minicounsel

COURT FILE NO.: 59/05

DATE: 20051202

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

LANE, THEN and PARDU JJ.

B E T W E E N:

RALPH EDWARD WARREN

Applicant

Jonathan C. Lisus and John A. Dent for the applicant

and -

CRIMINAL INJURIES COMPENSATION BOARD

Respondent

and -

L.G.

Intervenor

David Fine for the respondent

Jo-Anne M. Boulding, Lily Harmer and Patti Shedden for the intervenor

Heard: November 25, 2005

PARDU J.:

Ralph Edward Warren asks this court to prohibit the Criminal Injuries Compensation Board from proceeding with a claim by Ms. L.G. filed by her on September 1995. More than ten years has passed, and a fair hearing is no longer possible. In my view the proceedings must be stayed.

Dr. Warren was a senior staff physician and a member of the University of Toronto Faculty of Medicine when he retired in 2003, after 35 years of practice.

In March 1993, he performed an upper gastro-intestinal endoscopy upon Ms. L.G. at St. Michael’s Hospital. The procedure included the administration of a sedative, a physical examination of the abdomen, and the insertion of a fibre optic scope via the mouth into the esophagus and digestive tract. In September 1993, Ms. L.G. wrote to the College of Physicians and Surgeons and alleged that Dr. Warren had sexually assaulted her during the procedure. On November 15, 1994, Ms. L.G. reported Dr. Warren to the police. On March 29, 1995, the College charged Dr. Warren with sexual impropriety and unprofessional conduct. On August 10, 1995, Toronto police arrested Dr. Warren and charged him with sexual assault. Neither the College nor the police interviewed nurses who were present during the procedure, nor obtained any expert medical advice as to the effects of the medication given to Ms. L.G..

On September 18, 1995, Ms. L.G. made application to the Criminal Injuries Compensation Board, alleging Dr. Warren had assaulted her.

The Crown Attorney’s office directed police to further investigate the allegations and withdrew the charges, indicating in court, “… the overwhelming weight of the evidence would seem to indicate that Dr. Warren has been exonerated of the commission of any criminal conduct whatsoever.”

The further investigation revealed that the medication administered to the patient was appropriate, that a nurse was with the complainant during the entire procedure and up to 3.1% of patients sedated with the same medication experience “Valium fantasies”.

In November 1996, the College withdrew all allegations against Dr. Warren.

On December 4, 1996, the Criminal Injuries Compensation Board notified Dr. Warren of Ms. L.G.’s application for compensation. On June 3, 1997, the Criminal Injuries Compensation Board unilaterally set a one-hour electronic hearing date for July 14, 1997. Dr. Warren’s counsel was not available on that date, and in any event the Criminal Injuries Compensation Board did not have a hearing room available that would accommodate witnesses. The hearing would obviously have required more than one hour.

On June 13 and 16, 1997, Dr. Warren advised the Board that witnesses were not available on the July 14, 1997 date. On January 5, 1998, Dr. Warren’s counsel wrote to the Board with dates to schedule the hearing for February or March 1998. The Board did not respond. On March 25, 1998, counsel wrote the Board again to attempt to set a hearing date. The Board did not respond. On July 2, 1998, Dr. Warren wrote to the Board again:

There has been a great deal of delay in the disposition of this matter.

With respect, it is neither reasonable nor fair for this straight forward matter to remain unresolved for as long as it has.

We require a day for the presentation of our response to Ms L.G.’s application for compensation and would ask that you provide us with a list of dates.

If it is of assistance to the Board, I can ascertain whether some of our evidence can be presented by affidavit to expedite matters.

Please contact me upon receipt of this letter to discuss scheduling.

On July 16, 1998, the Board sent counsel’s July 2, 1998 letter back to him with the following handwriting endorsed upon it:

Mr. Lisus: Our previous articling student suggested this file be closed as applicant could not be located & a previous letter addressed to her was returned by the Post Office! FILE CLOSED June 15/98.

B. Ritchie

On July 28, 1998, counsel wrote to the Board asking for “confirmation that this matter has been finally closed …” The Board did not respond. Fifty-one months went by. On December 5, 2002, the Board wrote to counsel for Dr. Warren advising that the claimant requested that the file be re-opened. Dr. Warren objected, but indicated he wished to call oral evidence and cross-examine Ms. L.G., and requested disclosure.

