COURT OF APPEAL FOR ONTARIO

CITATION: Reid v. College of Chiropractors of Ontario, 2016 ONCA 779

DATE: 20161024

DOCKET: M46840

Epstein J.A. (in chambers)

BETWEEN

Dr. Michael Reid

Appellant (Moving Party)

and

College of Chiropractors of Ontario

Respondent (Responding Party)

Zameer N. Hakamali, for the moving party

Chris Paliare and Karen Jones, for the responding party

Heard: August 25, 2016

On motion for an extension of time to file a notice of motion for leave to appeal the judgment of the Divisional Court (A.C.J.S.C. Marrocco, J. Wilson, Pattillo JJ.), dated June 13, 2016.

Epstein J.A. (in chambers):

[1] The moving party, Dr. Michael Reid, wants to appeal the decision of the Divisional Court released on June 13, 2016, in which it dismissed three appeals Dr. Reid brought from decisions of a panel of the Discipline Committee of the responding party, the College of Chiropractors of Ontario. Such an appeal is not as of right. Dr. Reid must obtain an order from this court granting leave to appeal. However, Dr. Reid missed the deadline for filing his notice of motion seeking leave to appeal. He therefore brings this motion for an extension of time.

[2] The College opposes the motion on the basis that an extension would not be in the interests of justice. For the reasons that follow, I agree.

THE BACKGROUND

[3] Dr. Reid, a chiropractor, has been the subject of disciplinary proceedings that arose out of a series of complaints made to the College by a fellow chiropractor, Dr. Chris Paynter, and his wife, involving Dr. Reid’s advertising practices.

[4] In 2006, 2008 and 2009, Dr. Paynter and his wife complained to the College that Dr. Reid was engaging in impermissible advertising practices. The College reprimanded Dr. Reid and issued two cautions against him.

[5] In 2010, Dr. Paynter and his wife made a further complaint to the College about Dr. Reid’s advertising practices. That complaint resulted in a Discipline Committee hearing (the “2012 Hearing”) that proceeded by an agreed statement of facts. Dr. Reid was found guilty of professional misconduct and was ordered to enter into an undertaking to abide by the College’s policies.

[6] Between the time Dr. Paynter complained to the College in 2010 and the 2012 Hearing, Dr. Reid made three telephone calls to Dr. Paynter and visited his clinic twice. After the 2012 Hearing, Dr. Reid sent two emails to Dr. Paynter. Dr. Paynter complained to the College about these contacts and communications.

[7] On three occasions, the College provided Dr. Paynter’s complaint and another complaint made by an insurance company to Dr. Reid, asking for his response. After five months had elapsed without receiving a response from Dr. Reid, the College appointed an investigator. The investigator experienced difficulty dealing with Dr. Reid.

[8] Five allegations of professional misconduct arising out of Dr. Reid’s conduct toward Dr. Paynter, his failure to reply to the College’s requests for a response to complaints made against him and his treatment of the investigator became the subject of a Discipline Committee hearing that took place in 2014 and 2015 (the “2014-5 Hearing”).

[9] At the commencement of the 2014-5 Hearing, Dr. Reid unsuccessfully moved to have the chairperson of the Panel disqualified on the basis that he had been the chairperson of the 2012 Hearing.

[10] After hearing all the evidence, the Panel concluded that Dr. Reid’s communications with Dr. Paynter were threatening and amounted to harassment, and that Dr. Reid’s failure to respond to the College’s requests and failure to cooperate with the College investigator amounted to professional misconduct. The Panel imposed a penalty of a twelve month suspension of Dr. Reid’s license, remedial measures and a fine of $10,000. The Panel ordered Dr. Reid to pay the College’s costs in the amount of $166,194.50.

[11] Dr. Reid appealed the Panel’s decision as to costs (the “Costs Decision”), as to liability, including the issue of bias (the “Liability Decision”), and as to penalty (the “Penalty Decision”) separately to the Divisional Court. The three appeals were heard on February 11, 2016. In one combined decision, with one minor exception, the Divisional Court dismissed the three appeals.

