Rowe v. College of Nurses of Ontario and al., 2023 ONSC 6414

REASONS FOR JUDGMENT

1Before us today is the Applicant’s application for judicial review of the refusal of the Executive Director of the College of Nurses of Ontario to remove the address of his non-nursing employment from the public register. The standard of review is reasonableness.

2The Applicant is a member of the College. He is entitled to practise as a nurse, but he is employed as a security guard in a secure setting for mental health patients. His name and business address are included in the College’s register, which is available to the public. He says that his concern is that his patients, upon seeing his employment address, which contains the company name on his uniform, will know that he is the Craig Rowe who is listed on the Register as a nurse. He tells us that the patients often have delusions that make them hostile to nurses.

3The Register is kept under the authority of s.23 of the Health Professions Procedural Code, which is Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18. Subsection 23(1) requires the Registrar, who in the case of the College of Nurses is the Executive Director, to maintain a register. Subsection 23(2) requires the register to contain the member’s name and business address. Subsection 23(6) allows the Registrar to decline to publish the address if the Registrar has reasonable grounds to believe that disclosure may jeopardize the safety of an individual. Subsection 23(7) permits the Registrar to decline to publish the address if the Registrar has reasonable grounds to believe that the information is obsolete and no longer relevant to the member’s suitability to practise.

4The Applicant applied to the Registrar to remove his employment address from the register on the ground that he worked in a high security environment and publication of his address could endanger his safety. The Registrar replied that the request would be considered if the Applicant provided documentation to prove his assertion. The Applicant did not provide any such documentation. Instead, he brought this application, arguing that the Registrar acted unreasonably in that the statute does not permit the register to contain information that is irrelevant to the member’s suitability to practise and that the College’s policy on this issue is unreasonable.

5This court has long taken the position that it should not fragment proceedings before administrative tribunals. Fragmentation causes both delay and distracting interruptions in administrative proceedings. It is preferable, therefore, to allow such matters to run their full course before the tribunal and then consider all legal issues arising from the proceedings at their conclusion: Ontario College of Art v. Ontario (Human Rights Commission) (1993), 1993 3430 (ON SCDC), 11 O.R. (3d) 798 (Div. Ct.), at paragraph 17. The same principle should apply to a decision-maker such as the Registrar. A court has the discretion to hear an application for judicial review while administrative proceedings are still ongoing. For example, judicial intervention may be warranted in situations where the tribunal clearly lacks jurisdiction to proceed, where the decision, although interlocutory in most respects, determines a particular issue, in which a subpoena would be dispositive of the witnesses' privacy rights; or, where proceeding with the hearing would result in an unfair hearing or a breach of natural justice. Even in those extreme situations, the remedy is discretionary and will be exercised sparingly: Ontario College of Art, paragraph 18. No such circumstance obtains here, except perhaps the determination of an issue, but the record is insufficient for us to decide this question. The Applicant should submit documentation to the Registrar to support his request under subsection 23(6) or (7) of the Code. In the event of a refusal, a full record will exist.

6The Application is quashed.

7The Respondent seeks partial indemnity of $12,000. The Applicant says that no costs should be awarded because our decision was not dispositive for either side. Taking that into account, we award costs to the Respondent, which was successful in having the Application quashed, in the amount of $5,000.00, all-inclusive.

Ellies, R.S.J.

J.A Ramsay J.

Leiper J.