Court File and Parties
CITATION: Hanif v. Ontario College of Pharmacists et al, 2014 ONSC 2598
DIVISIONAL COURT FILE NO.: 370/12
SUPERIOR COURT FILE NO.: CV-12-448727
DATE: 20140505
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT AT TORONTO
R.D. Gordon, R.S.J., Lederman J. and Kiteley J.
DIVISIONAL Court File: No. 370/12
RE: Mohamed Imran Hanif, Appellant/Responding Party
AND:
Ontario College of Pharmacists, Respondent
AND
Attorney General of Ontario, Intervenor/Applicant
SUPERIOR COURT OF JUSTICE – ONTARIO
Court File No. CV-12-448727
RE: Mohamed Imran Hanif, Applicant/Responding Party
AND
Her Majesty the Queen in Right of Ontario, Respondent/Applicant
AND
Ontario College of Pharmacists, Respondent
COUNSEL ON BOTH MATTERS:
Josh Hunter, for the Attorney General of Ontario
Neil Abramson and Lindsay Kantor, for Mohammed Imran Hanif
Brian Gover and Aaron Dantowitz, for the College of Pharmacists
HEARD: March 13, 2014
ENDORSEMENT
by the court
Overview
[1] The Attorney General of Ontario (the “Attorney General”) moves pursuant to s. 21(5) of the Courts of Justice Act to set aside the order of Justice Himel dated November 12, 2013[^1]. In that order, Justice Himel denied the Attorney General’s request to: (a) consolidate Mr. Hanif’s constitutional challenge before the Superior Court of Justice with Mr. Hanif’s appeal to the Divisional Court of his conviction for professional misconduct; and (b) stay the consolidated proceedings and have the constitutional issue remitted back to the Discipline Committee of the Ontario College of Pharmacists (the “Discipline Committee”) for a hearing at first instance on the constitutional challenge. For the reasons that follow, the motion is dismissed.
Background
[2] In November of 2009, Mr. Hanif engaged in a consensual sexual act with a patient who was a cashier in the grocery store where he worked as a dispensing pharmacist. On May 16, 2011, he was charged with professional misconduct by the Ontario College of Pharmacists. Under certain provisions of the Health Professions Procedural Code, (“the Code”) 1991, S.O. 1991, c. 18, a consensual sexual act between a pharmacist and a patient is deemed to be sexual abuse and attracts a penalty of mandatory revocation of a pharmacist’s Certificate of Registration.
[3] On March 13, 2012, before the charges were heard by the Discipline Committee, Mr. Hanif brought an application in the Superior Court of Justice (CV-12-448727) on notice to the Attorney General challenging the constitutionality of the mandatory revocation provisions of the Code as criminal in substance and therefore ultra vires the province. He sought a declaration of invalidity of s. 1(3), 1(4), 51(5) and 72(3) of the Code.
[4] On the basis of the Superior Court action, Mr. Hanif sought a stay of the proceedings before the Discipline Committee but was unsuccessful.
[5] On June 14, 2012, Mr. Hanif entered into a plea bargain with the College whereby he agreed to plead guilty to the professional misconduct charge on the basis that, inter alia: (1) the Discipline Committee’s order revoking his certificate of registration would be suspended or stayed until the constitutional challenge in the Superior Court had been finally determined, and (2) to preserve his rights to appeal, he would file an appeal of the Discipline Committee’s order in the Divisional Court, to be held in abeyance pending the result of the constitutional challenge.
[6] Following a hearing on June 14, 15, 20, and 21, 2012, the Discipline Committee gave an oral decision and released a written decision dated June 29, 2012[^2] in which it accepted the plea bargain, ordered Mr. Hanif to appear before a Panel of the Discipline Committee to be reprimanded; directed the Registrar to revoke the Member’s Certificate of Registration; ordered that the revocation be suspended until the constitutional challenge in CV-12-448727 was decided; directed the Registrar to impose specified terms, conditions and limitations on his Certificate of Registration that included completion of an ethics program.
[7] In arriving at that decision, the Discipline Committee grappled with whether it had the jurisdiction to order a stay of the mandatory revocation order and four of the five members of the Panel concluded that it did. One of the members dissented on the jurisdictional issue but otherwise agreed with the outcome.
[8] In July, 2012, Mr. Hanif brought his appeal from that decision to the Divisional Court (370/12). The Attorney General was given intervenor status in that proceeding and, in September 2012, the Attorney General brought a motion before a single judge of the Divisional Court for an order to consolidate the two proceedings and an order that the constitutional issue be remitted back to the Discipline Committee to consider the constitutionality of the provisions of the Code.
