Citation: Sazant v. R.M. and C.I.C.B., 2010 ONSC 4273

DIVISIONAL COURT FILE NO.: 60/2010

DATE: 20100816

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MOLLOY J.

BETWEEN:

MARVIN SAZANT Appellant (Responding Party)

– and –

R.M. and CRIMINAL INJURIES COMPENSATION BOARD Respondents (Moving Parties)

COUNSEL:

Jordan Glick, for the Appellant

Megan Shortreed and Michael Fenrick, for the Criminal Injuries Compensation Board

Jack Fitch for R.M.

HEARD at Toronto: June 30, 2010

REASONS FOR DECISION

A. INTRODUCTION

[1] The Criminal Injuries Compensation Board (“the Board”) moves to quash this appeal based on lack of jurisdiction, prematurity, and the failure of the appellant to perfect it in a timely way.

[2] This appeal was commenced on February 2, 2010, when Marvin Sazant filed a notice of appeal to the Divisional Court from a decision of the Board dated December 18, 2009. The Board, on a preliminary motion, had declined to dismiss a claim for compensation brought by R.M. as being out of time, and ordered that his claim should proceed to a hearing on its merits. The Board proceedings are stayed as a result of this appeal. Little or no steps were taken to perfect the appeal until the Board brought this motion to quash. R.M. supports the Board’s motion.

[3] The appeal is quashed. The Board’s order was not final in nature and there is no statutory right of appeal from interlocutory orders of the Board. Therefore, there is no jurisdiction in this Court to hear the appeal. There is no point in converting this proceeding to a judicial review rather than an appeal, as such an application would be dismissed for prematurity. My reasons follow.

B. BACKGROUND

Parties

[4] The Board is a quasi-judicial agency established under the Compensation for Victims of Crime Act[^1] (“the Act”). The Board awards compensation to victims and others affected by crimes of violence committed in Ontario.

[5] R.M. is a claimant before the Board, seeking compensation for sexual assault he alleges was perpetrated by Marvin Sazant in 1981 and 1982, when R.M. was 14 and 15 years old. He is now in his forties.

[6] Marvin Sazant is, and was at the time of the alleged assaults, a medical doctor and was the coach of the YMCA youth basketball team on which R.M. played. He had a close personal relationship with R.M. at the time in question, but disputes having sexually assaulted him. Dr. Sazant is now well into his seventies.

[7] The first time R.M. reported to the police that he had been sexually assaulted by Dr. Sazant was in November, 1998. Criminal charges were laid, but Dr. Sazant was discharged at the preliminary hearing, primarily on the basis that there had been no evidence of a lack of consent by R.M. (the age of consent at that time, being 14). The preliminary hearing judge’s decision was quashed on certiorari. There were further appeals all the way to the Supreme Court of Canada[^2], which held that there was some evidence R.M. had not consented to the sexual acts and the preliminary hearing judge had therefore exceeded his jurisdiction. Ultimately, Dr. Sazant was committed for trial. He then brought an application under s. 11(b) of the Charter which resulted in an Order dated April 26, 2006 staying the criminal charges against him for delay.[^3]

[8] A complaint against Dr. Sazant to the College of Physicians and Surgeons proceeded to a full hearing and resulted in a decision by the Discipline Committee on September 2, 2009 revoking Dr. Sazant’s certificate of registration. Dr. Sazant has appealed that decision to the Divisional Court and the Discipline Committee decision has been stayed pending the appeal.

[9] R.M. first filed his compensation claim with the Board on July 16, 2003. Section 6 of the Act states, “An application for compensation shall be made within two years of the date of the injury or death but the Board, before or after the expiry of the two-year period, may extend then time for the further period it considers warranted.” Accordingly, along with his application, R.M. also filed an “Extension Request Form” in which he stated as the reason for the late request that he was not aware of the existence of the Board until the criminal charges went to court. It is the usual practice of the Board not to proceed with a compensation claim while related criminal proceedings are still outstanding. The criminal charges against Dr. Sazant concluded in April 2006. On June 14, 2006, the Vice-Chair of the Board granted an extension under s. 6 of the Act enabling R.M.’s application for compensation to be processed. It was only at this stage that the Board put Dr. Sazant on notice of the claim.

