ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BROCKENSHIRE, JENNINGS AND SWINTON JJ.
B E T W E E N:
DR. ALEXANDER FRANKLIN
Applicant
- and -
COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO
Respondent
J. Thomas Curry and Ryan Stewart Breedon, for the Applicant
Brenda Doig, for the Respondent
HEARD at Toronto: September 26, 2007
SWINTON J.: (Orally)
1The Discipline Committee has no jurisdiction to order costs as a condition of an interim decision to adjourn a hearing, pursuant to s.16.1(2) of the Statutory Powers Procedure Act, R.S.O. 1990, c.S.22.
2There are numerous decisions of this and other courts holding that express statutory authority is required for an administrative tribunal to order costs (see, for example, Birnbaum v. Institute of Chartered Accountants of Ontario, [1991] O.J. No. 330 (Div. Ct.) at 3; Persaud v. Society of Management Accountants of Ontario (1997), 144 D.L.R. (4th) 375 (Div. Ct.) at 384).
3The cases relied on by the College suggesting a power to award costs deal with this issue in obiter (see Howatt v. College of Physicians and Surgeons of Ontario, [2003] O.J. No. 138 (Div. Ct.) at paragraph 32 and Re Morgan v. Association of Ontario Land Surveyors (1980), 28 O.R. (2d) 19 (Div. Ct.) at 22).
4The Rules of Procedure pertaining to the Discipline Committee of the College of Physicians and Surgeons of Ontario do not address a costs order on an adjournment (see Rule 14). The only rule the Discipline Committee has is s.53.1 of the Health Professions Procedural Code, Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c.18, as amended, which deals with costs at the end of the hearing after a finding of professional misconduct or incompetence.
5Therefore, the application for judicial review is granted and the decision of the Discipline Committee dated January 17, 2007 is set aside.
BROCKENSHIRE J.
6On consent, no order as to costs.
BROCKENSHIRE J.
JENNINGS J.
SWINTON J.
Date of Reasons for Judgment: September 26, 2007
Date of Release: October 1, 2007
COURT FILE NO.: 59/07
DATE: 20070926
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BROCKENSHIRE, JENNINGS AND SWINTON JJ.
B E T W E E N:
DR. ALEXANDER FRANKLIN
Applicant
- and -
COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO
Respondent
ORAL REASONS FOR JUDGMENT
SWINTON J.
Date of Reasons for Judgment: September 26, 2007
Date of Release: October 1, 2007