[9] The Attorney General had not been given notice of the challenge in the professional misconduct proceedings to the constitutionality of the mandatory revocation penalty. Once aware of the suspension of the revocation order, the Attorney General sought and was granted intervenor standing by the Discipline Committee[^3] and then brought a motion in which the Attorney General asked the Discipline Committee to reconsider its order of June 29, 2012 to the extent that it concluded it had jurisdiction to suspend the revocation order. The Attorney General took the position that the Discipline Committee had no jurisdiction to suspend a mandatory revocation penalty. The Attorney General’s motion for reconsideration was heard on December 12, 2012 and, in a decision dated July 10, 2013[^4] was dismissed by the Discipline Committee (differently constituted). The Attorney General has launched an appeal in this Court (363/13) from that decision. [^5]
[10] The motion by the Attorney General to consolidate and remit back to the Discipline Committee (referred to in paragraph 8 above) was adjourned until the Discipline Committee had denied the Attorney General’s request for reconsideration but it was eventually heard by Justice Himel on November 7, 2013. The Attorney General argued the proceedings should be consolidated and then stayed, and the constitutional matter should be remitted to the Discipline Committee, as it was the proper forum for arguments that the mandatory revocation provisions are ultra vires the province. By order dated November 12, 2013, she dismissed the motion[^6]. The hearing of Mr. Hanif’s Superior Court application is scheduled for August 12 and 13, 2014.
Order Under Review
[11] The motions judge held[^7] that (a) both proceedings arise from the same set of facts, namely the discipline proceedings taken against Mr. Hanif by the College; (b) both proceedings involve the same question of law, namely the constitutionality of the provisions of the Code related to mandatory revocation; and (c) both proceedings arise out of the same transaction or occurrence or series of transactions or occurrences which were that Mr. Hanif had had a sexual relationship with a patient for which he was found guilty of professional misconduct and had his Certificate of Registration revoked as the Code required.
[12] The motions judge held that there were exceptional circumstances which warranted the court declining to consolidate, namely as follows:
(i) Although the proceedings claim relief arising out of the same events there was no possibility of inconsistent verdicts or decisions if the Superior Court application and the Divisional Court appeal proceeded separately. (paragraph 20)
(ii) The intervention of the Attorney General in bringing proceedings before the Discipline Committee had contributed to the delay in the Superior Court. (paragraph 21) Any delay occasioned by allowing the proceedings to continue separately could be addressed through case management. (paragraph 22)
(iii) The Discipline Committee lacked the power to grant a general declaration of invalidity which was the remedy sought by Mr. Hanif (paragraph 29) and consequently, there is no effective remedy before that administrative body. To remit the matter would be wasteful, unnecessary and unproductive, and not in the interests of justice to these litigants or the public in the specific circumstances of the case. (paragraph 28)
(iv) The court cannot gain jurisdiction over a proceeding by virtue of consolidation – it must be capable of exercising jurisdiction over each proceeding separately before it can take jurisdiction of the consolidated proceeding. The Divisional Court has no jurisdiction to entertain a constitutional challenge commenced as an application under Rule 14 of the Rules of Civil Procedure, and cannot acquire jurisdiction by consolidation of that proceeding into another proceeding which is properly before it. (paragraphs 31-33)
(v) While the threshold for exceptionality is high, exceptional circumstances existed, namely: (a) lack of effective remedy before the administrative body; (b) lack of prejudice to any party to maintain the plea agreement which resulted in an efficient and effective resolution of the Discipline proceeding; (c) in the public interest that the plea agreement be affirmed and permitted to proceed as negotiated; (d) it was neither an available option nor in the public interest to consolidate. (paragraphs 28, 29, 35)
[13] In response to the motion, counsel for Mr. Hanif had asked that the motion be dismissed as an abuse of process on the basis that the intervention by the Attorney General, the fourth attempt to challenge the decision of the Discipline Committee, constituted a collateral appeal of the agreement, was oppressive and would cause significant cost and delay to the parties. At paragraph 35, the motions judge concluded that she could find no “oblique motive” by the Attorney General and that the proceedings did not “yet” involve a party misusing the court procedure in a way that would bring the administration of justice into disrepute.
Jurisdiction
[14] Pursuant to s. 21(5) of the Courts of Justice Act, this court has jurisdiction to hear the Attorney General’s motion and can set aside or vary the decision of the motions judge.
