Court File and Parties
DIVISIONAL COURT FILE NO.: 221/21
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Dr. Kulvinder Kaur Gill, Applicant/Responding Party
AND:
College of Physicians and Surgeons of Ontario Respondent/Moving Party
BEFORE: Nishikawa J.
COUNSEL: Rocco Galati, for the Applicant/Responding Party
Kirk Maijala, for the Respondent/Moving Party
HEARD at Toronto: November 9, 2021
ENDORSEMENT
Overview
1The College of Physicians and Surgeons of Ontario (the “College”) brings a motion to quash, in part, the Notice of Application for judicial review brought by the Applicant, Dr. Kulvinder Kaur Gill, on the basis of prematurity.
2The Applicant’s application seeks judicial review of seven decisions of the College’s Inquiries, Complaints and Reports Committee (“ICRC”) on public complaints about her Twitter posts pertaining to the COVID-19 pandemic (the “Complaints Decisions”). The application also seeks review of the Registrar’s decision following an investigation into Dr. Gill’s social media activity (the “Registrar’s Decision”). As further detailed in these reasons, in two of the public complaint decisions and in the Registrar’s Decision, the ICRC required that Dr. Gill attend in person to be cautioned. In respect of the remaining five public complaints decisions, the ICRC took no further action.
3In the Application, Dr. Gill seeks the following relief: declarations that the College has no authority to regulate her free speech and that the Registrar’s investigation was without jurisdiction and orders quashing all of the decisions, prohibiting the College from reinvestigating the underlying matters, and purging the decisions from the Applicant’s file with the College.
4The Applicant has also sought review of all of the decisions before the Health Professions Appeal and Review Board (“HPARB”). The HPARB proceedings are ongoing. A hearing is scheduled for April 2022.
5The College takes the position that the application for judicial review is premature because the Complaints Decisions have not yet been reviewed by the HPARB, as contemplated by the Health Professions Procedural Code (the “Code”), Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (the “RHPA”) and because the HPARB process provides an adequate alternative remedy.
6The College agrees with the Applicant that her application for judicial review of the Registrar’s Decision is properly before this court because the Code does not provide for review of the Registrar’s Decision by the HPARB.
7The Applicant’s position is that her application for judicial review of the Complaints Decisions should be allowed to proceed because of the following exceptional circumstances. First, the application raises constitutional and jurisdictional issues about the ability of the College to regulate freedom of expression, for which the HPARB does not have jurisdiction to grant declaratory relief. Second, the Applicant takes the position that the Complaints Decisions involve the same complaints, facts and investigation as the Registrar’s Decision, and cannot be separated from that Decision, which must proceed on judicial review because it cannot be reviewed by the HPARB. Third, the principle of habeas corpus provides recourse to the court where the state interferes with an individual’s liberty.
8For the reasons that follow, the motion to quash the portion of the application for judicial review that relates to the Complaints Decisions is granted.
Factual Background
The Statutory Scheme
9Dr. Gill is a physician and member of the College who received a certificate of registration authorizing independent practice in 2012.
10The College is the self-regulatory body for the medical profession in Ontario.
11Under s. 25(1) of the Code, the ICRC has a statutory obligation to investigate complaints received from the public about its members.
12Pursuant to s. 75(1)(a) of the Code, the Registrar of the College also has the authority to commence an investigation where there are reasonable and probable grounds to believe that a member is incompetent or has committed an act of professional misconduct.
13Investigations conducted by the College are screened by the ICRC. The ICRC is the statutory body with jurisdiction to refer allegations of professional misconduct to the Discipline Committee of the College or to require a member to appear before a panel of the ICRC to be cautioned.
14Under s. 29(1) of the Code, when requested by either the complainant or the member who is the subject of the complaint, the HPARB is required to review a decision of the ICRC. However, the Code does not provide for ICRC review of decisions in respect of Registrar investigations.
15Pursuant to s. 29(5) of the Code, the complainant and the member are the parties to the review before the HPARB. The College is not a statutory party but can be added by order of the HPARB.
16On a review, the HPARB is required to consider both the adequacy of the investigation and the reasonableness of the ICRC’s decision: Code, s. 33(1). The HPARB is authorized to confirm all or part of the decision, to make recommendations to the ICRC, and to require the ICRC do anything the Committee or a panel may do under the RHPA and the Code, except to request that the Registrar conduct an investigation: Code, s. 35(1).
