Ontario Superior Court of Justice, Divisional Court
Court File No. 801/01 Date: 2002-04-29 Farley, Then and Aitken JJ.
Counsel: Donald Posluns, for appellant, Discipline Committee, College of Physicians and Surgeons of Ontario. Gregory Lafontaine, for respondent, Dr. Sukhdev Kooner.
[1] By the Court:—The College of Physicians and Surgeons of Ontario ("College") moved for an order setting aside or varying the order of Chapnik J., sitting as a single judge of the Divisional Court, dated December 27, 2001 [reported 155 O.A.C. 56], allowing the motion of the appellant, Dr. Kooner ("Dr.") for a stay pending the appeal of the undated order of the Discipline Committee ("Committee") of the College revoking Dr.'s certificate of registration on the grounds of incompetence, as per its reasons dated July 9, 2001. Dr. continued to practise until the release of the penalty hearing reasons on November 15, 2001. Dr. appealed the finding of incompetence and the revocation penalty on December 11, 2001, and two days later filed a motion for a stay hearing that was heard on December 19, 2001 by Chapnik J.
[2] Chapnik J. determined that s. 71 of the Health Professions Procedural Code ("HPP Code") (which is Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18), did not preclude Dr. from applying for a stay. In her view s. 71 merely precluded an automatic stay as a result of Dr.'s appeal as would otherwise have followed pursuant to s. 25(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 ("SPPA"). For ease of reference we set out these two provisions:
Section 71 HPP Code
- An order made by a panel of the Discipline Committee on the grounds of incompetence . . . directing the Registrar to revoke, suspend or impose terms, limitations or conditions on a member's certificate, takes effect immediately despite any appeal.
Section 25(1) SPPA
25(1) An appeal from a decision of a tribunal to a court. . . operates as a stay in the matter unless,
(a) another Act or regulation that applies to the proceeding expressly provides to the contrary; or ...
[3] The College contended that s. 71 would deprive the court of jurisdiction to stay an order of the Committee revoking the certificate of registration on the grounds of incompetence. The College relied on three cases (in which the judges were sitting as single judges of the Divisional Court) in advancing that argument: Green v. College of Physicians and Surgeons of Ontario (1988), 1988 4537 (ON SC), 50 D.L.R. (4th) 187 (Div. Ct.), where Callaghan A.C.J.H.C. dealt with a predecessor equivalent of s. 71; College of Physicians and Surgeons v. Arnold (1999), 1999 18724 (ON SCDC), 172 D.L.R. (4th) 572 (Div. Ct.), a decision of Swinton J.; and Dr. Frank Steven Adams v. The College of Physicians and Surgeons of Ontario, unreported endorsement of Chadwick J., released October 13, 2000.
[4] As Callaghan A.C.J.H.C. noted at p. 188 of Green, he was dealing with an in person applicant and it "would have been preferable if a full and complete argument had been made before [him] on that issue". In Arnold, Swinton J. observed that where the Committee revoked a licence for other than incompetence, s. 61(8) of the Health Disciplines Act, R.S.O. 1990, c. H.4, provided that there would be a stay pending the appeal. She further stated at p. 576:
Clearly, the Legislature has considered whether there should be a stay of an order of a Discipline Committee in the serious case of a finding of incompetence where a licence has been affected by the penalty imposed, and it has chosen not to permit a stay as is did in s. 61(8), nor to confer a discretion on the Discipline Committee to stay the order as it did with the tribunal in Re Rose [Re Rose was a case involving the Collection Agencies Act]. The Discipline Committee is given the power to suspend the imposition of a penalty or postpone it on terms in s. 61(6)(f), but there is no power to grant a stay.
She concluded that the specific provisions of the Health Disciplines Act overrode the general provisions in the Courts of Justice Act, R.S.O. 1990, c. C.43, and the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Chadwick J. in Adams relied on Swinton J.'s views in Arnold. We think it fair to observe that the power to suspend a penalty or postpone it on terms could result in the equivalence of a stay pending an appeal.
[5] We are in agreement with Swinton J.'s views as to the specific provisions of an Act overriding general provisions: see R. Sullivan, Driedger on the Construction of Statutes (3rd ed.; Butterworths, Toronto) at p. 186. However we would also note that reliance on the Rules of Civil Procedure by Swinton J., Chadwick J. and Chapnik J. is in our view inappropriate: see Driedger at p. 185 where it stated:
Statutes are paramount over regulations. The presumption of coherence applies to regulations as well as to statutes. It is presumed that regulatory provisions are meant to work together, not only with their own enabling legislation but with other Acts and other regulations as well. In so far as possible the courts seek to avoid a conflict between statutory and regulatory provisions and to give effect to both. Where conflict is unavoidable, however, the statutory provision prevails.
These points were made by La Forest J. in Friends of Oldman River Society v. Canada (Minister of Transport), 1992 110 (SCC), [1992] 1 S.C.R. 3 ...
However that principle would not affect Chapnik J.'s reliance on either s. 134 or s. 106 of the Courts of Justice Act which provide:
134(1) Unless otherwise provided, a court to which an appeal is taken may,
(a) make any order or decision that ought to or could have been made by the court or tribunal appealed from;
(c) make any other order or decision that is considered just.
- A court, on its own initiative or on motion by any person, whether or not a party, may stay any proceeding in the court on such terms as are considered just.
[6] Chapnik J. observed at paras. 14-15 of her reasons [see 155 O.A.C. 56]:
Indeed, a recent decision of the Ontario Court of Appeal, R. v. Briggs (W.) (2001), 2001 24042 (ON CA), 142 O.A.C. 41; 53 O.R. (3d) 124 (C.A.), heard in a different context, may have effectively overruled the above Divisional Court rulings [Green, Arnold and Adams]. In that case, the relevant section of the Criminal Code for taking a DNA sample mandated samples of bodily substances be extracted in certain circumstances "even though an appeal may have been taken". (See s. 487.056(1) of the Criminal Code.)
The appeal court held that this provision did not remove the court's jurisdiction to properly regulate proceedings before it, and that the section "simply provides that the taking of an appeal does not per se stay the order". [Emphasis added.]
[7] Section 487.056(1) of the Criminal Code, R.S.C. 1985, c. C-46, was enacted in 1998; it provides:
487.056(1) Samples of bodily substances referred to in sections 487.051 and 487.052 shall be taken at the time the person is convicted, discharged under section 730 or, in the case of a young person, found guilty under the Young Offenders Act, or as soon as is feasible afterwards, even though an appeal may have been taken.
[8] The endorsement in Briggs was delivered orally the same day it was heard [reported 2001 24042 (ON CA), 53 O.R. (3d) 124]. There was not any discussion of the subject question beyond Goudge and Simmons JJ.A. stating at para. 1:
In our view s. 487.056(1) [Criminal Code, R.S.C. 1985, c. C-46] does not remove from this court its jurisdiction to properly regulate proceedings before it. The section simply provides that the taking of an appeal does not per se stay that order.
While Doherty J.A. dissented, he observed at para. 7:
I agree with Goudge J.A. that this court has the power to stay the order in issue, but I would not exercise that power in these circumstances.
[9] Driedger, supra, notes at p. 370:
Ousting jurisdiction of court. It is presumed that the legislature does not intend to alter existing jurisdictions, particularly to reduce or exclude the jurisdiction of superior courts. Historically, superior courts have been reluctant to discover an intention to transfer jurisdiction to another body. Romer J. put the position at its strongest in the following passage:
"The proper tribunals for the determination of legal disputes in this country are the courts, and they are the only tribunals which, by training and experience, and assisted by properly qualified advocates, are fitted for the task.69" (See Lee v. Showmen's Guild of Great Britain, [1952] 2 Q.B. 329, at 354 (C.A.).)
Modern courts concede the necessity and desirability of referring some types of dispute to statutory tribunals. However, they are careful to reserve their jurisdiction to review the decisions of inferior tribunals to ensure compliance with the law. For this reason, and in keeping with s. 96 of the Constitution Act, privative clauses are strictly construed.70 (See Crevier v. A.-G. (Quebec), 1981 30 (SCC), [1981] 2 S.C.R. 220, at 236-38.)
[10] Chapnik J. went on at paras. 16-20 to conclude that there was jurisdiction in the court to grant a stay, treating s. 71 of the HPP Code as merely providing that there be no automatic or per se stay as a result of Dr.'s appeal, but rather that he had the onus of demonstrating why he should be granted a stay:
On the plain wording of s. 71, the provision causes the penalty imposed to take effect immediately, despite the filing of an appeal. It seems to me that much stronger wording would be expected had it been the legislature's intention to oust the court's inherent and statutory jurisdiction to grant a stay pending further proceedings in the court. As noted in Occhipinti v. Ontario College of Pharmacy, 1969 518 (ON CA), [1970] 1 O.R. 741 (C.A.)"It could not have been the intention of the Rules Committee that a judgment which might ultimately be set aside entirely by the Court of Appeal was beyond the power of that court to stay pending an appeal with respect to it".
Moreover, the inherent jurisdiction of the court to control its own process is well-settled. See, for example, R. v. Metro News Ltd. (1985), 1985 3639 (ON CA), 11 O.A.C. 58; 21 C.C.C. (3d) 492 (C.A.); labour v. Law Society of British Columbia et al., 1982 29 (SCC), [1982] 2 S.C.R. 307; 43 N.R. 451; [1982] 5 W.W.R. 289; 137 D.L.R. (3d) 1; R. v. Borger Industries Ltd. (1979), 1979 2888 (MB QB), 49 C.C.C. (2d) 527 (Man. Co. Ct.); and Boehringer Ingelheim (Canada) Ltd. v. Merck Frost Canada & Co., [2001] O.A.C. Uned. 120; [2001] O.J. No. 1433 (Div. Ct.).
