Catford v. The Health Professions Appeal and Review Board, 2017 ONSC 7411

CITATION: Catford v. The Health Professions Appeal and Review Board, 2017 ONSC 7411

DIVISIONAL COURT FILE NO.: 589/16
DATE: 2017/12/11

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

KITELEY, LINHARES DE SOUSA and L.A. PATTILLO JJ.

BETWEEN:

RODERICK R. CATFORD

Applicant

– and –

THE HEALTH PROFESSIONS APPEAL AND REVIEW BOARD and ERIKA ADELE CATFORD

Respondents

Roderick R. Catford, acting in person

Steven G. Bosnick, for the Respondent, The Health Professions Appeal and Review Board

Kelly C. Tranquilli, for the Respondent, Erika Adele Catford

HEARD at Toronto: December 11, 2017

L.A. PATTILLO J. (Orally)

Introduction

1The Applicant, Roderick R. Catford seeks judicial review of the Respondent the Health Professions Appeal and Review Board’s (the “Board”) Notice of Intention Not to Proceed with Review dated September 27, 2016 (the “Notice”) and a Final Order Not to Proceed with Review dated November 24, 2016 (the “Final Order”).

Background

2The Applicant and his brother have been engaged in an ongoing legal dispute since 2011 which has involved the Respondent Erika Adele Catford (Dr. Catford), his niece, the daughter of his brother. Dr. Catford is a physician in Ontario.

3In 2011, the Applicant commenced an action against his brother alleging tortious interference with his mother’s estate. As part of the litigation, Dr. Catford wrote a letter raising concerns about the Applicant’s behavior towards both his daughter and Dr. Catford. The action was ultimately dismissed by summary judgment.

4In 2012, the Applicant registered a complaint with the College of Physicians and Surgeons of Ontario (the “College”) against Dr. Catford for her role in the litigation. He alleged that she had made unfounded allegations against him. After investigation, the College’s Complaints Committee decided to take no further action but warned Dr. Catford to avoid comments that could be perceived as professional opinion and to ensure that she reported any suspected cases of abuse to Children’s Aid.

5The Applicant commenced a second civil action in November 2014, raising a similar allegation, this time against Dr. Catford. On January 8, 2014, following a motion by Dr. Catford, Healy J. struck the majority of the statement of claim.

6The Applicant subsequently filed a complaint against Dr. Catford’s lawyer with the Law Society of Upper Canada alleging that he made misleading and untrue submissions both in his factum and before the court on the motion. The complaint was dismissed by the Law Society, essentially on the basis that it was not the proper forum to deal with the matter. The Applicant had opportunity in the civil proceedings to respond to the factum and submissions and to the extent that he was unhappy with the result, he had a right of appeal.

7The Applicant then filed a complaint with the College against Dr. Catford alleging that she made misleading and untrue statements to the court on the motion.

The Complaints Committee Decisions

8On October 19, 2015, the Complaints Committee issued a Preliminary Notice of Intention not to Proceed with the Review respecting the Applicant’s complaint. The reasons stated were that the behavior complained of did not relate to the practice of medicine; there was no reasonable prospect of the Committee taking any action; and the Committee was not the appropriate forum to undertake the review.

9Following receipt of written submissions, the Complaints Committee issued its Final Decision to Dismiss the Complaint on December 9, 2015. The Committee stated that the complaint was “frivolous, vexatious, made in bad faith, moot or otherwise an abuse of process.” It noted that the Applicant raised the same concerns that he had raised in 2012 and that it had dealt with those concerns at that time. If the Applicant had issues with that decision, he should have appealed to the Board.

The Request for Review

10On April 2, 2016, the Applicant submitted a Request to Review the Complaints Committee’s decision to the Board. The Applicant submitted that the Complaints Committee had focused on the 2012 complaint and entirely failed to address the current allegation.

The Notice

11On September 27, 2016, the Board issued the Notice. The Board noted that it considered the Applicant’s request for review to fall within sections 30(2) and (3) of the Health Professions Procedural Code (the “Code”), Schedule 2 to the Regulated Health Professionals Act, 1991, Statutes of Ontario, 1991, c. 18, as amended and that it had made a preliminary determination that the Applicant's request was frivolous, vexatious, made in bad faith, moot or otherwise an abuse of process. The Board, stated, in part:

21 The Board observes that the Applicant emphasizes that this second complaint is different in that the initial complaint was about the Respondent misleading the court respecting her letter about his conduct towards his daughter, while this complaint [is] about the Respondent misleading the court about the estate of the Applicant’s mother. At its core, however, the Board is of the view that the essence of the complaint is the same.

