Asa & Ezzat v. University Health Network
CITATION: Asa & Ezzat v. University Health Network, 2015 ONSC 5389
DIVISIONAL COURT FILE NO.: 301/15
DATE: 20150827
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
SYLVIA ASA and SHEREEN EZZAT Applicants/Moving Parties
– and –
UNIVERSITY HEALTH NETWORK Respondent/Responding Party
COUNSEL:
Brian P. Moher, for the Applicants/ Moving Parties
Paul Michell and Larissa C. Moscu, for the Respondent/Responding Party
HEARD at Toronto: August 27, 2015
ORAL REASONS FOR JUDGMENT
NORDHEIMER J. (ORALLY)
[1] The applicants seek to bring this judicial review application before a single judge pursuant to s. 6(2) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.
[2] In order to bring a matter under s. 6(2) and thus provide me with jurisdiction to hear it, the applicants must show both that the matter is urgent and that the delay required for the matter to be heard in the normal course by the Divisional Court, would likely involve a failure of justice.
[3] The application arises out of disciplinary action taken by the respondent against the applicants. As a result of an investigation undertaken by the respondent into the research activities of the applicants, the respondent made a finding of misconduct and suspended the applicant’s research activities. The applicants remain, however, on the medical staff of the respondent and retain their clinical care privileges.
[4] The investigation into the research activities of the applicants commenced in 2012. The applicants were made aware of the commencement of the investigation at that time. On October 22, 2014, the investigation committee advised the applicants in writing that it had found that the applicants had committed research misconduct and that the respondent would be suspending their research activities as a consequence. The applicants appealed that decision to the President of the respondent. On March 3, 2015, the President of the respondent denied their appeal.
[5] Part of the analysis under s. 6(2) involves a consideration of the merits of the application for judicial review. In my view, any review of the merits of the case at this stage should be limited. As long as the application is not clearly devoid of merit, that part of the analysis should be seen as being met. I note that this appears to be the approach that was taken in Re Municipality of Metropolitan Toronto and Bremner et al. (No. 1) (1980), 1980 1880 (ON SC), 29 O.R. (2d) 531 (H.C.J.) at para. 36. It is also consistent with the approach taken when the court is considering another urgent forms of relief, for example, an application for an interlocutory injunction or a stay of proceedings. I repeat the observation in that context that was made in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311, where the Supreme Court of Canada said, at para. 50:
A prolonged examination of the merits is generally neither necessary nor desirable.
[6] As long as there appear to be valid issues raised, that should be the end of the inquiry on the merits. In this case, I am satisfied that there appear to be issues that arise for determination.
[7] That said, I am not satisfied that either of the other two aspects of the analysis are made out in this case. I do not see the degree of urgency that would be required to establish jurisdiction under s. 6(2). The applicants have known of the adverse finding by the investigation committee for more than ten months. They have known about the denial of their appeal for more than four months. However, the judicial review application was not launched until June and then, for reasons that are not apparent, it was not served on the respondent until July.
[8] Further, the failure of the application to be heard on an urgent basis will not lead to a failure of justice. Any relief that the applicants may receive as a consequence of a successful review will be as effective a few months from now as it would be today. I note that the relief sought on the application is the quashing of the decision and a direction that a new hearing be held. The reality is that the impact on the applicants from this first determination will not be altered by any order for a new hearing until such time as the new hearing is held and a decision made. Further, whatever damage there has been to the applicants’ reputations and standing within the medical community is not damage that will be exacerbated by any delay in hearing the application nor will it be any less ameliorated by any relief that the applicants might obtain, if that relief is granted through a hearing in the ordinary course before a panel of the Divisional Court. I am also not satisfied there will be any loss of evidence or other procedural problems created if this matter follows the ordinary time line for a hearing.
[9] In the end result, the applicants have not satisfied the statutory requirements to give a single judge jurisdiction to hear their application for judicial review. I order that the matter be transferred to be heard by a panel of the Divisional Court on a date to be set by the Divisional Court Registrar.
COSTS
[10] I have endorsed the Motion Record, “For oral reasons this motion is dismissed. The underlying judicial review application is transferred to be heard by a panel of the Divisional Court on a date to be set by the Registrar. Costs of this motion are fixed in the amount of $7,500 inclusive of disbursements and HST to be disposed of as directed by the panel hearing the judicial review application.”
NORDHEIMER J.
Date of Reasons for Judgment: August 27, 2015
Date of Release:
CITATION: Asa, Ezzat v. University Health Network, 2015 ONSC 5389
DIVISIONAL COURT FILE NO.: 301/15
DATE: 20150827
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
SYLVIA ASA and SHEREEN EZZAT Applicants/Moving Parties
– and –
UNIVERSITY HEALTH NETWORK Respondent/Responding Party
ORAL REASONS FOR JUDGMENT
NORDHEIMER J.
Date of Reasons for Judgment: August 27, 2015
Date of Release: