COURT FILE NO.: 357/08

DATE: 20080819

SUPERIOR COURT OF JUSTICE – ONTARIO

(DIVISIONAL COURT)

RE: Allan beitel (Responding Party/Applicant) v. the college of physicians and surgeons of ontario, ministry of the attorney general (Crown Law Office – Civil Law), ministry of the attorney general (Criminal Law Division) and h.m. metcalf, in his capacity as Chief of the Peel Regional Police (Moving Party/Respondents)

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RE: LEONARD KELLY (Responding Party/Applicant) v. HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, and THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO (Moving Party/ Respondents)

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RE: BERTRAND PROULX (Responding Party/Applicant) v. THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO & HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO (Moving Party/Respondents)

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RE DR. MARVIN SAZANT (Responding Party/Applicant) v. THE MINISTRY OF THE ATTORNEY GENERAL, THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO, and THE TORONTO POLICE SERVICE (Moving Party/Respondents)

BEFORE: Justice Low

COUNSEL: David Stratas and Ryan Teschner, for the Moving Party/Respondent, The College of Physicians and Surgeons of Ontario

Robin Basu and Michael Doi, for the Respondent, the Attorney General of Ontario

Peter Griffin, for the Responding Party/Applicant, Dr. Leonard Kelly

John A. Dent and Lucas Lung, for the Responding Party/Applicant Dr. A. Beitel

J. Thomas Curry for the Responding Party/Applicant, Dr. Bertrand Proulx

Marie Henein, for the Responding Party/Applicant Dr. Marvin Sazant

HEARD AT TORONTO: August 13, 2008

E N D O R S E M E N T

[1] The College of Physicians and Surgeons of Ontario move for leave to appeal the order of Himel J. dated May 6, 2008, dismissing the moving party's motions to strike out the applications. The Attorney General of Ontario and Her Majesty the Queen in Right of Ontario support the College's motion.

[2] Each of Drs. Kelly, Beitel, Proulx and Sazant have brought applications to the court challenging the constitutionality of s. 76(1) of the Health Professions Procedural Code, schedule 2 of the Regulated Health Professions Act 1991, S.O. 1991, c. 18.

[3] To some extent, the situation of each of the doctors is different.

[4] In the cases of Dr. Sazant and Dr. Beitel, the Toronto Police Service and The Chief of the Peel Regional Police respectively are joined as respondents.

[5] In the cases of Dr. Sazant and Dr. Kelly, the summonses issued under s. 76(1) were complied with. In the cases of Dr. Beitel and Dr. Proulx, the summonses have not been complied with.

[6] In the cases of Dr. Kelly and Dr. Sazant, a referral has been made to the Discipline Committee of the College. In the cases of Dr. Beitel and Dr. Proulx, no Discipline Committee has been established and there is a stated case to the Divisional Court under s. 8 of the Public Inquiries Act, R.S.O. 1990, c. P.41.

[7] In the case of Dr. Sazant, the discipline committee hearing has proceeded to final submissions. Dr. Sazant had earlier made an application to the Superior Court for a stay of the discipline hearing and the stay was not granted.

[8] Dr. Kelly's position is the most straightforward. There is an agreement between counsel for the College and for Dr. Kelly that his challenge of the constitutionality of s. 76(1) is to be heard by the Superior Court. The agreement is unambiguous. There is no evidence contra, and in bringing the motion to strike the application, the moving party was attempting to resile from its agreement.

[9] The moving party was silent concerning the agreement in its motion materials, and in response to Dr. Kelly's submissions raising and relying on the agreement, it argued that the agreement is of no effect. The moving party argues that where the court has no jurisdiction, parties cannot confer jurisdiction by an agreement. The moving party argues that the Superior Court has no jurisdiction to hear the Charter challenges.

[10] I do not accept that proposition as it is clearly wrong.

[11] The moving party relies on Okwuobi v. Lester B. Pearson School Board; Casimir v. Quebec (Attorney General); Zorilla v. Quebec (Attorney General), 2005 SCC 16, [2005] 1 S.C.R. 257. That decision does not stand for the proposition that the Superior Court has no jurisdiction. It does stand for the proposition, as correctly summarized in the decision of the motions judge that "parties should attempt to exhaust the remedies available from the administrative tribunal rather than arguing that the absence of a particular remedy requires them to circumvent the administrative process entirely." Administrative tribunals are obligated to apply the laws of Canada and where allegations of Charter breaches arise in the course of administrative proceedings, the tribunal is empowered to determine charter issues and grant remedies within its jurisdiction as required to carry out its mandate. The court should generally refrain from exercising its jurisdiction except where there are remedial gaps.

[12] The Superior Court has jurisdiction to hear Charter challenges. The issue is whether the particular case is one where the court should refrain from exercising its jurisdiction and rather defer the matter to the regulatory forum which has concurrent power to decide the issue or issues raised.

