Court File and Parties

Citation: Haigh v. College of Denturists, 2011 ONSC 2152 Divisional Court File No.: 291/10 Date: 2011-04-20 Superior Court of Justice – Ontario Divisional Court

Re: Adrian Haigh, Applicant And: The College of Denturists of Ontario, Respondent

Before: Aston J.

Counsel: P. Champagne and R. Escayola, for the Applicant V. Wise and E. McKernan, for the Respondent

Heard: February 24, 2011

Endorsement

[1] After a lengthy investigation by its statutory Complaints committee (the “Inquiries Complaints and Reports Committee” or “ICRC”) the College of Denturists of Ontario referred a number of allegations of professional misconduct against the applicant to its Discipline Committee under the provisions of the Regulated Health Professions Act (the “RHPA”). The applicant initiated a judicial review application to quash the referral to the Discipline Committee and prohibit the College from proceeding.

[2] There are three motions now before the Court.

[3] The College brings a motion to quash or stay the application for judicial review on the ground that it is premature and that it constitutes a collateral attack on prior decisions which the applicant did not contest or appeal.

[4] Adrian Haigh moves to amend the judicial review application to add additional grounds and subsequently discovered facts.

[5] The third motion is the College’s motion to strike out or expunge certain paragraphs and documents in the judicial review application. It is essentially alternative relief to that sought in its first motion.

[6] Because the second and third motions are rendered moot if the first motion by the College is successful, I will start with the motion to quash or stay Mr. Haigh’s judicial review application.

[7] However, there is also a threshold question on this motion. Should a motion to quash a judicial review application as premature (or on other grounds) be heard by a single judge of the Divisional Court or a full panel? Given the proliferation of motions to have decisions of single judges reconsidered by panels under s. 21(5) of the Courts of Justice Act, I canvassed this issue with counsel before embarking on the hearing of the motions. Judicial economy is an issue for the court, not just the parties. Both sides were content that I proceed to hear the motion rather than immediately refer it to a panel.

[8] I am satisfied from the decisions in Simianek v. Health Disciplines Board [1994] O.J. No. 2445 (Div.Ct.) and Geneen v. Toronto (City) [1999] O.J. No. 149 (Div.Ct.) that a single judge of the Divisional Court has jurisdiction to quash an application for judicial review under the provisions of s. 21(3) of the Courts of Justice Act. However, I am also mindful of the need to consider in any given case whether such jurisdiction should be exercised. For example, in the case of appeals (particularly appeals as of right) a single judge should not usurp the role of a full panel unless the appeal is “manifestly devoid of merit”. (See Clark v. Fok 2003 O.J. No. 489 (Div.Ct.) paragraph 1 and Bank of Montreal v. Weidenfeld [2008] O.J. No. 2077 (S.C.J.) at paragraphs 25-26).

[9] In Smith v. Ontario (Securities Commission) [2008] O.J. No. 4980 (Div.Ct.) at paragraph 9, Ferrier J. stated that “quashing an application for judicial review on the basis of prematurity is a discretionary remedy. It is not appropriate for a single judge to deprive a Divisional Court panel of the exercise of its discretion by determining the issue of prematurity on a motion prior to the hearing of the application”.

[10] Quashing a judicial review application as premature does amount to a “discretionary remedy”, though sometimes that result may seem obvious. In my view, there are cases when the judicial review application is so manifestly premature that a single judge ought to exercise the discretion jurisdiction to quash or stay the application. This is not one of those cases. I would have referred this motion to a panel but for the facts that (1) both sides were content that I hear it, and (2) the other two motions are motions that are quite properly before a single judge and overlap to a considerable degree with the College’s motion to quash or stay the judicial review application.

[11] I turn then to the merits of the College’s motion to quash or stay the application.

[12] The primary ground advanced is that the judicial review application is premature because; (i) as yet there is no statutory decision to review; (ii) the judicial review application fragments a matter before the Tribunal; and (iii) the applicant must exhaust the administrative remedies available to him in the context of a hearing before the Discipline Committee, which has not yet even begun to hear the matter, before collaterally attacking a decision of the Health Professions Appeal and Review Board (“HPARB”) on a decision the applicant did not appeal.

[13] Mr. Haigh’s position is that there is no adequate remedy within the administrative process (notwithstanding the statutory right to appeal a decision of the Discipline Committee), primarily because there is no possibility of convening an unbiased Discipline Committee panel. Furthermore, Mr. Haigh contends that the misconduct of the College and its committee members is so egregious that the Discipline Committee has lost jurisdiction. The applicant further contends that this is not a collateral attack on a decision of HPARB because HPARB had no jurisdiction to grant Mr. Haigh any remedy.

