CITATION: Ibrahim v. Ontario College of Pharmacists, 2010 ONSC 5293
DIVISIONAL COURT FILE NO.: 298/09
DATE: 20100924
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SACHS J.
BETWEEN:
IHAB IBRAHIM and ASHRAF HANNA
Appellants
– and –
ONTARIO COLLEGE OF PHARMACISTS
Respondents
Neil M. Abramson, for the Appellants
Nick Coleman and Michael Fenrick, for the Respondent
Kristin Smith¸ for the Ministry of the Attorney General
HEARD at Toronto: September 24, 2010
SACHS J. (ORALLY)
[1] This is a motion by the College to quash the appeal brought by the Members from an order by the Discipline Committee dismissing their motion for production of additional third party records.
[2] In my view the motion should be granted. For the reasons set out in Roosma v. Ford Motor Co. of Canada Ltd., [1988] O.J. No. 3114 (Div. Ct.). I am of the view that the right of appeal set out in s.70 of the Code only applies to a final decision of the panel, not an interlocutory one. I am also of the view that the decision in question was an interlocutory one.
[3] In reaching this conclusion I find that the reasoning of the Court of Appeal in Smerchanski v. Lewis, [1980] O.J. No. 3769 (C.A.) should not apply to the facts of this case. First, as Reid J. made clear in Roosma at para. 34, it is not always appropriate to draw an analogy between rights of appeal in an administrative context and rights of appeal under the Rules of Practice. Second, to the extent that the reasoning in Smerchanski was driven by a need for symmetry between the rights of appeal of a party to the proceedings and a stranger to those proceedings, that concern does not exist here. If an order had been made to produce the third party records the third party could bring an application for judicial review before the records were produced, arguing that privacy interests or other interests were at stake that had to be addressed before production. (see College of Physicians v. Au, [2005] O. J. No. 234).
[4] The Members have requested that rather than quashing the appeal I should convert the application into an application for judicial review. I am denying this request because even if the application had been brought appropriately by way of judicial review, I would have stayed it as being premature. In my view, this is not one of those rare cases where there is a risk that the whole process will be irretrievably tainted if the matter is not dealt with now. The fact that Mr. Ibrahim has sworn an affidavit to this effect does not make it so. The call is for the Court to make, not Mr. Ibrahim. In reaching this conclusion I note that Dr. Lee and Dr. Ng will be called as witnesses at the hearing and that the Members will be getting full disclosure from the College as to the case they have to meet. If the College does not call the doctors in question, there is nothing in the ruling of the Discipline Committee that would preclude the Members from requesting that subpoenas be issued requiring their attendance.
[5] Having reviewed all the material, including the reasons of the Discipline Committee, there is no circumstances here that justifies intervention by this Court at this stage of the proceedings. The proceedings should be permitted to unfold within the administrative context. Once that process has been completed, if appropriate, the Courts will be there to intervene.
[6] For these reasons, the motion to quash is granted.
COSTS
[7] The College requests their partial indemnity costs fixed in the amount of $12,500.00. The Members argue that there should be no order as to costs as if they had known that Drs. Lee and Ng were going to be called to testify they might not have brought this appeal. I reject this submission. The Discipline Committee indicated in their ruling that they expected that the doctors would be called to testify. Thus, if the Members’ concern was that they would not, the appropriate remedy was not to launch this appeal, but to seek subpoenas or summonses requiring that they be called. The College is entitled to their partial indemnity costs, which I fix in the amount of $10,000.00.
SACHS J.
Date of Reasons for Judgment: September 24, 2010
Date of Release: September 29, 2010
CITATION: Ibrahim v. Ontario College of Pharmacists, 2010 ONSC 5293
DIVISIONAL COURT FILE NO.: 298/09
DATE: 20100924
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SACHS J.
BETWEEN:
IHAB IBRAHIM and ASHRAF HANNA
Appellants
– and –
ONTARIO COLLEGE OF PHARMACISTS
Respondents
ORAL REASONS FOR JUDGMENT
SACHS J.
Date of Reasons for Judgment: September 24, 2010
Date of Release: September 29, 2010