COURT FILE NO. Div. Ct. 8/03

Date: 20050127

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

O’DRISCOLL, SWINTON, HENNESSY JJ.

B E T W E E N:

DR. JACK RICHMAN

Eric R. Hoaken and Heather R. Weir, for the Applicant

Applicant

• and -

HEALTH PROFESSIONS APPEAL AND REVIEW BOARD, THE COLLEGE OF PHYSICIANS and SURGEONS OF ONTARIO, JANET HOUGH and BRIAN FRANCIS

David P. Jacobs and Carrie L. Clynick, for the Health Profession Appeal and Review Board

Respondents

Heard at Toronto: January 27, 2005

O’DRISCOLL J. (ORALLY)

1When the application for judicial review commenced this morning, there was a Court Reporter in attendance. We were advised by counsel for the applicant that, after making enquiries, his information was that neither Ms. Hough nor Mr. Francis would be in attendance. We also were advised that The College of Physicians and Surgeons would not attend at this hearing. Consequently, the Court Reporter was advised that she need not continue her attendance.

2The applicant, Dr. Jack Richman, seeks judicial review of the decisions of the Health Professions Appeal and Review Board (hereafter “Board”), dated June 17, 2002, that he attend in person before the Complaints Committee of the College of Physicians and Surgeons to be cautioned respecting the use of unqualified practitioners in conducting Independent Medical Examinations (IME) and about his obligations, as medical director of AssessMed, to ensure that qualified practitioners conduct IMEs for AssessMed. Several grounds were put forward in the judicial review material, but, before us, the argument revolved around the applicant not being provided with natural justice and procedural fairness alleging that:

1. the Board, and before that the Complaints Committee, had not given adequate or any notice to Dr. Richman that the gravamen of the complaint was that he ought to have known that Dr. Hemendra Shah, a psychologist, was not “qualified” to perform neuropsychological assessments, it being Dr. Richman’s duty and obligation as the medical director for AssessMed to so ascertain before assigning such assessments to Dr. Shah, and

2. the record showed that before the Complaints Committee that Dr. Richman had no notice with regard to certain allegations and, therefore, he had no opportunity to respond.

3The issues enumerated above were not raised before the Board and thus the Board did not consider them. Therefore, there is no legitimate ground for judicial review on that basis of the Board’s decision of June 17, 2002.

4In the factum of the respondent, at paragraph [54], it is stated: “The issue, to the extent it is a legitimate ground of review, which is denied, is raised de novo on judicial review.”

5The applicant submits that the Board’s decision was patently unreasonable because the Committee had no evidentiary basis to find that Dr. Shah was “unqualified” and was thus attempting, directly or indirectly to regulate AssessMed. We are of the view that the Board’s conclusions were not patently unreasonable because:

1. The Committee had an evidentiary basis to make the findings it did regarding Dr. Shah, and

2. The Committee had an evidentiary basis to make its findings regarding Dr. Richman’s responsibilities as the Medical Director of AssessMed. (See the Reasons of the Board, pp. 8-10)

6The Board concluded its reasons this way.

The Board appreciates that Dr. Richman knows full well what an IME [Independent Medical Examination] entails. It is both his business and his profession. What needs to be included in his discussion with the College is his obligation to ensure that qualified professionals conduct IMEs for AssessMed so that the public can have trust and confidence in a statutory system that has been set up to provide them protection.

7For these reasons, the application for judicial review is dismissed. The respondent Board does not seek costs. No order as to costs.