22 The Board is of the preliminary view that the Applicant’s complaint relates to his perception of the Respondent’s action during personal family matters. Thus, the Board is of the preliminary view that the Applicant’s complaint relates to behaviour complained of that does not relate to the practice of medicine. On its face, the complaint discloses no valid concerns and the behaviour complained of does not relate to the practice of medicine. The Board is of the preliminary view that neither the Board nor the Committee is an appropriate forum to undertake the review requested. A party has recourse to other legal venues to dispute an estate litigation ruling with which he disagrees.

23 Given the Board’s jurisdiction and complaint process, the Board is of the preliminary view that the Applicant’s request for review request for review [sic] does not disclose a basis for professional misconduct and as such there is no reasonable chance of success.

12The Board concluded that pursuant to s. 30(2) of the Code, and based on the reasons given, it proposed not to proceed with a review of the Complaints Committee’s decision.

The Final Order

13Following written submissions from both the Applicant and Dr. Catford, on November 24, 2016, the Board issued the Final Order determining, in accordance with s. 30(3) of the Code that it would not proceed with a review of the Complaints Committee decision.

14The Board concluded that the Applicant’s request was frivolous, vexatious, made in bad faith, moot or otherwise an abuse of process on the basis that the essence of the complaint was the same as the Applicant’s 2012 complaint against Dr. Catford in that it arises out of personal family litigation. The Board rejected the Applicant’s submissions that the complaint related to the administration of justice or larger issues of professional misconduct and not a personal family matter. It stated it was satisfied the complaint disclosed no valid concerns relating to Dr. Catford’s practice of medicine and that it appeared “the Applicant has sought to use the complaint process for an improper purpose involving multiple attacks arising out of litigation involving the parties.”

15The Board concluded that the Applicant’s request for review had no reasonable chance of success and it would serve no practical purpose to conduct a review.

The Issues

16On this Application, the Applicant submits the Board erred:

(1) in finding that the Review fell within the frivolous, vexatious, bad faith, moot or abuse of process requirement in s. 30(3) of the Code;

(2) in finding that the substance of the complaint could not succeed because: 1) the conduct was the same as an earlier complaint; and 2) misleading a court could not represent professional misconduct; and

(3) in making findings that the Review raised no valid concerns and that the Applicant sought to use the complaints process for an improper purpose and in not permitting him a right of reply to that issue which was subsequently raised by the Board.

Standard of Review

17The Applicant submits that the Board’s decisions that the impugned conduct did not amount to professional misconduct and that his review was “frivolous, vexatious, made in bad faith, moot or otherwise an abuse of process” might attract the correctness standard of review.

18Both Dr. Catford and the Board submit that the standard of review of the Board’s decision is reasonableness.

19The existing jurisprudence makes it clear that the standard of review of a decision of the Board is reasonableness: Edmison v. Health Professionals Appeal and Review Board, 2017 ONSC 3664 (Div. Ct.) at paras. 3, 8; Cyriac v. Bernstein, 2015 ONSC 592 (Div. Ct.) at para. 16.

20In respect of an issue of procedural fairness, the standard of review analysis is not engaged. Rather, it is for the Court to determine whether the requisite level of procedural fairness has been accorded, taking into account the factors in Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, which include the nature of the decision and the process followed in making it; the nature of the statutory scheme and the terms of the statute under which the decision maker operates; the importance of the decision to the individual affected; and the legitimate expectations of the person challenging the decision.

21In Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 47, [2008] 1 SCR 190, the Supreme Court discussed the standard of reasonableness:

47. Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

Discussion

1. Did the Board err in finding that the Review was frivolous, vexatious, bad faith, moot or abuse of process within s. 30(3) of the Code?

22Section 30(3) of the Code gives the Board the power to decide to not review a decision if it is satisfied that the request to review the decision was frivolous, vexatious, made in bad faith, moot or otherwise an abuse of process.

23Although there is some degree of overlap of meaning in the terms used in s.30(3) of the Code, the wording of the section makes it clear that the enumerated categories are disjunctive rather than conjunctive. That is, the Board need only find that one of the listed actions is present to not review a decision.

24A proceeding which is frivolous, vexatious or an abuse of process is one which clearly has no merit, seeks to re-litigate a claim already decided or is brought for an improper purpose: Re Lang Mitchener et al. v. Fabian (1987), 1987 172 (ON SC), 59 O.R. (2d) 353 at para. 19.

25In my view, the Board’s conclusion that the Applicant’s request was frivolous, vexatious, made in bad faith, moot or otherwise an abuse of power was consistent with the courts determination of when a proceeding is frivolous, vexatious or an abuse of power.

