CITATION: Martin v. Health Professions Appeal and Review Board, 2022 ONSC 1340
DIVISIONAL COURT FILE NO.: 080/20
DATE: 20220302
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, Morgan and D. Edwards JJ.
BETWEEN:
RICHARD MARTIN
Applicant
– and –
HEALTH PROFESSIONS APPEAL AND REVIEW BOARD and DR. AMIT SHAH
Respondents
-and-
ONTARIO TRIAL LAWYERS ASSOCIATION
Intervenor
Counsel:
Amani Oakley, for the Applicant
Carolyn Brandow and John Petrella, for Dr. Shah
David Jacobs, for the Respondent Health Professions Appeal and Review Board
Barbara MacFarlane and Daniela Pacheco¸ for the Respondent Ontario Trial Lawyers Association
HEARD at Toronto (by videoconference): February 16, 2022
Edwards J.
Overview
[1] Richard Martin (the “applicant”) seeks judicial review of a decision of the Health Professions Appeal and Review Board (the “Board”) dated January 16, 2020, wherein it confirmed the decision of the Inquiries, Complaints and Reports Committee of the College of Physicians and Surgeons of Ontario (“Committee”) to take no further action with respect to a complaint against Dr. Shah by the applicant.
[2] By Order dated December 6, 2021, Corbett J. granted leave to the Ontario Trial Lawyers Association (“OTLA”) to intervene as a friend of the court in the judicial review application (“Intervenor Order”).
[3] By Notice of Motion dated January 19, 2022, Dr. Shah brought a motion (“Shah Motion”) seeking an extension of the time to bring a motion to be heard by a panel of the Divisional Court pursuant to s.21(5) of the Courts of Justice Act to set aside the Intervenor Order.
[4] As a result, the judicial review originally scheduled for February 16, 2022 was adjourned and at that time the Shah Motion was heard.
[5] For the reasons that follow, I grant the extension of time to bring the Shah Motion and set aside the Intervenor Order, thereby removing the OTLA as an intervenor in this matter.
The Factual Background in this Case
[6] On November 29, 2011, Mr. Martin received care from Dr. Shah at the emergency department of St. Thomas-Elgin General Hospital.
[7] Subsequently, Mr. Martin commenced a medical malpractice action against Dr. Shah.
[8] Mr. Martin complained to the Committee that Dr. Shah had repeatedly accessed his hospital medical records between December 13, 2011 and December 30, 2015, despite the fact that Dr. Shah was no longer providing care to Mr. Martin.
[9] Dr. Shah stated that he accessed the medical records on December 13, 2011 for the purpose of completing his charting for the treatment rendered to Mr. Martin on November 29, 2011. He stated that thereafter he accessed the medical records for the purpose of preparing for meetings with counsel and examinations for discovery. He stated that he stopped accessing those records after he learned of Mr. Martin’s objection to this access.
[10] The Committee investigated the complaint and decided to take no further action. It concluded that it was appropriate:
a. for Dr. Shah to access the medical record on December 13, 2011 for the purpose of completing the chart; and
b. for Dr. Shah to review Mr. Martin’s medical records for the purpose of litigation.
[11] On November 30, 2018 Mr. Martin requested a review by the Board of the Committee’s decision.
[12] By a decision dated January 16, 2020, the Board confirmed the decision of the Committee to take no further action.
[13] By Notice of Application dated July 30, 2021 Mr. Martin sought judicial review of the Board’s decision.
[14] The Ontario Trial Lawyers Association (“OTLA”) applied for leave to intervene as a friend of the court in the judicial review application. Dr. Shah indicated that he was opposed to its application.
[15] By Order dated December 6, 2021, at a case conference, Corbett J. granted leave to OTLA to intervene as a friend of the court in the judicial review application (“Intervenor Order”).
[16] By Notice of Motion dated January 19, 2022 Dr. Shah brought the Shah Motion seeking to set aside the Intervenor Order.
[17] First, I must consider whether an extension of time should be granted for the filing of the Shah Motion.
Submissions of the Parties Re: Granting Extension of Time
[18] Dr. Shah’s counsel submitted that the delay was short and the explanation for the delay was reasonable. She asserted that there was no real prejudice to Mr. Martin and that the merits of the challenge were strong. She also submitted that from a procedural fairness point of view, Dr. Shah should be permitted to have a fulsome hearing on the issue.
[19] Mr. Martin’s counsel submitted that Dr. Shah did not form an intention to appeal within the requisite period. She asserted that the inability of counsel to contact Dr. Shah quickly after the Intervenor Order was issued is not a valid reason for the delay, as he could have instructed counsel to appeal at the time that he determined that he would oppose the OTLA motion. She agreed that there was no potential monetary award for Mr. Martin at the end of this process but asserted that the issue needs to be address. She submitted that there was little merit to the challenge, as OTLA’s involvement would bring a different, broader perspective to the judicial review. In her view, Dr. Shah had his opportunity to raise any concerns at the case conference and he did not do so.
[20] OTLA consented to the request for an extension of time for the filing of the Shah Motion.
The Law Regarding Granting Extension of Time
[21] Rule 3.02(1) of the Rules of Civil Procedure provides that the court may “extend or abridge any time prescribed by these rules or an order, on such terms as are just”.
[22] The court must look to the specific facts of the case and determine whether the “justice of the case” requires that an extension be given. Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, at para. 15.
[23] The four factors that the court should consider are:
a. whether the moving party formed a bona fide intention to challenge the decision within the relevant time period;
b. the length of, and an explanation of, the delay in filing the challenge;
c. any prejudice to the responding parties caused, perpetuated, or exacerbated by the delay; and
d. the merits of the proposed challenge of the decision. Trivedi v. Hudd, 2022 ONCA 147, at para. 6.
Analysis on Leave to Grant Extension of Time
[24] The Intervenor Order was communicated orally to counsel on December 6, 2021 and provided to them on December 8, 2021.
[25] Counsel indicated that they were unable to obtain instructions from Dr. Shah until December 15, 2021 because of his employment as a full-time emergency department doctor.
[26] Based upon the reading of s.6(1)(a) of the Courts of Justice Act, Dr. Shah’s counsel concluded that an appeal of an order of the Divisional Court on a question that is not a question of fact alone lies to the Court of Appeal with leave. A notice of motion for leave to appeal to the Court of Appeal was delivered within 15 days as provided for in Rule 61.02.1
[27] However, s.21(5) of the Courts of Justice Act provides that a panel of the Divisional Court “may, on motion, set aside or vary the decision of a judge who hears and determines a motion”. Accordingly, on January 19, 2022 counsel served a s.21(5) motion for a panel of the Divisional Court to hear the request to set aside or vary the Intervenor Order.
[28] Counsel acknowledges that Dr. Shah did not form an intention to appeal the Intervenor Order until December 15, 2021, which was within time to seek leave of the Court of Appeal, but beyond the four days mandated for a s.21(5) motion.
[29] I find that the delay in requesting that a panel of the Divisional Court be convened to consider a motion to set aside or vary the Intervenor Order is reasonable in these circumstances. The delay is short and the explanation reasonable.
[30] Further, Dr. Shah’s counsel acknowledges that the delay arises through their inadvertence. The Divisional Court has previously accepted inadvertence by counsel with respect to a 30-day delay as a compelling explanation for the moving party’s delay. 690 King Street Corp. v. Desco Plumbing and Heating Supply Inc., 2021 ONSC 1050, at para. 4.
[31] The third factor to consider is the prejudice to the responding parties caused, perpetuated, or exacerbated by the delay.
[32] The relevant prejudice is any prejudice arising from the extension of time to file, not the delay which the hearing of the motion would occasion. The delay here is approximately one month after the decision versus the four days.
[33] The hearing of the judicial review has now been postponed for months. However, it is unclear whether the Shah Motion could have been heard prior to the scheduled hearing date, even if it had been timely filed.