The Board did not agree to make full disclosure to Dr. Warren, and required that he pursue disclosure pursuant to the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c.F31.

An adjudicator of the Office of the Information & Privacy Commissioner completed the inquiry and ordered disclosure of certain records on July 21, 2004.

The Board had released a decision holding that it did not have jurisdiction to review its own systemic delay in deciding a motion to stay for delay. On September 2003 counsel wrote to ask the Board whether that was still its position. The Board did not respond and counsel repeated the request on July 23, 2004. On August 24, 2004, the Board wrote back apologizing for taking 11 months to respond and saying:

It is my understanding that in the above-noted case, it was the Board’s conduct that was brought into question in terms of the reason for the delay. As this was a procedural issue, the Board could not sit in judgment of itself and therefore the Panel Members ruled appropriately that the matter ought to have proceeded by way of judicial review.

With respect to the matter involving your client, arguably the Board’s conduct is not responsible for the delay. As such, you may bring a motion for dismissal for delay at the outset of the Hearing before the assigned Panel Members.

On November 9, 2004, counsel wrote to the Board:

Thank you for your correspondence of August 24, 2004, responding to my letters of September 23, 2003, and July 23, 2004.

We do not agree that the Board’s conduct is not responsible for any of the delay involving the application of Ms L.G.. Accordingly, pursuant to the reasoning in your letter of August 24, 2004, the Board will be unable to sit in judgment of itself on this issue, and will decline jurisdiction.

We are instructed to move for an order prohibiting the Board from proceeding with the application of Ms L.G..

Respecting the recent communication from Mary Nacpil, our position on the mode of hearing has been clearly communicated to the Board numerous times in the past years.

On January 25, 2005, counsel for the Board wrote to counsel for Dr. Warren:

We are the solicitors for the Criminal Injuries Compensation Board. This is further to your letter of November 9, 2004.

It is our view that the Board is not responsible for any of the delay involving Mrs. L.G.. The Board is now ready to set this matter down for a hearing.

However, because of your position regarding the delay in this matter, the Board is prepared to consider, at a preliminary hearing, whether the application ought to be dismissed because of delay on the part of the applicant.

If you disagree with the decision made by the Board at the preliminary hearing, you will still be free to bring an application for judicial review to prohibit the Board from proceeding with a hearing on the merits.

Counsel for Dr. Warren declined the offer to bring a preliminary motion before the Board and this application, filed February 2005, resulted.

Analysis

Dr. Warren argues that he has been seriously prejudiced by the delay and that a fair hearing is no longer possible. The Board argues that the application is premature, that the Board ought to hear a preliminary motion to stay for delay. As indicated in para. 5(b) of the factum:

(b) the CICB takes no position with respect to the merits of Warren’s allegation of delay, except to the extent that he seeks to blame the CICB. The CICB’s position is that it had nothing whatsoever to do with the delay which occurred in this matter. The CICB was prepared to consider on a preliminary application with representations from both L.G. and Warren, the very issue of whether there was prejudice to the fairness of the hearing or whether there were other forms of prejudice and would have done so, had this application not been brought;

The intervenor submits that granting the application would unfairly deprive her of any opportunity to present her case before the Board, and that the delay has not been so prejudicial to the fairness of the hearing as to warrant a stay.

A complaint filed with the Criminal Injuries Compensation Board is a serious matter, both for the alleged victim and the alleged assailant. Although the Board has indicated that it does not, as a matter of policy pursue its rights to subrogation, and that there may be a non-publication order granted at the hearing, a finding against an alleged perpetrator has “at least the potential of damaging, if not destroying, his reputation.”¹

Ordinarily, proceedings before administrative tribunals should not be fragmented. As Rosenberg J. said in McIntosh v. College of Physicians and Surgeons of Ontario (1998), 1998 19444 (ON SCDC), 169 D.L.R. (4th) 524 (Ont. Div. Ct.), at paras. 36 and 37:

