COURT FILE NO.: 291/03

DATE: 20050502

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

O’DRISCOLL, LANE AND SWINTON JJ.

B E T W E E N:

DR. KUNJ BHARDWAJ

Applicant

(Moving Party)

• and -

COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO

Respondent

(Responding Party)

Joseph Markin, for the Applicant

Vicki White, for the Respondent College

HEARD: May 2, 2005

O’DRISCOLL J.: (Orally)

1On May 9, 2003, the applicant launched an application for judicial review seeking various orders regarding anticipated orders of the College, orders which never materialized. However, using the judicial review application as a vehicle, on November 8, 2004, the applicant brought a motion before Carnwath J. seeking:

(1) an order for a permanent injunction preventing the Respondent College from continuing with an investigation initiated by its Executive Committee into the Applicant’s practice, and

(2) a mandatory order compelling the Respondent’s Quality Assurance Committee to proceed with an investigation into the Applicant’s practice.

2In his oral reasons for judgment of the same date, Carnwath J. said:

“[4] The doctor seeks to prevent the investigation and to force the Quality Assurance Committee to continue an assessment.

5I find no serious issue to be tried. Nothing has happened other than an order to investigate. No decision has been made that would support a request for judicial review. The earlier application by Dr. Bhardwaj is moot because the Quality Assurance Committee abandoned any consideration of whether to impose restrictions on his practice.

6No irreparable harm can be caused by the investigation. The doctor will not lose his livelihood as a result of the investigation. The results will be considered by the Executive Committee, which will decide to either refer the doctor to the Quality Assurance Committee, or to the Discipline Committee, or to take no action. Before the Discipline Committee, there is a right to a full hearing including a right of appeal.

7I find the balance of convenience favours the College. The protection of the public is paramount. If Dr. Bhardwaj is incompetent (which has not been established), there is a serious risk of harm to his patients. It is the College’s statutory duty to ensure this does not happen.

8The application could not be more premature.

9The application for judicial review is dismissed on both issues. Costs to the responding party on a partial indemnity basis fixed at $2,000.00, inclusive of disbursements plus GST, payable in 30 days.”

3The only matters before the motions judge were the questions of the injunction and the mandatory order. The merits of the judicial review application were not before the motions judge. The motions judge, however, in his reasons, dismissed the judicial review application rather than confining his findings and his rulings to the motion for an injunction and for a mandatory order.

4It was submitted that Rule 59.06 of the Rules of Civil Procedure is applicable. In our view, is not applicable to the situation before us.

5The matter comes before us under s.21(5) of the Courts of Justice Act, which states:

“A panel of the Divisional Court may, on motion set aside or vary the decision of a judge who hears and determines a motion.”

6We have heard submissions of the parties and we are of the view, with respect, that Carnwath J. was correct to refuse the relief sought. There is nothing in the reasons of Carnwath J. that directly or indirectly attempts to prevent the College from exercising any of its statutory powers. Nor, in our view, was there anything said by the College nor was there any agreement entered into by the College that blocks the College from proceeding as permitted by law.

7The merits of the suspension order imposed by the College on the Applicant subsequent to the hearing before Carnwath J. may be, if litigation is envisaged, a different judicial review application on another day before another panel of judges.

8We are of the view that paragraph one (1) of the formal order of Carnwath J., dated November 8, 2004, should be amended to read: “This Court orders that the motion for a permanent injunction preventing the respondent from continuing with an investigation initiated by its Executive Committee into the applicant’s medical practice and for a mandatory order compelling the respondent’s Quality Assurance Committee to proceed with an investigation into the applicant’s practice are dismissed.” The motion before us is otherwise dismissed.

9With the concurrence of my colleagues, I have endorsed the back of the motion record as follows: “This motion is dismissed for the oral/recorded reasons of the Court given this date. The formal order of Carnwath J., dated November 8, 2004, is amended in accord with these reasons. COSTS: We have been furnished with a bill of costs by the College in the amount of $5,725.00 fees and $477.63 disbursements. We have heard submissions from both counsel. Counsel for the applicant takes the position that there should not be any order as to costs, but if costs are awarded they should be in the sum of $1,000.00.

In our view, all things being considered, the costs before Day J. on April 6, 2005 and the costs of this day should be and are fixed at $5,000.00, all inclusive, payable by the applicant to the respondent College within 30 days.”

O’DRISCOLL J.

LANE J.

SWINTON J.

Date of Reasons for Judgment: May 2, 2005

Date of Release: May 17, 2005

COURT FILE NO.: 291/03

DATE: 20050502

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT