CITATION: Fisher v. Health Professions Appeal and Review Board, 2025 ONSC 6272
DIVISIONAL COURT FILE NO.: DC-25-220-00JR
DATE: 20251114
SUPERIOR COURT OF JUSTICE – ONTARIO - DIVISIONAL COURT
RE: MARK FISHER, Applicant
AND:
HEALTH PROFESSIONS APPEAL AND REVIEW BOARD and ALEXANDER GRAHAM TRUSSLER, MD, Respondents
BEFORE: ACJ McWatt, Sachs, and McKelvey JJ.
COUNSEL: Mark Fisher, Self-Represented, Applicant David P. Jacobs, Counsel for the Respondent, Health Professions Appeal and Review Board Cale R. Sutherland, Counsel for the Respondent, Dr. Alexander Graham Trussler, MD
HEARD: October 20, 2025 - Virtually
ENDORSEMENT
MCKELVEY J.:
Overview
[1] This is an application for judicial review arising from a final order not to proceed with the review by the Health Professions Appeal and Review Board (the “Board”). That decision was made in response to a request by the Applicant Mark Fisher (“ Mr. Fisher”), that the Board review a complaint made by Mr. Fisher to the Inquiries, Complaints and Reports Committee (“ICRC”) of the College of Physicians and Surgeons of Ontario. The complaint was made against the Respondent physician, Dr. Alexander Trussler (“Dr. Trussler”). The complaint related to Dr. Trussler’s care of Mr. Fisher’s roommate, while his roommate recovered from surgery at Grand River Hospital in Kitchener. Mr. Fisher was the Power of Attorney for Personal Care for this patient (the “Patient”).
[2] The circumstances of Mr. Fisher’s complaint focused on a Consent and Capacity Board (“CCB”) proceeding. This proceeding had been commenced by Dr. Trussler in May, 2024. Dr. Trussler sought to have the Patient discharged to a care facility rather than into the care of Mr. Fisher. Mr. Fisher opposed Dr. Trussler’s recommendation. Mr. Fisher filed a complaint to the ICRC about Dr. Trussler’s conduct in filing the CCB proceeding.
[3] The ICRC conducted a preliminary review of Mr. Fisher’s concerns before advising of its intention to dismiss the complaint as frivolous, vexatious, made in bad faith, moot or otherwise an abuse of process. The ICRC did dismiss the complaint on this basis.
[4] Mr. Fisher then requested that the Board review the ICRC’s decision. The Board determined not to proceed with the review on the basis that the request for review was frivolous, vexatious, made in bad faith, moot or otherwise an abuse of process.
[5] Mr. Fisher now seeks judicial review of the Board’s decision. For the following reasons we have concluded that the application should be dismissed.
Analysis
[6] Initially during the hearing we dealt with an objection by the Respondents that in his material on the application, Mr. Fisher had supplemented his application with a large number of documents which were not before the Board. There was no request or motion by Mr. Fisher to file fresh evidence. As a result, we concluded that no consideration should be given to the additional documents filed by Mr. Fisher on this application.
[7] The standard of review which applies in this case is reasonableness. See Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65. A reasonable decision is one that is justified in relation to the facts and law that constrain the decision-maker. A reviewing court must defer to such a decision.
[8] A reviewing court must not assess the written reasons of an administrative body against a standard of perfection. Reasonableness review is not a line by line treasure hunt for error.
[9] In the present case the Board concluded that Mr. Fisher’s request for review fell within Sections 30(2) and (3) of the Health Professions Procedural Code. Sections 30(2) and (3) of the Code provide as follows:
(2) If the Board considers a request to review a decision to have been frivolous, vexatious, made in bad faith, moot or otherwise an abuse of process, it shall give the parties notice that it intends not to proceed with the review and that the parties have a right to make written submissions within 30 days after receiving the notice
(3) If the Board is satisfied after considering the written submissions of the parties that a request was frivolous, vexatious, made in bad faith, moot or otherwise an abuse of process, the Board shall not review the decision.
[10] In its decision, the Board referenced the decision in Re Lang Michener et al. and Fabian et al, 1987 172 (ON SC), [1987] 59 O.R. (2d) 353, where the Court set out various characteristics of vexatious proceedings which include the following:
(a) the bringing of one or more actions to determine an issue which has already been determined by a court of competent jurisdiction constitutes a vexatious proceeding;
(b) where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief, the action is vexatious;
(c) vexatious actions include those brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;
(d) it is a general characteristic of vexatious proceedings that grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings;
(e) in determining whether proceedings are vexatious, the court must look at the whole history of the matter and not just whether there was originally a good cause of action;
(f) the failure of the person instituting the proceedings to pay the costs of unsuccessful proceedings is one factor to be considered in determining whether proceedings are vexatious;
(g) the respondent’s conduct in persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings.