[10] Dr. Sazant was advised that a hearing would be conducted on December 16, 2008 to determine R.M.’s application for compensation. Dr. Sazant was offered the right to participate in that proceeding. There was some delay in getting the notice to Dr. Sazant due to a change of address. Therefore, when Dr. Sazant’s counsel replied on December 11, 2008 that he wished to participate and proposed making written submissions by December 29, 2008, the Board cancelled the December 16, 2008 hearing date.

[11] Over the next several months, there was ongoing correspondence between Dr. Sazant’s counsel and the Board about various procedural matters, including Dr. Sazant’s position that the compensation claim was barred by the limitation period. The Board advised him that the time had already been extended but that he was free to raise with the hearing panel any impact as to the delay in filing.

[12] On August 17, 2009, the Board informed Dr. Sazant that November 19, 2009 had been set for a hearing of R.M.’s application for compensation. On November 11, 2009, counsel for Dr. Sazant served a factum and book of authorities with respect to matters he described as “pretrial motions,” which included a motion to dismiss the application as out of time.

[13] The three-member Hearing Panel (“the Panel”) heard the pre-trial motions on November 19, 2009 and reserved its decision. Subsequently, the Panel released its decision and reasons, dated December 18, 2009 and entitled “Preliminary Decision.” On the issue of the delay by R.M. in filing his application for compensation, the Panel ruled that it was appropriate to extend the time for filing, that the hearing should proceed on its merits, and that many of the issues raised by Dr. Sazant could still be raised during the course of that hearing.

[14] Dr. Sazant received the Panel’s decision on January 7, 2010. His counsel filed a notice of appeal on his behalf on February 2, 2010. The filing of the notice of appeal operates as a stay of the proceedings before the Board. Dr. Sazant did nothing to move the appeal forward.

[15] On April 1, 2010, the Board retained the law firm of Paliare Roland to act for it on the appeal. On April 9, 2010, counsel for the Board wrote to counsel for Dr. Sazant stating the Board’s position that: there is no right of appeal from an interlocutory order of the Board; the proper recourse would have been a judicial review proceeding, but it had not been brought in a timely manner; and, in any event, it was premature to challenge the Board’s interim ruling and the proper approach would be to await the outcome of the hearing itself. Counsel for the Board also pointed out that Dr. Sazant had failed to perfect his appeal in a timely way. The Board warned that if Dr. Sazant persisted with this appeal, a motion to quash would be brought.

[16] On May 5, 2010 counsel for the Board advised that the motion to quash would be brought and suggested available dates for the argument. Counsel for Dr. Sazant replied on May 7, 2010 that he had been unable to perfect the appeal because he was missing relevant documents requested from the Board in late February that had still not been disclosed.

[17] The Board served its motion materials on Dr. Sazant on June 2, 2010, returnable for June 28. The motion was ultimately argued on June 30, 2010.

[18] Counsel for Dr. Sazant delivered a factum in response to the motion to quash, raising inter alia, an issue as to the propriety of the Board bringing such a motion and taking the position that the Board has no standing to do so. In an abundance of caution, a parallel motion to quash was filed by counsel on behalf of R.M..

C. THE ISSUES

[19] The first issue to be dealt with on the motion was Dr. Sazant’s challenge to the standing of the Board to bring this motion or to be heard on the motion. After hearing argument, I ruled on that preliminary issue, with a brief handwritten endorsement dismissing Dr. Sazant’s objections to the Board’s role.

[20] Counsel for the Board raised two primary issues, and one alternative argument. First, the Board submits that the appeal should be quashed because there is no jurisdiction in this court to hear an appeal from an interlocutory order. Second, the Board argues that even if there is jurisdiction, or if Dr. Sazant had brought a judicial review application rather than an appeal, the application should still be quashed as premature. Finally, in the alternative, and also in response to Dr. Sazant’s motion to extend the time for perfecting his appeal, the Board argues that the appeal should be dismissed for delay.

[21] R.M. supported the arguments advanced by the Board and also argued that a decision by the Board to extend the time for making an application is a purely administrative exercise of discretion and does not raise a question of law. Therefore, there would be no appeal from that decision even if it were a final order.

[22] Dr. Sazant relies on s. 23 of the Act which he submits makes every decision of the Board a “final” one and subject to appeal before this court. On the issue of prematurity, Dr. Sazant submits that he was denied natural justice because, prior to the argument before the Panel, he was not given the application form filed by R.M. nor the previous decision of the Board’s Vice-Chair extending the time. He argues that the Court should step in to prevent an injustice by granting the necessary extensions of time to enable him to file the necessary materials to complete his appeal or application and by hearing the appeal or judicial review from the Panel’s decision.

D. ANALYSIS

Standing: Does the Board have standing to bring this motion and make submissions on jurisdiction and prematurity?

[23] The Board was, quite properly, named as a party in Dr. Sazant’s notice of appeal. In its motion to quash, the Board takes no position on the merits of the Panel’s decision. Rather, the Board has confined itself to matters of jurisdiction, procedure, and statutory interpretation. As I stated in my written endorsement, if the appeal had proceeded to argument on its merits, the Board would have standing to address the jurisdictional and statutory interpretation issues. It is in the interests of all parties that true jurisdictional issues be raised at an early stage and it was appropriate for the Board to bring the motion it did. In my opinion, such a step is not “overly aggressive” (as Mr. Glick asserted), nor does it compromise the ultimate role of the Board as impartial decision-maker. I therefore ruled that the motion was properly brought and that counsel for the Board was free to argue the points raised in its factum. However, I also held that if the merits of the Panel’s decision became relevant at any point (e.g. as a factor in deciding whether to dismiss for delay or extend the time to perfect), those issues would be addressed by counsel for R.M., rather than the Board.

Jurisdiction: Does the Act provide a right of appeal from interlocutory orders?

[24] An order is final, as opposed to interlocutory, if it finally disposes of the substantive issue between the parties. A decision that declines to stay a proceeding, but rather directs that it should proceed to a hearing on its merits, is the classic example of an interlocutory order. Accordingly, on the face of it, the Panel’s decision in this case is interlocutory in nature.

[25] Mr. Glick, for Dr. Savant, argues that by virtue of s. 23 of the Act, every order made by the Board is a “final” order and can be appealed directly to the Divisional Court on a question of law. Section 23 states:

Subject to section 25[^4], a decision of the Board is final except that an appeal lies to the Divisional Court from any decision of the Board on any question of law.

[26] In my opinion, Mr. Glick’s interpretation of the word “final” in s. 23 imputes a meaning that the language simply cannot bear, particularly when considered in context. Section 23 is a privative clause directed toward insulating decisions of the Board from review by the courts, except with respect to questions of law. The use of the word “final” in that context, in conjunction with the word “except” is meant to convey that the merits of the Board’s decision as to whether or not to award compensation in any given case is conclusive and binding and is not subject to an appeal to the courts, except on a point of law. It is not meant to deem orders that are clearly interlocutory in nature to be “final” and to thereby provide a right of appeal that would not otherwise exist.

[27] What is unusual in this Act is the use of the word “final” coupled with an exception for a right of appeal to the Divisional Court. Counsel were unable to direct me to, and I am not aware of, any statute that has this particular combination. There are many examples of statutes in which language stating a decision to be “final” has been found to be a privative clause. There are also many examples of statutes in which a right of appeal only on a question of law has been found to be a privative clause strictly limiting the right of appeal to questions of law alone. The fact that there may not be another statute that contains both provisions in the same section does not, in my view, change the nature of the language used. It is still a privative clause. It is within this context that the words used should be interpreted.[^5]

[28] There is a clear distinction in law between final orders and orders that are interlocutory in nature. Applying Mr. Glick’s analysis would require reading s. 23 as obliterating that distinction. On his interpretation, all orders, whether of an interlocutory nature or not, are deemed to be final. It is open to the Legislature to deem that a pig is a cow for particular purposes. However, if it wishes to accomplish that result, it must do so in the clearest of terms. Likewise, with the nature of orders. If the Legislature intended to deem that an interlocutory order is a final order, it would have said so explicitly.

[29] Further, in describing the decisions of the Board as final and providing a circumscribed right of appeal on questions of law only, the Legislature cannot be taken to have overridden well-established law limiting rights of appeal from tribunals to appeals from final orders only.

