Physicians and Surgeons of Ontario and would comply with any reasonable conditions before returning to practice.
In 2018, the Court of Appeal for Ontario allowed the doctor’s appeal due to fresh evidence. In 2019, after a second trial, the Superior Court found that the doctor was not guilty because certain defence evidence raised a reasonable doubt.
In 2020, the regulator’s Inquiries, Complaints and Reports Committee referred the doctor’s case to the Discipline Committee for a disciplinary hearing regarding allegations that he had engaged in professional misconduct and disgraceful, dishonourable and unprofessional conduct by sexually abusing a patient. The hearing was set for the dates of Aug. 16 to Aug. 20 this year.
In June, the doctor brought an application for judicial review to prohibit the Discipline Committee from holding the hearing. Considering that the scheduled dates were drawing close, the doctor also filed a motion for an interim stay of the hearing, pending the hearing of the application.
The Ontario Divisional Court dismissed the motion for interim relief and awarded the regulator costs fixed at $3,500. The court ruled that the doctor failed to meet any elements of the three-part test in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), for entitlement to interim relief.
First, the court found that the application for judicial review did not raise a serious issue to be tried, considering that it seemed to be premature. The court said it would not tackle the issues at this stage because the Discipline Committee should first consider whether proceeding with a disciplinary hearing would amount to an abuse of process or res judicata and what effect the doctor’s acquittal would have on the disciplinary proceedings.
The court noted that the doctor could invoke these issues via an appeal to the Divisional Court after the Discipline Committee has wrapped up the disciplinary proceedings and has ruled against the doctor on these issues. The doctor also did not show any exceptional circumstances that would justify judicial interference with the administrative tribunal proceeding before they have finished, the court said.
Second, the court held that the doctor did not establish that he would suffer irreparable harm if interim relief were refused. While the doctor did not present any evidence relating to this matter, he did suggest that he and his patients would suffer if he could no longer practise medicine. The court disagreed with this argument, noting that the undertaking did not prevent him from returning to practice until the disciplinary proceeding had concluded.
Third, the court ruled that the balance of convenience favoured denying the stay of the disciplinary hearing. The court found that the public interest in letting the Discipline Committee conclude the proceedings outweighed the doctor’s interests in this case, considering the regulator’s responsibility to safeguard the public and to ensure that Ontario physicians are meeting their professional obligations.