Ontario Superior Court of Justice – Divisional Court

Gale v. College of Physicians and Surgeons of Ontario

Date: 2001-05-25

Jerome R. Morse, for the applicant;

Shaun Nakatsuru, for the respondent.

(Court File No. 336/2001)

[1] B. Wright, J.: This is an application for Judicial Review to a single judge on the basis of urgency.

[2] The applicant seeks an order quashing the interim order of the Executive Committee of the College of Physicians and Surgeons of Ontario ("CPSO") made on May 8, 2001, pursuant to s. 37 of the Health Professions Procedural Code, which prohibits him from carrying out specific medical procedures. Section 37 reads in part:

"37(1) The Executive Committee may, subject to subsection (5), make an interim order directing the Registrar to suspend or impose terms, conditions or limitations on a member's certificate of registration if,

(a) an allegation is referred to the Discipline Committee; and

(b) it is of the opinion that the conduct of the member exposes or is likely to expose his or her patients to harm or injury.

"(2) If an order is made under subsection (1) by the Executive Committee in relation to a matter referred to the Discipline Committee,

(a) the College shall prosecute the matter expeditiously; and

(b) the Discipline committee shall give precedence to the matter."

[3] I am satisfied that the Executive Committee had before it evidence to justify the making of the s. 37 interim order. However, the applicant submits that the CPSO has failed to prosecute the matter expeditiously and that the Discipline Committee has failed to give precedence to the matter. As a result of these failures the applicant submits that the s. 37 interim order should be quashed.

[4] Counsel for the applicant estimates that the hearing before the Discipline Committee will take three weeks. Counsel for the CPSO believes one to two weeks will be sufficient for the hearing.

[5] Counsel for the CPSO advised that the hearing can commence on June 18, 01 for one week and resume on July 3, 01.

[6] Counsel for the applicant advised that his client would be satisfied with a continuous hearing commencing June 18 but that a break of a week and no assurance whether the hearing could continue in the week following the week of July 3 is not expediting the matter. There appears to be no criteria and no cases defining an expedited time period from the date of a s. 37 interim order to the date of a discipline hearing.

[7] In view of the fact that the applicant is not completely prohibited from medical practice but can still perform about two-thirds of his usual practice, a time period from May 10, 01, the effective date of s. 37 interim order, to a hearing date of June 18, 01, in my view, complies with the requirements of s. 37 to prosecute the matter expeditiously and to give the matter precedence.

[8] However, in my view, expediting and giving a matter precedence should, in fairness to the person involved in a discipline hearing, require a continuous hearing.

[9] The CPSO has scheduled a pre-hearing conference on May 31, 01. Counsel for the applicant can at that time make submissions with respect to the appropriate dates for the hearing.

[10] The difficulty that the CPSO faces in scheduling discipline hearings is twofold: a limited number of members to draw from; and, the requirement that three physicians and two members of the public sit on each panel. In our busy world it is not surprising that it is difficult to schedule a block of time when five members are available without other commitments.

[11] I suggest there is a need for the CPSO to reassess the need for a five-member panel for discipline hearings. Otherwise, there may be instances where the court would be required to quash a s. 37 interim order because the hearing was not expedited.

[12] On the facts of this case the applicant has not submitted sufficient reasons to quash the s. 37 interim order.

[13] The application is dismissed. Counsel may provide me with brief written reasons on costs if they are unable to agree on costs.

Application dismissed.