CITATION: Bastien v. University of Toronto, 2017 ONSC 6937
DIVISIONAL COURT FILE NO.: 122/17
DATE: 2017/11/20
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
KITELEY, M.G. QUIGLEY and MATHESON JJ.
BETWEEN:
DR. DAVID BASTIEN
Applicant
– and –
UNIVERSITY OF TORONTO
Respondent
COUNSEL:
Nicholas J. Cartel, for the Applicant
Robert A. Centa and Emily Lawrence, for the Respondent
HEARD at Toronto: November 20, 2017
KITELEY J. (Orally)
[1] This is an application for judicial review of the decision of the Board of Examiners of the Faculty of Medicine at the University of Toronto (“Board of Examiners”) dated October 14, 2015 in which the Board of Examiners decided that “having demonstrated lapses in professional behavior [Mr. Bastien] was referred for remediation in professionalism”.
Background
[2] In the letter notifying him of the Board of Examiner’s decision, Mr. Bastien was told that he had the right to appeal to the Appeals Committee of the Faculty of Medicine. He initiated the appeal on October 30, 2015.
[3] The appeal process begins by the student meeting with the Vice-Dean for “informal consideration”. Those meetings were conducted on November 15, November 25, and December 4, 2015. Following those meetings, Mr. Bastien chose to do the remediation course of professionalism and he completed that program. He did not pursue the appeal.
[4] Dr. Bastien graduated from the Faculty of Medicine and applied to the College of Physicians and Surgeons of Ontario (“CPSO”) for registration as a physician. In the application, the candidate must answer this question: “Have you ever been put on probation or remediation by a medical school?”. Dr. Bastien checked “No”.
[5] In the meantime, the University of Toronto Faculty of Medicine had followed its procedure with all medical school graduates and notified the CPSO in writing that “during his third year of the medical program [Mr. Bastien] was cited for a lapse in professionalism. He successfully completed a course of remediation.”
[6] In view of the conflict between Dr. Bastien’s information in his application and the information from the University of Toronto, the CPSO followed up and made inquiries and ultimately decided to start a monitoring process during Dr. Bastien’s residency.
[7] We were advised in submissions that the monitoring by the CPSO has recently ended and that Dr. Bastien has persisted in this application for judicial review to clear his reputation amongst his medical colleagues.
[8] In the notice of application issued on behalf of Dr. Bastien, he asked for an order in the nature of certiorari setting aside the decision of the Board of Examiners and an order that this Court substitute its own decision that there is no finding of lapses in professional behavior and make orders for related relief.
Analysis
[9] The respondent takes the position that this Court should dismiss the application on the grounds of prematurity on the basis that Dr. Bastien should have exercised his right to appeal to the Appeals Committee of the Faculty of Medicine and from that decision he had a right to appeal to the Academic Appeals Committee of the Governing Council of the University.
[10] In Ackerman v. Ontario Provincial Police, 2010 ONSC 910, the Divisional Court held as follows:
[11] Judicial review is a discretionary remedy. As a general principle, this court will decline to exercise its discretion to judicially review a tribunal decision that is interlocutory or interim in nature and does not determine the rights of the parties. This is a principle rooted in public policy, respect for Parliamentary intention, and deference to administrative tribunals. (citations omitted) …
[18] The position traditionally taken by the courts on the prematurity issue finds its foundation in respect for the legislative intent that reposed the decision-making power in the tribunal and deference to that tribunal. It is inconsistent with those principles to permit participants before an administrative tribunal to come running to Divisional Court on judicial review prior to having exhausted all of their remedies and appeal routes within the administrative regime. Such applications will result in increased costs for all concerned as well as considerable delay in what is meant to be a cost-effective and expeditious process.
[19] That is not to say that the court will never consider a judicial review application while administrative proceedings are still ongoing. However, the court will only do so rarely, when exceptional circumstances are demonstrated. For example, judicial intervention may be warranted in situations where the tribunal clearly lacks jurisdiction to proceed (Roosma; Deemar v. College of Veterinarians of Ontario, 2008 ONCA 600, 92 O.R. (3d) 97 (C.A.)); where the decision, although interlocutory in most respects, determines a particular issue (as in Canada (Minister of Public Safety and Emergency Preparedness) v. Kahlon, 2005 FC 1000, 35 Admin L.R. (4th) 213 (FC) in which the summons issued would be dispositive of the witnesses’ privacy rights); or, where proceeding with the hearing would result in an unfair hearing or a breach of natural justice. (McIntosh; People First of Ontario v. Regional Coroner of Niagara, 6 O.R. (3d) 289 (C.A.)). Even in those extreme situations, the remedy is discretionary and will be exercised sparingly.
[11] We agree with those legal principles. In the extensive material before us, there is no evidence of exceptional circumstances and therefore no basis for the exercise of discretion. We are not prepared to grant any remedy and dismiss this application in its entirety.
Conclusion
[12] I have endorsed the Application Record of the Applicant, Dr. David Bastien as follows: “This application is dismissed for oral reasons given. Applicant shall pay costs to the Respondent in the amount of $20,000.”
KITELEY J.
I agree
M.G. QUIGLEY J.
I agree
MATHESON J.
Date of Reasons for Judgment: November 20, 2017
Date of Release: November 29, 2017
CITATION: Bastien v. University of Toronto, 2017 ONSC 6937
DIVISIONAL COURT FILE NO.: 122/17
DATE: 2017/11/20
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
KITELEY, M.G. QUIGLEY and MATHESON JJ.
BETWEEN:
DR. DAVID BASTIEN Applicant
– and –
UNIVERSITY OF TORONTO Respondent
ORAL REASONS FOR JUDGMENT
KITELEY J.
Date of Reasons for Judgment: November 20, 2017
Date of Release: November 29, 2017