Court File and Parties
CITATION: ASP v. Health Professionals Appeal and Review Board, 2024 ONSC 7389 DIVISIONAL COURT FILE NO.: 483/23 DATE: 2024-03-21
SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT
RE: ASP and SD, Applicants AND: HEALTH PROFFESSIONS APPEAL AND REVIEW BOARD, COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO, and DR. NICOLE NITTI, Respondents
BEFORE: Backhouse J.
COUNSEL: Sarah Beamish and Brenna Homeniuk, for the Applicants Kara Smith and Daniel Moholia for the Respondent, Dr. Nicole Nitti Mary Birdsell, Katherine Long and Allison P. Williams, for the Intervener, Justice for Children and Youth
HEARD at Toronto: March 21, 2024 (In Writing)
Endorsement
The following are my Reasons and related directions regarding the motion for leave to intervene brought by Justice for Children and Youth (“JFCY”) in the upcoming judicial review.
[1] In this judicial review, the Applicants seek to quash a complaint review decision of the Health Professions Appeal and Review Board (“HPARB”), dated July 21, 2023 which upheld a decision of the Inquiries Complaints and Reports Committee (“ICRC”) dated November 4, 2021, to issue advice to the Respondent doctor. The complaint brought by the Applicants related to a clinical encounter in the Emergency Department at the Huntsville Hospital on May 26, 2018. The Applicants alleged, among other things, that the Respondent doctor improperly conducted a genital examination on the Applicants’ daughter, JDSP, did not appropriately seek consent from JDSP which was ignored by the College of Physicians and surgeons of Ontario (“CPSO”) and discriminated against the family on the basis of their Indigeneity.
[2] The Applicants consent to the motion for leave to intervene. The HPARB and CPSO do not oppose and the Respondent doctor opposes the motion.
[3] To obtain leave to intervene, JFCY must bring useful and different submissions on the issues raised by the parties, not raise new issues, and not take a position on the ultimate disposition of the application. An intervener must present their own arguments and submissions on existing issues already raised by the parties: R. v. McGregor, 2023 SCC 4.
[4] JFCY is a well-recognized child rights organization and legal aid clinic founded to protect and advance the legal rights, equity, and dignity of children and youth in Canada. It submits that:
- this judicial review is a matter of public interest;
- the fact that the child’s parents have standing as parties before the court does not eschew the need for a child’s unique perspective to be represented in the application before the court;
- the court’s decision will have an impact beyond the rights of the parties;
- the decision will impact what is expected of the CPSO and the HPARB in the performance of their role as professional regulators who are mandated to safeguard the public interest and physicians’ exercise of their professional obligations providing medical care to the public including the responsibility to obtain consent from a child under the Health Care Consent Act; and
- JFCY seeks to provide the court with an analysis regarding the rights of the child and their intersecting vulnerabilities and with attention to the equity and human rights of children, Charter principles, and international rights and obligations such as those articulated by the UNCRC and the United Nations Declaration on the rights of Indigenous Peoples; and
- JFCY has useful and different submissions to make about the issues raised on this application.
[5] JFCY requests oral and written submissions; the Applicants and JFCY submit that duplication will be avoided; no one is seeking to supplement the evidentiary record; and, JFCY is not seeking costs and asks that no costs be awarded against it.
[6] The Respondent doctor submits that:
- this is a private dispute and not the appropriate case to engage in the detailed analysis which JFCY seeks to address;
- a HPARB review of an ICRC decision has been determined to lie near the private dispute end of the spectrum, warranting a heightened burden for those who seek leave to intervene. (Martin v. Health Professions Appeal and Review Board, (“Martin”), 2022 ONSC 1340 (Ont Sup Ct J (Div Ct)) and Kaster v. Health Professions Appeal and Review Board, (“Kaster”), 2022 ONSC 5553 (Ont Sup Ct J (Div Ct));
- the issues JFCY seeks to raise would broaden the scope of this judicial review;
- the legal arguments that JFCY wishes to make could or will be addressed by competent counsel for the Applicants;
- the perspective of the child has been at the forefront of the Applicants’ submissions and JFCY does not offer a different perspective nor will the contribution be useful to the court; and
- there is a real risk of prejudice to the Respondent doctor in the additional costs and complexity of the litigation if the intervenor application is allowed.
[7] I do not agree with the submission of the Respondent doctor that this is an exclusively private dispute. The underlying application raises important issues regarding a health care professional’s obligation to an Indigenous girl child patient who reflects a particularly vulnerable patient group. This brings the application closer to the public end of the spectrum. Neither the Martin nor Kastner decisions relied upon by the Respondent doctor stands for the proposition that all decisions of HPARB or the ICRC constitute exclusively private disputes simply by virtue of their forum. Justice Sachs in dissent in Kastner, noted:
Martin does not stand for the principle that every case involving a disciplinary complaint lies closer to the private end of the spectrum. It recognizes that cases involving constitutional issues do not lie at the private end of the spectrum and that leave will more likely be granted in cases where the issue raised is one of public importance.[^1]
[8] Both Martin and Kastner arose in an administrative context and are distinguishable from the facts in this application.
[9] JFCY is a well-recognized organization with specialized expertise which has a substantial and identifiable interest in the subject matter of the underlying application. It is uniquely placed to bring a child advocacy perspective and expertise regarding child rights and to articulate the place of the legal rights of child patients relevant to determining the issue that is before the court-- namely a child’s right to give or refuse consent to her own medical treatment and to have that decision respected. In my view, this offers a different perspective that would be useful to the court and would not unreasonably broaden the scope or add unduly to the complexity of the issues before the court.
[10] The fact that the Applicants have sought to advance the interests of their child, JDSP, through their College complaint and subsequent Board reviews and have competent counsel does not detract from what I consider would be JFCY’s useful and different perspective and the Applicants and JFCY have undertaken not to duplicate submissions.
[11] Nor do I see a risk of prejudice to the Respondent doctor. Granting leave to one intervenor would not create an imbalance or the appearance of an imbalance nor would it substantially increase the cost of defending the application.
[12] Taking everything into account, I conclude that the motion satisfies the requirements to intervene and leave should be granted on the terms set out in the attached order. Leave to intervene in the upcoming motion is therefore granted under Rule 13.02 of the Rules of Civil Procedure. Leave is limited to the issues raised by the parties, as set out in R. v. McGregor. The JFCY shall have the right to file a factum of no more than 15 pages and the right to make oral argument not to exceed fifteen minutes.
[13] The Respondents shall have the right to deliver a supplementary factum of up to 5 pages to address any issues arising from the intervener’s factum. If there are any issues about the scope of the submissions in the intervener factum, the Respondents shall raise them in this supplementary factum.
Backhouse J.
Date: March 21, 2024
[^1]: Kastner v. Health Professions Appeal and Review Board, 2022 ONSC 5553, at para.50.