[36] … It is preferable to allow administrative proceedings to run their course before the tribunal and then consider all legal issues arising from the proceedings at their conclusion. It is preferable to consider such issues against the backdrop of a full record, including a reasoned decision by the tribunal …

[37] Premature applications for judicial review should be discouraged where there is an alternative remedy by way of appeal. Where there is an adequate alternative remedy the proceedings before administrative tribunals should ordinarily not be fragmented. It is preferable to allow the administrative proceedings to run their full course before the tribunal and then consider all legal issues arising from the proceedings at their conclusion absent some exceptional or extraordinary circumstances. …

However, as he noted in Gage v. Ontario (Attorney General) (1992), 1992 8517 (ON SCDC), 90 D.L.R. (4th) 537:

If there is a prospect of real unfairness through denial of natural justice or otherwise, a superior court may always exercise its inherent supervisory jurisdiction to put an end to the injustice before all the alternative remedies are exhausted…

In my view, this too is one of those exceptional cases where the court should intervene with a remedy. The applicant did not have an adequate alternate remedy, given the Board’s position that it was not at fault and that it would not consider its own systemic delay in deciding whether proceedings should be stayed.

The delay here was extraordinary, and it is obvious from the chronology that the Board itself was responsible for a significant share of the delay.

In the administrative law context, delay, standing alone, will not warrant a stay of proceedings,² however, delay will justify a remedy where it impairs the fairness of the hearing or results in an abuse of process.

In Blencoe v. British Columbia (Human Rights Commission) (2002), 2000 SCC 44, 190 D.L.R. (4th) 513 (S.C.C.), at paras. [101] and [102], the court said:

[101] … In the administrative law context, there must be proof of significant prejudice which results from an unacceptable delay.

[102] There is no doubt that the principles of natural justice and the duty of fairness are part of every administrative proceeding. Where delay impairs a party’s ability to answer the complaint against him or her, because, for example, memories have faded, essential witnesses have died or are unavailable, or evidence has been lost, then administrative delay may be invoked to impugn the validity of the administrative proceedings and provide a remedy … It is thus accepted that the principles of natural justice and the duty of fairness include the right to a fair hearing and that undue delay in the processing of an administrative proceeding that impairs the fairness of the hearing can be remedied. …

and further, at para. [105]:

[105] It is trite law that there is a general duty of fairness resting on all public decision-makers (Martineau v. Matsqui Institution Disciplinary Board, 1979 184 (SCC), [1980] 1 S.C.R. 602 at p. 628, 106 D.L.R. (3d) 385). The human rights processes at issue in this case must have been conducted in a manner that is entirely consistent with the principles of natural justice and procedural fairness. Perhaps the best illustration of the traditional meaning of this duty of fairness in administrative law can be discerned from the following words of Dickson J. in Martineau, at p. 631:

In the final analysis, the simple question to be answered is this: Did the tribunal on the facts of the particular case act fairly toward the person claiming to be aggrieved? It seems to me that this is the underlying question which the courts have sought to answer in all the cases dealing with natural justice and with fairness.

and at para. [115]:

[115] I would be prepared to recognize that unacceptable delay may amount to an abuse of process in certain circumstances even where the fairness of the hearing has not been compromised. Where inordinate delay has directly caused significant psychological harm to a person, or attached a stigma to a person’s reputation, such that the human rights system would be brought into disrepute, such prejudice may be sufficient to constitute an abuse of process. The doctrine of abuse of process is not limited to acts giving rise to an unfair hearing; there may be cases of abuse of process for other than evidentiary reasons brought about by delay. It must however be emphasized that few lengthy delays will meet this threshold. I caution that in cases where there is no prejudice to hearing fairness, the delay must be clearly unacceptable and have directly caused a significant prejudice to amount to an abuse of process. It must be a delay that would, in the circumstances of the case, bring the human rights system into disrepute. The difficult question before us is in deciding what is an ‘unacceptable delay’ that mounts to an abuse of process.

and at para. [122]:

[122] The determination of whether a delay has become inordinate depends on the nature of the case and its complexity, the facts and issues, the purpose and nature of the proceedings, whether the respondent contributed to the delay or waived the delay, and other circumstances of the case. As previously mentioned, the determination of whether a delay is inordinate is not based on the length of the delay alone, but on contextual factors, including the nature of the various rights at stake in the proceedings, in the attempt to determine whether the community‘s sense of fairness would be offended by the delay.