[13] The Superior Court has jurisdiction to determine the issues raised on the application and the moving party and Dr. Kelly have agreed that it do so. The law applicable is found in Gagro v. Morrison, [1995] O.J. No. 1611 (Gen. Div.) at 31 and in Harkema v. Hutchison, [2005] O.J. No. 1512 (S.C. J.) at 27-8. No conflicting law was cited to me. In my view, the motions judge correctly held that the parties should be held to their agreement. That was a sufficient basis upon which to dismiss the motion to strike and to decline to stay.

[14] In the case of Drs. Beitel and Proulx, there is no other forum. There is no Discipline Committee hearing as there has been no referral of charges. It seems to me arguable that on that basis alone the residual jurisdiction of the court could be engaged as it cannot be said that, at the time of the applications, there is another forum in which the constitutional argument can and should be made. If section 76 of the Code is contrary to one or more of the fundamental rights under the Charter, and if the record shows that the exercise of powers under that section has or will violate an applicant's charter rights, it is at least arguable that the exercise of the court's jurisdiction may be warranted to prevent loss and damage resulting from the charter rights violation.

[15] The fact of the pending stated cases to the Divisional Court in the cases of Drs. Beitel and Proulx is not, in my view, an answer. They are not parties to those proceedings. They may or may not be granted intervenor status and it is certainly not a foregone conclusion that even if they were, that they would be permitted to change the issues and focus of the stated case proceedings to have determined the issues they raise on their applications. The doctors' applications are more comprehensive in any case, and raise very significant issues that are not before the court on the stated cases.

[16] The fundamental flaw in the moving parties' arguments on the motion for leave, however, lies in the conflating of the issues which would be before the court on a hearing of the applications on their merits with the issue which was before the motions judge on the motion to strike. They are different.

[17] Whether the court should refrain from exercising its jurisdiction in the particular circumstances of the case is the question for the court on hearing the doctors' applications on the merits. That, however, was not the issue to be decided by the motions judge on the moving party's motion to strike out the applications.

[18] The issue to be decided by the motions judge on the motion to strike the applications is the same as on a motion to strike out a statement of claim under rule 21.01. The question is whether it is plain and obvious that the application cannot succeed (see Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 6 W.W.R. 385; 74 D.L.R. (4th) 321). The onus is on the moving party and if the moving party does not demonstrate that the application is bound to fail, the motion to strike is properly denied.

[19] In my view, the motions judge applied the right test and came to the correct conclusion that the moving party had not established that it was plain and obvious that the applications were certain to fail. It needs only be arguable that the applications and the nature of the relief sought fall into the court's residual jurisdiction. Whether the court's residual jurisdiction could possibly be engaged is determined by the nature of the relief sought and the by the issues framed in the notices of application.

[20] The applications of Dr. Sazant and of Dr. Proulx seek relief against the Crown in relation to its obligation to comply with P.(D.) v. Wagg (2004), 2004 39048 (ON CA), 71 O.R. (3d) 229 (C.A.). Even if a Discipline Committee forum had been constituted in respect of all four applicants, the Committee would have no jurisdiction over Her Majesty. Further, with respect to Dr. Kelly, it is acknowledged by the moving party that the order for destruction sought in his application is a matter over which the Discipline Committee has no jurisdiction.

[21] I am not persuaded that there is good reason to doubt the correctness of the order of the motions judge.

[22] I am not satisfied that there are any conflicting decisions. Neither Okwuobi, supra, nor Sazant v. Ontario, [2007] O.J. No. 5214 (S.C.J. per Bellamy J.) is a conflicting decision.

[23] Okwuobi arose out of a situation where the applicant sought to circumvent entirely the channels of recourse set up by the administrative scheme. Okwuobi instructs that parties to a proceeding before an administrative tribunal that has power to adjudicate a Charter issue incidental to the discharge of its mandate should not generally be permitted to circumvent the operation of the regulatory scheme, observing that there will be exceptions where there are remedial gaps. In my view, what does or does not fall within the exception contemplated in Okwuobi is fact specific. Okwuobi does not hold or suggest that the kind of relief sought by the applicants could not possibly fall within the exception.

[24] In Sazant, the applicant took a similar but not identical tack to that in Okwuobi. In that case, Dr. Sazant was sought a stay of the discipline hearing on the basis that a constitutional objection was raised which should be heard in court. Bellamy J. declined the stay, applying the principle in Okwuobi. Accordingly, the issue before the court was entirely different from that before the motions judge here.

[25] In my view, neither branch of rule 62.02(4) has been met and the motion is dismissed.

[26] If the parties are not able to agree as to costs, I may be spoken to upon arrangement with my assistant.

Low J.

DATE: August 19, 2008