Andrew B. Matheson

The moving parties, three doctors practising cosmetic surgery, sought a stay pending appeal of a Divisional Court decision that permitted the College of Physicians and Surgeons to compel observation of their surgeries as part of a professional misconduct investigation.

The Court of Appeal granted the stay, finding that the appeal raised a serious issue, the doctors would suffer irreparable harm from the intrusive nature of the observations, and the balance of convenience favoured a stay given the lack of urgency and the College's prior acquiescence.

The applicants, physicians under investigation by the College of Physicians and Surgeons of Ontario, brought applications for judicial review challenging the scope of investigators' powers under the Health Professions Procedural Code.

They argued that investigators could not compel them to submit to interviews or allow observation of their surgical practices.

The Divisional Court dismissed the applications, holding that the statutory power to 'inquire into and examine the practice' includes the power to observe surgeries, and the incorporation of the Public Inquiries Act grants investigators the power to compel interviews.

The court also dismissed as premature the challenge to the Registrar's decision that there were reasonable and probable grounds to initiate the investigations.

The appellant appealed a judgment on the basis that the motion judge erred in refusing to allow viva voce evidence.

The Court of Appeal dismissed the appeal, finding no error in the exercise of discretion given the history of delays by the appellant, indulgences granted, and prior notice given by a Master.

The court concluded there was no procedural unfairness or denial of natural justice.

Cross-appeals arose from a sixth municipal prosecution alleging campground zoning violations involving camp lots located too close to a residential zone boundary.

The defendants sought reinstatement of a stay for abuse of process based on repeated prosecutions and prejudice, while the prosecutor sought restoration of convictions entered after the justice of the peace had already stayed the charges.

The court held the defendants had not met the stringent "clearest of cases" standard for a stay under s. 7 of the Charter, particularly in the context of ongoing regulatory land-use offences.

It further held that the convictions could not be restored because the justice of the peace required the defence of legal non-conforming use to be proven beyond a reasonable doubt instead of on a balance of probabilities.

Both appeals were dismissed and the order for a new trial was affirmed.