Citation: Rudinskas v. College of Physicians and Surgeons of Ontario, 2011 ONSC 4819
Court File Nos.: 172/11 and 220/11
Date: 20110928
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Jennings, Ferrier and Swinton JJ.
B E T W E E N: Court File 172/11
DR. LEONA CONSTANCE RUDINSKAS Appellant
- and -
THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO Respondent
AND BETWEEN: Court File 220/11
DR. LEONA CONSTANCE RUDINSKAS Applicant
- and -
THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO Respondent
Counsel: Christopher M. Hubbard and Andrew McCutcheon, for the Appellant/Applicant Colin Johnston and Brenda Doig, for the Respondent Robert Cosman, for the Discipline Committee of the College of Physicians and Surgeons of Ontario
HEARD AT TORONTO: August 8, 2011
THE COURT:
Overview
[1] Dr. Rudinskas ("the applicant") has brought two proceedings to challenge a decision of the Discipline Committee of the College of Physicians and Surgeons of Ontario ("the College") dated March 8, 2011 (with reasons delivered April 15, 2011). The Discipline Committee dismissed her motion for a ruling that it had jurisdiction to make findings only with respect to four patients particularized in Schedule A to a Notice of Hearing.
[2] The applicant first appealed the decision and then brought an application for judicial review, essentially on the same legal grounds. She argues that the Discipline Committee erred in finding that it had jurisdiction to make findings with respect to a number of patients neither named or identified, and the proceeding gave rise to a reasonable apprehension of bias, given the conduct of Independent Legal Counsel to the Discipline Committee during the hearing and in the decision writing process.
[3] For the reasons that follow, her appeal should be quashed, as this Court has no jurisdiction to hear an appeal at this preliminary stage of the disciplinary proceedings. As well, her application for judicial review should be quashed for prematurity.
The Factual Background
[4] The applicant practises internal medicine, haematology and oncology at Humber River Regional Hospital in Toronto, Ontario. She also practises as a coroner.
[5] Between January and March 2008, the College received three complaints regarding the quality of care provided to Patients A, C and D by the applicant. A fourth complaint, from the family of deceased Patient B, was received in March 2009.
[6] On August 1, 2008, the Registrar appointed investigators under s. 75(a) of the Health Professions Procedural Code ("the Code"), being Schedule 2 of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 ("the RHPA"). Section 75(a), as it then was, permitted the Executive Committee to authorize the Registrar to appoint investigators to investigate a member's practice when the Registrar of the College "believes on reasonable and probable grounds that the member has committed an act of professional misconduct or is incompetent." That provision has since been amended to reflect the new role of the Inquiries, Complaints and Reports Committee ("the ICRC") in place of the Executive Committee (see s. 75(1)(a)).
[7] In the course of the investigation, the investigators obtained a number of patient charts from the applicant's practice. The College also retained Dr. Brian Dingle as a Medical Inspector. He reviewed the patient charts and met with the applicant. On June 25, 2009, he provided a written report to the College, in which he expressed the opinion that the applicant had failed to meet the standard of care of the profession in respect of 14 of 24 patients identified in the report, as well as in respect of Patient A, a patient who had died of a late-diagnosed bowel obstruction. Dr. Dingle subsequently provided two other reports on Patient A and Patient C.
[8] Copies of these reports were provided to the applicant by the College investigator. His letter of June 29, 2009 sets out the names of the 14 patients who received care that was below the expected standard of care, according to Dr. Dingle. Through counsel, the applicant gave a response, which included a report from an expert she retained, Dr. Krieger, a specialist in haematology and oncology.
[9] On October 7, 2009, the ICRC met to review the report of the College's investigation, including Dr. Dingle's report and the applicant's response. The Minutes of the Committee show that the ICRC considered both the report of the complaint investigation concerning Patient A and the report of the Registrar's investigation, stating,
It is moved by Mr. Pratt and seconded by Dr. White, that following consideration of a report of a complaints investigation, and of an investigation under the former section 75(a) of the Health Professions Procedural Code, the ICR Committee refers to the Discipline Committee of the College the allegation that Dr. Leona Constance Rudinskas ("Dr. Rudinskas"), a member of the College, has committed (an) act of professional misconduct..."
The motion then made reference to the failure to maintain the standard of practice of the profession and having engaged in disgraceful, dishonourable or unprofessional conduct, as well as incompetence. The Minutes also contained particulars referring to the applicant's practice of haematology and oncology and her conduct with respect to the care of Patient A.
[10] A Notice of Hearing was issued on October 7, 2009, setting out the acts of professional misconduct as follows:
under paragraph 1(1)2 of Ontario Regulation 856/93 made under the Medicine Act, 1991 ("O. Reg. 856/93"), in that she has failed to maintain the standard of practice of the profession; and
under paragraph 1(1)33 of O. Reg. 856/93, in that she has engaged in conduct or an act or omission relevant to the practice of medicine that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional.
[11] The Notice also referred an allegation of incompetence and then said"Further information about the allegations is contained in Schedule 'A' to this Notice of Hearing".
[12] Schedule A stated the following:
Incompetence and Failure to Maintain Standard of Practice
- Dr. Rudinskas is incompetent, fell below the standard of practice and engaged in disgraceful, dishonourable or unprofessional conduct in her practice of haematology and oncology.
Conduct with respect to Patient A
Patient A, whose identity has been disclosed to Dr. Rudinskas, became the patient of Dr. Rudinskas on or about March 14, 2007. Patient A presented with gastro-intestinal symptoms, abdominal pain, vomiting, diarrhea, a past history of atrial fibrillation and anti-coagulation.
Between March 14, 2007 and March 19, 2007, Patient A's condition deteriorated. On March 20, 2007, Patient A underwent a laparotomy for bowel obstruction. Patient A died on March 29, 2007.
Dr. Rudinskas was incompetent and failed to maintain the standard of practice in her care of Patient A.
During the period for which Patient A was under Dr. Rudinskas's care, Patient A and her family repeatedly requested information about Patient A's condition, treatment and prognosis. Dr. Rudinskas failed to respond to these inquiries in a timely manner.
ADDITIONAL INFORMATION ABOUT THE ALLEGATIONS AGAINST DR. RUDINSKAS WILL BE PROVIDED IN ADVANCE OF THE HEARING.
[13] In a letter dated October 19, 2009, the manager of ICRC support wrote to the applicant informing her that the ICRC had considered the report of an investigation under s. 75(1) and had made a decision to refer allegations to the Discipline Committee.
[14] The ICRC met again on November 23, 2009. Its minutes state that the Committee considered reports of complaints investigations. The ICRC then makes a reference of the same allegations as those contained in the earlier Notice of Hearing, but adds particulars related to Patients B, C and D. With respect to Patient B, the allegations pertain to conduct of the applicant while she was acting on behalf of the Coroner's office. They allege improper conduct in her interactions with the parents of a child who had just died of congenital heart defects. The particulars pertaining to the other two patients include inadequate examination, inadequate medical records, failure to obtain informed consent and improper conduct towards family members.
[15] A new Notice of Hearing was issued on November 23, 2009, setting out the same allegations found in the body of the earlier notice, but adding particulars in Schedule A relating to Patients B, C and D.
[16] In August 2010, the College prosecutors provided disclosure, which related to the four patients who had been the subject of complaints as well as the Registrar's investigation. The disclosure included a further copy of the report of Dr. Dingle that had been sent previously in June 2010.
[17] The College's pre-hearing conference materials, delivered for a pre-hearing conference in December 2010, set out the alleged deficiencies in the applicant's care and treatment of the 14 patients identified in Dr. Dingle's report. The applicant responded, attaching opinions from three experts. Two of those experts dealt with the patients discussed in Dr. Dingle's report.
The Regulatory Framework
[18] The ICRC is required to investigate complaints about members. It may also undertake a broader review of a member's practice pursuant to s. 75(1)(a) of the Code, where the Registrar has reasonable and probable grounds to believe that a member has committed an act of professional misconduct or is incompetent and the ICRC approves of the appointment of investigators.
[19] Subsection 26(1) of the Code sets out the powers of the ICRC, as well as requirements of procedural fairness:
A panel, after investigating a complaint or considering a report, considering the submissions of the member and making reasonable efforts to consider all records and documents it considers relevant to the complaint or the report, may do any one or more of the following:
- Refer a specified allegation of the member's professional misconduct or incompetence to the Discipline Committee if the allegation is related to the complaint or the report.
[20] Subsection 36(1) also deals with allegations of misconduct or incompetence, stating:
The Inquiries, Complaints and Reports Committee may refer a specified allegation of a member's professional misconduct or incompetence to the Discipline Committee.
