Ontario Superior Court of Justice – Divisional Court

College of physicians and Surgeons of Ontario v. Arnold

Date: 1999-03-08

T. Leigh-Bell, for the moving party/appellant; D. Posluns, for the responding party/respondent.

(80/99)

[1] Swinton, J.: On January 18, 1999, the Discipline Committee of the College of Physicians and Surgeons issued an order suspending the appellant physician's certificate of registration for a minimum of 12 months, with the decision to take effect within 30 days from the decision on a date to be fixed by the Registrar. In addition, the order set out various other disciplinary penalties and restrictions on practice when the appellant returns to practice. This penalty was the result of a hearing process that had resulted in a determination on January 27, 1998 that the appellant was guilty of professional misconduct for failing to maintain records, failing to maintain the standard of practice of the profession, and improper use of the authority to prescribe, and that he was incompetent within s. 61(4) of the Health Disciplines Act, R.S.O. 1990, c. H-4. A major concern of the Discipline Committee was the manner in which the appellant had prescribed narcotics to patients.

[2] The appellant now seeks a stay of the order of the Discipline Committee pending the hearing of his appeal by the Divisional Court.

[3] Were the Health Disciplines Act silent, the order of the Discipline Committee would have been stayed pursuant to s. 25(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S-22, which provides:

"Unless it is expressly provided to the contrary in the Act under which the proceeding arises, an appeal from a decision of a tribunal to a court or other appellate tribunal operates as a stay in the matter except where the tribunal or the court or other body to which the appeal is taken orders otherwise."

[4] Section 61 of the Health Disciplines Act deals with the powers of the Discipline Committee of the College of Physicians and Surgeons. Section 61(7) applies to the Committee's determination here, providing:

"Where the Discipline Committee revokes, suspends or restricts a licence or recognition of specialist status on the grounds of incompetence, the decision takes effect immediately even if an appeal is taken from the decision."

In contrast, pursuant to s. 61(8), the order is stayed in other circumstances:

"Where the Discipline Committee revokes, suspends or restricts the licence or recognition of specialist status of a member on grounds other than for incompetence, the order shall not take effect until the time for appeal from the order has expired without an appeal being taken or, if taken, the appeal has been disposed of or abandoned."

[5] In Green v. College of Physicians and Surgeons (Ont.) (1988), 50 D.L.R.(4th) 187 (Div. Ct.), at p. 188, Callaghan, A.C.J.H.C, expressed the opinion that s. 61(7) (then s. 60(7)) of the Act was mandatory and deprived the court of the jurisdiction to stay an order of the Discipline Committee which suspended a licence on the ground of incompetence. However, the physician in that case was not represented by counsel, and he noted that the matter had not been fully argued. Therefore, Callaghan, A.C.J.H.C, went on to make a determination that the case was not an appropriate one in which to impose a stay.

[6] Counsel for the appellant argued that Callaghan, A.C.J.H.C, erred in his interpretation of now s. 61(7). He submitted that while s. 61(7) deals with the immediate effect of an order of the Discipline Committee where there is a revocation, suspension or restriction of a licence based on a finding of incompetence, this section is silent with respect to staying such an order. Relying on the broad right of appeal on both questions of law and fact found in s. 13(2) of the Act, which allows the Divisional Court to substitute its own findings for those of the committee, he argued that the court has jurisdiction to stay the order pending the appeal. In the alternative, since s. 13(1) confers a right to appeal to the Divisional Court "in accordance with the rules of court", he submitted that the court has the power to stay because of rule 63.02, conferring the power to stay an interlocutory or final order by a judge of the court to which an appeal has been taken, as well as s. 134(2) of the Courts of Justice Act, R.S.O. 1990, c. C-43, authorizing the court to make any interim order considered just to prevent prejudice to a party pending an appeal.

[7] In support, he relied on Rose, Re (1982), 38 O.R.(2d) 162 (Div. Ct.), where Southey, J., held that the Divisional Court had authority to grant a stay of an order based on the broad appellate jurisdiction conferred in the Collection Agencies Act. The wording in that statute was similar to s. 13(2) of the Health Disciplines Act with respect to the powers of the court hearing an appeal. However, in contrast to s. 61(7) of the latter Act, the Collection Agencies Act not only stated that the tribunal's order took effect immediately, but went on to confer power on the tribunal to stay the order until the disposition of the appeal.

[8] There is a significant difference between that legislation and s. 61 of the Health Disciplines Act, when consideration is given to both s. 61(7) and (8). Section 61(7) only applies when there has been a finding of incompetence, defined in s. 61(4) as a situation where the Discipline Committee is of the opinion that the member has displayed, in the professional care of a patient"a lack of knowledge, skill or judgment or disregard for the welfare of the patient of a nature or to an extent that demonstrates he or she is unfit to continue in practice". Section 61(8) provides that an order restricting, suspending or revoking a licence, other than for incompetence, shall not take effect until after the period for filing an appeal or after the disposition or abandonment of an appeal. Clearly, the Legislature has considered whether there should be a stay of an order of a Discipline Committee in the serious case of a finding of incompetence where a licence has been affected by the penalty imposed, and it has chosen not to permit a stay, as in s. 61(8), nor to confer a discretion on the Discipline Committee to stay the order, as it did with the tribunal in Re Rose. The Discipline Committee is given the power to suspend the imposition of a penalty or postpone it on terms in s. 61(6)(f), but there is no power to grant a stay.

[9] Given the terms of s. 25(1) of the Statutory Powers Procedure Act and s. 61(7) and (8) of the Health Disciplines Act, there is no jurisdiction in the Divisional Court to grant a stay of the Discipline Committee's order pending the appeal. These specific provisions of the Health Disciplines Act must override the general provisions in the Courts of Justice Act and the Rules. Therefore, the motion for a stay is dismissed. However, given the serious impact of the licence suspension on the appellant, it is ordered that the hearing of his appeal should be expedited. Costs to the responding party are fixed at $1,500, payable forthwith.

Motion dismissed.