[30] In Roosma v. Ford Motor Co. of Canada Ltd.[^6] this court considered the meaning of s. 41 of the Ontario Human Rights Code, which provided that any party to a proceeding before a board of inquiry could appeal to the Divisional Court from “a decision or order of the board.” A Board of Inquiry was ongoing into human rights complaints by two Ford employees who objected to the requirement in the collective agreement that they work a night shift every second Friday, which would offend a principle of their religion that they not work on their sabbath. Three preliminary issues were argued and decided by the Board Chair. He ruled against the Union’s position on all three points, holding that: (1) the Human Rights Code imposes a duty to accommodate short of undue hardship; (2) a union can be a respondent in a complaint of employment discrimination; and (3) the complaints adequately disclosed a cause of action against the union. The union appealed to the Divisional Court from these decisions, relying upon s. 41 of the Code.

[31] The Divisional Court noted that the effect of the rulings was to continue the inquiry. The Court also observed that the filing of the appeal had the result of staying the proceedings, whereas a notice of judicial review would not have that effect. The union argued that on the wording of s. 41 an appeal could be taken from any decision of a board of inquiry and not merely from the board’s final determination. The Divisional Court rejected that argument decisively, stating at paras 19-20:

. . . No more than a moment’s reflection is needed to reveal the startling consequences that would follow if this construction were adopted. Any decision, however trifling, could be appealed at any stage of the hearing by any party. Successive appeals could be launched without limit. Each appeal would bring the inquiry to a stop.

If that were possible in trials in the courts, we would be presented with the spectacle of parties scuttling back and forth between trial courts and this court or the Court of Appeal, with the judge and jury perhaps, left to twiddle their thumbs while counsel are at Osgoode Hall. It is an unattractive prospect.

[32] Reid J., writing the unanimous decision of the court in Roosma, rooted his interpretation of the appeal provision in the general principle that proceedings before administrative tribunals are meant to be expeditious. He held that interpreting the appeal provision as applying to anything but final decisions would thwart that legislative intent, stating at para. 26, under the heading"Delay is at odds with the rationale for the appointment of tribunals":

The traditional rationale for the establishment of administrative tribunal is cheapness, expedition, and expertise. The objectives are freedom from what is popularly seen as the undue delay and cost of court proceedings and the inexpertise of judges trained in the law but not in matters of social improvement. Why then, would the legislature build into the procedure for an inquiry under the Ontario Human Rights Code, 1981, a stumbling block that could bring everything to a halt at any party's whim? If any party can appeal any ruling at any time, and freeze the inquiry until all appeals had been disposed of, the prospect of speedy and inexpensive resolution of human rights complaints becomes an illusion, if not a nightmare. I do not suggest that the appeals before us were launched simply for the purpose of achieving delay, but that has been their effect. The proposal of the union on this motion could have the effect of stultifying the Code. If one appeal failed a second could be launched when the, possibly forced, opportunity arose, and another thereafter, and so on. The result would be stalemate.

[33] More recently, in 2001, a similar issue was dealt with by this court in Butterworth v. College of Veterinarians of Ontario[^7]. A veterinary surgeon was facing serious charges before the discipline committee of the college and argued that the discipline committee had no jurisdiction to hold a hearing without first having the matter referred to the complaints committee. He had sought a stay from the discipline committee, which ruled against him. He appealed to the Divisional Court from that decision. At issue was the right of appeal under s. 35 of the Veterinarians Act[^8] which states:

35. (1) A party to,

(a) a proceeding before the Discipline Committee under section 30;

(b) a proceeding before the Registration Committee under section 33;

(c) a proceeding before the Accreditation Committee under section 22;

(d) a hearing by the Board in respect of a proposal by the Registration Committee related to the issuance of a licence or the imposition of conditions or limitations on a licence; or

(e) a hearing by the Board in respect of a proposal by the Accreditation Committee related to the issuance or renewal of a certificate of accreditation or the imposition of conditions or limitations on a certificate of accreditation,

may appeal to the Divisional Court from the decision or order of the committee or the Board.