It is important to remember that claims before the Criminal Injuries Compensation Board are intended to proceed in a summary fashion. There is no advance investigation or screening by the Board; there is a two-year limitation period (which can be extended). An initial one-hour electronic hearing was offered by the Board.

Here, 123 months have gone by since Ms. L.G. filed her complaint. This application for judicial review was launched nine-and-a-half years after the complaint. Two nurses and a nursing assistant have sworn affidavits to the effect that they no longer have an independent recollection of Dr. Warren’s treatment of Ms. L.G.. Their memories of what had happened was crucial evidence exonerating Dr. Warren of any criminal offence or professional misconduct. This loss of evidence because of the lapse of time means that Dr. Warren can no longer have a fair hearing.

In Stearns v. Alberta Insurance Council (2001), 2001 ABQB 752, 37 Admin. L.R. (3d) 114 (Alta. Q.B.), a seven-year delay in a disciplinary proceeding against an insurance agent resulted in a stay where diminished memories might affect the fairness of a hearing. In Blencoe there were “vague assertions that fall short of establishing an inability to prove facts necessary to respond to the complaints.” (para. [103]). Here there is credible evidence establishing the loss of important evidence.

In Hutchinson v. Newfoundland (Minister of Health & Community Services) (2001), 2001 37644 (NL SC), 204 Nfld. & P.E.I.R. 254, at para. 29, proceedings were stayed after a 44-month delay where complete inactivity had led the doctor to believe that the claim had been abandoned. Similarly, in Ratzlaff v. British Columbia (Medical Services Commission) (1996), 1996 616 (BC CA), 17 B.C.L.R. (3d) 336, a physician carried on his practice and then retired thinking the billing dispute was behind him after having written to the tribunal requesting action but getting no response. A hearing notice was not delivered for seven years. Hollinrake J.A., for the British Columbia Court of Appeal, agreed that, “where the delay is so egregious that it amounts to an abuse of power or can be said to be oppressive, the fact that the hearing itself will be a fair one is of little or no consequence.”

Here, Dr. Warren could reasonably believe the matter was at an end when the Criminal Injuries Compensation Board wrote to him to advise that it had closed its file.

Dr. Warren tried to expedite the hearing; he wrote four letters requesting hearing dates, to no avail. He provided the Board with notice of his evidence and witnesses, and offered to present some evidence by affidavit. The reopening of this file after so many years has caused Dr. Warren significant psychological harm which he described in his affidavit:

It is impossible to adequately describe how I felt when I heard that the CICB had re-opened the application of Ms. L.G., after four and one-half years. All of the anxiety, anguish, and embarrassment flooded back. The re-opening of this application has exacted an enormous toll on me, physically and emotionally. Again, I required the assistance of my psychiatrist to deal with the allegation. I had to resume taking anti-depressant medication. I found it difficult to concentrate on my work, to sleep, and relax. The repeated characterization of me as a violent offender who perpetrated a crime of violence against my patient is extremely difficult to bear.

I am concerned that my family, close friends, and supportive colleagues have also suffered.

I worry tremendously about the impact of these outstanding allegations on my professional reputation, and on my reputation among my family, friends, and my community.

As a professor of medicine and practising physician, my integrity and professionalism is paramount. I have spent my entire professional life building a reputation that is above reproach. To have this reputation tarnished by these false allegations almost twelve years after a completely appropriate examination, eight years after my complete exoneration of any criminal or professional wrongdoing, and seven years after false allegations were abandoned by Ms. L.G., is beyond my capacity to understand, and is intolerably difficult for me to bear.

In this case, in addition to the unfairness of a trial after 123 months, I am satisfied that “the damage to the public interest in the fairness of the administrative process should the proceeding go ahead would exceed the harm to the public interest in the enforcement of the legislation if the proceedings were halted.” (See Blencoe, para. [120])

On the motion for intervenor status, Ms L.G. sought leave to file affidavit material; but as noted in the endorsement by Swinton J., “nowhere in the record does Ms. L.G. indicate the likely content.” I infer from this that Ms. L.G. has no explanation for the four-and-a-half-year period during which she did not pursue her claim.

