Chuang v. Royal College of Dental Surgeons of Ontario

[Indexed as: Chuang v. Royal College of Dental Surgeons of Ontario]

77 O.R. (3d) 280

[2005] O.J. No. 3473

Court File No. DC-04-239

Ontario Superior Court of Justice

Divisional Court,

Carnwath J.

August 18, 2005

Civil procedure -- Appeal -- Extension of time -- Appellant bringing motion to reinstate his appeal from respondent's decision to revoke his professional licence -- Appeal not without merit as former appellate judge had been retained by respondent as independent counsel for disciplinary hearing without obtaining consent of Convocation as required by Rules of Professional Conduct -- Appellant having bona fide intention to appeal during time period and length of his delay not fatal -- Motion granted.

Civil procedure -- Costs -- Security -- Appellant successfully moving to reinstate his appeal from respondent's decision to revoke his professional licence -- Appellant's conduct throughout proceeding falling just short of disentitling him to reinstatement of appeal -- Good reason existing to order appellant to pay security for costs -- Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 61.06(1)(c).

The appellant brought a motion to reinstate his appeal from the respondent's decision to revoke his professional licence. If reinstatement was granted, the respondent sought security for costs.

Held, the motions should be granted.

For the appellant to obtain an extension of time to perfect his appeal, he had to satisfy the court of the "justice of the case". The appeal was not entirely without merit. It was possible that the appellant could succeed in establishing that a reasonable apprehension of bias flowed from the assistance provided to the respondent by independent counsel retained by the respondent for the hearing, a former member of the Ontario Court of Appeal, particularly since the former appellate judge did not obtain the express approval of Convocation to appear as counsel, as [page281] required by rule 6.08(3) of the Rules of Professional Conduct of the Law Society of Upper Canada. The appellant had a bona fide intention to appeal within the time period, and the length of his delay in pursuing the appeal was not fatal. He had satisfied the court of the justice of the case.

Rules 61.06(1)(a) and (b) of the Rules of Civil Procedure did not apply to the respondent's request for security for costs. The words "for other good reason" in rule 61.06(1)(c) were sufficiently broad for the court to take into account such matters as the appellant's conduct during the course of his hearing, the difficulties the respondent had in obtaining an address for service for the appellant, and the apparent abuse of process manifested by the appellant's suit against the respondent in Small Claims Court. The appellant's conduct throughout this proceeding fell just short of disentitling him to the reinstatement of his appeal. There was good reason to order him to pay security for costs in the amount of $50,000.

MOTION by the appellant to reinstate his appeal from the respondent's decision to revoke his professional licence; MOTION by the respondent for security for costs.

Cases referred to Miller Manufacturing and Development Co. v. Alden, [1979] O.J. No. 3109, 13 C.P.C. 63 (C.A.); Toronto-Dominion Bank v. Szilagyi Farms Ltd. (1988), 1988 4745 (ON CA), 65 O.R. (2d) 433, [1988] O.J. No. 1223, 29 O.A.C. 357, 28 C.P.C. (2d) 231 (C.A.) Authorities referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 61.06 [as am.] Law Society of Upper Canada, Rules of Professional Conduct, rule 6.08

Morris Manning, Q.C., for appellant. Linda Rothstein, for respondent.

[1] Endorsement of CARNWATH J.: -- Dr. Chuang seeks to reinstate an appeal of the College's decision to revoke his licence. The Registrar of the Divisional Court delivered a Notice Dismissing Appeal on May 18, 2005. The College opposes the request for reinstatement. If reinstatement is granted, the College seeks security for costs and a lifting of the stay of the College's decision requiring Dr. Chuang to pay $250,000 in costs.

[2] For Dr. Chuang to obtain an extension of time to perfect his appeal, he must satisfy the court of the "justice of the case". In considering the "justice of the case", the court examines the following:

(a) the existence of a bona fide intention to appeal within the time period;

(b) the length of the appellant's delay in pursuing the appeal; and, [page282]

(c) the merits of the appeal.

Miller Manufacturing and Development Co. v. Alden, [1979] O.J. No. 3109, 13 C.P.C. 63 (C.A.)

[3] If there is no merit to the appeal, the inquiry ends. Lack of merit, in itself, is sufficient grounds to deny the extension of time (Miller, supra).

The Merits of the Appeal

[4] Dr. Chuang has advanced several arguments designed to show there is merit in the appeal. I reject them all, save one. That argument relates to the participation in the proceedings of the The Honourable Patrick Galligan, a former member of the Ontario Court of Appeal, now a practising member of the Law Society of Upper Canada.

[5] Mr. Galligan was retained by the College as "independent counsel" to the Discipline Committee. His function was to assist the Committee with advice respecting the various, and often complicated, procedural questions raised by Dr. Chuang during 33 days of hearing. There is no suggestion that Mr. Galligan carried out these tasks with anything other than the highest probity and integrity.

[6] Any possible difficulty with Mr. Galligan's retainer lies with rule 6.08(3) of the Rules of Professional Conduct of the Law Society of Upper Canada which provides:

Appearance as Counsel

6.08(3) A retired appellate judge shall not appear as counsel or advocate in any court, or in chambers, or before any administrative board or tribunal without the express approval of Convocation. This approval may only be granted in exceptional circumstances and may be restricted as Convocation sees fit.

[7] It is common ground Mr. Galligan is a former member of the Court of Appeal for Ontario and that he did not obtain the express consent of the Society to act as independent counsel.

[8] Counsel for Dr. Chuang submits the obvious explanation of rule 6.08(3) is to prevent the possible appearance of bias that could arise where greater weight might be given to the submission or opinion of a distinguished former appellate judge, such as Mr. Galligan.

