CITATION: Wilcock, Jackson v. Health Professions Appeal and Review Board, 2012 ONSC 1249
DIVISIONAL COURT FILE NO.: 526/11
DATE: 20120221
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ASTON, MACKINNON AND MOORE JJ.
BETWEEN:
DR. GEORGINA ELIZABETH WILCOCK and DR. STEVEN JACOB JACKSON
Applicants
– and –
HEALTH PROFESSIONS APPEAL AND REVIEW BOARD, MAUREEN MEREWEATHER, JENNIFER DUNCAN and RICHARD CONOLLY AUSTIN
Respondents
David E. Leonard and Moya J. Graham, for the Applicants
David Jacobs, for the Respondent, Health Professions Appeal and Review Board
HEARD at Toronto: February 21, 2012
ASTON J. (ORALLY)
[1] Doctors Wilcock and Jackson bring this application for judicial review of a decision of the Health Professions Appeal and Review Board. They seek an order that the Board does not have jurisdiction to review a decision of the Complaints Committee of the College of Physicians and Surgeons.
[2] There are two complaints at issue, one made by Ms. Jennifer Duncan and the other made by Ms. Maureen Mereweather. The Complaints Committee of the College heard the complaints and rendered a decision on March 11, 2009. The Committee decided to take no action against Dr. Wilcock and Dr. Jackson. Based on Dr. Austin’s retirement and undertakings, the Committee also decided to take no action against him. Both Ms. Duncan and Ms. Mereweather then requested reviews of the Committee’s decision, pursuant to the provisions of s.29 of the Health Professions Procedural Code (“the Code”). With the consent of all parties they withdrew those requests for review of the decisions regarding Dr. Wilcock and Dr. Jackson. However, they maintain their requests for review of the decision only regarding Dr. Austin.
[3] By way of a letter dated April 14, 2011, the Board informed counsel for the applicants that despite the withdrawal of the review requests, the Board planned to proceed with a review of the March 11, 2009 decisions with respect to all of the doctors. Counsel for Dr. Wilcock and Dr. Jackson wrote to the Board inquiring as to the jurisdiction to review the decisions. He also pointed out that the Board had proceeded against only some physicians in its past practice, in similar circumstances.
[4] The Board replied on July 19, 2011 stating that:
In cases where there are multiple members and complainants named in a decision, the Board retains its review jurisdiction with respect to all parties listed in such decision, until such time as the matter is withdrawn completely in accordance with the legislation.
[5] In that same letter the Board seemingly acknowledged the reference to its past practice when it wrote that it will “generally limit its review” only to the submissions of the requesting party. (See the last paragraph of that letter).
[6] Turning to the issues raised before us, the respondent submits first of all that this application for judicial review is premature.
[7] In our view, the jurisdictional issue does not depend on the record which would be generated by a review hearing. To address the issue now is a proper reflection of judicial economy.
[8] Turning then to the standard of review, the applicants submit that the applicable standard is correctness. They submit that the statutory scheme does not grant the Board the discretionary power to review a decision where no request for a review is maintained. They submit the Board was deciding a “true question of jurisdiction”.
[9] The respondent argues that the Board is owed deference because it is interpreting its own home statute. According to the recent Supreme Court of Canada decision in Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61 at paras. 39 and 46:
“True questions of jurisdiction are narrow and will be exceptional. When considering a decision of an administrative tribunal interpreting or applying its home statute, it should be presumed that the appropriate standard of review is reasonableness. As long as the true question of jurisdiction category remains, the party seeking to invoke it must be required to demonstrate why the court should not review a tribunal’s interpretation of its home statute on the deferential standard of reasonableness.”
“…for the correctness standard to apply, the question has to not only be one of central importance to the legal system but also outside the adjudicator’s specialized area of expertise.”
[10] We agree with the respondent that here the Board was interpreting provisions of the Code, part of the statute that is closely connected with its function, necessitating a standard of review of reasonableness.
[11] Section 30 of the Code provides that “the Board shall not review a decision if the party who requested the review withdraws the request and the other party consents”. However, the prohibatory words “shall not” only bar a review by HPARB if the words “a decision” refer to a decision respecting an individual doctor who is party to that decision rather than to the entirety of the decision. The Board’s characterization of the withdrawal request as a “partial withdrawal” was a characterization it could possibly adopt when determining the boundaries of its mandate.
[12] Turning then to the main issue: Does the Board have jurisdiction to review the Committee’s March 11, 2009 decisions given that the complainants withdrew their complaints as against Drs. Wilcock and Jackson? Section 30 of the Code, which I have just quoted, does not confer discretionary jurisdiction on the Board to decide whether to review a decision relating to a physician where no request for review has been made with respect to that physician.