[14] The College is the governing body of denturists, charged amongst other things with serving and protecting the public interest by its mandate under the RHPA and Denturism Act 1991 and the regulations and by-laws thereunder. In January 2007 the College received a complaint against Mr. Haigh from one of his former employees. That complaint was referred to what is now known as the ICRC. The nature and scope of the allegations apparently required a lengthy investigation and it was not until a year later, on February 28, 2008, that Mr. Haigh was first advised of the complaints by his former employee.

[15] Sixteen months later, on June 24, 2009, Mr. Haigh applied to HPARB asking it to take over the investigation from the ICRC because of undue delay in the investigation process. He raised a serious concern with respect to his right to procedural fairness. On September 24, 2009, HPARB issued a decision indicating that it “refused to embark on a parallel investigation of the complaint at this time”. However, HPARB recommended that ICRC expedite issuing a written decision and reasons. It dismissed Mr. Haigh’s application, but without prejudice to his right to reapply to HPARB if the ICRC did not render its decision and reasons by November 9, 2009.

[16] On November 12, 2009, the ICRC finally rendered its decision and referred twenty-seven specific allegations of professional misconduct against Mr. Haigh to the College’s Discipline Committee under s. 26(1) of the Procedural Code, Schedule 2 of the RHPA .

[17] Two months later, in January, 2010, the College’s newly appointed Registrar initiated an attempt to resolve the matter of the complaints through mediation, which took place that same month. The mediation was not successful.

[18] On June 16, 2010, the applicant brought this judicial review application for an order prohibiting the College from proceeding with the referral to the Discipline Committee and an order quashing the decision of the ICRC of the College dated November 12, 2009.

[19] The Discipline Committee subsequently served the applicant with a Notice of Hearing on September 9, 2010. Because of the pending application for judicial review, the parties agreed to leave the Disciplinary Committee hearing in abeyance pending the judicial review.

[20] Mr. Haigh makes a number of serious allegations in the judicial review application which I must assume to be true, or at least capable of proof, at this juncture. At the risk of oversimplification his allegations include the following:

(i) he has suffered under the burden and stress of being the subject of an investigation by his governing College for the time he has known about it (for three years now) and the complaint has been lingering for more than four years;

(ii) despite the lengthy investigation, no patient complaints have surfaced and the only complaint remains that of a former employee who left Mr. Haigh’s office on bad terms;

(iii) after the ICRC finally rendered its decision in November, 2009, the Registrar of the College circumvented the role of Mr. Haigh’s counsel in the mediation process;

(iv) furthermore, the Registrar took a purported “mediation agreement” to a meeting of the Discipline committee of the College which approved its contents. That report of the Discipline committee was then shared with the full Council of the College. In fact, the terms of the “mediation agreement” were not agreed upon by Mr. Haigh;

(v) it is doubtful that a panel of qualified members could be found to sit on the Discipline Committee if the hearing proceeds because its members would have seen the so-called mediation agreement, creating a reasonable apprehension of bias if not an actual bias;

(vi) the delay in this case has caused Mr. Haigh actual prejudice. For example, he has lost the ability to cross-examine the complainant who died in December, 2008, almost two years after she filed the original complaint.

[21] The procedure for complaints is fairly straight forward. When the Registrar receives a written complaint regarding the conduct or actions of a denturist, a panel of the ICRC is selected to investigate. After investigating the ICRC may refer specific allegations of professional misconduct or incompetence to the Discipline Committee, caution the member or take what it considers other appropriate action consistent with the RHPA. A member who is dissatisfied with a decision of the ICRC (except a referral to the Discipline Committee) may apply to HPARB for a review of that decision. Section 29(2) of the Procedural Code specifically states there is no HPARB review of an ICRC referral to the Discipline Committee.

[22] If the matter is referred to the Discipline Committee, as in this case, the chair of that committee selects a panel amongst members of the committee at large in order to hold the hearing. If the panel of the Discipline Committee finds that the member has committed an act of professional misconduct it may make an order directing the Registrar to revoke, suspend or impose specific terms and conditions on the member’s Certificate of Registration. A party to a proceeding before HPARB or to a proceeding before the Discipline Committee has a statutory right of appeal to the Divisional Court on a question of fact or law or both. See s.70 of the Procedural Code.

[23] There is no question that Mr. Haigh raises serious issues about unreasonable delay, consequential prejudice to him, breach of procedural fairness, and actual bias or reasonable apprehension of bias. In fact, he seems to have a very strong case on those issues. However, the Discipline Committee has not had any opportunity to consider any of them.

