COURT FILE NO.: 486/02

DATE: 20030919

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

mcrae, then and ferrier jj.

B E T W E E N:

DR. SEAN MICHAEL MCHUGH

Applicant

• and -

COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO

Respondent

Donald J. Brown, Q.C., for the Applicant

Lisa Brownstone, for the Respondent

HEARD: September 19, 2003

MCRAE J.: (Orally)

1Dr. McHugh applies for judicial review of the decision of the Discipline Committee of the College of Physicians and Surgeons of Ontario, dated July 28th, 2000.

2There are two issues: (i) having waived his right to appeal, is the applicant entitled to seek judicial review? and (ii) if judicial review is available, was there an error in law sufficient for this Court to interfere?

3In view of the question of law that has been raised, it is apparent that this matter should have been brought by way of appeal to this Court. The Court will very rarely permit judicial review when a right of appeal is available. Only in the most rare circumstances, none of which pertain here will such a review be accepted. The application should fail on that basis alone.

4Having proceeded however to hear argument in full from counsel, we are all convinced that the application must fail on the merits as well.

5The agreed statement of facts did not identify any of the specific acts set out in s.51(5) but instead averted to "sexual relations". However, when one reads the complete transcript, no other reasonable conclusion can be reached than the applicant through his counsel admitted that conduct included in s.51(5) occurred.

6At page 12 of the transcript, counsel for the College made the following statement. Dr. McHugh and his counsel were present and concurred in the statement. Counsel states:

"So that is the required part of the penalty. And secondly, revoke the member's certificate of registration if certain acts of sexual abuse occurred, and those acts are included in what occurred today. There is no issue between my friend and me that it is that kind of sexual abuse that is incorporated in the statement of facts before you."

Counsel for Dr. McHugh said this at page 16:

"I don't disagree in any way with Ms. Brownstone's submissions."

7Counsel for Dr. McHugh also said the following before the Committee:

"First, Dr. McHugh is here, fully aware that his licence will be revoked, and he is here because he is appearing before you and Mr. Vaughan taking responsibility for the error in judgment and his serious lapse in good medical judgment."

And further at page 18:

"Dr. McHugh stopped practising after he resigned from this position, recognizing the inevitability of the revocation and out of respect for patients in the sense of not fostering relationships with patients that would not continue after the revocation."

His counsel also said:

"That doesn't change that the conduct is unacceptable, and thus Dr. McHugh has admitted it and understands that revocation follows."

8The incorrect statement of law in the first sentence of the reasons on penalty and the wording of the statement of fact notwithstanding the application fails and will be dismissed.

9The application record will read: "The application is dismissed for oral reasons given. Costs to the College fixed at $2,750.00."

MCRAE J.

THEN J.

FERRIER J.

Date of Reasons for Judgment: September 19, 2003

Date of Release: September 26, 2003

COURT FILE NO.: 486/02

DATE: 20030919

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

mcrae, then and ferrier jj.