The Criminal Injuries Compensation Board may award compensation although there has not been a criminal conviction. However, the community’s sense of fair play would be offended by resurrection of these proceedings after Dr. Warren had been exonerated twice after more than nine-and-a-half years of delay and after the closing of the file for four-and-a-half years.

In Blencoe, LeBel J. dealt with the tension between the interests of a complainant like Ms. L.G., and those of a respondent like Dr. Warren, at paras. [178]-[180]:

[178] In the end, the specific and unexplained delay entitles Blencoe to some kind of remedy. The choice of the appropriate redress requires, though, a careful analysis of the circumstances of the case, in order to identify the causes and nature of the delay and its impact on the process, because the courts always have some discretion on orders of remedies founded on the old prerogative writs. The selection of an appropriate remedy may also impose a delicate balancing exercise between competing interests. In proceedings like those that gave rise to this appeal, we must factor in the interest of the respondent, that of the complainants themselves and finally, the public interest of the community itself which wants basic rights enforced efficiently but fairly. As we have seen above, the courts must also consider the stage of the proceedings which has been affected by the delay. A distinction must be drawn between the process leading to the hearing and the hearing itself. A different balance between conflicting interests may have to be found at different stages of the administrative process.

[179] Several kinds of remedies are available either to prevent or remedy abusive delay within an administrative process. The main forms of redress that we need address here are a stay of proceedings, orders for an expedited hearing and costs.

[180] Whoever asks for a stay of proceedings carries a heavy burden. In a human rights proceeding, such an order not only stops the proceedings and negates the public interest in the enforcement of human rights legislation, but it also affects, in a radical way, the interest of the complainants who lose the opportunity to have their complaints heard and dealt with. The stay of proceedings should not generally appear as the sole or even the preferred form of redress: see R. v. O’Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411, 130 D.L.R. (4th) 235, at para. 68. A more prudent approach would limit it to those situations that compromise the very fairness of the hearing and to those cases where the delay in the conduct of the process leading to it would amount to a gross or shocking abuse of the process. In those two situations, the interest of the respondent and the protection of the integrity of the legal system become the paramount considerations. The interest of the complainants would undoubtedly be grievously affected by a stay, but the prime concern in such cases becomes the safeguarding of the basic rights of the respondent engaged in a human rights proceeding and the preservation of the essential fairness of the process itself: see Ratzlaff, supra, at para. 19. Whatever its consequences, a stay may thus become the sole appropriate remedy in those circumstances.

Here the delay compromises the fairness of the hearing and amounts to a gross abuse of the process.

In my view, a stay is the sole appropriate remedy and an order will issue staying proceedings at the Criminal Injuries Compensation Board against Ralph Edward Warren upon the complaint of L.G..

If costs are in issue, the parties may make brief written submissions, the applicant by January 15, 2006, the respondent and intervenor by January 31, 2006.

Pardu J.

I agree

Then J.

LANE J.:

I have had the advantage of reading in draft the reasons of Pardu J. I agree with her that the application for judicial review should be allowed and the Board’s decision to hold a hearing in this ten-year-old complaint should be stayed permanently.

But for one critical fact, I would have dissented on the basis that the Board should be permitted, as the master of its own procedure, to hold the preliminary hearing on the impact of delay which it offered and which the applicant rejected. The Legislature has given the Board, not this court, the jurisdiction to determine such issues and we should not interfere until it has done so. The Board should have had the opportunity to consider all the factors set out in my colleague’s reasons and any other factors which it thought appropriate, including the additional fact that the complainant’s case has never been heard in any forum on its merits.

However, the referral of this matter back to the Board for a hearing has been rendered problematic by the indication, through the correspondence from the Board’s counsel, that the Board will not consider its own role in the delay. Such a position makes a fair hearing on the issue impossible.

I wish to stress that nothing in this court’s disposition of this application should be taken as in any way supportive of the correctness of the Board’s approach to its own role in the delay, a matter which must await another day.

Lane J.

Released: December 2, 2005

COURT FILE NO.: 59/05

DATE: 20051202

ONTARIO