[34] Further, other than the actual delay in hearing the matter, there is no real prejudice to Mr. Martin. The central issue of the judicial review is disciplinary in nature. The question is whether the Board’s decision that the Committee’s decision to take no further disciplinary action against Dr. Shah was reasonable. Any delay keeps alive this issue, and in that sense is prejudicial to Dr. Shah.
[35] Counsel for Dr. Shah also raised the issue of procedural fairness.
[36] The Intervenor Order was granted at a case conference. Based upon the material filed, it is evident that there was miscommunication between experienced counsel and different expectations as to the purpose of that conference. Dr. Shah expected that at some point he would have the opportunity to make oral submissions against the OTLA’s motion, and this did not occur due to this misunderstanding.
[37] During oral argument on the issue of granting an extension, counsel was asked to not give extensive submissions regarding the merits of the Shah Motion, as this would be duplicative should we grant leave and hear the merits of the motion. However, from the materials filed, we concluded that there was sufficient merit in the proposed challenge to the decision to be a factor in favour of granting the extension.
[38] After considering all of these factors, we concluded that the justice of the case required that the extension be granted.
Merits of OTLA as an Intervenor
[39] Prior to the oral argument on the merits of the Shah Motion, counsel were canvassed and it was agreed that we would treat this matter as a blended hearing in which we would hear OTLA’s counsel’s submissions as to why OTLA should be granted intervenor status and Dr. Shah’s counsel would make contrary submissions. The parties agreed that our decision would determine whether OTLA would be an intervenor in this matter.
[40] Therefore, counsel agreed that OTLA would make submissions first, followed by anyone else supporting that position. Counsel for Dr. Shah would next make submissions against OTLA being granted intervenor status. Mr. Jacobs, on behalf of the Board, would have the opportunity to make brief submissions. Finally, the OTLA counsel would have a short reply.
Submissions of the Parties
[41] OTLA’s counsel noted that OTLA’s mission statement requires it to champion the cause of persons who are injured or suffered injustice. Her position is that OTLA has expertise and would provide to the judicial review a broader perspective to the issues beyond that of the parties.
[42] Mr. Martin’s counsel supported that position and echoed that the OTLA’s position that it would provide a broader perspective than she would, as she is focused upon the interests of Dr. Shah and Mr. Martin.
[43] Dr. Shah’s counsel asserted that this is a private dispute, and no assistance is required from OTLA. Further, she submitted that although OTLA has expertise in litigation, it does not have expertise in the regulatory process, and the subject matter of the judicial review is a regulatory body’s decision She also asserted that OTLA input would largely be a “me too” one which would duplicate Mr. Martin’s position.
[44] Mr. Jacobs advised that the Board initially opposed OTLA being an intervenor on the basis of delay and complexity but took no position at this time.
The Law on Intervenor Status
[45] Rule 13.02 of the Rules of Civil Procedure provides that any person may “intervene as a friend of the court for the purpose of rendering assistance to the court by way of argument” with the leave of the court.
[46] Rule 13.03 provides that leave to intervene at the Divisional Court as a friend of the court may be granted by a panel of the court or a judge designated by either the Chief Justice or Associate Chief Justice of the Superior Court of Justice or a judge designated by either of them.
[47] The relevant factors to consider upon such an application are:
- The nature of the case;
- The issues which arise; and
- The likelihood of the applicant being able to make a useful contribution without causing injustice to the parties. Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd., [1990] O.J. No. 1378 (Ont. C.A.), at para. 10.