The Complaints
17In June 2020, the College received information from members of the public about a post made on Dr. Gill’s Twitter account regarding the COVID-19 pandemic. The College made preliminary inquiries into Dr. Gill’s social media use.
18On July 10, 2020, a College medical advisor spoke to Dr. Gill about the concerns and to set out the College’s expectations and policy regarding social media use by physicians.
19In August 2020, the College received six complaints from members of the public regarding Dr. Gill’s Twitter posts about the COVID-19 pandemic. An additional complaint was received on October 23, 2020.
20Between August and November 2020, the College notified Dr. Gill separately of each of the complaint investigations.
21Dr. Gill responded to the complaint investigations on October 16 and November 10, 2020.
The Registrar’s Investigation
22In the summer of 2020, the College re-initiated inquiries into Dr. Gill’s social media activity. The College notified Dr. Gill on August 13, 2020.
23Dr. Gill responded to the College’s preliminary inquiries on October 16, 2020.
24Based on the information obtained, on November 2, 2020, the Registrar determined that there were reasonable and probable grounds to believe that Dr. Gill had engaged in professional misconduct or was incompetent. On November 17, 2020, the ICRC approved the Registrar’s recommendation that investigators be appointed.
The Decisions
25On February 22, 2021, the ICRC released separate reasons for decision in respect of each of the eight investigations.
26In respect of the Registrar’s investigation and two of the public complaints, the ICRC required that Dr. Gill attend to be cautioned in person with respect to her lack of professionalism and failure to exercise caution in her social media posts. The College considered the social media activity to be irresponsible for a member of the profession and a possible risk to public health.
27In respect of five of the seven public complaints, the ICRC took no further action. However, in the reasons for each of those decisions, the ICRC noted that a parallel investigation into Dr. Gill’s social media use resulted in a caution.
28On February 25, 2021, Dr. Gill initiated a review of all seven Complaints Decisions and the Registrar’s Decision before the HPARB. One of the complainants initiated a cross-review of the ICRC’s decision to take no further action.
29On March 13, 2021, Dr. Gill commenced the application for judicial review of the Complaints Decisions and the Registrar’s Decision.
Issues
30The issues raised on this motion are as follows:
(a) Is the Applicant’s application for judicial review premature?
(b) Are there exceptional circumstances that would warrant this court exercising its discretion to hear the judicial review application?
Analysis
Is the Application for Judicial Review Premature?
31This court has repeatedly held that absent exceptional circumstances, applications for judicial review of decisions of administrative bodies should not be brought until the end of the tribunal’s proceedings and after the party seeking review has exhausted all available effective remedies within the administrative scheme: Ontario College of Art v. Ontario (Human Rights Commission) (1993), 11 O.R. (3d) 798, 99 D.L.R. (4th) 738 (Div. Ct.). The rationale for this principle is to avoid a piecemeal approach to judicial review, to allow administrative matters to run their full course before the tribunal, and to have all legal issues arising from the proceeding considered together at their conclusion.
32In Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, 111 O.R. (3d) 561, at para. 69, the Court of Appeal explained the basis for the approach as follows:
This prevents fragmentation of the administrative processes and piecemeal court proceedings, eliminates the large costs and delays associated with premature forays to court and avoids the waste associated with hearing an interlocutory judicial review when the applicant for judicial review may succeed at the end of the administrative process anyway. Further, only at the end of the administrative process will a reviewing court have all the administrative decision-maker’s findings: these findings may be suffused with expertise, legitimate policy judgments and valuable regulatory experience. Finally, this approach is consistent with and supports the concept of judicial respect for administrative decision-makers who, like judges, have decision-making responsibilities to discharge.
33Early judicial review is a rare exception and will only be permitted where the potential prejudice of the risk of repeating proceedings after review outweighs the prejudice to the general orderly processing of administrative proceeding without interruption until their conclusions: Lourenco v. Hegedus, 2017 ONSC 3872 (Div. Ct.), at para. 6.
34The process contemplated by s. 29 of the Code is that ICRC decisions will be reviewed by the HPARB, which has authority to consider the adequacy of the investigation and the reasonableness of the ICRC’s decision. It is only after a decision of the HPARB that a party may seek judicial review.