[13] The Board’s position is that where there are multiple members and complaints in a decision of the Committee, a complainant cannot selectively ask for a review. The Board submits that when a review is requested in relation to one of the doctor’s named, it must review the conduct of all of them, even those completely exonerated by the Committee.
[14] The applicants say that this is an unreasonable interpretation of the Board’s jurisdiction. We agree that in the circumstances of this case, the Board’s decision on this point in unreasonable.
[15] The investigation summary and other material before the Committee reveals that Dr. Austin was a treating physician but Drs. Wilcock and Jackson were not. The allegations or complaints against them were limited to their supervisory role and responsibilities at the hospital. The reasons of the Committee clearly distinguish conclusions regarding Dr. Austin from conclusions respecting the applicants. The Committee did not render one decision applicable to all the doctors but a separate decision for each.
[16] We recognize that the Board has a public interest mandate and is not just adjudicating the actions of the doctors in isolation. For example, under s.33 of the Code, it has a mandate to review the adequacy of the investigation by the Committee and not just the outcome of the process before the Committee. However, the public interest function is not engaged unless or until there is a request for review which has not been withdrawn with the consent of “the other party”. The language of s.30(1) suggests, by using the words “other party”, an individual party and not multiple parties.
[17] Sections 29 and 30 of the Code contemplate that the Board “shall” or “shall not” embark on a review. There is no discretionary decision for the Board to make, whether or not there is some public interest component to the review after that review is under way.
[18] Furthermore, the last paragraph of the Board’s decision of July 19, 2011 describes an ad hoc arbitrary and ill-defined approach to the process by which it would exercise its jurisdiction. In this case, Drs. Jackson and Wilcock would not even know in advance whether their interests would require them to participate in the review or whether to invest time and money in the process after having already been exonerated by the Committee.
[19] If Dr. Austin had not retired and given the undertakings that he did, he would have been referred to the Discipline Committee. If the Board’s interpretation of its jurisdiction is correct, in those circumstances, s.29(2) of the Code would close the door on any review for any of the doctors and not just Dr. Austin. That result is obviously unreasonable and demonstrates why a characterization of the withdrawals as “partial withdrawals” does not stand up to scrutiny.
[20] The original complaints each named other doctors. There was one common investigation. In each complaint, two of the other doctors have been effectively excused from any review process simply on the basis that the Committee rendered a separate decision for them which did not include Dr. Austin. It is arbitrary and unfair to Drs. Jackson and Wilcock that they are the only ones in administrative positions who might be subject to an ongoing process.
[21] Section 33 of the Code reads:
33.1 In a review, the Board shall consider either or both of,
(a) the adequacy of the investigation conducted; or
(b) the reasonableness of the decision.
[22] The adequacy of the investigation can be considered without the participation of Drs. Jackson and Wilcock just as it could be without the participation of the other administrative doctors who are no longer part of the process. Furthermore, the reasonableness of a decision by the Committee must surely be in relation to a particular doctor.
[23] It has not been necessary for us to consider the evidence in paras. 22 to 27 of the affidavit of Daniela De Bartolo.
[24] In conclusion, the decision of the Board is unreasonable. The application is allowed and the decision to proceed with a review of the Committee’s decision of March 11, 2009 in relation to Drs. Jackson and Wilcock is quashed.
COSTS
[25] I have endorsed the Application Record on behalf of the panel, “For oral reasons given and recorded, the application is allowed and the decision to proceed with a review of the Committee’s decisions of March 11, 2009 in relation to these applicants is quashed. No order as to costs.”
ASTON J.
MACKINNON J.
MOORE J.
Date of Reasons for Judgment: February 21, 2012
Date of Release: March 2, 2012
CITATION: Wilcock, Jackson v. Health Professions Appeal and Review Board, 2012 ONSC 1249
DIVISIONAL COURT FILE NO.: 526/11
DATE: 20120221
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ASTON, MACKINNON AND MOORE JJ.
BETWEEN:
DR. GEORGINA ELIZABETH WILCOCK and DR. STEVEN JACOB JACKSON
Applicants
– and –
HEALTH PROFESSIONS APPEAL AND REVIEW BOARD, MAUREEN MEREWEATHER, JENNIFER DUNCAN and RICHARD CONOLLY AUSTIN
Respondents
ORAL REASONS FOR JUDGMENT
ASTON J.
Date of Reasons for Judgment: February 21, 2012
Date of Release: March 2, 2012