Positions of the Parties
[15] Counsel for the Attorney General took that position that the motions judge gave “no legitimate reasons for refusing to consolidate”. Counsel asserted that the motions judge erred in law in two respects: first, in her finding that the Divisional Court has no jurisdiction to declare legislation unconstitutional and, second, in her finding that the agreement of Mr. Hanif and the College to “try and by-pass having the constitutional issues heard by the College’s Discipline Committee (an administrative tribunal the Legislature has given the power to decide constitutional questions) was a sufficiently “exceptional circumstance” that the Court should intervene before the administrative proceedings before the Discipline Committee had run their course”. Counsel asserted that, pursuant to s. 138 of the Courts of Justice Act, “as far as possible, multiplicity of legal proceedings shall be avoided” and that all three factors that dictated consolidation existed. Counsel asked that once consolidated, this Court should stay the consolidated proceeding until the Discipline Committee has had the opportunity to consider the constitutional issue at first instance. Counsel noted that the Attorney General was no longer seeking an order that the consolidated proceeding be heard with its appeal from the Discipline Committee (363/13) because that appeal was scheduled to be heard on the same day as this motion pursuant to s. 21(5).
[16] Counsel for Mr. Hanif listed the seven conclusions reached by the motions judge all of which justified the exercise of her discretion not to consolidate. In addition, counsel took the position (consistent with its submission before the motions judge) that the motion pursuant to s. 21(5) by the Attorney General was an abuse of process and ought to be dismissed for that reason.
[17] Counsel for the College opposed the motion. Counsel pointed out that the Attorney General had changed its position and no longer proposed, on the review motion that had added months to the process, that the constitutional issue be determined by the Divisional Court together with the Attorney General’s appeal. Counsel for the College took the same position as it had before the motions judge, namely that it is questionable whether this Court has the jurisdiction to make an order of “remittal”; and, for the reasons relied upon by counsel for Mr. Hanif, that is no principled basis for forcing the Discipline Committee to consider the constitutional question.
[18] In reply, counsel for the Attorney General submitted that the motions judge had not found the motion to have been an abuse of process and it could not be an abuse of process to exercise a statutory right to have a full panel of this court review the motion judge’s decision.
Standard of Review
[19] As indicated above in paragraph 15, counsel for the Attorney General argued that the motions judge made two errors in law. We will consider below whether there are such errors. We agree that if there are errors in law, the standard of review is correctness.
[20] This court has previously decided that the general principles concerning appellate review of the decisions of trial and motions court judges apply to motions under section 21(5).[^8]
[21] In our view, the issue of whether to consolidate proceedings and whether to dismiss on account of abuse of process involves an exercise of judicial discretion based on a question of mixed fact and law and is reviewable on a standard of palpable and overriding error.
Analysis
[22] Section 107(1) of the Courts of Justice Act provides that where two or more proceedings are pending in two or more different courts, and the proceedings, (a) have a question of law or fact in common; (b) claim relief arising out of the same transaction or occurrence; or (c) for any other reason ought to be the subject of an order under the section, an order may be made transferring any of the proceedings to another court and requiring the proceedings to be consolidated.
[23] The purposes underlying this section are to avoid multiplicity of proceedings, to prevent inconsistent dispositions, to protect scarce judicial resources, and to save expenses for the parties.
[24] As a general rule, when parties are before an administrative tribunal, they are expected to exhaust their rights and remedies before that tribunal before pursuing any recourse to the courts. As stated in C.B. Powell Ltd. v. Canada (Border Services Agency)[^9] “… absent exceptional circumstances, courts should not interfere with ongoing administrative processes until after they are complete, or until the available, effective remedies are exhausted.”
[25] In Okwuobi v. Lester B. Pearson School Board[^10], the Supreme Court of Canada held that superior courts retain residual jurisdiction to hear direct constitutional challenges to a legislative scheme in the proper circumstances, but not when the applicant is attempting to obtain relief by circumventing the administrative process by bringing its claim directly to the Superior Court. The Court held that the residual jurisdiction of superior courts cannot be entirely ousted by the legislature, in particular where recourse to such courts is necessary to obtain an appropriate and just remedy.
[26] In Volochay v. College of Massage Therapists of Ontario[^11], the Ontario Court of Appeal summarized the state of the law as follows:
68 The application judge recognized the principle that unless exceptional circumstances exist, a court should not interfere in an administrative proceeding until it has run its course. The principle has particular force where adequate alternative remedies are available under the administrative scheme. Ordinarily an affected individual must pursue these remedies before seeking relief from the court.
69 The rationales for this principle are well known. The principle respects administrative decision-making and the legislature’s intent that internal review processes be exhausted before the court intervenes. At the same time, the principle preserves the right of the court to intervene in those exceptional circumstances where the justice of the case calls for intervention.
[27] Counsel for the Attorney General takes the position that the motions judge erred in law in finding that the Divisional Court has no jurisdiction to declare legislation unconstitutional. We do not agree with that position. The motions judge did not make a finding that the Divisional Court has no jurisdiction to make declarations as to invalidity. She held that the Divisional Court does not have jurisdiction to make such a declaration when the proceeding has been brought pursuant to rule 14. That conclusion was in response to the alternative relief sought before her, namely that the proceedings be consolidated and heard by the Divisional Court. The Attorney General no longer seeks that alternative relief.