[12] The evidence on this motion was provided by Mr. Douglas P. O’Toole, co-counsel to Dr. Reid with Mr. Hakamali in the 2014-5 Hearing and the Divisional Court appeals. In his affidavit, Mr. O’Toole says that he and Mr. Hakamali received the Divisional Court Decision on June 13, 2016. He and Mr. Hakamali discussed an appeal of the decision. Both lawyers were of the view that the appeal was to this court, within 30 days of the decision. They therefore advised Dr. Reid that the deadline to appeal was July 13, 2016. In an email dated July 13, 2016, Mr. Hakamali indicated to counsel for the College that it had come to his attention that to appeal to this court, Dr. Reid had to seek leave to appeal within 15 days of the Divisional Court Decision.

THE ISSUE

[13] The single issue is whether an extension of time to file the notice of motion for leave to appeal should be granted.

ANALYSIS

The Test for Extending Time

[14] The test on a motion to extend time is well-settled. The governing principle is whether the “justice of the case” requires that an extension be given: Rizzi v. Mavros, 2007 ONCA 350, 85 O.R. (3d) 401, at para. 17; Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15. Each case depends on its own circumstances. The relevant considerations include:

a) whether the moving party formed a bona fide intention to seek leave to appeal within the relevant time period;

b) the length of, and explanation for, the delay in filing;

c) any prejudice to the responding party, caused, perpetuated or exacerbated by the delay; and

d) the merits of the proposed appeal.

See Rizzi, at para. 16; Froese, at para. 15.

[15] This court has held that lack of merit alone can be a sufficient basis on which to deny an extension of time, particularly in cases such as this where the moving party seeks an extension of time to file a notice of leave to appeal, rather than an extension of time to file a notice of appeal: Miller Manufacturing and Development Co. v. Alden, [1979] O.J. No. 3109 (C.A.), at para. 6; Froese, at para. 16.

The Principles Applied

[16] The record does not support a finding that Dr. Reid formed the intention to appeal the Divisional Court Decision within the requisite 15 days. That said, it is clear that Dr. Reid had the requisite intention to have the Divisional Court Decision reviewed within a few days of the expiry of the 15 day period. Dr. Reid should have filed the notice of motion for leave to appeal on June 27, 2016 and his counsel advised the College of Dr. Reid’s intention to seek leave to appeal on July 13, 2016.

[17] In terms of prejudice, I see nothing in the record, apart from the cost associated with permitting the litigation to continue, to suggest that the College will suffer prejudice if an extension is granted.

[18] I turn, therefore, to a consideration of the merits of the proposed appeal.

[19] It must be borne in mind that the decision Dr. Reid seeks to appeal was rendered by the Divisional Court exercising its appellate jurisdiction. In Sault Dock Co. Ltd. v. City of Sault Ste. Marie, 1972 CanLII 572 (ON CA), [1973] 2 O.R. 479 (C.A.), at para. 6, this court explained that, as a general rule, decisions made by the Divisional Court in its appellate capacity are intended to be final. A review of such a decision by this court is an exception to the general rule.

[20] Before granting leave, this court must be satisfied that the proposed appeal presents an arguable question of law, or mixed law and fact, requiring consideration of matters such as the interpretation of legislation; the interpretation, clarification or propounding of a general rule or principle of law; or the interpretation of an agreement or by-law where the point in issue involves a question of public importance: Sault Dock Co. at para. 8.

[21] At para. 9 of Sault Dock Co., the court added that it will also consider cases where special circumstances make the matter sought to be brought before it one of public importance or where it appears that the interests of justice require that leave should be granted. Finally, at para. 10, this court observed that there may be cases in which there is clearly an error in the judgment or order of the Divisional Court such that the Court of Appeal might grant leave to correct the error.

The Proposed Appeal of the Costs Decision

[22] Dr. Reid submits that the appeal of the Costs Decision will affect future approaches to the reasonableness of cost awards under s. 53.1 of the Health Professions Procedural Code, Schedule 2 of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (the “Code”). He further argues that, given the dissent, the cost decision has merit.

[23] I disagree.

[24] Section 53.1 of the Code gives the College jurisdiction to order costs. The courts have recognized this jurisdiction and have described it as being broad and discretionary: Freedman v. Royal College of Dental Surgeons, [2001] O.J. No. 1726 (Div. Ct.), at paras. 3, 6; Aronov v. Royal College of Dental Surgeons, [2002] O.J. No. 5973 (Div. Ct.), at para. 54. The courts have also identified the College’s right and responsibility to protect its members from the weight of the expense of protracted disciplinary hearings: Aronov, at para. 53.

[25] The standard of review of reasonableness applies to the Costs Decision as the College was interpreting its own statute and was exercising discretion in making the award: Venneri v. College of Chiropractors of Ontario, 2010 ONSC 473, [2010] O.J. No. 334, at para. 6. A decision is only unreasonable if there is no line of analysis in the reasons that could reasonably lead the administrative tribunal from the evidence to the conclusion reached: Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, at para. 55.

[26] The majority conducted a reasonableness review when assessing the Costs Decision. On the basis of this review, the majority concluded that the Panel had considered relevant factors, including the parameters of s. 53.1 of the Code, the College’s costs, the findings of liability and the College’s relative success.

[27] In the light of the discretionary nature of the Costs Decision, the standard of review and the Divisional Court’s thorough and unimpeachable approach to the issue, I conclude that the application for leave to appeal the Costs Decision is without merit.

[28] My conclusion is not impacted by the dissent, as I am of the view that Wilson J.’s analysis is, with respect, incorrect. As is apparent from the above analysis, her view that no decisions have considered the issue of reasonable costs under s. 53.1 of the Code is clearly in error. Moreover, she conducted her own independent cost analysis rather than conducting a reasonableness review, which was her mandate.

[29] I therefore find there to be no merit in the leave application as it applies to the Costs Decision.

The Proposed Appeal of the Liability Decision

[30] Dr. Reid submits that he was found guilty of professional misconduct because he breached standard practice when he failed to provide responses to complaints, as requested by the Inquiries, Complaints and Reports Committee (ICRC). He argues that the College did not have the authority to create the Standard of Practice and that the proposed appeal will have “far reaching implications for the conduct of investigations by Colleges”.

[31] I reject this argument. First, the expert evidence called on behalf of both parties was that Dr. Reid was, in fact, obligated to respond to complaints and provide the requested response to the College. Second, Dr. Reid himself admitted that he had a professional obligation to respond to the ICRC’s requests.

[32] The conclusions of the Panel and the Divisional Court that Dr. Reid had an obligation to cooperate with the College and that he breached it by failing to provide submissions to complaints, are unassailable.

[33] Dr. Reid further argues that there was no evidence to support findings of professional misconduct in relation to his conduct towards Dr. Paynter. This part of the proposed appeal is entirely fact based. It does not raise an arguable question of law, and certainly not one of the sort contemplated by para. 8 of Sault Dock Co. Moreover, the purported appeal does not involve a special circumstance or a matter of public importance.

[34] Finally, Dr. Reid argued before the Panel and the Divisional Court that the Panel’s chairperson should have been recused on the basis that he had been the chairperson of his 2010 Hearing. He raises this issue as a further reason why his leave application has merit.

[35] Again, I disagree. Dr. Reid’s argument that the Divisional Court erred in finding there was no valid issue of bias completely lacks merit. It is a bald assertion. As previously noted the 2010 Hearing proceeded on an Agreed Statement of Facts. No evidence was called. Dr. Reid’s credibility was not in issue.

The Proposed Appeal of the Penalty Decision

[36] Dr. Reid has made it clear that his application to seek leave to appeal the Penalty Decision is dependent on his appeal of the Liability Decision. Given my conclusion that the appeal concerning the Liability Decision is without merit, it follows that his appeal concerning the Penalty Decision is also without merit.

CONCLUSION

[37] The College has not been prejudiced by the delay, nor fairly, does it claim to be. The fact that there is no evidence that Dr. Reid formed an intention to appeal the Divisional Court Decision within the relevant time frame alone may constitute a sufficient basis upon which to dismiss Dr. Reid’s motion. However, my decision to dismiss the motion rests on the basis that, given the lack of merit of the proposed appeal, justice requires that Dr. Reid’s motion for extension of time to file his motion for leave to appeal, be dismissed.

DISPOSITION

[38] The motion is therefore dismissed. Further to the parties’ consent, the College is entitled to its costs, including the costs of the cross-examination of Mr. O’Toole, in the amount of $5,000, all in.

Released: October 24, 2016 “Gloria Epstein J.A.”