(Emphasis added)

[34] McFarland J. (as she then was) ruled in Butterworth that the appeal right applied only to final orders and that if the legislature had intended it to apply to interlocutory orders, it would need to say so explicitly. She held, at para 6:

It seems to me on a plain reading that s. 35 of the Act is directed more toward final decisions of the Board and/or Committee rather than to interlocutory decisions of those bodies. In view of the common law which generally prohibits appeals of interlocutory decisions, I think if the legislature’s intention had been for this section to apply to all decisions, including interlocutory ones, the section would need to say more. I conclude therefore that s. 35 does not apply. . .

[35] The Alberta Court of Appeal came to a similar conclusion in Partington v. Institute of Chartered Accountants of Alberta[^9] when considering the language of a statute that provided a right of appeal “from an appeal tribunal’s decision.” The majority held, at para 15:

As this Court said in Robertson v. Wasylyshen (2003), 339 A.R. 169, 2003 ABCA 279, there are many reasons why an appeal from a preliminary ruling in a disciplinary hearing is not appropriate. In the present case they include the following: a decision in which the protection of the public and the integrity of the profession is engaged should not be made in a factual vacuum; the timing of such an appeal disrupts and delays the profession’s responsibility of self-discipline; a full hearing on the merits may make the appeal academic; and there is an appeal from the final decision following the disciplinary hearing.

[36] There is considerable other case authority to the same effect. Statutory provisions that have been interpreted as providing a right of appeal only from a final order, and not an interlocutory order, include: “the decision or order,”[^10] “the board’s decision,”[^11] “the order of the Municipal Board,”[^12] and “its decision or order.”[^13]

[37] Accordingly, I conclude that, when seen in context, the right of appeal in s. 23 of the Act refers only to final decisions of the Board. A decision on a preliminary issue that results in the hearing proceeding is not a final order. Interpreting this provision as permitting appeals from any interlocutory would not be consistent with the principle that proceedings before tribunals are meant to be expeditious, inexpensive, and independent from the courts. If the Board rules against R.M. on the application before it, no further appeal to this court by Dr. Sazant will be necessary. If, on the other hand, Dr. Sazant is ultimately unsuccessful in persuading the Board to accept his potion, he will still have his s. 23 right of appeal. Further, in the latter eventuality, whatever court hears the matter will have the advantage of a full evidentiary record.

Prematurity: Should the proceedings be stayed as premature?

[38] Although my conclusion with respect to jurisdiction is sufficient to warrant quashing the appeal, it is nevertheless relevant to consider the prematurity issue. If the only difficulty with Dr. Sazant’s appeal is a procedural one, in that he should have delivered an application for judicial review rather than a notice of appeal, it would be appropriate to consider converting his appeal to an application. However, I do not consider it proper to do so in this case because even if the application had been brought appropriately by way of judicial review, I would have stayed it as being premature. Whether Dr. Sazant proceeds by way of appeal or judicial review on this issue, the same principles apply. This court is always reluctant to intervene in proceedings that are still ongoing before an administrative tribunal.

[39] The underlying rationale for the Divisional Court’s decision with respect to appeal rights in Roosma is equally applicable in a judicial review analysis. Thus, in Ontario College of Art v. Ontario (Human Rights Commission),[^14] the Divisional Court stayed a judicial review proceeding for prematurity, essentially for the same underlying reasons of policy as have been expressed in many of the appeal rights cases. The case involved a human rights complaint alleging sexual and racial harassment. The complaint was filed in 1987. In 1992, the Ontario Human Rights Commission decided to appoint a Board of Inquiry to conduct a hearing into the complaint. The respondents brought a judicial review application alleging that the Commission's decision had been based on an investigation report by an investigator who was biased against the respondents throughout and also raising the issue of delay.

[40] The Divisional Court quashed the judicial review application as premature. Callaghan C.J.O.C., writing for the court, noted that the issues of bias and delay could be dealt with by the Board of Inquiry and, depending on the outcome at the tribunal, might cease to become relevant issues, or could be the subject of an appeal at the end of the proceedings when there would be the benefit of a full evidentiary record. He held that, as a matter of policy, interlocutory decisions should be made in the first instance by tribunals without judicial intervention. Callaghan C.J.O.C. noted that this policy accords with “a long line of authority which has indicated the need to avoid a piecemeal approach to judicial review of administrative action.” He held, at paras 4 and 6, as follows:

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, as alleged by the Attorney General in these proceedings, 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: see Latif v. Ontario (Hospital Resources Commission) (an unreported decision of this court of March 11, 1992; leave to appeal was denied on June 8, 1992 by the Ontario Court of Appeal) and Hancock v. Ontario (Human Rights Commission) (an unreported decision of this court of November 10, 1992).

