DATE: 20031106

DOCKET: C39733

COURT OF APPEAL FOR ONTARIO

RE:

DR. SUKDEV KOONER (Appellant) (Respondent) – and – THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO (Respondent) (Appellant)

BEFORE:

WEILER, SHARPE JJ.A. and RIVARD J. (ad hoc)

COUNSEL:

Linda Rothstein

for the appellant

Matthew Wilton

for the respondent

HEARD & ENDORSED:

November 5, 2003

On appeal from the order of the Divisional Court (Robert A. Blair R.S.J, Ellen M. MacDonald and Barry MacDougall JJ.) dated December 9, 2002 setting aside the decisions of the Discipline Committee of the College of Physicians and Surgeons of Ontario dated July 9, 2001 and November 16, 2001.

A P P E A L B O O K E N D O R S E M E N T

[1] An appellate court will only interfere with the discretion of the Discipline Committee to refuse an adjournment in rare circumstances, namely, when the appellant demonstrates that he or she was denied fairness or natural justice. In its endorsement the Divisional Court concluded:

We are all of the opinion that the appeal should be allowed and the matter remitted back to the Discipline Committee for a rehearing because of fairness and natural justice concerns flowing from the Committee’s failure to grant an adjournment.

[2] We are not persuaded that the Divisional Court erred despite the very effective argument of Ms. Rothstein, counsel for the College. In addition, the Divisional Court was entitled to take into account that the public interest could be protected during an adjournment by the imposition of terms pursuant to s. 16(1)

[3] Accordingly, the appeal is dismissed. Costs of the appeal to the respondent are fixed in the amount of $20,000 inclusive of G.S.T. and disbursements.