CITATION: Lum v. College of Physiotherapists of Ontario, 2018 ONSC 567

DIVISIONAL COURT FILE NO.: 363/17 DATE: 2018 01 23

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

SACHS, C. HORKINS and VARPIO JJ.

BETWEEN:

LO-MING LUM

Lo-Ming Lum, acting in person

Appellant

– and –

COLLEGE OF PHYSIOTHERAPISTS OF ONTARIO

Joanna Birenbaum, for the Respondent

Respondent

HEARD at Toronto: January 23, 2018

SACHS J. (Orally)

Nature of the Proceeding

1In 2015 the Inquiries, Complaints and Reports Committee (“ICRC”) ordered the Appellant to appear before it to be cautioned. The Appellant unsuccessfully appealed that decision. After her appeal rights were exhausted, the College notified the Appellant of a date that she was to appear to receive the caution. The Appellant advised the College that she was refusing to appear and would not do so. She did not in fact appear on the date set.

2The College then instituted further disciplinary proceedings against the Appellant for failing to appear to be cautioned. The Appellant brought four preliminary motions that were scheduled to be heard on May 15, 2017. The Appellant did not appear on that date and thus the College dismissed her motions as abandoned. At that time they set a date for the hearing of the complaint against the Appellant on the merits of June 6, 2017.

3The Appellant was clearly advised of that date, but again chose not to appear. The hearing went ahead and resulted in a finding of professional misconduct against the Appellant. A penalty was imposed against the Appellant consisting of a reprimand and a suspension until a specific course was successfully completed. The Appellant was also ordered to pay $4,500.00 in costs.

4This is an appeal from that decision.

The Issues

5The foundation of this appeal rests on the Appellant’s assertion that she was denied procedural fairness in a number of fundamental ways. We agree that when procedural fairness is engaged no standard of review analysis is necessary. A decision is either procedurally fair or it is not.

6By not appearing, the Appellant never put her arguments of procedural fairness before the College. Her stated reason for failing to appear was her belief that her attendance at any of the hearings would be construed as a waiver of her procedural rights.

7This belief is misconceived. In fact, the law is the opposite. The failure to object to a procedural matter at the first opportunity may constitute a waiver of a later complaint (Ellis v. Ontario College of Teachers, 2011 ONSC 4134.). The fact that the Appellant is self-represented does not mean that this principle should not apply to her. Ignorance of the law is not an excuse. In this case to ignore this rule would undermine the efficiency and integrity of administrative law. Administrative tribunals should be given the opportunity to address issues of procedural fairness before their decisions are potentially set aside by the court on the basis of a failure to act in a procedurally fair manner.

8In our view, this argument alone is a basis for dismissing the Appellant’s appeal. However, we will now go on to outline the specific allegations of procedural unfairness that the Appellant makes. None of these allegations have any merit.

Rule 5.01(2)

9The Appellant alleges that Discipline Counsel, the Independent Legal Counsel and the Discipline Committee acted together to deny her procedural fairness with the express purpose of allowing the Committee to consider prejudicial and inadmissible material in the proceedings against her.

10One of the preliminary motions that the Appellant brought was a motion to exclude certain evidence that she claimed was inadmissible. According to the Appellant, the Discipline Committee Rules and particularly Rule 5.01(2) of those Rules required that all preliminary motions be heard two weeks before the hearing on the merits and heard by a Committee that is different from the Committee that presides over the merits hearing.

11Rule 5.01(2) provides as follows:

All procedural and interlocutory issues shall be raised in a motion as soon as possible and shall be heard on a day that is at least two weeks before the day upon which the hearing is scheduled to commence unless the nature of the motion requires that it be heard during the hearing itself.

12The Appellant is correct that, subject to a stated exception, the Rule directs that all preliminary motions should be heard two weeks before the date scheduled for the merits hearing. In this case those motions were dealt with on May 15, 2017 and the hearing on the merits was not scheduled to commence until June 6, 2017, which is more than two weeks later.