35In this case, Dr. Gill has sought review of the seven Complaints Decisions before the HPARB. A hearing date is scheduled for April 2022. The process before the HPARB has not yet been completed. If both the HPARB proceedings and this application for judicial review proceed at the same time, the result is not only fragmented but also duplicative. After the hearing and a decision by the HPARB, the unsuccessful party would be able to seek judicial review, resulting in another judicial review application on the same matters.
36Moreover, the parties before the HPARB are the complainant and the member against whom the complaint was made. As noted above, one of the complainants has initiated a cross-review of the ICRC’s decision to take no further action. That complainant would not be a party to this application, unless they seek leave to intervene. As a result, bypassing the proceeding before the HPARB would deprive a complainant of the ability to participate in the review, which is specifically provided for in the Code.
37In addition, the HPARB proceeding is intended to be more accessible and expeditious, less formal and less costly than a judicial review application. Allowing the Complaints Decisions to proceed to judicial review at this stage would undermine the goals of the statutory scheme.
38In this case, I find that because the ongoing HPARB proceedings have not been concluded, Dr. Gill’s application for judicial review of the Complaints Decisions is premature.
39Relatedly, the principle of adequate alternative remedies precludes a party from seeking judicial review until the administrative process has run its course. Absent exceptional circumstances, a party must pursue all effective remedies that are available in that process, and may come to court only when the administrative process has come to an end or affords no effective remedy: Canada (Border Services Agency) v. C.B. Powell Limited, 2010 FCA 61, [2011] 2 F.C.R. 332, at para. 31.
40In Strickland v. Canada (Attorney General), 2015 SCC 37, [2015] 2 S.C.R. 713, at paras. 42-43, the Supreme Court of Canada held that for an alternative remedy to be adequate, neither the remedy nor the process had to be identical to those available on judicial review. In determining whether there is an adequate alternative remedy, courts will examine factors such as the nature of the error alleged; the nature of the other forum which could deal with the issue, including its remedial capacity; expeditiousness; and the relative expertise of the alternative decision-maker.
41In Volochay, the Court of Appeal found that HPARB review of ICRC decisions constitutes an adequate alternative remedy to judicial review.
42In this case, the legislature has given the HPARB the express mandate to review the adequacy of ICRC investigations and the reasonableness of its decisions. Rule 2.23 of the HPARB Consolidated Rules of Practice and Procedure provides for notice of constitutional questions, thus indicating that the HPARB may consider constitutional questions. While the HPARB cannot order the declaratory relief sought by Dr. Gill, it can consider her constitutional arguments in the context of whether the ICRC’s decisions were reasonable.
43As a result, I find that the HPARB process provides an adequate alternative remedy to judicial review and is the procedure contemplated by the legislative scheme in relation to the Complaints Decisions. The Applicant must pursue this process to completion before an application for judicial review can be brought before this court.
Are There Exceptional Circumstances?
44As noted above, in exceptional circumstances, the court may depart from the principle that a party must exhaust the administrative process before seeking judicial review.
45Concerns about bias and procedural fairness of the administrative process, or the importance of legal or constitutional issues raised by the party are not sufficient to constitute exceptional circumstances justifying recourse to the courts before the administrative process has been exhausted: C.B. Powell, at para. 33; Volochay, at para. 47.
46As a result, the constitutional issues raised by Dr. Gill do not constitute an exceptional circumstance. The fact that the tribunal cannot grant a constitutional declaration is not a sufficient basis to bypass it: Okuwobi v. Lester B. Pearson School Board, 2005 SCC 16, [2005] 1 S.C.R. 257, at paras. 44-45. Similarly, characterizing an issue as one of jurisdiction does not justify judicial interference with an ongoing administrative process: Volochay, at para. 67.
47The Applicant further submits that it is a fiction that the investigations leading to the Complaints Decisions were each distinct, and that they were separate from the Registrar’s Decision. The Applicant’s position is that because the public complaints were all investigated together and were not separate from the Registrar’s s. 75 investigation, for which there is no HPARB review, the Complaints Decisions should also be reviewed within the context of the judicial review application of the Registrar’s Decision.
48The College disputes the Applicant’s assertion that the ICRC combined all the investigations together, and counters that it was the Applicant who made a global response to all of the complaints.
