Court File and Parties

Court File No: 558/07 Date: 2009-06-01 Superior Court of Justice - Ontario Divisional Court

Re: The College of Physicians and Surgeons of Ontario and Tom McNamara, Applicants/Responding Parties - and - H.M. Metcalf, in his capacity as Chief of the Peel Regional Police, Respondent

Before: The Honourable Mr. Justice S.N. Lederman

Counsel: Yasmin Nizami and Brendan Brammall, for the Moving Party, Dr. Allan Beitel Vicki White, for the Responding Parties, The College of Physicians & Surgeons of Ontario and Tom McNamara Luba Kowal and Michael Doi, for the Attorney General of Ontario

Heard at Toronto: May 21, 2009

Endorsement

[1] The moving party, Dr. Allan Beitel, a psychiatrist, moves for an order granting a stay of the stated case application of the College of Physicians & Surgeons of Ontario (“the College”) pending final determination of an application brought by Dr. Beitel and others for a declaration that the College’s investigative summons power is unconstitutional. In the alternative, Dr. Beitel seeks an order granting him leave to intervene as an added party in the stated case application.

[2] The Respondent H.M. Metcalf did not appear and takes no position on the motion.

[3] Both the stated case application and the application brought by Dr. Beitel (the “Beitel application”) arise from attempts by the College and a College investigator to obtain a copy of the Crown brief in relation to a criminal indictment against Dr. Beitel.

[4] The stated case application is scheduled to be heard by a Divisional Court panel on June 17, 2009. The Beitel application is scheduled to be heard by a Superior Court judge on July 13 – 17, 2009.

[5] Dr. Beitel submits that the stated case application should be stayed because:

a) multiplicity of proceedings should be avoided and the outcome of the Beitel application may obviate the need for the stated case application altogether;

b) the common law test for a stay as set out in RJR-MacDonald Inc. v. Canada, [1994] 1SCR 311 at 334 (S.C.C.) has been met;

c) the College’s stated case application is an abuse of process.

Nature of Stated Case Application

[6] The College and a College investigator who has all the powers of an inquiry under Part II of the Public Inquiries Act, R.S.O. 1990, c.P.41 have stated a case to the Divisional Court asking that it:

a) inquire into the refusal of H.M. Metcalf, Chief of the Peel Regional Police (“Chief Metcalf”) to comply with a summons issued by the College investigator for the production of documents; and

b) order Chief Metcalf to comply with the summons.

[7] On the basis of the Agreed Statement of Facts filed on the stated case application, the issue before the Divisional Court inquiring into whether Chief Metcalf was “without lawful excuse” in not complying with the summons, is whether the procedures set out in the case of D.P. v. Wagg (2004), 184 CCC (3rd) 321 (Ont. C.A.) [“Wagg”] apply to the investigative summons issued by the College investigator in accordance with s.76 of the Health Professions Procedural Code (the “Code”) and s.7 of the Public Inquiries Act. Chief Metcalf has taken the position that he cannot provide the College with the information sought by the summons. He has asserted that the Wagg procedures apply to disclosure to the College of information in the Crown brief and that these procedures require that both the Crown and Dr. Beitel be notified and consent to the release of the information and that the Crown vet the brief for privacy.

[8] The College is of the view that the Wagg procedures have no application to its investigative summons issued in accordance with s.76 of the Code and s.7 of the Public Inquiries Act. Its position is that Chief Metcalf is compelled to respond to the summons and that the documents should not be subject to vetting for privacy.

Nature of Beitel Application

[9] Dr. Beitel, along with three other physicians, has brought an application under Rule 14 challenging the validity of s.76(1) of the Code as being unconstitutional. That application alleges that s.76 violates Dr. Beitel’s s.7 and s.8 Charter rights and that the summons issued by the College for production of the Crown brief and materials prepared in the criminal proceeding are of no force and effect pursuant to s.52(1) of the Constitution Act, 1982. He also seeks a declaration that the Crown must comply with the principles set out in the Wagg case when it is dealing with a summons issued by the College.

[10] Only after Dr. Beitel and the other physicians had commenced their challenges to s.76(1) of the Code did the College initiate its stated case application.

