COURT FILE NO.: 509/03
DATE: 20031127
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
JOHN MCKAY-CLEMENTS
Applicant
- and -
BOARD OF DIRECTORS OF DRUGLESS THERAPY-NATUROPATHY
Respondent
Bernard C. LeBlanc and Lisa S. Braverman, for the Applicant
Peter A. Simm, for the Respondent
HEARD: November 27, 2003
MCRAE J.: (Orally)
[1] The applicant, John McKay-Clements has applied for judicial review of a purported decision of the Complaints Committee of the Board of Directors of Drugless Therapy- Naturopathy dated June 20, 2003.
[2] The relief requested is for an order quashing that decision and an order directing a new panel to re-hear his complaint.
[3] The main motion before me today is brought also by Mr. McKay-Clements asking for an interim order staying the implementation and enforcement of an undertaking agreement between Dr. Daria Love and the Board and for an order that the respondent comply with the requirements of s.10 of the Judicial Review Procedures Act by filing in Court the record of proceedings of the Complaints Committee of the Board.
[4] The respondent Board has brought a cross-motion seeking an order quashing the application for judicial review on the basis that the application is premature and is seeking relief incapable of being granted. This is the motion that I have considered first and dispose of now.
[5] Counsel for the Board concedes that the proceedings of the Complaints Committee were void ab initio. Pursuant to the Drugless Practitioners Act, the Board is the only body empowered to deal with a complaint and it has no jurisdiction to delegate that power to a Committee as it purported to do in the instant case.
[6] I am satisfied that the whole proceedings before the Board were void. Section 3(1) of the Drugless Practitioners Act provides for the appointment of three to five members of the Board by Order in Council. There are, and always have been, five members of the Board.
[7] Section 30 of the Regulations authorizes that Board to discipline members. Section 35 of the Regulations provides for the investigation of complaints. However, neither regulation can be used to justify delegating power to a Complaints Committee as was attempted in this case.
[8] The applicant in the judicial review was before me attempting to uphold the legality of the decision of the Committee so that in the main application he will be able to ask a full panel to quash the decision of that Committee.
[9] In my view, the actions of the Board and its purported Complaints Committee were void ab initio. Any agreement or undertaking purporting to follow from the Complaints Committee hearing was also void and of no force or effect.
[10] It is still open to the complainant to bring a new complaint or to take such other steps as he sees fit to pursue the relief he seeks. However, I am of the view that the Court resources should no longer be wasted on what has become an academic exercise. Relief in the nature of certiorari is and always has been a discretionary remedy. In the exercise of that discretion I would dismiss the application.
[11] The cross-motion is allowed. The application for judicial review is dismissed. The relief sought by the complainant on this motion is also dismissed. Success being divided there will be no costs.
MCRAE J.
Date of Reasons for Judgment: November 27, 2003
Date of Release: December 9, 2003
Date of Amended Release: November 23, 2004
COURT FILE NO.: 509/03
DATE: 20031127
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
JOHN MCKAY-CLEMENTS
Applicant
- and -
BOARD OF DIRECTORS OF DRUGLESS THERAPY-NATUROPATHY
Respondent
ORAL REASONS FOR JUDGMENT
MCRAE J.
Date of Reasons for Judgment: November 27, 2003
Date of Release: December 9, 2003
Date of Amended Release: November 23, 2004