[24] It has often been observed that judicial review is a discretionary remedy and courts must avoid unduly interfering with the discharge of administrative functions delegated to administrative bodies by the legislature. This principle is rooted in public policy, respect for legislative intention, and deference to the administrative tribunals. This is particularly the case with respect to administrative decisions that do not determine the rights of the parties but simply a process. The courts longstanding view of these cases is that an applicant should exhaust all his remedies and appeal routes within the administrative regime before seeking judicial review. Premature applications to the court result in increased costs and considerable delay in what is meant to be a cost-effective and expeditious administrative process.

[25] Mr. Haigh will have the opportunity to raise all of his allegations and issues as part of the Discipline Committee hearing. If he is unsatisfied with the result he will have a statutory right of appeal to the Divisional Court on issues of both fact and law, and the court will have a full record to work with, including both factual findings and reasons.

[26] It is true that individuals are not required to exhaust administrative remedies if those remedies are inadequate. However, I fail to see how the administrative remedies in this case are inadequate. It is speculative at this stage to assume that an unbiased panel of the Discipline committee could not possibly be constituted, though it is clear that many potential members would be disqualified, even if only based on a perceived reasonable apprehension of bias.

[27] Ackerman v. Ontario Provincial Police 2010 ONSC 910 (Div.Ct.) is a persuasive precedent in this matter. A decision to refer a complaint to a Discipline Committee, like a decision under the Police Services Act to extend the time for a referral to a hearing, is clearly interlocutory in nature. The Police Services Act does not provide for any right of appeal from a decision by the Commissioner referring the matter to a hearing. It only provides a full right of appeal once the Civilian Police Commission has finally heard the matter and even then, only on a question that is not a question of fact alone.

[28] In this case, there is a full right of appeal at the end of the process on questions of fact and not just questions of law. It seems to me that in the present matter the factors pointing to prematurity are even stronger than they were in Ackerman. In paragraphs 11 through 19 of the Ackerman decision, Molloy J., speaking on behalf of the Divisional Court panel, outlined the general principles to be applied when judicial review is sought prematurely. I adopt all of what is set out in that analysis, but in particular paragraph 19 is worth quoting:

“That is not to say that the court will never consider a judicial review application while administrative proceedings are still ongoing. However the court will only do so rarely when exceptional circumstances are demonstrated. For example judicial intervention may be warranted in situations where the Tribunal clearly lacks jurisdiction to proceed; where the decision, although interlocutory in most respects, determines a particular issue; or, where proceeding with the hearing would result in an unfair hearing or breach of natural justice. Even in those extreme situations the remedy is discretionary and will be exercised sparingly.” [citations omitted]

[29] In Rutigliano v. Commissioner, OPP 2011 ONSC 98 (Div.Ct.) a police officer brought an application for judicial review to prohibit a named individual from continuing as an adjudicator in a matter under the Police Services Act. The court briefly reviewed the issue of prematurity and referred to the fact that the principles are more fully canvassed in Ackerman. The court found on the facts that it was one of those cases where the procedure before the administrative tribunal “would be fatally flawed” based upon the reasonable apprehension of bias. However, that case is distinguishable from this one. In Rutigliano, a particular adjudicator had been named. In this case, it is not known who will be on the discipline committee. I cannot conclude that it will be impossible to constitute an unbiased panel.

[30] I have concluded that the applicant will not be denied any remedy if his application for judicial review is quashed. He can raise any prejudice he claims to have suffered as a result of the delay and can raise any argument pertaining to lack of procedural fairness or bias when the matter goes to the Discipline Committee. He will then have a right of appeal to this court of any Discipline Committee decision should he believe that his recriminations have not been properly considered or answered by the committee. His right of appeal is not limited to questions of law. If the court is called upon to review any issues on such an appeal it will have the benefit of a full evidentiary record and reasons.

[31] The motion to quash the judicial review application is therefore granted. It is therefore not necessary to deal with the other motion by the College to strike certain material from the judicial review application.

[32] Nor is it necessary to address the motion by Mr. Haigh to amend the judicial review application. I have, for the purposes of this first motion, assumed those amendments, as College counsel invited me to do. I do note that the College has been ambivalent about whether it would have opposed the motion had the judicial review application gone ahead. In its factum it sought to strike certain paragraphs of the Amended Notice of Application, as well as impugned paragraphs of the new affidavit material.

[33] Even assuming some partial success by the College on its motion for alternative relief, the costs of its second motion are more or less offset by the costs Mr. Haigh would be entitled to on his motion, about $2,000 all inclusive on a partial indemnity scale.

[34] On the main motion the College is entitled to costs fixed at $11,000 all inclusive. Payment is deferred to the date of the final decision of the Discipline Committee.

Aston J.

Date: April 20, 2011