[48] In 2003 Chief Justice McMurtry stated:
Today most intervenors who intervene as a friend of the court articulate a position that may generally be aligned with one or another side of the argument. The submission of the respondent that a friend of the court must be neutral, abstract and objective refers to a restricted notion of the amicus curiae that has long been rejected. Zoe Childs v. Desormeaux
[49] However, in 2021 Roberts J.A. noted in Baldwin that the historical role of a friend of the court is one of a neutral person, with no interest in the proceedings, who calls the attention of the court to some point of law or fact with an element of impartiality or altruism. Baldwin v. Imperial Metals Corporation, 2021 ONCA 114
[50] Leave will more likely be granted in matters of public importance. There has been a relaxation of the rules with respect to cases decided under the Canadian Charter of Rights and Freedoms. The burden on the party requesting leave to intervene is larger in cases that are closer to the private dispute end of the spectrum. Authorson v. Canada, [2001] O.J. No. 2768 (Ont. C.A.)
[51] The controlling principle is whether the proposed intervenor will make a useful contribution to the proceedings. “The likelihood of assistance is a function of many variables, including, but not only, the experience and expertise of the proposed intervenor”. Jones v. Tsige, at para. 25.
[52] The proposed intervenor must offer a contribution that is distinct from the contributions made by the parties to the dispute. Repetition or “me too” submissions provide no assistance to the court. Jones, at para. 9.
[53] Entities who in the past have been granted intervenor status usually meet at least one of the following criteria:
- a substantial and identifiable interest in the subject matter of the proceeding;
- an important perspective, distinct from the immediate parties; or
- the intervenor is a well-recognized group with special expertise and a broad identifiable membership base. Ontario (Attorney General) v. Dieleman
Analysis
[54] There can be no doubt that OTLA is a well-recognized group with special expertise and interest in the litigation process. OTLA asserts that it would bring a different perspective, and more broadly be a voice for all injured persons, distinct from the appellant’s position.
[55] From its filings, it is clear that OTLA’s interest is focused upon the Board’s interpretation of s.37(1) of the Personal Health Information Privacy Act, (“PHIPA”). In its view, it creates more than one class of litigant in civil proceedings, as it would allow doctors named in a lawsuit to access the plaintiff’s medical records far earlier, and without the same protections afforded by the Rules of Civil Procedure.
[56] In my view, OTLA’s contribution appears to be in the vein of a “me too” submission. The concerns that it wishes to bring to the court’s attention are already raised by the appellant’s material and fundamentally reflect the applicant’s concerns with Dr. Shah’s conduct in accessing the medical records. If OTLA was granted intervenor status, it would not be calling the attention to a fact or law not otherwise presented to the court by Mr. Martin.
[57] Based upon the materials filed, I find that OTLA would not provide a contribution distinct from the appellant.
[58] Further, I find that this matter lies near the private dispute end of the spectrum between private and public disputes. OTLA has not met its heightened burden to be made a friend of the court in the circumstances.
[59] As well, it is important to recall that the matter before the Board was primarily a regulatory decision in an administrative setting. The issue before the Divisional Court will be whether the Board’s decision was reasonable.
[60] OTLA’s focus is not on the reasonableness of the Board’s decision in the disciplinary process, but rather upon the impact of the Board’s interpretation of s.37(1) of PHIPA upon the litigation process.
[61] OTLA’s involvement will distort the focus of the judicial review, complicating it, and place undue focus upon s.37(1) of PHIPA.
Conclusion
[62] For the above reasons, the Shah Motion is granted, and the order of Corbett J. dated December 6, 2021, granting leave for OTLA to join the proceeding as a friend of the court, is hereby set aside.
[63] The parties agreed that there would be no costs order for this motion.
Edwards J.
I agree _______________________________
Sachs J.
I agree _______________________________
Morgan J.
Released: March 2, 2022
CITATION: Martin v. Health Professions Appeal and Review Board, 2022 ONSC 1340
DIVISIONAL COURT FILE NO.: 080/20
DATE: 20220302
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, Morgan, D. Edwards JJ.
BETWEEN:
RICHARD MARTIN.
Applicant
– and –
HEALTH PROFESSIONS APPEAL AND REVIEW BOARD, and DR. AMIT SHAH
Respondents
-and-
ONTARIO TRIAL LAWYERS ASSOCIATION
Intervenor
REASONS FOR JUDGMENT
D.L. EDWARDS J.
Released: March 2, 2022