[11] The College moved to strike or stay the Beitel application. In dismissing the motion, Justice Himel, pointed out that “the stated case process does not offer a forum to seek a declaration that s.76(1) is unconstitutional.” [2008 22557 (ON SC), [2008] O.J. No. 1901 at para. 45]

[12] Justice Low, in dismissing the motion for leave to appeal the order of Justice Himel, pointed out that the issues and focus of the stated case proceeding may not be as comprehensive as the Beitel application and that the Beitel application raises very significant issues that are not before the Court on the stated case. [2008 41164 (ON SCDC), [2008] O.J. NO. 3196 at para. 15]

Should the Stated Case Application Be Stayed?

[13] While the stated case and the Beitel application are related and have some common areas, their focus is different. Front and centre in the stated case application is the applicability of the Wagg procedures to s.76 whereas paramount in the Beitel application is the constitutionality of s.76(1) of the Code.

[14] It would appear that the basis for Chief Metcalf’s refusal to comply with the summons is his position that the Wagg procedures should apply. The Legislature has determined that the way to bring this question before the Court is by way of stated case to the Divisional Court pursuant to s.8 of the Public Inquiries Act and not an application to the Superior Court of Justice under Rule 14.

[15] Therefore, it is appropriate to follow the stated case process to adjudicate whether the refusal was with or without “lawful excuse” and have the Divisional Court decide this legal issue. Whether the Wagg procedures apply is of critical importance in determining the College’s use of the summons under s.76(1) of the Code.

[16] As for the test for a stay under the RJR-MacDonald case, the College recognizes that there is a serious issue to be determined. However, Dr. Beitel has failed to provide any evidence of any irreparable harm. If disciplinary proceedings are ultimately brought against Dr. Beitel and if s. 76(1) of the Code is declared unconstitutional, Dr. Beitel will have an opportunity at the disciplinary hearing to argue that the summonsed documents obtained pursuant to s. 76(1) should not be used against him in those proceedings.

[17] Since the launching of both the stated case application and the Beitel application, an important event has occurred. The charges against Dr. Beitel were stayed by the Crown on February 3, 2009. There is currently no criminal proceeding against Dr. Beitel. Nor is there any disciplinary proceeding pending, only an investigation.

[18] When the criminal charges against Dr. Beitel were stayed, the bail restrictions on Dr. Beitel were removed. Accordingly, there presently are no conditions imposed on Dr. Beitel’s ability to practise medicine despite the very serious allegations being investigated by the College.

[19] In considering the balance of convenience, public interest is an essential factor. Section 3(2) of the Code provides that in carrying out its objects, the College has a duty to serve and protect the public interest.

[20] Given the seriousness of the allegations pertaining to Dr. Beitel that he accessed and possessed child pornography, it is in the public interest that the College be permitted to conduct a full investigation and that the investigation proceed without delay. The documents that have been summonsed relate directly to the subject matter of the College’s investigation and are, therefore, a necessary part of a complete investigation.

[21] Depending on the finding as to constitutionality, the Beitel application may not necessarily determine the question of whether the Wagg procedures apply to s.76 of the Code. If the stated case is stayed pending the determination of the Beitel application, the College may not be able to complete the investigation of Dr. Beitel for what could be many years.

[22] The public has a significant interest in the College being able to complete its investigation of Dr. Beitel pursuant to its mandate as a professional regulator. Accordingly, the balance of convenience is in favour of denying the stay.

[23] While the stated case and the Beitel application have some areas of overlap, their focus is different. Continuing with the stated case application would not be an abuse of this Court’s process.

[24] Accordingly, the motion for a stay is dismissed.

[25] Dr. Beitel, in the alternative, has sought leave to intervene as an added party in the stated case, pursuant to Rule 13.01 and 13.03(1). The College has consented to Dr. Beitel being granted intervenor status. Dr. Beitel has an interest in the subject matter of the stated case and could be adversely affected by the decision in that proceeding. Accordingly, there will be an order granting him leave to intervene as an added party in the stated case application.

[26] The Attorney General for Ontario appeared through counsel but only to advise that they will be bringing a motion to seek intervenor status in the stated case application.

[27] As agreed by the parties, there will be no costs of this motion.

Lederman J.

Released: June 1, 2009