For some time now the Divisional Court has, as I have indicated, taken the position that it should not fragment proceedings before administrative tribunals. Fragmentation causes both delay and distracting interruptions in administrative proceedings. It is preferable, therefore, to allow such matters to run their full course before the tribunal and then consider all legal issues arising from the proceedings at their conclusion. In particular, at that time, these applicants will have a full right of appeal pursuant to s. 42 of the Human Rights Code, R.S.O. 1990, c. H.19.

[41] In Ackerman v. Ontario (Provincial Police)[^15] the Divisional Court held that the court’s traditional position on the prematurity issue is rooted in the principle of deference to administrative tribunals. In that case, I wrote, at para 18:

The position traditionally taken by the courts on the prematurity issue finds its foundation in respect for the legislative intent that reposed the decision-making power in the tribunal and deference to that tribunal. It is inconsistent with those principles to permit participants before an administrative tribunal to come running to Divisional Court on judicial review prior to having exhausted all of their remedies and appeal routes within the administrative regime. Such applications will result in increased costs for all concerned as well as considerable delay in what is meant to be a cost-effective and expeditious process.

[42] The Court of Appeal has also endorsed these principles. In Howe v. Institute of Chartered Accountants of Ontario,[^16] the Court of Appeal upheld the Divisional Court’s decision staying a judicial review application as premature. The case involved discipline proceedings and the issue raised on judicial review was the adequacy of disclosure prior to the hearing. Finlayson J.A., writing for the majority, held at para 15:

I do not think that we should encourage applications such as these which have the effect of fragmenting and protracting the proceedings except in the clearest of cases. In my opinion, the Divisional Court was correct in exercising its discretion not to grant prerogative relief in this case.

[43] These principles have also been applied in cases involving the Criminal Injuries Compensation Board. For example, in Jocko v. Ontario (Criminal Injuries Compensation Board) five individuals who were claimants seeking compensation under the Act had sought an order from the Board for disclosure of certain records held by the police. The Board did not order disclosure and the claimants sought judicial review in the Divisional Court. This court stayed the application as being premature, citing Howe v. Institute of Chartered Accountants. Dambrot J. held, at para 10:

We are of the view that this application is premature. The circumstances here are not exceptional and do not justify intervention by this Court at this stage of the proceedings. It is far from clear at this stage of the proceedings that any of the applicants will be prejudiced by the extent of the disclosure made to them by the Board, particularly since we cannot know at present what additional material will be produced by the witnesses in compliance with the summonses they received when they testify at the hearing.

[44] There is nothing about the case now before this court that warrants judicial intervention at this stage. Dr. Sazant’s rights are fully protected by the ultimate right of appeal under s. 23. At this point, merely proceeding to a hearing does not cause undue prejudice. The proceedings should be permitted to unfold within the administrative regime. The courts will be there to intervene, if appropriate, once that process has been completed.

[45] Finally, I note that Dr. Sazant and his counsel are well aware of these principles. As I mentioned at the outset, there has also been a complaint against Dr. Sazant before the College of Physicians and Surgeons. A hearing was ordered before the discipline committee of the College and Dr. Sazant sought to stay those proceedings while he pursued judicial review and other applications in the Divisional Court and Superior Court. The discipline committee refused to adjourn its hearing pending these judicial proceedings and Dr. Sazant brought several motions seeking a court order staying the discipline hearing. One of those motions was dismissed by Bellamy J. on the grounds of prematurity.[^17] She held, at para 11:

As well, in my view, Dr. Sazant's application is premature. The Discipline Committee is obliged to consider issues relating to a Charter breach, including the exclusion of evidence under 24(2). I see nothing before me to suggest that the Discipline Committee will not be prepared to take its responsibility seriously. To the contrary, its July 9th decision makes it clear that it is very much alive to Dr. Sazant's concerns and understands that, as often happens at hearings before the College, it will be called upon "to decide as a matter of law what is admissible or not admissible in evidence before it". As in Okwuobi at para. 46, Dr. Sazant "should attempt to exhaust the remedies available from the [Discipline Committee of the College of Physicians & Surgeons of Ontario] rather than arguing that the absence of a particular remedy requires [him] to circumvent the administrative process entirely".