[21] Subsection 51(1) of the Code gives a Discipline Committee the power to find the member has committed an act of professional misconduct in the circumstances set out in the subsection. They include clause (c): "the member has committed an act of professional misconduct as defined in the regulations".
[22] O. Reg. 856/93, made under the authority of the Medicine Act, 1991, S.O. 1991, c. 30, is entitled "Professional Misconduct". In clauses 1 through 34, it defines acts of professional misconduct for the purposes of s. 51(1)(c) of the Code. They encompass a wide variety of conduct, including contravening a limitation on a certificate of registration, abusing a patient verbally or physically, prescribing drugs for an improper purpose, falsifying a record pertaining to the member's practice, and various actions relating to the charging of fees. In the present case, the Notice of Hearing made reference to clauses 2 and 33: "failing to maintain the standard of practice of the profession" and "an act or omission relevant to the practice of medicine that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional."
The Decision of the Discipline Committee
[23] Following the College's disclosure and the pre-hearing conference, the applicant brought a motion to challenge the jurisdiction of the Discipline Committee to deal with any allegations of misconduct pertaining to patients other than A, B, C and D, because there was no explicit reference to these patients, by name or by number, in the Notice of Hearing. Therefore, she argues, there were no "specified allegations" pertaining to these other patients, as required by ss. 26(1) and 36(1) of the Code.
[24] The Discipline Committee framed the issue before it as "whether or not the Notice of Hearing ought to have specified either the names or the number of patients whose care is at issue" (Reasons, p. 7). It concluded that specified allegations had been referred to it by the ICRC.
[25] The Committee made a finding that the ICRC had made a referral of allegations to the Discipline Committee after due consideration, as required by the Code (Reasons, pp. 9 and 12). The Committee noted that the applicant had notice of the patients in issue through Dr. Dingle's report, and she had provided a responding expert report for the ICRC's consideration (Reasons, pp. 10 and 13).
[26] The Committee concluded that there were specified allegations in the body of the Notice of Hearing, while Schedule A provided further particulars. It stated (Reasons, p. 12):
The fact that the Notice of Hearing, however, does not contain full particulars (if that be the case) does not mean that the allegations have been improperly referred or that the Discipline Committee lacks jurisdiction. It is not uncommon for a member to seek further particulars from the College. When these particulars are provided (either voluntarily by the College or as the result of an Order), they are not issued by the ICRC. In our view, the issue of the names or numbers of patients is a question of particulars and does not go to the jurisdiction conferred upon the Discipline Committee.
The Issues
[27] On the application for judicial review, the following issues arise:
Should the application for judicial review be quashed for prematurity?
Does the Discipline Committee lack jurisdiction to make findings respecting patients other than A, B, C and D?
Did the conduct of the Committee's Independent Legal Counsel give rise to a reasonable apprehension of bias?
[28] On the appeal, the applicant framed the issues on the merits in the same manner as on the application for judicial review. However, the College brought a motion to quash the appeal on the basis that this Court lacks jurisdiction under s. 70 of the Code. Low J. adjourned that motion to be heard by a full panel of the Divisional Court.
Should the application for judicial review be quashed for prematurity?
[29] In the present case, the applicant will have a full right of appeal to the Divisional Court from the decision of the Discipline Committee (Code, s. 70). However, she seeks judicial review at a very early stage of the disciplinary proceedings, arguing that the Discipline Committee lacks jurisdiction to deal with any patients other than the four identified in Schedule A of the Notice of Hearing.
[30] Judicial review is a discretionary remedy, and this Court is reluctant to intervene during the course of administrative proceedings so as not to fragment those proceedings and cause undue delay. Only where there are exceptional circumstances will the Court consider whether to exercise its discretion to grant judicial review before the proceeding of an administrative tribunal is completed (Ontario College of Art v. Ontario (Human Rights Commission) (1993), 1993 3430 (ON SCDC), 11 O.R. (3d) 798 (Div. Ct.) at paras. 4 and 6).
[31] In Ackerman v. Ontario (Provincial Police), 2010 ONSC 910, another panel of this Court gave examples of exceptional circumstances where a court may decide to exercise its discretion to hear an application for judicial review during the course of an administrative proceeding: where the tribunal clearly lacks jurisdiction to proceed, where the interlocutory decision has determined a particular issue, or where the ongoing proceeding would result in an unfair hearing or a breach of natural justice (at para. 19).
[32] The applicant argued that this case falls within the category of exceptional circumstances, because the Discipline Committee lacks jurisdiction to make findings with respect to patients other than the four who have been identified.
[33] In order to determine whether the application should be quashed for prematurity, the Court was required to proceed as another panel did in Izzett v. Toronto (City) Police Service, 2010 ONSC 2262 (Div. Ct.) (at para. 10) and to consider the applicant's argument on the merits, in order to determine whether there was indeed a lack of jurisdiction here that would result in a fatally flawed process if the Discipline Committee hearings proceeded.
[34] Essentially, the applicant argued that the ICRC had failed to exercise its gatekeeper function with respect to the patients identified in Dr. Dingle's report as having received substandard care. The Code requires the ICRC to make specified allegations in a referral to the Discipline Committee, and it did so only with respect to Patients A, B, C and D. According to the applicant, there has been no consideration by the ICRC of the allegations relating to the other patients, and there are no specified allegations in the Notice of Hearing related to them. At most, there is a bald reference to two types of professional misconduct found in the regulation made pursuant to the Medicine Act, but without any specific details.
[35] The applicant also argued that the standard of review in this application should be correctness for two reasons. First, the question of jurisdiction is a "true question of jurisdiction" (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 59). Second, the interpretation of "specific allegations" in the Code affects a large number of professional colleges, and therefore, the issue of interpretation is one of general importance (Dunsmuir at para. 60).
[36] The College submits that the standard of review of the Discipline Committee's decision is reasonableness, as the Committee was required to consider the record before it, to make a factual determination regarding the contents of the Notice of Hearing and the referral by the ICRC. As well, the Committee had to interpret and apply its home statute in order to determine whether it had jurisdiction.
[37] Applying the standard of reasonableness, the College argued that the decision was reasonable. The College relied on both the language of the Notice of Hearing and paragraph 1 of Schedule A, which together indicate that the allegations referred to the Discipline Committee relate to the applicant's practice of haematology and oncology, as well as the treatment of patients A, B, C and D.
[38] In our view, the Discipline Committee's determination that it had jurisdiction was not a "true question of jurisdiction" that attracts the standard of correctness. In coming to its decision, the Committee had to interpret the words of the Code, but it also had to determine whether the ICRC had exercised its gatekeeper role and referred allegations relating to patients other than A, B, C and D. As well, the Discipline Committee had to consider the contents of the Notice of Hearing, including Schedule A, in light of the full record before it, and determine whether "specific allegations" had been referred. This required, again, a consideration of the record and the interpretation of the Code, which is the Committee's home legislation. Its decision respecting its authority to proceed – its "jurisdiction", in the words of the Notice of Motion – is deserving of deference. Therefore, the decision should be reviewed on a standard of reasonableness, as in Yar v. College of Physicians and Surgeons of Ontario, [2009] O.J. No. 1017 (Div. Ct.) at para. 5.
[39] The Discipline Committee has jurisdiction only over the specific allegations referred to it by the ICRC (Krop v. College of Physicians and Surgeons of Ontario, 2002 53258 (ON SCDC), [2002] O.J. No. 308 (Div. Ct.) at para. 21). In our view, it was reasonable for the Discipline Committee to conclude that it had jurisdiction to make findings respecting patients other than those named.
[40] In the present case, the Discipline Committee found that the ICRC had considered the investigator's s. 75(a) report and the four patient complaints and exercised its gatekeeper function. That was a reasonable, indeed a correct conclusion. It is evident from the minutes of the ICRC that the investigator's report and the individual complaints were before it for consideration.
[41] The minutes of the ICRC and the subsequent Notices of Hearing signed by the chair of the ICRC refer to precise clauses of the Professional Misconduct regulation, and Schedule 1 referred to the applicant's practice of haematology and oncology. While there was no explicit reference to the 14 patients in issue in the particulars set out in the Schedule, the applicant was well aware of the patients whose care was in issue.
[42] Moreover, paragraph 1 of Schedule A must logically relate to the 14 patients identified in Dr. Dingle's report, given the concerns he expressed about the applicant's practice of haematology and oncology with respect to these patients. In contrast, the particulars relating to patients A, B, C and D do not appear to raise concerns about the applicant's oncology or haematology practice. Therefore, the logical conclusion is that the ICRC referred allegations relating to the four identified patients, as well as the patients who were discussed in Dr. Dingle's report.
[43] This is not a case like the three cases on which the applicant relied, Kupeyan v. Royal College of Dental Surgeons of Ontario, [1982] O.J. No. 3376 (Div. Ct.), Hryciuk v. Ontario (Lieutenant Governor), 1996 4013 (ON CA), [1996] O.J. No. 3831 (C.A.), and Henderson v. College of Physicians and Surgeons, 2003 10566 (ON CA), [2003] O.J. No. 2213 (C.A.).
[44] In Kupeyan, a referral to discipline was made by both the Executive Committee and the Complaints Committee. The Executive Committee of the College asked the Discipline Committee "to inquire into the actions and conduct" of the dentist, although the legislation required it to refer a "specified allegation of professional misconduct." The Complaints Committee also caused the Registrar to issue a Notice of Hearing, which stated "in accordance with the information received, that Dr. Herman K. Kupeyan be referred to the Discipline Committee". The governing legislation at the time permitted the Complaints Committee to refer a "matter", meaning the "subject-matter of a complaint."
[45] The Divisional Court held that the Discipline Committee lacked jurisdiction, because the Complaints Committee and the Executive Committee had failed to exercise their powers, as required by statute (at para. 13). It was impossible, from the record, for the Court to determine what conduct of the member had been considered by the Complaints Committee and Executive Committee (at para. 24). In that context, the Court stated (at para. 28):
In my view, the purpose of the Act to be taken from its plain language is that the conduct of a member of the profession is not to be subjected to proceedings before the discipline committee save for subject-matters of complaint considered and referred, in relatively precise terms, by either the complaints committee or the executive committee (the council, of course, has a similar power but we are not concerned with it in this case). In other words, before a member is to be put in the unenviable position of having complaints or allegations of misconduct heard by the discipline committee, the conduct which is to be the subject of such hearing must have been defined and considered by the complaints committee or the executive committee.
The Court could not decide, based on the record, that the Complaints Committee and the Executive Committee had performed their referral functions. It appeared that the identity of the patients whose treatment was in issue and the specific allegations of misconduct were determined by someone other than the two committees (at para. 29).
[46] The present case is distinguishable from Kupeyan, as it is apparent from the record what the ICRC considered. As well, the Notice of Hearing and the Schedule show that specific allegations were referred to the Discipline Committee that went beyond those pertaining to Patients A, B, C and D. The ICRC performed its screening function in this case and referred specific allegations to the Discipline Committee.
[47] The present case is also distinguishable from Hryciuk, above. There, the Ontario Judicial Council had referred two complaints to an inquiry. However, the judge presiding over the inquiry made her decision on the basis of those two complaints and three other complaints brought forward by witnesses during the hearing. The Court of Appeal held that the judge had no jurisdiction to consider the three new complaints, as the statute gave authority to consider only those complaints which the Judicial Council had investigated and then reported to the Lieutenant-Governor in Council as in need of an inquiry.
[48] Henderson can also be distinguished. In that case, new allegations of professional misconduct were referred to the Discipline Committee by the Interim Registrar. This was contrary to s. 38(1) of the Code, as the Chair of the Discipline Committee was required to select the panel to hear allegations (para. 30). In addition, the new allegations were raised after the disciplinary hearing had begun, and the Court expressed concern about the failure to provide proper notice (at para. 32).
[49] The applicant argues that the Notice of Hearing should specify the person, matter and conduct that is the subject of an allegation. At a minimum, she argues that the Notice should have referred to the number of patients of concern in paragraph 1 of Schedule A. As well, she takes issue with a statement in the reasons of the Discipline Committee that "the specified allegations, as that term is used in the legislation, are contained in the body of the Notice of Hearing", while the particulars are found in the Schedule (Reasons, p. 12).
[50] Courts have stated in a number of proceedings that a notice of hearing in a discipline case is not to be construed in the same way as a criminal indictment. While some Notices of Hearing have contained detailed particulars about allegations relating to named patients (see, for example, Krop, above), others have been much less detailed, but still have been found to meet the requirements of the Code. For example, in Yar, above, the Court considered the allegations in the Notice of Hearing and the particulars in Schedule A and determined that the Discipline Committee had jurisdiction to consider both competence and the failure to meet the standard of the profession in the member's cardiac practice (at para. 30).
[51] In the present case, the Discipline Committee concluded that the Notice of Hearing met the requirements of the Code, apparently without reference to the particulars in Schedule A. However, the Notice of Hearing itself clearly requires a consideration not only of the words of the Notice of Hearing, but, as well, the content of Schedule A, which sets out "further information" in respect of the allegations in the formal Notice.
[52] When the body of the Notice is read with paragraph 1 of Schedule A, and in the light of the record, it is evident that the applicant's conduct with respect to the 14 patients discussed in Dr. Dingle's report was before the ICRC when it decided whether to make a referral to discipline. The ICRC then referred both the specific patient complaints set out in Schedule A and the concerns about the standard of practice and competence demonstrated in the practice of haematology and oncology raised in Dr. Dingle's report and responded to by the applicant's own experts.
[53] This is not a case where the applicant has raised any issue with respect to the adequacy of the notice received concerning the allegations against her. As the Discipline Committee correctly noted, she has been provided with extensive disclosure and, if she requires further particulars, she can seek them from the prosecution or by way of motion to the Discipline Committee.
[54] Therefore, the applicant has failed to establish that the Discipline Committee lacks jurisdiction to consider the treatment of patients other than those named because of the content of the Notice of Hearing. The Notice of Hearing, read with Schedule A, sets out specified allegations of professional misconduct and incompetence. Consequently, the application for judicial review is premature and should be quashed.
Did the conduct of Independent Legal Counsel give rise to a reasonable apprehension of bias?
[55] The applicant contends that the conduct of the Independent Legal Counsel ("ILC") gives rise to a reasonable apprehension of bias and unfairness in that she:
Gave advice that was partisan in nature and "strongly endorsed" the position of the prosecutor, and
Became improperly involved in the drafting of the Discipline Committee's decision.
[56] In their submissions, the parties agreed that in some instances conduct on the part of an administrative tribunal's counsel may exceed limits consistent with principles of fairness and natural justice. It is impermissible for such counsel to take on the role of prosecutor or to make decisions that are to be decided by the panel. Two principles are paramount: those who hear the evidence must decide, and the ILC may not descend into the arena and become counsel for one or either of the parties.
[57] It is equally clear that the Discipline Committee is entitled to obtain independent legal advice on issues of law, procedure and evidence. That right is confirmed in s. 44 of the RHPA which provides:
If a panel obtains legal advice with respect to a hearing, it shall make the nature of the advice known to the parties and they may make submissions with respect to the advice.
[58] There is no question that in this case the Discipline Committee complied with the provisions of s. 44. Following the submissions of the ILC, the Committee gave counsel for the College and the applicant the opportunity to make responding submissions to the advice that the ILC had given.
[59] The applicant complains that the ILC gave legal advice with respect to what the applicant characterized as "the ultimate issue", being the issue upon which the tribunal had requested advice and guidance. In our opinion, there is nothing improper in the giving of such advice, which the Committee is at liberty to accept or reject. What is important is that the ultimate decision remains that of the Committee.
[60] The applicant also complains that in giving advice, the ILC on occasion favoured the position taken by the prosecutor. It would appear to us to be inevitable that on some issues, such as the admissibility of evidence, the ILC would agree with the position taken by one or other of the parties. That does not suggest that the ILC is improperly favouring or advancing the position of one or other of the parties.
[61] In our opinion, a careful review of the record of the submissions made demonstrates that the ILC made it clear to the Discipline Committee that it was at liberty to accept or reject the independent advice being given, and that the ultimate decision on the issues was to be that of the Committee and not of the ILC. We conclude that the ILC did not exceed the proper limits placed upon her role as independent counsel to the Discipline Committee.
[62] With respect to the applicant's complaint that the ILC participated improperly in the drafting of the reasons, two things must be remembered:
The Committee announced its decision before the reasons were drafted, advising that written reasons for its decision would follow; and,
The draft of the decision was written by a member of the Committee and sent to the ILC for comment.
[63] The applicant appears to take the position that the ILC's role in the preparation of the Committee's decision should have been limited to "simply proofreading or correcting typographical errors". In our opinion, that is not the law.
[64] The role of the ILC in assisting the Committee with the production of its reasons for a decision was thoroughly discussed by the Court of Appeal in Khan v. College of Physicians and Surgeons of Ontario (1992), 1992 2784 (ON CA), 9 O.R. (3d) 641. The Court held that it was both proper and desirable for the Committee to seek the advice of its counsel as to the ways in which it might improve the quality of the reasons that it has drafted so as to more effectively explain its decision. Khan, in our opinion, did not set the limits of ILC's participation in producing a final decision at mere proofreading, provided of course, that there was no interference with the Committee's ultimate responsibility for the authorship of its reasons.
[65] There is a further issue pertaining to the drafting of reasons upon which we wish to comment. The applicant submitted that the ILC had declined to provide details of her assistance to the Discipline Committee in revising its draft. The implication in argument was that we might draw an adverse inference of impropriety because of the refusal of the ILC to give details of her advice to the Committee. To give effect to that submission would be, in our opinion, to embark upon a journey down a road best not travelled.
[66] We accept the submissions of counsel for the Discipline Committee that the applicant's submissions on this issue fail to recognize the principles of deliberative secrecy and adjudicative privilege. There is nothing on the record before us to suggest any irregularity in the post-hearing decision writing process. The suggestion made during argument that the ILC should put in affidavit form, so as to be subject to cross-examination, the details of the advice given to her client to ensure no impropriety would not only constitute a fishing expedition, but would do violence to the principle of deliberative secrecy. In order to go behind the published decision of the Committee, there must be some foundation for an allegation of impropriety. This Court has dealt with that situation in Aronov v. Royal College of Dental Surgeons of Canada, [2001] O.J. No. 1927 where production of preliminary drafts of a decision was sought. In refusing to order production, the Court said (at para. 3):
It is clear from the tenor of the decision in Khan and specific comments in the decision ... that involvement of independent counsel does not per se put in doubt the propriety of the procedure followed by the tribunal on reaching its decision. Nothing in the decision invited the interpretation that it is sufficient to constitute a proper "challenge" to the involvement of counsel simply to establish that such involvement occurred and to move on that basis for production. On the contrary, the better influence [sic] must be that where (as here) it is shown that counsel was involved, the party putting the matter in issue must show there is some reason to believe that the involvement of counsel transgressed the acceptable limits. Nothing in the letter of [independent counsel] provides a basis for such a position.
[67] There being no evidentiary foundation for any allegations of impropriety, no adverse inference can or should be drawn from a failure to reveal what was discussed between the ILC and the Discipline Committee in any revisions of the draft that were made prior to the release of the reasons.
[68] We conclude that nothing in the conduct of the ILC can give rise to a reasonable apprehension of bias and, therefore, there is no reason for this Court to intervene at this stage of the proceedings.
Should the appeal be quashed for lack of jurisdiction?
[69] As noted above, the College moved to quash the appeal on the basis that this Court lacks jurisdiction to hear the appeal.
[70] This Court's jurisdiction to hear this appeal is conferred by s. 70 of the Code, which provides:
Appeals from decisions
- (1) A party to proceedings before the Board concerning a registration hearing or review or to proceedings before a panel of the Discipline or Fitness to Practise Committee, other than a hearing of an application under subsection 72(1), may appeal from the decision of the Board or panel to the Divisional Court.
[71] The applicant argues that the jurisdiction decision finally determines the scope of the Discipline Committee's jurisdiction to hold a hearing and to make findings against her. Therefore, it is a final order (see, for example, Abbott v. Collins, 2002 41457 (ON CA), [2002] O.J. No. 4058 (C.A.).
[72] As previously determined in this Court, appeals only lie from final decisions of the College's Discipline Committee: Ibrahim v. Ontario College of Pharmacists (Ontario), [2010] O.J. No. 4200, aff'd at [2011] O.J. No. 109.
[73] The decision under appeal is interlocutory. The decision does not finally dispose of the issue between the parties – that is, whether the applicant has committed an act of professional misconduct. An appeal lies at the end of the proceeding concerning the jurisdictional ruling made by the Discipline Committee once a decision on the merits has been made but not before: Roosma v. Ford Motor Co. of Canada Ltd., 1988 5633 (ON SCDC), [1988] O.J. No. 3114 (Div. Ct.), paras. 30, 35, 36 and, for example, Yar v. College of Physicians and Surgeons of Ontario, above.
[74] The order in question being interlocutory, the appeal is quashed.
Conclusion
[75] For these reasons, the application for judicial review is quashed for prematurity. The appeal is quashed, as this Court lacks jurisdiction to hear it. Neither party seeks costs.
Jennings J.
Ferrier J.
Swinton J.
Released: September 28, 2011