College of Physicians and Surgeons of Ontario v. Mrozek, 2017 ONSC 1230

CITATION: College of Physicians and Surgeons of Ontario v. Mrozek, 2017 ONSC 1230

DIVISIONAL COURT FILE NO.: 41/17 DATE: 20170221

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

LEDERMAN, SWINTON and STEWART JJ.

BETWEEN:

THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO

Applicant

– and –

DR. MICHAL EDMUND MROZEK

Respondent

Breese Davies and Owen Goddard, for the Applicant

Matthew P. Sammon and Andrea Wheeler, for the Respondent

HEARD at Toronto: February 21, 2017

STEWART J. (Orally)

[1]

Background

The Applicant, The College of Physicians and Surgeons of Ontario (the “College”), asks this Court to judicially review a ruling made by the College’s Discipline Committee during a discipline hearing into charges of professional misconduct and incompetence against the Respondent Dr. Mrozek.

2In its ruling, the Discipline Committee held that the relevant provisions of s.35 of the Mental Health Act, R.S.O. 1990, c.M.7 (the “Act”) apply to proceedings before it and therefore the College must comply with all requirements of notice to psychiatric patients whose records are sought to be tendered as evidence in a proceeding before the Discipline Committee and to obtain all necessary consents or, if required, court orders in order to comply with the Act’s provisions.

3The College argues that the Act does not apply to these proceedings and therefore such compliance is not required. The completion of the hearing has been adjourned pending this application.

[4]

Prematurity

It is submitted on behalf of Dr. Mrozek that this application is premature. Parties are normally required to exhaust all remedies within the administrative process first before seeking judicial review. It is only in exceptional circumstances that this Court will entertain judicial review of an ongoing proceeding. The threshold for exceptionality is high (see C.B. Powell Ltd. v. Canada (Border Service Agency), 2010 FCA 61 (at para. 33)).

5Dr. Mrozek submits that there are no such exceptional circumstances here. We agree with this submission. In our view, the College has failed to establish the criteria that might permit a characterization of these circumstances as being “exceptional”.

6First, the possibility that this issue will become moot depending on the outcome of the hearing remains evident. Although the College does not agree with the Discipline Committee’s interpretation of the statutory provision sought to be reviewed, whether the interpretation will have any practical impact on the final outcome of the hearing remains to be seen.

7Second, although the College argues this decision of the Discipline Committee is a final one, we view it as being in essence a procedural one which only requires the College to take certain steps before the psychiatric records in question may be tendered as evidence at the hearing. There is no evidence in the record before us that such compliance is impossible.

8Third, although the College submits that this decision will have an impact on other cases, we do not see this possible consideration as being sufficiently persuasive so as to justify permitting this discipline hearing to proceed on a piecemeal or fragmented basis. This approach has been followed in a broad array of circumstances including challenges to the fairness of investigations, allegations of bias mid-hearing, challenges to interim orders, and even constitutional challenges to the College’s own regulatory statute (see: Gore v. College of Physicians and Surgeons of Ontario, (2008), 92 O.R. (3d) 195 (Div. Ct.), aff’d 2009 ONCA 546, and Sazant v. Ontario [2007] O.J. No. 5214 (S.C.J.)).

9Finally, the record before us does not establish the kind of risk of irreparable harm that would make this a case that falls within the “exceptional circumstances” rubric. Although the Discipline Committee refused to admit the evidence of Dr. John Novick on the subject of harm, we did review the contents of his affidavit as contained in the record for the narrow purpose of determining this prematurity issue. In our view, Dr. Novick’s opinion is speculative at best when he states that compliance with the requirements of the Act “could” cause injury to patients by undermining the therapeutic relationship and/or exacerbating patients’ systems. He had not reviewed any of the patient records in this case and did not provide any evidence that notification as required under the Act had ever resulted in harm to any actual patient. As a result, we consider that there has been inadequate risk of irreparable harm demonstrated by the College.

[10]

Conclusion

For these reasons, we are of the view that the application for judicial review is premature and we therefore dismiss it on that basis.

costs – Lederman J.

[11]

Costs

This Application is dismissed for oral reasons delivered by Stewart J. Costs to be addressed in writing if counsel cannot otherwise agree.

___________________________ Stewart J.

I agree

Lederman J.

I agree

Swinton J.