COURT FILE NO.: 337/03

DATE: 20040311

SUPERIOR COURT OF JUSTICE - ONTARIO

(Divisional Court)

RE: Dr. Ravi Devgan

Appellant

(Respondent)

• and -

COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO

Respondent

(Moving Party)

BEFORE: Mr. Justice D. Rutherford

COUNSEL: Carolyn Silver, for the Moving Party, College of Physicians and Surgeons of Ontario

Joseph Markin, for the Appellant

HEARD: March 9, 2004

E N D O R S E M E N T

RUTHERFORD J.:

[1] On April 30, 2003, the Discipline Committee of the College of Physicians and Surgeons of Ontario (“the College”) found Dr. Devgan to have committed various acts of professional misconduct and decided on June 27, 2003, to revoke his certificate of registration enabling him to practice medicine in Ontario.

[2] Upon the filing of an appeal to this Court, the revocation was automatically stayed. The College moved to lift the stay but on September 26, 2003, Jennings J. maintained the stay upon certain conditions.

[3] On January 27, 2004, on motion by the College, Swinton J. adjourned the motion to February 9, and lifted the stay of the revocation until the determination of the motion. On February 9, 2004, Swinton J. lifted the stay of revocation indefinitely pending the appeal.

[4] Dr. Devgan now moves the Court for an expedited appeal date on his affidavit deposing that he is in financial distress without being entitled to practice medicine. The College moves to dismiss or quash his appeal on grounds that he is breaching the order of Swinton J. by continuing to practice medicine and tenders evidence of a number of prescriptions issued by Dr. Devgan since February 9. Ms. Silver asks the Court to schedule cross-examinations of Dr. Devgan on his affidavit previously mentioned, and of a number of pharmacists who have filled prescriptions allegedly issued by Dr. Devgan since February 9, and to schedule the motion to dismiss or quash his appeal.

[5] Ms. Silver argues with reference to sections 21(3) and 134(3) of the Courts of Justice Act, and Rule 60.12 of the Rules of Practice, that the College may move to have Dr. Devgan’s appeal dismissed or quashed because of his breach of the interlocutory order of Swinton J. and that such motion would be heard by a single judge.

[6] I must say I have reservations that a single judge of the Divisional Court ought to entertain the dismissal or quashing of an appeal from such a serious order as a revocation of a professional certificate. The Practice Direction following Rule 21 speaks of single judges hearing appeals under sections 19(1)(c) and 31 of the Courts of Justice Act and motions to quash such appeals, but says nothing about single judges entertaining the quashing of appeals which are to be heard by a panel of three judges.

[7] More compelling to me, however, is the concern I have that Dr. Devgan, even if he is still practicing medicine, is not, in doing so, violating any provision of the order of Swinton J. She merely lifted the stay of the revocation by the College. If Dr. Devgan is still practicing medicine, he is in breach of the requirements for registration with the College to do so. There are sanctions no doubt, but I cannot see that Rule 60.12 is one of them. Not only does there seem to me to be no provision in the order of Swinton J. lifting the stay which Dr. Devgan could be breaching, I am not at all sure that Rule. 60.12 is applicable to appeals. It seems directed to interlocutory orders in actions and counsel showed me no case where it had been applied to quash a litigant’s appeal.

[8] For these reasons I am not prepared to order a schedule of cross-examinations or to schedule the College’s motion for hearings before a single judge. At risk of exceeding my jurisdiction, I think the motion, if the College wishes to pursue it, is best put before the same panel before which the appeal is to be heard. I would do this because Ms. Silver contends that if unsuccessful in moving the Court to dismiss or quash the appeal on grounds of Dr. Devgan’s breach of Swinton J.’s order she will seek to introduce the evidence of the doctor’s continued and unauthorized practice before the panel on appeal as fresh evidence relevant to the appeal against the penalty.

[9] As to the motion for an expedited appeal, I have sought the advice of counsel and have concluded that the appeal should be listed for a full day’s hearing. The earliest available day on which both counsel are available is June 14, 2004, and so the appeal and the College’s motion herein are listed for hearing that day.

[10] The College seeks an order sealing and keeping confidential certain information in the materials on this motion and the previous motion before MacFarland J. last month, information relating to the medical health of private individuals. Dr. Devgan registered no opposition to such an order and an order will therefore go in terms of the draft order in the file on which I have endorsed my signature.

[11] I decline to make any order as to costs for today’s motion. Each party will bear their own.

RUTHERFORD J.

DATE: 20040311