[11] In its decision, the Board held that the Applicant’s complaint was not the proper subject of a review by the Board.
[12] In complaining to the College about Dr. Trussler, Mr. Fisher recorded the following information:
Here is my letter of intent to sue, to Dr. Trussler. It involves malpractice by submitting a Form G, to the Consent and Capacity Board of Ontario, to do with forcing Mr. Hughes into a facility of Trussler’s choosing, namely, for short-term palliative care, but, as after several pre-hearings, and further malicious remarks, etc, from Trussler, it was dismissed because he had no power over where Mr. Hughes was to be placed. Trussler set up an unannounced “mock meeting”, along with three others from the hospital, to try to railroad me, by false pretenses, no informed consent, and, etc, into consenting to their criminally quack notions that Mr. Hughes was dying, in pain, not to survive the removal of the feeding tube, that the delirium he experienced would never lift, and, say, that Mr. Hughes was never to come home, and, never to walk again…
[13] At the end of his complaint, Mr. Fisher added as follows,
The letter: Dr. Trussler. 14 June, 2024. This is a notice of intent to sue for the $10,000 that your obviously malicious abuse of process, and, bad faith by the hospital, by the Form G, as malpractice, cost to have the matter quashed. You may call my legal representative, Lisa Leinveer, at [telephone number redacted], to verify the final amount, and, then, mail a personal cheque, in that amount, to Mark Fisher, [address redacted], within the next month. Or, I definitely will follow through, in civil court, at my earliest convenience (within the civil limitation period) of two years, and, then, I will ask for the same amount in also punitive damage. Hopefully, at least this time around, things may be resolved before a seemingly endless litany of broader legal actions against also the others involved. So, I graciously extend the final opportunity.
Thank you.
[14] My concern with respect to this aspect of the Applicant’s letter is that he seems to be using his Board application as a means of applying pressure on Dr. Trussler to pay money to him which would have been outside of the authority of the Board to order.
[15] In the initial decision of the ICRC, it notes that the Applicant’s main concern was the Respondent’s decision to apply to the CCB to transfer the Patient to a facility for palliative care. The committee states that it was not the appropriate forum to review the validity of decisions of the CCB. The committee further referred to the fact that it was not the appropriate forum to consider the validity of the Applicant’s claim before the Small Claims Court.
[16] In the Board’s decision, it referred to these points as follows:
The board is of the preliminary view that the circumstances and concerns giving rise to the Applicant’s request for review are not the proper subject of a review before the Board. The Board is of the preliminary view that neither the College’s complaint process, nor the Board’s review process is the proper forum to review the validity of the decisions of the CCB, nor to consider the validity of the claims between the Applicant and Respondent in civil courts.
[17] The Board then concluded:
Given the board’s jurisdiction and complaint process, the board is of the preliminary view that the Applicant’s request for review has no reasonable chance of success and there is no public interest in proceeding with a review
[18] I have concluded that the Board’s decision is reasonable and therefore is owed deference by this Court. The Applicant’s complaint to the ICRC was one of a series of legal actions taken by him in connection with the CCB hearing. These complaints were handled by the CCB and were the subject of a civil action. There was no need for the ICRC or the College of Physicians and Surgeons to get involved in this dispute. I therefore conclude there is no basis to overturn the Board’s decision.
[19] I also find that procedural fairness was given to Mr. Fisher by the Board. Under the Board’s Consolidated Rules of Practice and Procedure, Mr. Fisher was given notice of the Board’s intent not to proceed with the review and was given an opportunity to respond with written submissions within 30 days. We find that this process is consistent with the Board’s obligations of procedural fairness because Mr. Fisher received notice of the Board’s intention to dismiss his application and had an opportunity to make submissions to the Board.
[20] With respect to costs, the Respondent Dr. Trussler, has advised that he is only seeking nominal costs and suggested the figure of $2,500. In the circumstances and given the Applicant’s limited means, we have concluded that the appropriate figure is the sum of $200 to be paid by the Applicant to the Respondent Dr. Trussler. No costs have been sought by the Health Professions Appeal and Review Board and therefore we make no award of costs with respect to the Board.
McKelvey J.
I agree
ACJ McWatt J.
I agree
Sachs J.
Released: November 14, 2025