COURT FILE NO.: 261/04

DATE: 20040629

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

SHARIF TADROS

Applicant

• and -

COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO

Respondent

K. Hughes and M. London for the Applicant

V. White for the Respondent

HEARD at Toronto: June 8, 2004

O’DRISCOLL J.:

I. Nature of Proceedings

1On May 18, 2004, the Applicant, a 49 year old medical doctor and member of the Respondent College since 1984, launched an application for judicial review seeking:

(a) a declaration that s. 50.1 of the General By-law of the College of Physicians and Surgeons of Ontario is ultra vires and of no force and effect;

(b) a declaration that, except where there is a finding of sexual abuse, the College of Physicians and Surgeons does not have authority to make public information regarding disciplinary proceedings that were completed within six years before the time the Register was prepared or last updated;

(c) an order directing the College of Physicians and Surgeons of Ontario to remove the disciplinary information about the Applicant from its website;

2The Applicant does not seek an order expunging anything from the Register of the College of the Physicians and Surgeons of Ontario (College).

3In the motion before me, the Applicant seeks:

1. an order banning the publication of the Applicant’s name or any feature that might disclose his identity;

2. an order that the court record, including the title of proceedings, refer to the Applicant using only his initials;

3. an order granting an interim, interlocutory, and permanent injunction against anyone having notice or knowledge of any such order from publishing or otherwise revealing the name or any identifying feature of the Applicant;

II. Background

4On April 27, 1990, the Applicant and his legal counsel appeared before the Discipline Committee of the College (Committee). The Applicant pleaded guilty to a charge of professional misconduct in that: in 1988, he included in an application for hospital privileges a letter of recommendation, purportedly signed by another medical doctor, when the letter was not written, authorized or signed by that medical doctor.

5On August 8, 1990, the Discipline Committee released its Decision and Reasons for Decision. There, the Committee stated that: “he [counsel for the College] submitted that Dr. Tadros had been an addicted physician, who committed the offence while in a recovery phase”. The Decision and Reasons further state that the Applicant had been admitted to the Donwood in 1987 and was, in August 1990, being seen twice a week by Dr. Joseph MacMillan, a physician involved in the Health Professional Recovery Programme in Ontario. Dr. MacMillan stated to the Committee that the Applicant was on the road to recovery, a five year process.

6The penalty imposed by the Committee was:

(1) a reprimand and that the fact be recorded in the Register, and

(2) the Applicant’s license to practice in Ontario was suspended for three (3) months; and

(3) the Applicant’s license was suspended for a further period of nine (9) months, the imposition of which would be suspended provided the Applicant undergo stipulated conditions about his addiction treatment.

7The Applicant appealed the penalty to the Divisional Court. On November 29, 1991, the appeal was dismissed.

8With the exception of the particulars of the act of professional misconduct, the above summary is available to the public on the College’s website (College’s Record: Tab C).

III. The Applicable Legislation

9Health Profession Procedural Code (Code), Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18.

23. (1) The Registrar shall maintain a register.

(2) The register shall contain,

(d) a notation of every revocation and suspension of a certificate of registration;

(d.3) a notation of every revocation and suspension of a certificate of authorization;

(e) the result of every disciplinary and incapacity proceeding;

(e.1) where findings of the Discipline Committee are appealed, a notation that they are under appeal;

(g) information that is required to be kept in the register in accordance with the by-laws.

(3) A person may obtain during normal business hours, the following information contained in the register:

2.1 Information described in clause (2) (d.3) relating to a revocation or suspension that is in effect.

3. The results of every disciplinary and incapacity proceeding completed within six years before the time the register was prepared or last updated,

i. in which a member’s certificate of registration was revoked or suspended or had terms, conditions or limitations imposed on it, or

ii. in which a member was required to pay a fine or attend to be reprimanded or in which an order was suspended if the results of the proceeding were directed to be included in the register by a panel of the Discipline or Fitness to Practise Committee.

3.2 Information described in clause (2) (e.1) related to appeals of findings of the Discipline Committee.

4. Information designated as public in the by-laws.

(5) In disposing of a matter, a panel of the Discipline…Committee may, for the purposes of subparagraph ii of paragraph 3 of subsection (3), direct that the results of the proceeding be included in the register.

45. (1) A hearing shall…be open to the public.

