Court File and Parties
DIVISIONAL COURT FILE NO.: 475/19
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Mitchell v. College of Psychologists of Ontario
BEFORE: D.L. Corbett J.
COUNSEL: Dr. Richard Steve Mitchell, self-represented Andrew Porter, for the College of Psychologists of Ontario
CASE MANAGEMENT ENDORSEMENT
1This matter came on for a case management teleconference on June 25, 2020. This endorsement provides directions for how a motion brought by Dr Mitchell will be addressed by the court, and then how the main application shall move forward. HPARB was represented on the call but unfortunately I failed to make a note of who was present for the Board.
2Dr Mitchell seeks judicial review of the decision of the Health Professions Appeal Review Board, upholding a decision of the College of Psychologists of Ontario (the “College”) to refuse to grant Dr Mitchell a certificate of registration for supervised practice as a psychologist [R.S.M. v. College of Psychologists of Ontario, 2019 92280 (ON HPARB)]. The Board made this decision on the basis that Dr. Mitchell’s Ph.D. in “Biblical Psychology” awarded by Dayspring Christian University in the United States does not meet the College’s requirement for a Ph.D. from a psychology program considered to be equivalent to a psychology program accredited by the Canadian Psychological Association or other accreditation body recognized by the College’s governing Council. Such a recognized doctoral degree is a non-exemptible requirement for registration under section 12(1) of Ontario Regulation 74/15 made under the Psychology Act, 1991.
3The case is not yet ready for hearing. Dr Mitchell has not perfected his appeal.
4Dr. Mitchell moves for an order granting him a fee waiver pursuant to the Financial Administration Act to pay the cost for preparation of transcripts of the hearing below.
Dr Mitchell’s Motion Respecting Transcript Costs and a Fee Waiver
5The case management conference was for the purpose of triaging Dr. Mitchell’s motion. It appears, on the face of the motion, that there are serious problems with it. Underlying those problems are questions about whether a transcript is necessary for the appeal to proceed fairly, and if a transcript is required, who should pay for it.
6First and foremost, it appears that the primary issue raised by Dr. Mitchell in his motion has been decided already by Favreau J. In her handwritten endorsement, Favreau J. found that the requested fee waiver would not apply to the costs of transcript preparation, and so Dr. Mitchell’s request for relief respecting transcript costs was dismissed. Favreau J. also found that Dr Mitchell’s evidence in support of his request for a fee waiver did not meet the requirements of the Financial Administration Act. She dismissed the fee waiver request without prejudice to Dr Mitchell reapplying for a fee waiver on proper materials. These points of decision are not inconsistent: Dr Mitchell may be entitled to a waiver of court fees respecting his application. If granted, however, the fee waiver will not have the effect of waiving the cost of transcripts from the hearing before the College of Psychologists.
7Dr. Mitchell was not prepared to hear the court’s concerns about his motion, as framed, and was not prepared to consider alternate ways to approach the transcript issue. From his perspective, the court’s identification of serious issues with his motion, and its exploration of alternative ways in which to address the transcript issue, were matters of the court prejudging the issues and acting as an advocate for the College.
8The court has an obligation to try to assist self-represented litigants to navigate the court process so that cases are decided on their merits in a fair and efficient process. One of the purposes of a case management conference is to address issues practically and efficiently. Where, however, a litigant will not engage constructively in the case management process, traditional adjudicative processes must be used to move the matter forward.
9In my view Dr. Mitchell’s motion, on its face, appears doomed to failure. The core issue he brings before the court appears to have been decided already. The subsidiary issue – whether a fee waiver should be granted under the Financial Administration Act, is a matter to be addressed first by the Registrar and need not occupy the court’s time on a motion. Further, it appears that the documentation in support of the fee waiver request is still incomplete. Therefore the motion appears to be frivolous, vexatious and an abuse of process within the meaning of Rule 2.1.02. The Divisional Court Registrar is directed to give notice to Dr. Mitchell that the court is considering dismissing his motion as frivolous, vexatious and an abuse of process for the reasons set out above. Dr. Mitchell will be given an opportunity to respond to these issues, in writing, and the question of whether the motion ought to be dismissed as frivolous and vexatious will be decided by Penny J. or as Penny J. directs.1
10In his response to the notice under R.2.1.02, Dr Mitchell should respond to the following points:
a. Why does he say that this issue has not already been litigated and decided by Favreau J.?
b. What legal authority does he rely upon for his argument that a fee waiver under the Financial Administration Act would relieve him of paying costs for transcripts of proceedings before the Board that he has identified as necessary for his case?
c. Why has he not included complete copies of his tax returns in support of his request for a fee waiver under the Financial Administration Act, and why should he be granted a fee waiver when he has not provided documentary evidence establishing his total income?
