CITATION: Riad v. Health Professions Appeal and Review Board, 2012 ONSC 2728
DIVISIONAL COURT FILE NO.: 449/11
DATE: 20120504
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
HEROLD, ASTON AND WILTON-SIEGEL JJ.
BETWEEN:
NAGY RIAD
Applicant
– and –
HEALTH PROFESSIONS APPEAL AND REVIEW BOARD and DR. DANIEL ANGUS MCDONALD
Respondents
In Person
Steven G. Bosnick, for the Respondent, Health Professions Appeal and Review Board
Zohar Levy, for the Respondent, Dr. Daniel Angus McDonald
HEARD at Toronto: May 4, 2012
ASTON J. (orally)
[1] Mr. Riad seeks judicial review of a decision of the Health Professions Appeal and Review Board (“HPARB” or “the Board”) dated September 12, 2011. The Board confirmed a decision of the Inquiries, Complaints and Reports Committee of the College of Physicians and Surgeons (the “ICRC”) declining further investigation into Mr. Riad’s January 2009 complaint about the conduct of Dr. McDonald.
[2] Mr. Riad asks the Court to compel HPARB to reopen his complaint and hold an oral hearing on its merits.
[3] It is important to start with a review of the statutory background. The Board has the responsibility to review decisions of the ICRC under s. 29(2) of the Health Professions Procedural Code (the “Code”). Its jurisdiction in this case is derived from s. 2 of the Ministry of Health and Long-Term Care Appeal and Review Boards Act 1998 (the “Act”). In conducting its review, HPARB acts as both an administrative and quasi-judicial adjudicative tribunal
[4] Section 1(2) of the Code provides that neither the Act nor the Code require the Board to hold a “hearing” as defined in the Statutory Powers Procedure Act when conducting a review. Section 33(2) of the Code defines the procedure for HPARB’s review. It provides that parties may provide “comments” concerning the ICRC investigation and the reasonableness of its decision. The section also provides specifically that the parties may not question each other at the HPARB review. It is important to keep in mind that the Code circumscribes what one might otherwise conceptualize as the norm for a quasi judicial exercise.
[5] HPARB may choose to conduct its review orally, in writing or electronically. However, when a written review is chosen, s. 34(2) of the Code engages s. 5.1(2) of the Statutory Powers Procedure Act. That provision requires that a written hearing must not be held if a party satisfies the Board that there is a good reason for not doing so. Mr. Riad expressed his wish for an oral hearing repeatedly and in the strongest terms, but the Board was not satisfied there was good reason not to proceed in writing. See in particular the Board’s letter of June 13, 2011, found in the Respondent’s material.
[6] The Board considers two main issues when conducting a section 33 review. First, it considers the adequacy and quality of the ICRC investigation. Second, it considers the reasonableness of the ICRC decision. These two issues are specified in s. 33(1) of the Code. No other issues are included in the review.
[7] I will turn next to the factual background.
[8] Dr. McDonald was a staff psychiatrist at the Mental Health Centre Penetanguishene when he diagnosed Mr. Riad with paranoid schizophrenia in November, 2008. In January, 2009, Mr. Riad filed a complaint with the College of Physicians and Surgeons about Dr. McDonald’s care. An ICRC investigator was assigned and took steps to review the complaint. On completion of that investigation, the ICRC of the College decided to take no further action and so advised Mr. Riad on or about September 9, 2010. Reasons also were provided to him. Shortly thereafter, Mr. Riad requested a review of the ICRC decision. On November 15, 2010, he specifically requested assisted listening equipment in the form of an FM system to accommodate his hearing impairment at the upcoming review. He also requested that Dr. McDonald be present at the review.
[9] On April 11, 2011, the date of the “hearing”, HPARB arranged for the FM system as it understood Mr. Riad’s request to have been. However, Mr. Riad disputes that the system provided was the system he requested. In any event, the system was not satisfactory to Mr. Riad when he tested it and he advised the Board that he could not effectively participate. As a consequence, HPARB decided that it would convert the oral review into a written review. By letter dated April 12, 2011 the Board advised Mr. Riad that he would have 30 days to provide his written submissions to HPARB.
[10] Rather than making written submissions, Mr. Riad wrote to the Board on May 11, 2011, stating that he was entitled to an oral hearing with a satisfactory (and different) FM system. HPARB responded that in its opinion, it had tried to adequately accommodate Mr. Riad’s hearing impairment, but confirmed that it was exercising its discretion to convert the oral review into a written review. This response was in a letter dated June 13, 2011 in which HPARB also confirmed that Dr. McDonald was not required to be present and that HPARB had no jurisdiction or authority to force him to attend. At that time, HPARB gave Mr. Riad an additional 30 days to make his written submissions. It wrote to him again on August 3rd reminding him that no written submissions had been received from him.
[11] When HPARB had still not received written submissions from Mr. Riad, it released its decision and reasons on September 12, 2011 upholding the ICRC’s decision to take no further action with respect to Mr. Riad’s original complaint.
[12] The standard of review for us to apply is “reasonableness”, as that standard is articulated in Dunsmuir. HPARB is a specialized tribunal interpreting its own statutory powers, enabling legislation and regulations. It brings its specialized knowledge and experience to the analysis of ICRC proceedings. Furthermore, the tribunal, like many other tribunals, is the master of its own procedure - subject to other overriding considerations, such as whether a procedural decision would constitute a breach of the Canadian Charter of Rights and Freedoms (the “Charter”), the Ontario Human Rights Code, or otherwise amount to a breach of natural justice by denying procedural fairness. Though these overriding considerations are not raised specifically in Mr. Riad’s judicial review application we have chosen not to ignore them. We also observe in passing that there would be no curial deference to the Board’s decision if the record before this court substantiated a Charter violation, Human Rights Code violation or denial of natural justice.
[13] If Mr. Riad can establish that the denial of an oral hearing rises to that level he would be entitled to relief.
[14] Neither party to this judicial review application focuses on whether the ultimate decision of HPARB was reasonable. Rather, the focus is more narrowly confined to the Board’s decision to hold its review on written submissions, instead of conducting an oral hearing, as first contemplated.
[15] In our view, the Board’s decision did not constitute a breach of Mr. Riad’s Charter rights nor did it amount to a failure to accommodate his disability under the Ontario Human Rights Code or otherwise amount to a breach of procedural fairness. The Board clearly has the discretion to conduct its reviews in writing, unless Mr. Riad satisfied the Board that there was good reason not to do so. In requesting an oral hearing, he did not point to any disadvantage or prejudice that he might suffer if the hearing were in writing. He simply expressed a repeated preference for an oral hearing. He was clear in what he wanted, but not why he wanted it. HPARB tried to accommodate his preference but was advised by Mr. Riad himself that its attempt to do so with the specific equipment arranged for the oral hearing on April 11th was ineffective in giving him the ability to participate properly. There is nothing in the record to indicate a good reason not to conduct the review in writing. Having regard to the nature of a section 33 review, HPARB did all that it needed to do procedurally in its conduct of that review.
[16] As to the question of whether Dr. McDonald was required to attend, the Board is not empowered to compel a party’s participation in the review process under the Act or the Code. Its only obligation is to provide the parties with the opportunity to comment on the adequacy of the ICRC’s decision. Even at that, Dr. McDonald is under no obligation to comment, much less attend.
[17] Mr. Riad never did make written submissions on the adequacy of the ICRC investigation or the reasonableness of its decision not to continue any investigation into the conduct of Dr. McDonald on Mr. Riad’s original complaint.
[18] We have nevertheless considered the decision of September 12, 2011. It is reasonable on its face and there is no basis upon which we can come to any opposite conclusion.
[19] The judicial review application is therefore dismissed.
[20] No order as to costs.
ASTON J.
HEROLD J.
WILTON-SIEGEL J.
Date of Reasons for Judgment: May 4, 2012
Date of Release: May 7, 2012
CITATION: Riad v. Health Professions Appeal and Review Board, 2012 ONSC 2728
DIVISIONAL COURT FILE NO.: 449/11
DATE: 20120504
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
HEROLD, ASTON AND WILTON-SIEGEL JJ.
BETWEEN:
NAGY RIAD
Applicant
– and –
HEALTH PROFESSIONS APPEAL AND REVIEW BOARD and DR. DANIEL ANGUS MCDONALD
Respondents
ORAL REASONS FOR JUDGMENT
ASTON J.
Date of Reasons for Judgment: May 4, 2012
Date of Release: May 7, 2012