COURT FILE NO.: 337/03
DATE: 20031202
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LANE, THEN AND MEEHAN JJ.
B E T W E E N:
DR. RAVI DEVGAN
Applicant
(Appellant in Appeal)
- and -
THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO
Respondent
(Respondent in Appeal)
Joseph Markin, for the Applicant (Appellant)
Lisa Brownstone, for the Respondent
HEARD: December 2, 2003
LANE J.: (Orally)
[1] We are asked by the College to stay this motion this morning because Dr. Devgan has failed to pay the order for costs which was made last week by this Court, under which payment was due at 10:00 a.m. this morning.
[2] In our view, it would be open to us to give effect to the College’s preliminary objection and stay today’s motion despite the lack of a formal notice of motion. However, it is our view that in the peculiar circumstances of this case, it is in the interest of the parties and the public to bring this issue to a head. Accordingly, we propose to hear this morning’s motion despite the failure of Dr. Devgan to pay the costs.
[3] In our view, the decision of this Court in the case of Kooner v. College of Physicians and Surgeons of Ontario, [2002] O.J. No. 1594, illustrates the breadth of the power of the Court to grant or withhold stays of the decisions of the College. The power to grant or withhold a stay normally carries with it the power to do so upon terms.
[4] Mr. Markin submits that Rule 63.01(5) which permits a judge to order, on such terms as are just, that the stay does not apply leads to the conclusion that there is no authority to impose terms when the stay does apply. We do not agree.
[5] The interpretation urged on us would deprive the Court of jurisdiction by inference which cannot be done. Further, Rule 63.01 cannot prevail over s. 25(1)(b) of the Statutory Powers Procedure Act which gives the Court the power to “order otherwise” a broad power sufficient to enable the Court to impose terms as part of ordering otherwise. We are therefore of the opinion that Jennings J. had the authority to impose terms in the circumstances before him.
[6] The motion record will read: “For reasons given orally the motion to review the order of Jennings J. is dismissed. Costs of today fixed at $1,500 payable forthwith.”
LANE J.
THEN J.
MEEHAN J.
Date of Reasons for Judgment: December 2, 2003
Date of Release: December 23, 2003
COURT FILE NO.: 337/03
DATE: 20031202
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LANE, THEN AND MEEHAN JJ.
B E T W E E N:
DR. RAVI DEVGAN
Applicant
(Appellant in Appeal)
- and -
THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO
Respondent
(Respondent in Appeal)
ORAL REASONS FOR JUDGMENT
LANE J.
Date of Reasons for Judgment: December 2, 2003
Date of Release: December 23, 2003