13The Rule does not provide for a different panel to preside over the merits hearing. Nor can such an intention be implied as suggested by the Appellant. Adjudicative tribunals, including courts, often hear motions to exclude prejudicial evidence and then, having done so, go on to preside at the hearing on the merits. For example, in criminal court a judge may decide to exclude a confession and then, knowing about the confession, go on to preside over the accused’s criminal trial. Judges and other adjudicative officers are presumed to understand that it is their duty to make their decisions based only on the evidence that they have decided is relevant and admissible.

14Therefore, there is no merit to the Appellant’s submission that anyone conspired against her to bring about a breach of Rule 5.01(2), thereby violating her right to procedural fairness.

Joint Hearing

15One of the preliminary motions that the Appellant brought was a request that her matter be heard with another matter involving a different College member. That request was dismissed by the College as abandoned.

16Before us the Appellant argues that it is clear from the College’s reasons of May 15, 2017 that they did consider both matters together. In this regard, she refers in particular to the fact that the reasons make reference to “Exhibit E-Moving Parties Motion Record for Interim Injunction by Lo-Ming Lum”. The Appellant submits that while both she and the other party pursued interim injunctions, they did not file a joint motion record.

17In our view, there is no basis for concluding that the College considered the Appellant’s matter together with the other matter. The decisions under appeal are specific to the Appellant. The reference to Exhibit E is at best a typographical error as it is clear that what it is referring to is the motion record for the interim injunction that was filed by the Appellant.

The Interim Injunction Material

18The Appellant alleges that in making its decisions the College inappropriately considered material relating to the requests for interim injunctions that were brought by her. In her view, the consideration of this material was prejudicial to her and breached her rights to procedural fairness.

19Prior to the hearing on May 15, 2017, the Appellant brought a motion for an interim injunction to stop the College from proceeding with that hearing. Dunphy J. dismissed the motion as premature. In its decision of May 15, 2017, the College referred to this as part of the history of the proceedings. There is nothing prejudicial or inappropriate about doing so.

20The Appellant brought another motion to enjoin the hearing scheduled for June 6, 2017. McEwan J. refused to schedule a motion for an emergency injunction and in his endorsement he urged the Appellant to attend the hearing on June 6, 2017. In its merits decision the College refers to this part of the narrative. Again there was nothing prejudicial or inappropriate about this.

Disclosure

21The Appellant alleges that in its decision of June 6, 2017, the Discipline Committee relied on material that had been disclosed to her but that she had not received notice from the College that they would be relying on at the hearing. While there is a requirement for disclosure, there is no requirement to give formal notice of which aspects of disclosed evidence a party will be relying on.

Bias

22The Appellant made a number of allegations of bias, malice and bad faith against the College Counsel, Independent Legal Counsel and the Discipline Committee. These allegations revolve around an alleged concerted determination on the part of all these parties to deprive her and to abuse her procedural rights as described above. There is no merit to any of these allegations. The record discloses no evidence of any actual bias or any reason to infer an apprehension of bias. It also discloses no evidence of malice or bad faith. Finally, as we have already noted, it discloses no evidence that the Appellant was deprived of her procedural rights.

The Reasonableness of the Decisions in Question

23The Appellant’s submissions also attacked the reasonableness of the finding of professional misconduct and the penalty decision. There is no question that the Appellant committed professional misconduct by failing to comply with an order of the ICRC. The penalty imposed was a very reasonable one, having regard to the seriousness of the misconduct.

Conclusion

24For these reasons the appeal is dismissed.

25I have endorsed the Appellant’s Appeal Book and Compendium for Appeal to Divisional Court as follows: “This appeal is dismissed for reasons given orally by Sachs J. As the successful party, the College is entitled to its costs of this appeal which it requests be fixed in the amount of $3,000.00, all inclusive. In our view, this request is a reasonable one. The Appellant shall pay the College its costs of this appeal, fixed in the amount of $3,000.00, all inclusive.”

___________________________ SACHS J.

I agree