[46] The situation now before me is strikingly similar; so too is the result.

[47] Accordingly, if I had not quashed Dr. Sazant’s appeal for want of jurisdiction, I would have stayed it as premature.

Other Issues:

[48] Given my conclusions on the jurisdiction and prematurity issues, it is not necessary to deal with the issue of delay, nor with Dr. Sazant’s motion to extend the time to perfect his appeal.

E. CONCLUSION and COSTS

[49] In the result, this appeal is quashed.

[50] There is no reason why costs should not follow the event, particularly since fair warning was given to Dr. Sazant by counsel for the Board and he had every opportunity to withdraw his appeal and continue with the hearing.

[51] Counsel for Dr. Sazant advised that, if successful, he would be seeking costs on a partial indemnity basis in the amount of approximately $9500.00. Coincidentally, counsel for the Board is seeking costs in the amount of $9500.00. That seems reasonable to me and I so order.

[52] The situation with respect to R.M. is somewhat different. To the knowledge of Dr. Sazant, R.M. is in difficult financial circumstances. The weight of this motion was initially borne by the Board and it was unnecessary for R.M. to take an active role. Rather than simply coming to court and arguing the motion on its merits, Dr. Sazant chose to challenge the standing of the Board to bring the motion, or even to argue the points raised. Because of this, R.M. retained counsel, who prepared a duplicate set of materials and who was ready to argue the entire motion if I had declined to give recognize the Board as having standing. R.M. is unable to pay his counsel and Mr. Fitch stepped in on a pro bono basis, which is very much to his credit. However, given the result, there is no reason that Mr. Fitch should not be made whole in these circumstances and I consider it appropriate that he have his costs on a substantial indemnity basis. Those costs are fixed at $6886.75, as claimed.

MOLLOY J.

Released: August 16, 2010

CITATION: Sazant v. R.M. and C.I.C.B., 2010 ONSC 4273

DIVISIONAL COURT FILE NO.: 60/2010

DATE: 20100816

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

MARVIN SAZANT Appellant (Responding Party)

– and –

R.M. and CRIMINAL INJURIES COMPENSATION BOARD Respondents (Moving Parties)

REASONS FOR DECISION

MOLLOY J.

Released: August 16, 2010

[^1]: R.S.O. 1990, c. C.24 [^2]: R. v. Sazant, 2004 SCC 7, [2004] 3 S.C.R. 635 [^3]: R. v. Sazant, 2006 13429 (S.C.J.) [^4]: Section 25 of the Act deals with variations of compensation awards and has no bearing on this case. [^5]: Bell Express Vu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559 at paras 26-27 [^6]: 1988 5633 (ON SCDC), 66 O.R. (2d) 18, 53 D.L.R. (4th) 90, 29 O.A.C. 84, 34 Admin L.R. 87 (Div.Ct.) [^7]: 2001¸O.J. No. 5265 (S.C.J. [^8]: R.S.O. 1990 c. V-3 [^9]: 2005 ABCA 232 [^10]: C.U.P.E. v. Ontario Hospital Assn., [1991] O.J. No. 207 (Div.Ct.) [^11]: McCann v. Ontario(Police Services Board of Inquiry), [1994] O.J. No. 202 (Div.Ct.) [^12]: Centra Gas Manitoba Inc. v. Manitoba (Provincial Municipal Assessor), [1996] M.J. No. 376 (Man.C.A.) [^13]: Stockfish v. Ontario (Motor Vehicle Dealers Act, Registrar), [2008] O.J. No. 2052(Div.Ct.) [^14]: (1993), 1993 3430 (ON SCDC), 11 O.R. (3d) 798 (Div.Ct.) [^15]: 2010 ONSC 910, [2010] O.J. No. 738 (Div.Ct.) [^16]: (1994), 1994 3360 (ON CA), 19 O.R. (3d) 483, 118 D.L.R. (4th) 129 (C.A.) [^17]: Sazant v. Ontario, 2007 58638 (Ont. S.C.J.)