Certainly, s. 71 eliminates any entitlement to an automatically-imposed stay on the filing of a notice of appeal. It requires the appellant to being an application or motion for a stay. But it does not eliminate the court's jurisdiction to grant a stay in appropriate circumstances. Where a statutory right of appeal exists, our courts have traditionally had power to make orders ancillary to it.
Each potential stay must be considered individually on its merits. On the interpretation urged by the respondent, even the most deserving appellant would be unable to obtain a stay. This reasoning is consistent with a desire by the legislature to ensure that, where a finding of misconduct by its nature raises particular concerns, the onus rests with the appellant to establish that a stay is appropriate.
In my view, the well-established jurisdiction of this court to grant a stay pending appeal has not been ousted by s. 71 of the Procedural Code. The courts must ensure that the principles underlying the appeal process are not frustrated.
[11] The College raised before us, but not before Chapnik J., a sampling of other legislation involving the regulation of professionals (Architects Act, R.S.O. 1990, c. A.26; Professional Foresters Act, 2000, S.O. 2000, c. 18; Professional Engineers Act, R.S.O. 1990, c. R28; Law Society Act, R.S.O. 1990, c. L.8; Veterinarians Act, R.S.O. 1990, c. V.3; Public Accountancy Act, R.S.O. 1990, c. P.37; Professional Geoscientists Act, 2000, S.O. 2000, c. 13; Health Disciplines Act) noting that in these somewhat recent and relatively contemporaneous enactments the Legislature had provided mechanisms to allow a stay, whereas in the HPP Code and in the Health Disciplines Act when there is a penalty imposed for incompetence there are no such mechanics specified. The College asserted that by doing so the Legislature had conscientiously and consciously determined that where the health of persons was concerned, there ought to be no ability to obtain a stay for the sake of protection of the public. While noting the differential treatment, we are of the view that two aspects militate against that conclusion. Firstly, notwithstanding that a doctor may be found guilty of incompetence and the panel which made that determination be of the view that the public was at risk the HPP Code does not provide for an automatic revocation of the licence. Rather the mechanics involved are that there is a penalty hearing (albeit one that may follow relatively shortly upon the other); in the meantime the doctor may practise unless he has voluntarily consented not to. In the subject case Dr. continued to practise for a half year. Secondly, the protection of the public can be dealt with appropriately at the stay hearing as an intregral part of the "balance of convenience" segment of the three-part stay test pursuant to RJR-MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. at 311, 111 D.L.R. (4th) 385.
[12] Keeping in mind the presumption that the Legislature does not intend to alter existing jurisdictions, especially to exclude the jurisdiction of the court (see Driedger, supra, at p. 370), let us examine a situation where the penalty is a 90-day suspension and the publication of the finding of incompetence with the doctor's name, an appeal would be largely rendered moot since likely it could not be heard before the end of the suspension and the publication would already have taken place. While the publication could be partially ameliorated if the appeal were successful, by the further publication of the appeal results, a significant amount of damage would linger on. Another example would be where the appeal is objectively recognized as having a very substantial chance of success. The injustice which would follow in these types of situations if there were no opportunity at all to obtain a stay would be most unfortunate. On the other hand, if all that were to happen as a result of s. 71 was that there were an onus on the appellant to seek a stay, then the public interest could be protected by the court's analysis of the balance of convenience portion of the stay test, while at the same time ensuring that an injustice not be done to the appellant as the interests could be weighed.
[13] We are therefore of the view that Chapnik J. was correct in determining that s. 71 of the HPP Code does not preclude any possibility that there can be a stay. Section 71 should be interpreted as there being no per se stay pending an appeal but rather that the appellant must demonstrate to the court that it is appropriate in the circumstances to grant a stay, including a stay on terms and conditions (see Attorney General of Canada v. Law Society of British Columbia (1982), 1982 29 (SCC), 137 D.L.R. (3d) 1 (S.C.C.) at pp. 18-9 re terms and conditions).
[14] With respect to whether Chapnik J. erred in allowing the stay, while we may have come to a different result, we do not see that she committed any error in principle in exercising her discretion: see Stickney v. Trusz (1974), 1974 1379 (ON SCDC), 3 O.R. (2d) 538 at p. 540, 46 D.L.R. (3d) 80 at p. 82 (C.A.). Further, her terms and conditions appear reasonable in the circumstances.
[15] The appellant being successful in his appeal is awarded $2,000 costs against the College.
[16] Appeal by the College dismissed.