26The Board concluded that the Applicant’s complaint was in essence the same as the 2012 complaint in that it involved personal family litigation, did not raise any concerns relating to Dr. Catford’s practice of medicine and that it appeared that the Applicant was using the complaint process for an improper purpose. These were all findings that the Board was entitled to make or inferences it was entitled to draw from the material filed.

27Nor do I consider that the Board applied the wrong test. Its conclusion that the Applicant’s complaint had “no reasonable chance of success” follows from its conclusion that the complaint was frivolous, vexatious, made in bad faith, moot or otherwise an abuse of process.

28In my view, the Board’s conclusion that the Applicant’s request was frivolous, vexatious, made in bad faith, moot or otherwise an abuse of process was not only reasonable within the meaning of that term but in my view it was correct.

2. Did the Board err in finding that the substance of the complaint could not succeed because: 1) the conduct was the same as an earlier complaint; and 2) in concluding that misleading a court could not represent professional misconduct.

29The Board’s conclusion was that the complaint was “in essence” the same as the 2012 complaint in that they both involved an attempt by Dr. Catford to mislead the court in family related litigation although the circumstances were different. The Board concluded that it was not “sufficiently different” such that it represented a new complaint necessitating a review. In my view, that is a conclusion that the Board was entitled to reach based on the evidence. Further, the Board did not just rely on that finding to support its conclusion to not review the Complaints Committee’s decision. It also concluded that the complaint failed to raise any valid concerns about Dr. Catford’s medical practice and it appeared to have been brought for an improper purpose.

30The Applicant further submits that the Board erred in concluding that misleading the court did not constitute professional misconduct. That is not what the Board concluded. What the Board stated was that it was satisfied that the complaint disclosed no valid concerns relating to Dr. Catford’s practice of medicine.

31In reaching its decision, the Board considered the Applicant’s request for review, the Complaints Committee’s decision and its 2012 decision and the Record of Investigation. There was no evidence before the Complaints Committee or the Board that Dr. Catford had directly mislead the court either in written submissions or orally. The submissions were all made by her lawyer. Further, they were made in the context of personal family litigation.

32There is no question that misleading a court is a serious matter. It is something, however, that is more properly dealt with by the court, either at the time of the hearing or by way of appeal. Although he had the opportunity, the Applicant did not pursue it before the courts. In such circumstances, given the finding that the complaint arose out of personal family litigation, both the Complaints Committee and the Board were entitled to conclude that the complaint did not engage Dr. Catford’s practice of medicine.

3. Did the Board err in making findings that the Review raised no valid concerns and that the Applicant sought to use the complaints process for an improper purpose and in not permitting him a right of reply to that issue which was subsequently raised by the Board.

33As discussed above, I am satisfied that the Board’s decision that the requested review raised no valid concerns was reasonable. Further, based on its conclusions that the complaint was in essence similar to the 2012 complaint which was dismissed, involved a personal family matter and did not raise any valid concerns about Dr. Catford’s medical practice, the Board was entitled to draw the inference that it appeared that the Applicant was using the complaints process for an improper purpose.

34The Applicant further submits that the manner in which the Board decision was made denied him natural justice. Specifically the Applicant complains that he was given no opportunity to make submissions in respect of the Board’s conclusion that it appeared that he was using the complaints process “for an improper purpose involving multiple attacks arising out of litigation involving the parties.”

35The Applicant’s submission involves an allegation of procedural unfairness. In reaching its decision, the Board followed the procedure set out in s. 30(2) and (3) of the Code. The Notice set out the Board’s preliminary findings. The Applicant had sufficient notice and opportunity to make submissions to the Board in response to the Board’s Notice. The Board’s finding in the Final Order of appearance of improper purpose was drawn from the facts it found concerning the basis of the complaint and the effect on Dr. Catford’s practice. In my view, based on its findings, the Board was entitled to make that finding which follows from its conclusion that the complaint was frivolous, vexatious, made in bad faith, moot or otherwise an abuse of process. The Applicant had ample opportunity to respond to the Board’s preliminary conclusions concerning the complaint that gave rise to that finding. There was no breach of procedural fairness.

36For the above reasons, therefore, the Application is dismissed.

KITELEY J.

37I have endorsed the (Applicant’s) Application Record as follows: “This Application for Judicial Review of Decision of HPARB dated November 24, 2016 and the Notice dated September 27, 2016 is dismissed for oral reasons given. Applicant shall pay Respondent costs of $10,000.00 within 30 days.”

___________________________ L.A. PATTILLO J.

I agree