[28] Counsel for the Attorney General also takes the position that the motions judge erred in law in finding that the agreement of Mr. Hanif and the College to by-pass having the constitutional issues heard by the Discipline Committee constituted an “exceptional circumstance”. We do not agree with that position. The motions judge did make a finding that there was an agreement to seek a declaration of invalidity in the Superior Court. However, as indicated above in paragraph 12, that was one of several reasons she gave for finding exceptional circumstances. That finding does not constitute an error of law.
[29] In the absence of errors of law, the only issue is whether the motions judge’s finding of exceptional circumstances should be set aside on the basis of palpable and overriding error.
[30] As indicated in paragraph 12 above, the motions judge referred to several factors in arriving at her conclusion that exceptional circumstances existed that warranted the proceedings not being consolidated: no possibility of inconsistent decisions; the intervention of the Attorney General had been the cause of delay; the Discipline Committee lacked the power to grant a general declaration of invalidity and to remit the constitutional issue back to it would be wasteful, unnecessary and unproductive and not in the interests of justice to these litigants or the public; lack of prejudice to any party to maintain the plea agreement; the public interest that the plea agreement be affirmed and permitted to proceed as negotiated. We are satisfied that all of those factors were made out on the record before the motions judge and that all are relevant to whether exceptional circumstances exist.
[31] Counsel for the Attorney General takes umbrage with any reliance on the agreement between Mr. Hanif and the College. We do not accept the characterization that Mr. Hanif and the College had agreed to “try and by-pass having the constitutional issues” heard by the Discipline Committee. As the record before the motions judge makes clear, there is no negative imputation to be attributed to either Mr. Hanif or the College. There is no basis to suggest that Mr. Hanif is trying to circumvent or make an end-run around the Discipline Committee. Rather, he has been forthright in his dealings with the Discipline Committee and the College and together they have implemented an arrangement which promotes the efficient and effective resolution of the dispute between them and the constitutional issue. As counsel for the College pointed out, simply because the Discipline Committee has the power to consider the constitutional challenge does not mean that it has the legal duty to do so, particularly when its remedial powers do not include declarations of invalidity. Mr. Hanif’s Application in which he seeks a declaration of invalidity is based on a division of powers submission which is clearly within the expertise of the court and which would be a considerable challenge to a tribunal consisting of lay persons. The agreement as to the procedural course of action constituted an appropriate response under the circumstances. In any event, the Attorney General will be participating in the hearing in August 2014 and will have ample opportunity to put its position forward.
[32] While individually, those factors might not constitute exceptional circumstances, collectively they clearly do. Contrary to the position taken by counsel for the Attorney General, there were legitimate reasons for refusing to consolidate. To the extent that the decision rests on those factors, the decision arising from the exercise of discretion by the motions judge is entitled to deference. We are not persuaded that there is any palpable and overriding error.
Abuse of Process
[33] Counsel for Mr. Hanif pointed out that this motion pursuant to s. 21(5) constitutes the fifth intervention by the Attorney General: motion before the Discipline Committee seeking standing; motion before the Discipline Committee for reconsideration; appeal of the decision of the Discipline Committee dismissing the motion for reconsideration; motion to consolidate and remit; this motion. While the motions judge was not satisfied that the proceedings at that time involved a party misusing the court procedures in a way that would bring the administration of justice into disrepute, counsel for Mr. Hanif argued that this court should find that the additional attempt to unwind the agreement between Mr. Hanif and the College did constitute an abuse of process.
[34] We do not agree. We accept the submission on behalf of the Attorney General that, to exercise a statutory right to have a decision reviewed is not, at least in the circumstances of this case, an abuse of process.
Conclusion
[35] The motion pursuant to s. 21(5) of the Courts of Justice Act is dismissed.
[36] If counsel are unable to agree as to costs, they shall provide written submissions by May 30, 2014.
R.D. Gordon R.S. J.
________________________________
Lederman J.
________________________________
Kiteley J.
Date: May 5, 2014
[^1]: 2013 ONSC 6991 [^2]: 2012 ONCPDC #9 [^3]: 2012 ONCPDC #11 [^4]: 2013 ONCPDC #12 [^5]: The appeal from the decision dated July 10, 2013 was heard on the same day as this motion pursuant to s. 21(5). Reasons for decision are found at 2014 ONSC 2687. [^6]: FN 1 [^7]: FN 1 Paragraph 19 [^8]: Petrykowski v. 553562 Ontario Ltd. (c.o.b. as Bell Cartage), [2011] O.J. No. 734 [^9]: 2010 FCA 61, [2010] F.C.J. No. 274 [^10]: 2005 SCC 16, [2005] 1 S.C.R. 257 [^11]: 2012 ONCA 541, [2012] O.J. No. 3871