[9] Counsel for the College argues eloquently that professional bodies such as the College need the help of independent experts in dealing with complicated procedural matters. I agree. The difficulty lies with the College's choice of the counsel to advise the panel. [page283]

[10] At the opening of his hearing, Dr. Chuang sought to cause the chair to recuse himself. Mr. Galligan's opinion on the matter was sought and given and the panel decided the chair could continue to sit. Subsequently, a number of situations arose, including requests for adjournments to obtain counsel, where the panelists received the assistance of Mr. Galligan. In several instances, Dr. Chuang's requests failed.

[11] It is certainly open to argue that Mr. Galligan did not "appear" as "counsel" or as "advocate". It is open to argue that the College is not an "administrative board or tribunal". That is not for me to decide. I must consider whether, on this point, the appeal is without merit. I cannot so conclude. A reasonable person, fully informed of the facts, particularly of rule 6.08(3) and the reasons for its existence, might well find a reasonable perception of bias flowing from Mr. Galligan's advice to the panel and the panel's subsequent rulings against the appellant.

[12] I am unable to find there is no merit in the appeal. I therefore pass to consider the second and third factors.

The Existence of a Bona Fide Intention to Appeal within the Time Period

[13] Dr. Chuang filed a notice of appeal on May 4, 2004. On May 20, 2004, the transcripts were completed for which Dr. Chuang paid approximately $21,000. At least at the outset, there appears to have been a genuine intention to appeal.

The Length of the Appellant's Delay in Pursuing the Appeal

[14] On September 13, 2004, the College consented to Dr. Chuang's request for an extension of the date for perfection to October 30, 2004.

[15] On October 4, 2004, counsel for Dr. Chuang and the College entered into extensive discussions and negotiations to resolve a number of outstanding matters between the doctor and the College, including the appeal of the revocation of his licence to practice. These negotiations carried on from October until February of 2005. Draft copies of settlement terms were exchanged, but the attempt at resolution failed. On February 7, 2005, counsel for Dr. Chuang told counsel for the College he was removing himself as solicitor of record for all matters except this appeal.

[16] On March 9, 2005, counsel for Dr. Chuang asked counsel for the College for dates for an appearance before the Divisional Court to set a timetable for the perfection of the appeal. As noted above, a Notice Dismissing Appeal was issued by the Registrar [page284] on May 18, 2005. To put Dr. Chuang's position at its highest and best, there was a mountain of material to review, the summer vacation months of July and August intervened and the settlement negotiations were protracted. However, the delay from February to May of 2005 is particularly troubling. Were the implications for Dr. Chuang's professional life less severe, I might have refused his application on this ground. However, faced with what is referred to as professional capital punishment, I resolve the matter in favour of Dr. Chuang and find a bona fide intention to appeal within the time period, as that time period was affected by the factors above-mentioned.

[17] Dr. Chuang has satisfied me of the justice of the case.

The Respondent's Request for Security for Costs

[18] Rule 61.06(1) [Rules of Civil Procedure, R.R.O. 1990, Reg. 194] provides as follows:

61.06(1) In an appeal where it appears that,

(a) there is good reason to believe that the appeal is frivolous and vexatious and that the appellant has insufficient assets in Ontario to pay the costs of the appeal;

(b) an order for security for costs could be made against the appellant under rule 56.01; or

(c) for other good reason, security for costs should be ordered,

a judge of the appellate court, on motion by the respondent, may make such order for security for costs of the proceeding and of the appeal as is just.

[19] I find 61.06(1) above does not apply since I do not have good reason to believe that the appeal is frivolous and vexatious, for the reasons set out above in my consideration of the request for reinstatement of the appeal.

[20] I find that 61.06(1)(b) has no application as none of the circumstances in that rule applies to the matter before me. It is well-established that the court will not grant security for costs of an appeal simply because the appellant has not paid the costs awarded by the order under appeal (Toronto Dominion Bank v. Szilagyi Farms Ltd. (1988), 1988 4745 (ON CA), 65 O.R. (2d) 433, [1988] O.J. No. 1223 (C.A.)).

[21] Counsel for the respondent submits that under rule 61.06(1)(c), I can order security for costs, taking into account the uncontradicted evidence of Dr. Chuang's conduct both in this matter and in other matters involving Dr. Chuang and the College. Counsel for Dr. Chuang submits that I am confined to the matter under appeal in any analysis of [rule] 61.06(1)(c). I [page285] reject this submission. I find the words "for other good reason" are sufficiently broad for me to take into account such matters as the conduct of Dr. Chuang during the course of his hearing, the difficulties the College has in obtaining an address for service of Dr. Chuang and the apparent abuse of process manifested by Dr. Chuang's suit against the College in Small Claims Court. The Discipline panel found Dr. Chuang to be "ungovernable". Whether he is or not, his conduct throughout this proceeding falls just short of disentitling him to the reinstatement of his appeal. I find there is good reason to order Dr. Chuang to pay security for costs in the amount of $50,000.

The Respondent's Request to Lift the Automatic Stay of the Costs Order

[22] I reject this request. The costs order is part and parcel of the decision appealed from -- the automatic stay remains.

Order

[23] Dr. Chuang has until 4:30 in the afternoon on Monday, September 19, 2005, to perfect his appeal. Should he fail to do so, the respondent may move on notice to dismiss the appeal.

[24] Dr. Chuang has until 4:30 in the afternoon on Monday, September 19, 2005, to pay into court by way of cash, certified cheque or draft of a chartered bank the sum of $50,000 by way of security for costs. Should he fail to do so, the respondent may move on notice to dismiss the appeal.

[25] The costs of this motion are reserved to the disposing court.

Motions granted.