11It is open to the court deciding the R.2.1.02 issue to make an order under R.2.1.02(3) prohibiting Dr. Mitchell from bringing any further motions in this proceeding without leave. Dr Mitchell may address the question of whether the court should make such an order in this case in his response to the notice issued to him by the Registrar: bringing a second motion on an issue that has already been decided by the court is the kind of behavior that could give rise to such an order.
Case Management of the Underlying Application
12In many proceedings in Divisional Court transcripts are not needed at all, or only short portions of transcripts are required. Rule 61.05(1) provides:
In order to minimize the number of documents and the length of the transcript required for an appeal, the appellant shall serve and file… an appellant’s certificate respecting evidence… setting out only the portions of the evidence that, in the appellant’s opinion, are required for the appeal.
Dr. Mitchell filed an appellant’s certificate stating that complete transcripts are required for the appeal. On the basis of this certificate, Divisional Court staff advised Dr. Mitchell that he must file the entire transcript in order to perfect his appeal.
13Justice Favreau’s order permits Dr Mitchell to amend his certificate respecting evidence.
14Dr. Mitchell would not even discuss during the case management conference whether he really requires the entire transcript for his appeal. He took the position that Divisional Court staff had determined that a complete transcript is required and that proceeding in a manner inconsistent with this determination would be some sort of short-cut or failure to follow applicable procedural requirements. Even after Dr. Mitchell was assured by this court that full transcripts are not required if they are not needed for the case, Dr. Mitchell refused to accept that proposition and insisted that eliminating or reducing transcript requirements would not be correct procedurally.
15It is not clear that any transcripts will be required for this case. The Board gave detailed reasons for its decision. Those reasons do not turn on findings of credibility. They do not appear to turn on contested issues of fact. During email inquiries prior to the case management conference, the court asked Dr. Mitchell to identify the issues for which transcripts are needed. He indicated that the Board refused to hear the evidence of the President from Dayspring Christian University and that this refusal undercut the process before the Board. Since the President did not testify, there would be no transcript of his evidence. It may be that a short transcript is required of argument and the Board’s ruling on this issue, but that does not explain why a transcript is needed for the entire proceeding. Dr Mitchell has not explained any other basis for requiring transcripts.
16Dr Mitchell is entitled to obtain a complete transcript and to put it before the court in this application. That choice is his. But if he is concerned about the cost of transcripts, he can reconsider whether he requires complete transcripts. It is still open to him, pursuant to the order of Favreau J., to amend his certificate to eliminate or reduce the scope of the transcripts he requires for the appeal.
17Finally, I am concerned that this case is languishing because of the transcript issue. It should move forward to a hearing promptly once the transcript issue is resolved. And the transcript issue should be resolved without further delay.
Order
18For all of these reasons, order to go as follows:
a. The Registrar shall give Dr Mitchell notice that the court is considering dismissing his motion pursuant to R.2.1.02 on the bases set out in these reasons.
b. Counsel for the College shall provide the court forthwith with a copy of Justice Favreau’s endorsement by email, with a copy to Dr Mitchell and HPARB’s counsel. Responding counsel shall not otherwise respond to the R.2.1.02 process unless subsequently directed otherwise by the court.
c. The R.2.1.02 issue shall be dealt with by Penny J. or as Penny J. directs.
d. If Dr Mitchell’s motion is not dismissed pursuant to R.2.1.02, then that motion shall proceed before a single judge of the Divisional Court at such time and on such terms as directed by Penny J. The balance of the application shall proceed thereafter on a schedule to be fixed by the motions judge or as the motions judge directs.
e. If Dr Mitchell’s motion is dismissed pursuant to R.2.1.02, then Dr Mitchell shall, within sixty days of dismissal of his motion, provide the court with proof that he has ordered and paid for all transcripts required for this application.
f. Subparagraph d. is without prejudice to Dr Mitchell amending his Certificate to reduce or eliminate the requirement for transcripts in accordance with the decision of Favreau J.
g. Dr Mitchell shall perfect his application within thirty days of receipt of transcripts.
h. Any party may schedule a further case management conference before an Administrative Judge of the Divisional Court for directions.
i. There shall be no order as to costs of the case management conference.
“D.L. Corbett J.”
Footnotes
- During the case management conference I indicated that I would refer the motion to Favreau J. I have decided not to do that. Dr. Mitchell indicated that he has sought to order a transcript of the proceedings before Favreau J. A transcript of the hearing before Favreau J. is not necessary. Favreau J.’s decision is in writing. No appeal or review has been brought from it. It is authoritative. Any judge of the court may read and apply it.