Citation and Parties
DIVISIONAL COURT FILE NO.: 431/16
DATE: 20170301
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
DR. PETER TUCAKOV
Applicant
– and –
MR. SAAD HMAIDAWI and HEALTH PROFESSIONS APPEAL AND REVIEW BOARD and ROYAL COLLEGE OF DENTAL SURGEONS and HONOURABLE MINISTER OF HEALTH, MR. ERIC HOSKINS
Respondents
Dr. Tucakov, acting in person
Steven G. Bosnick, for the Respondent, Health Professions Appeal and Review Board
HEARD at Toronto: March 1, 2017
Oral Reasons for Judgment
KITELEY J. (Orally)
Introduction
1This is a motion by the Health Professions Appeal and Review Board for an order that the portion of the Health Professions Appeal and Review Board’s record of proceedings identified in Schedule “A” of the draft order be sealed and not form part of the public record unless and until so ordered by the court as well as an order that upon counsel for the other parties, where represented by counsel, filing with the court an undertaking in the form identified as Schedule “B”, the Board shall provide such counsel with a copy of the private record of proceedings in the application for judicial review.
2The notice of motion is accompanied by the affidavit of Rachel Mendoza attached to which are various exhibits.
Background
3The reasons for making this request are these:
(1) in December 2013, the College received a complaint from Saad Hmaidawi concerning Dr. Tucakov. The College investigated the complaint and on July 8, 2015, the ICRC of the College issued a decision;
(2) in a letter dated August 6, 2015, Dr. Tucakov wrote to the Board to request that it conduct a review of the ICRC decision;
(3) on January 4, 2016, the Board disclosed the record to the parties that had come from the ICRC but the Board exercised its discretion under subsection 32(3) of the Code and did not disclose certain documents;
(4) Dr. Tucakov did not object when the Board made the disclosure order;
(5) on August 11, 2016, the Board issued its decision confirming the ICRC’s decision;
(6) in September 2016, Dr. Tucakov filed a notice of application for judicial review with respect to the Board’s August 11, 2016 decision.
4The Board is required to file a record of proceedings in the Divisional Court in connection with the application brought by Dr. Tucakov and counsel on behalf of the Board seeks this order in order to determine the content of the record of proceedings.
5In the motion originally served, Schedule “A” was attached and it had five categories of items. At the outset of the motion, Mr. Bosnick deleted items 4 and 5 which I have crossed out and initialed and he corrected the page reference for item 2.
6Counsel for the College, Ms. Lawrence, takes the position that item 2 on Schedule “A” should never have been sent by the ICRC to the Board and for that reason, it should not be included in Schedule “A”. However, because it was sent she is content that it be within the sealed documents.
7Dr. Tucakov has attended today and has brought with him written materials to which I will refer in a moment. He has made oral submissions objecting to the sealing order. It is his position that all documents in the possession of the Board should be in the public domain.
8That is the background leading up to my decision.
The Board's Motion
9I agree with counsel for the Board that the sealing order with respect to items 1, 2 and 3 is appropriate to protect the integrity of the Board’s process of making non-disclosure orders.
10Dr. Tucakov did not object before the Board but he does now object. I do not consider the change in his position to be relevant to my decision.
11As indicated by Aston J. in the decision, Reyhanian v Health Professions Appeal and Review Board, [2013] O.J. No. 1292 (Div. Ct.) a request such as this is typically made in applications such as this.
12I will therefore make the order requested. Mr. Bosnick will provide to me when I’m finished speaking the proposed order that he has prepared and brought with him that has the proper Schedule “A” which is items 1, 2 and 3 and Schedule “B” which is the undertaking. I will deal with that in a moment.
Dr. Tucakov's Motion
13I now want to deal with the material that Dr. Tucakov prepared after he was served with the motion by the Board. I have three pages of documents plus a backing page, plus a handwritten document that looks like a table of contents. These documents were served on the respondents in the case either February 23 or February 27.
14I briefly reviewed with Dr. Tucakov the things that he was asking for. In paragraph (a) he has asked for an order that I adjourn this motion for a sealing order until after October 1. As I indicated to him, I must make that order today in order for this matter to proceed. I will not adjourn the motion as he has requested.
15In paragraph 1(b) of his documents, he asks for an order that the Divisional Court order that the trial be in writing and open to the public. I have pointed out to Dr. Tucakov that there will not be a trial in this court. There will be his application for judicial review which is much different. I cannot make the order he asks in paragraph 1(b).
16In paragraph 1(c), Dr. Tucakov asks that I make an order requiring the respondents before July 1, 2017 to respond in writing to every point in his application. I have advised Dr. Tucakov that in this court there are time limitations on when things will happen. Making a decision on the sealing order was important to triggering those time limitations and now that the order has been made, the lawyers will comply with those time limits. I will not make the order in paragraph 1(c).
17In paragraph 1(d), Dr. Tucakov asks about costs. I have no jurisdiction to make such orders for costs.
Disposition
18With respect to Dr. Tucakov’s motion, because we write on the back of notices of motion, on his I will say “For oral reasons given, motion dismissed”.
KITELEY J.
Date of Reasons for Judgment: March 1, 2017
Date of Release: March 7, 2017
CITATION: Tucakov v. Hmaidawi, 2017 ONSC 1486
DIVISIONAL COURT FILE NO.: 431/16
DATE: 20170301
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
DR. PETER TUCAKOV
Applicant
– and –
MR. SAAD HMAIDAWI and HEALTH PROFESSIONS APPEAL AND REVIEW BOARD and ROYAL COLLEGE OF DENTAL SURGEONS and HONOURABLE MINISTER OF HEALTH, MR. ERIC HOSKINS
Respondents
ORAL REASONS FOR JUDGMENT
KITELEY J.
Date of Reasons for Judgment: March 1, 2017
Date of Release: March 7, 2017