Yan v. Kucan, 2022 ONSC 3176

Court File and Parties

Citation: Yan v. Kucan, 2022 ONSC 3176 Divisional Court File No.: 039/22 Date: 2022-06-02 Superior Court of Justice – Ontario Divisional Court

Re: Nathalie Xian Yi Yan, Applicant And: Dr. Graham Kucan, Respondent

Before: Matheson J.

Counsel: David P. Jacobs, for the Health Professions Appeal and Review Board Self-represented Applicant No one appearing for the Respondent Kucan

Heard: June 2, 2022 (in writing)

Endorsement

[1]

Overview

The Health Professions Appeal and Review Board (“HPARB”) moves to be added as a responding party to this application for judicial review and moves for an order sealing a portion of the record of proceedings, specifically pp. 18-22. The respondent Kucan consents to the request for a sealing order and does not oppose the remainder of the motion. The applicant does not consent to the motion and opposes at least the request that part of the record be sealed.

2The underlying application for judicial review challenges the HPARB decision of December 20, 2021, which confirmed the decision of the Inquiries, Complaints and Reports Committee of the College of Chiropractors of Ontario (the “ICRC”) dated April 7, 2020, to take no further action regarding a complaint made by the applicant against the respondent.

[3]

Motion to Add HPARB as a Party Respondent

Beginning with the request to add HPARB as a party respondent, s. 9(2) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 provides that: “For the purposes of an application for judicial review in relation to the exercise … of a statutory power, the person who is authorized to exercise the power may be a party to the application.” Subsection 9(3) then deems, for the purposes of s. 9(2), that two or more people who, acting together, may exercise a statutory power under a collective title to be a person for this purpose under that collective title. The HPARB panel that addressed the review is the “two or more people who, acting together” exercised the statutory power to review the ICRC decision, about which the applicant is seeking judicial review. No reason has been put forward that would justify not adding HPARB as a party. The motion to add HPARB as a party respondent is therefore granted.

[4]

Motion for Sealing Order

Moving to the sealing order, it arises from a decision of HPARB made in relation to its review of the ICRC decision. In response to the applicant’s request for a review by HPARB, HPARB exercised its discretion to disclose most but not all of the material that had been before the ICRC. Under s. 32(3) of the Health Professions Procedural Code (the “Code”) gives HPARB authority to refuse to disclose anything that falls within the five listed categories in that subsection. By disclosure order dated October 20, 2020, HPARB made disclosure excepting the respondent’s College history, including prior decisions. That disclosure order was not challenged before HPARB. The order sought on this motion is a continuation of that order. In these circumstances, the requested order is granted without prejudice to any application for judicial review that may be brought challenging the disclosure order itself and subject to any further order of this court.

[5]

Disposition and Costs

The order, as signed by me, shall be provided to the parties. There shall be no costs of this motion.

Matheson J.