46. (1) The Council may make by-laws relating to the administrative and internal affairs of the College and, without limiting the generality of the foregoing, the Council may make by-laws,

(1.2) prescribing information as information to be kept in the register for the purposes of clause 23(2)(g) and designating information kept in the register as public for the purposes of paragraph 4 of subsection 23(3).

IV. The Applicable By-Law

10The general by-law of the College states:

s. 50.1 (1) All information contained in the register [with certain exceptions not applicable here]

is designated as public except that,

(d) if,

(i) a finding of professional misconduct was made against a member,

(ii) the penalty imposed was a reprimand or a fine, and

(iii) at least six years have elapsed since the penalty order became final, the finding of misconduct and the penalty are no longer public information.

V. The Position of the Parties

11Counsel for the Applicant submits:

(a) That s. 23(3) 3 of the Code, in the circumstances of this case, limits “public” to a period of six (6) years “following the proceedings” with the period expiring in April 1996.

(b) If, and insofar as s. 50.1 (1) of the College’s General By-law purports to extend the period beyond six (6) years, it is ultra vires the College.

12Counsel for the College submits that pursuant to s. 23(2)(g), s. 23(3) 4 and s. 94(1) of the Code, the College has jurisdiction to enact s. 50.1 (1) of its General By-law.

VI. Should the Applicant be granted limited anonymity to use initials only?

13This is not a case where the Applicant is seeking an order so as to prevent something private from getting into the public domain. The information set out above has been available to the public since April 27, 1990 and November 29, 1991 and will continue to be available unless and until an order of the court says otherwise. Here, “the toothpaste has been out of the tube” for thirteen (13) to fourteen (14) years (Orpin v. College of Physicians and Surgeons, [1988] O.J. No. 52 (Sup. Ct.) at p. 4 Q.L. per A.G. Campbell J. – “the cat is out of the bag”). There is no trade secret or public security involved. There is no risk to the administration of justice involved nor is there any “need to protect societal values of superordinate importance”.

See: Nova Scotia (A.G.) v. MacIntyre (1982), 1982 14 (SCC), 132 D.L.R. 385, 401-2 (S.C.C.)

R. v. Mentuck (2001), 2001 SCC 76, 205 D.L.R. (4th) 512 at para. [32] (S.C.C.).

14As Dickson J. said in MacIntyre (supra) at p. 401-2:

As a general rule the sensibilities of the individuals involved are no basis for exclusion of the public from judicial proceedings.

15In Edmonton Journal v. Alberta (Attorney General), 1989 20 (SCC), [1989] 2 S.C.R. 1326, 1339, Cory J. said:

10There is another aspect to freedom of expression which was recognized by this Court in Ford v. Quebec (Attorney General), 1988 19 (SCC), [1988] 2 S.C.R. 712. There at p. 767 it was observed that freedom of expression “protects listeners as well as speakers”. That is to say as listeners and readers, members of the public have a right to information pertaining to public institutions and particularly the courts. Here the press plays a fundamentally important role. It is exceedingly difficult for many, if not most people to attend a court trial. . . . It is only through the press that most individuals can really learn of what is transpiring in the courts. They as “listeners” or readers have a right to receive this information. Only then can they make an assessment of the institution. Discussion of court cases and constructive criticism of court proceedings is dependent upon the receipt by the public of information as to what transpired in court. Practically speaking, this information can only be obtained from the newspapers or other media.

11It is equally important for the press to be able to report upon and for the citizen to receive information pertaining to court documents.

16In Scott v. Scott, [1913] A.C. 417, 477, Lord Shaw said:

It is needless to quote authority on this topic from legal, philosophical, or historical writers. It moves Bentham over and over again. “In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice.” “Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.” “The security of securities is publicity.”

VII. Result

17The application for a limited anonymity order requested in the Notice of Motion is refused and the motion is dismissed.

VIII. Costs

18Prior to reserving judgment, counsel were asked for their submissions as to costs. Counsel for the Applicant asked that the matter of costs be delayed awaiting the outcome of the motion. Counsel for the College stated that: “if successful, I would be happy with $1,000.00”.

19In my view, the position of counsel for the College is eminently fair.

20Costs of this application are fixed at $1,000.00 payable forthwith by the Applicant to the Respondent, College.

O’Driscoll J.