49This case is somewhat different from the cases relied upon by the College in that there is an inevitable fragmentation because no HPARB review is available for the Registrar’s Decision, which must proceed by way of judicial review. Because the Complaints Decisions and the Registrar’s Decision all relate to Dr. Gill’s social media activity, there is also an overlap of the issues before the HPARB and those before this court. Nonetheless, the statutory scheme contemplates a different review process for public complaint decisions and decisions of the Registrar. I am also mindful that the complainants have participatory rights before the HPARB but would not be parties to the judicial review application, unless they are granted leave to intervene. The fact that there are separate proceedings regarding the same underlying conduct is not an exceptional circumstance justifying early judicial review of the Complaints Decisions.
50The Applicant further submits that if her application before this court is successful on the constitutional issue, the HPARB proceedings will disappear. At the hearing, counsel for the Applicant indicated that in the event that the motion to quash the application is granted, the preferred approach would be to allow the application for judicial review of the Registrar’s Decision proceed first and to hold the HPARB proceedings on the Complaints Decisions in abeyance, because this court’s decision on the application would provide guidance on the issues before the HPARB.
51The conduct of the HPARB proceedings is not before me on this motion and I decline to make any orders in relation to them. Moreover, the complainants, who would be impacted by any such order, are not before me. It would be beneficial for counsel and the parties to discuss a process to avoid unnecessary duplication and fragmentation of the proceedings.
52Finally, the Applicant relies upon the Court of Appeal’s decision in Wang v. Canada, 2018 ONCA 798, 143 O.R. (3d) 161, to argue that the principle of habeas corpus provides recourse to this court because, where the state interferes with a person’s liberty, habeas corpus is engaged. In Wang, at para. 28, the Court of Appeal held that “habeas corpus potentially applies to any situation where the state restrains the liberty of the subject.”
53The case law relied upon by the Applicant deals with immigration detention, house arrest and other forms of state deprivation of liberty of the person that does not exist here. While I recognize that the principle of habeas corpus is not to be interpreted in an overly restrictive manner, the alleged violation of the Applicant’s freedom of expression does not result in a deprivation of liberty that would entitle her to proceed by way of habeas corpus. Moreover, the application is for judicial review and not an application for a writ of habeas corpus.
The Decisions to take no further action
54The College submits that Dr. Gill cannot seek judicial review of the five Complaints Decisions for which no further action was taken because she is attempting to seek review of the reasons, as opposed to the outcome.
55The Applicant submits that even though the decisions to take no further action will not appear on her public record, the decisions will continue to be included in her file with the College and will be examined every time a new complaint is made against her. The Applicant seeks to have the references expunged from her file.
56Given my finding that the application for judicial review of the Complaints Decisions is premature, I need not determine whether the Applicant can seek judicial review of the decisions to take no further action.
57At the hearing, counsel for the Applicant requested that, if the motion to quash the application is granted, the record be endorsed to state that the HPARB has jurisdiction to require that the references to the cautions be expunged. Under s. 35(1) of the Code, the HPARB has jurisdiction to require that the ICRC do “anything the Committee or a panel may do under the health profession Act and this Code except to request the Registrar to conduct an investigation.” Moreover, at the hearing, counsel for the College submitted that the references to the cautions in the decisions to take no further action could be addressed in the HPARB proceedings. As a result, I see no need to make any specific statement in this regard.
Conclusion
58For the foregoing reasons, the motion to quash the application for judicial review in respect of the Complaints Decisions is granted.
59The application for judicial review in respect of the Registrar’s Decision remains. The parties are directed to request a case conference to determine next steps in the proceeding, including whether it should be held in abeyance until the HPARB proceedings are concluded.
60The parties had agreed on an amount of $3,500 in costs to the successful party. At the hearing, Applicant’s counsel took the position that the agreed upon amount was in the event that the court determined that a costs order was appropriate. Applicant’s counsel submits that costs ought not to be awarded where the confusion was created by the College’s actions in combining the various investigations and decisions.
61I see no reason to depart from the principle that the successful party is entitled to costs. The Applicant shall pay costs of the motion fixed at $3,500 in accordance with the parties’ agreement.
Nishikawa J.
Date: November 16, 2021