COURT FILE NO.: 232/07

DATE: 20071121

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

FERRIER, GANS AND SWINTON JJ.

B E T W E E N:

DR. NORMAN SUTHERLAND

Applicant

• and -

THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO

Respondent

Matthew Wilton, for the Applicant

Shaun M. O’Brien, for the Respondent

HEARD at Toronto: November 21, 2007

GANS J.: (Orally)

1The Applicant brings this application for judicial review in respect of a referral to the Discipline Committee of the College of Physicians and Surgeons of Ontario (the “College”) stemming from an investigation conducted by investigators appointed pursuant to s.75 of the Health Professions Procedural Code, Sched. 1 to the regulated Health Professions Act, 1991 S.O. 1991 c.18., by the Associate Registrar of the College. That section provides as follows:

The Registrar may appoint one or more investigators to determine whether a member has committed an act of professional misconduct or is incompetent if,

(a) the Registrar believes on reasonable and probable grounds that the member has committed an act of professional misconduct or is incompetent and the Executive Committee approves of the appointment;

2It is Dr. Sutherland’s position that only the Registrar, and not the Associate Registrar, was permitted by statute to make the threshold order appointing investigators and therefore, the purported appointment by a person not so authorized was a nullity. He also argued that the referral was flawed because the Registrar could not possibly have possessed the requisite reasonable and probable grounds specified by the above section as a pre-condition to the appointment of investigators with subsequent approval by the Executive Committee of the College.

3I would first observe that this application engages a discretion on the part of this Court in matters of this nature. As was said by this Court, differently constituted, in the Ontario College of Art et al. v. Ontario (Human Rights Commission) (1993), 1993 3430 (ON SCDC), 11 O.R. (3d) 798 at 799:

“This court has a discretion to exercise in matters of this nature. It can refuse to hear the merits of such an application if it considers it appropriate to do so. Where the application is brought prematurely…it has been the approach of the court to quash the application, absent the showing of exceptional or extraordinary circumstances demonstrating that the application must be heard.”

4I do not believe that the applicant has established any extraordinary or exceptional circumstances in the matter at bar. See also the decisions of this Court, differently constituted, in Lala v. College of Physiotherapists of Ontario, [2003] O.J. No. 5062 and Bhardwaj v. College of Physicians and Surgeons of Ontario, [2004] O.J. No. 4687.

5In my view, the application before us is premature having regard to the fact that the threshold issues of jurisdiction can both be and should be raised before the Discipline Committee. In that respect, the Discipline Committee can embark upon a determination of (a) whether the appointment of the investigators by the Associate Registrar was permitted by statute and (b) whether the Associate Registrar or the Registrar had reasonable and probable grounds to believe that the applicant was guilty of professional misconduct or incompetence. Both issues are threshold issues to be determined as a precondition to the Discipline Committee conducting any hearing on the merits.

6I do not believe the decisions in Krop v. College of Physicians and Surgeons of Ontario, 2002 53258 (ON SCDC), [2002] O.J. 308 (Div. Ct.) and Henderson v. College of Physicians and Surgeons of Ontario (2003), 2003 10566 (ON CA), 65 O.R. (3d) 146 (Ont. C.A.), prevent such an inquiry or determination, as described in paragraph 5 above, as both issues speak to the underlying jurisdiction of the Discipline Committee to proceed with the hearing.

FERRIER J.

7Costs will be fixed at $5,000, payable to the College.

FERRIER J.

GANS J.

SWINTON J.

Date of Reasons for Judgment: November 21, 2007

Date of Release: November 29, 2007

COURT FILE NO.: 232/07

DATE: 20071121

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT