Court File and Parties

CITATION: Batacharya v. The College of Midwives of Ontario, 2012 ONSC 1072

DIVISIONAL COURT FILE NO.: 470/11

DATE: 20120217

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: AUDREY JANETTE BATACHARYA, Moving Party/Applicant

AND:

THE COLLEGE OF MIDWIVES OF ONTARIO, Respondent

BEFORE: Pepall J.

COUNSEL: Andrew Wray and Niiti Simmonds, for the Moving Party/Applicant

Julie Maciura and Lisa Braverman, for the Respondent

HEARD at Toronto: February 8, 2012

ENDORSEMENT

Relief Requested

[1] The Moving Party/Applicant, Audrey Janette Batacharya, requests an order requiring the Respondent College of Midwives of Ontario ( the “College”) to file the complete record of proceedings relating to the January 18, 2011 decision of the College’s Inquiries, Complaints and Reports Committee (the “ICRC”) ‘In the Matter of the Consideration of a Deputy Registrar’s Report Made under Section 79 of the Health Professions Procedural Code About Kim Cloutier-Holtz, RM’.

Background

[2] The ICRC is a statutory committee of the College. It considers complaints, inquiries and reports brought to the attention of the College. On receipt of a complaint or report, the registrar may appoint an investigator to determine whether a member has committed an act of professional misconduct or is incompetent. The results of the investigation are reported to the ICRC for consideration. The ICRC is a screening committee. Its role is to determine whether the allegations are serious enough to refer to discipline or to require some other action. It does not make findings of professional misconduct.

[3] Ms. Batacharya is a mid-wife. Pursuant to section 85.5 of the Health Professions Procedural Code[^1], she made a mandatory report to the College on December 29, 2009 outlining the circumstances in which an associate mid-wife and fellow college member, Kim Cloutier-Holtz, had left Ms. Batacharya’s midwifery practice.

[4] Following an investigation relating to Ms. Cloutier-Holtz, the ICRC Panel issued reasons for decision on January 18, 2011. It noted that the issue for the Panel to decide was whether the nature of the allegations, if true, warranted a discipline hearing among other things. The Panel decided to take no action. In its reasons for decision, it noted that it did not have any concerns with the clinical care provided by Ms. Cloutier-Holtz to her clients or any concern for public safety.

[5] The Panel did have concerns with the mandatory report itself and was of the view that the report was not made with regard to the highest principles of integrity and professionalism. It noted its concern that the clinical issues Ms. Batacharya had described in her report had occurred three years ago without any mention of action taken to address these issues until she filed her mandatory report with the College. The Panel also noted that Ms. Batacharya had continued to assign clients to Ms. Cloutier-Holtz and allowed Ms. Cloutier-Holtz to teach students and to cover on-call duties. The Panel was of the view that it was unreasonable to believe a practice would allow a member to continue to see clients, teach students and cover on-call duties if the concerns of the member’s clinical care, competency and professionalism were legitimate.

[6] The Panel also noted that the mandatory report was dated December 29, 2009 which was two months after Ms. Cloutier-Holtz had filed a Human Rights Complaint against her former practice and Ms. Batacharya. The Panel reiterated its view that the investigation results demonstrated that the report had no merit and therefore no further action would be taken. Accordingly, there was no referral to the discipline committee for a hearing.

[7] The ICRC provided a copy of its decision to Ms. Cloutier-Holtz but not to Ms. Batacharya. Ms. Batacharya learnt of the decision when it was circulated in the Sudbury community.

[8] Concerns about Ms. Batacharya’s practice have been raised with the College. By correspondence dated March 24, 2011, the College identified these as including “the fact that at least seven midwives have left [her] practice in the last few years, as well, various colleagues have raised issues relating to the unmanageable workloads, being asked to cover for Ms. Batacharya without compensation, lack of continuity of care for clients, poor organization of the practice and a lack of respect on the part of Ms. Batacharya for her colleagues.”

[9] On April 1, 2011, the College advised Ms. Batacharya that an investigator had been appointed to ascertain whether Ms. Batacharya has engaged in professional misconduct including with respect to failing to maintain the standards of practice of the profession and/or engaging in conduct that would reasonably be regarded as disgraceful, dishonourable or unprofessional.

[10] Ms. Batacharya has brought an application for judicial review of the decision in the matter of Ms. Cloutier-Holtz.

Position of the Parties

[11] Ms. Batacharya takes the position that the College is required to produce its record of proceedings pursuant to Section 10 of the Judicial Review Procedure Act[^2] (“JRPA”). She states that the record is required in order for the judicial review application to be properly argued and decided and that the Court has residual discretion to order production of the record of proceedings.

[12] The College takes the position that the ICRC did not exercise or purport to exercise a statutory power of decision with respect to Ms. Batacharya. She was not the subject of the report nor did the College have the ability to take any action against her. The comments made in the ICRC report have no legal force and effect as against Ms. Batacharya. Furthermore, based on section 36(3) of the Regulated Health Professions Act, 1991[^3], the record cannot be produced to Ms. Batacharya.

Discussion

[13] Section 10 of the JRPA states:

When notice of an application for judicial review of a decision made in the exercise or purported exercise of a statutory power of decision has been served on the person making the decision, such person shall forthwith file in the court for use on the application the record of the proceedings in which the decision was made.

[14] Therefore, a decision-maker is required to file a record of the proceedings where the application for judicial review concerns a decision by a decision maker who has exercised or purported to exercise a statutory power of decision as defined in Section 1 of the JRPA.

[15] Section 1 of the JRPA defines a statutory power of decision as:

a power or right conferred by or under a statute to make a decision deciding or prescribing,

(a) the legal rights, powers, privileges, immunities, duties or liabilities of any person or party, or

(b) the eligibility of any person or party to receive, or to the continuation of, a benefit or licence, whether the person or party is legally entitled thereto or not,

and includes the powers of an inferior court.

[16] Here the ICRC did not exercise or purport to exercise any statutory power of decision with respect to Ms. Batacharya within the meaning of Section 1 of the JRPA. Ms. Cloutier-Holtz was the subject of the ICRC’s investigation and decision. The ICRC’s decision did not decide or prescribe Ms. Batacharya’s legal rights, powers, privileges, immunities, duties or liabilities. The ICRC made no findings that Ms. Batacharya had engaged in unprofessional conduct and did not issue a disciplinary reprimand or make any disciplinary decision against her.

[17] As stated in Re: Medhurst v. Medhurst[^4], the purpose of the JRPA is not to afford rights to one person because a decision decided or prescribed the rights of another person.

[18] The ICRC decision does not form any part of Ms. Batacharya’s file or record with the College. It is not a prior decision relating to her within the meaning of Clause 26(2) of the Code. Rather, it is a prior decision relating to Ms. Cloutier-Holtz. It is also not a disciplinary caution or reprimand of Ms. Batacharya as she asserts.

[19] In addition, under section 27(2) of the Health Professions Procedural Code, the member shall be given a copy of the ICRC decision. The member is Ms. Cloutier-Holtz. Someone who makes a mandatory report, that is Ms. Batacharya, is not entitled as of right to a copy of the ICRC decision.

[20] Not only is Ms. Batacharya not entitled to a copy of the ICRC decision, the College is prohibited from giving her a copy by virtue of section 36(3) of the RHPA as the ICRC decision relates to another member and is confidential to her. By logical extension, Ms. Batacharya would not be entitled to a copy of the investigatory records which contain personal information relating to Ms. Cloutier-Holtz. Furthermore, section 36(3) precludes the use of the record of the ICRC proceedings in a civil proceeding other than a proceeding under the RHPA. An application for judicial review is a civil proceeding: Ellis-Don Limited[^5]. The record of proceedings relating to Ms. Cloutier-Holtz is inadmissible in Ms. Batacharya’s application for judicial review which is not a proceeding under the RHPA. The order for production requested by Ms. Batacharya would destroy the objective of confidentiality which is reflected in section 36(3) of the RHPA.

[21] For all of these reasons, I am of the view that there is no merit in Ms. Batacharya’s position and I do not propose to exercise my discretion as she requests. The motion is dismissed. An order is granted extending the time for Ms. Batacharya to serve and file her application for judicial review and her factum to February 29, 2012.

Costs

[22] Both parties provided cost outlines. The College sought $12,435.99 in fees and $260.83 in disbursements for a total of $12,696.82 on a partial indemnity scale.

[23] Ms. Batacharya sought fees of $12,625 and disbursements of $761.92 for total fees and disbursements of $13,386.92. Even though the request of the College approximates that of Ms. Batacharya, I view the costs of both parties to be rather excessive given the issues in dispute and the nature of the record. Accordingly, I am ordering that Ms. Batacharya pay to the College the sum of $7,500 plus disbursements of $260.83 plus applicable H.S.T. within 30 days. In my view, this is a fair and reasonable sum.

Pepall J.

Date: February 17, 2012

[^1]: Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c.18. [^2]: R.S.O. 1990, c.J.1. [^3]: Ibid. [^4]: [1984] O.J. No. 3140 (H.C.J.). [^5]: [1992] O.L.R.B. Rep. July 885 (Div. Ct.) at p. 2.