CITATION: Kaur v. The National Dental Examining Board of Canada, 2019 ONSC 5882
DIVISIONAL COURT FILE NO.: 076/18 DATE: 20191010
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Swinton, S.T. Bale, and Favreau JJ.
BETWEEN:
DR. TARANJOT KAUR
Applicant
– and –
THE NATIONAL DENTAL EXAMINING BOARD OF CANADA
Respondent
Gary Srebrolow, for the Applicant
Monica Song, for the Respondent
HEARD at Toronto: October 10, 2019
FAVREAU J. (Orally)
[1] The applicant, Dr. Taranjot Kaur, seeks judicial review of a decision by the Appeals Committee of the National Dental Examining Board. In its decision dated November 23, 2016, the Appeals Committee denied the applicant’s appeal of a failing grade on her Assessment of Clinical Skills exam. In its decision letter, the Appeals Committee clearly indicated that the decision to dismiss the appeal was final and that it would not accept further appeals or requests for review.
[2] As a preliminary issue, the respondent argues that the application should be dismissed for delay.
[3] The relevant timelines are as follows:
(a) The Appeals Committee released its decision on November 23, 2016;
(b) The Notice of Application for judicial review was issued on February 6, 2018; and
(c) The application for judicial review was perfected on September 12, 2018.
[4] As recently held by this Court in Nahirney v. Human Rights Tribunal of Ontario, 2019 ONSC 5501 (Div. Ct.), at para. 5, “judicial review is a discretionary and equitable remedy”. While there are no prescribed deadlines for bringing an application for judicial review, a delay of more than six months in commencing an application and/or twelve months in perfecting the application can justify dismissing the application on the basis of delay. In deciding whether to dismiss an application for delay, the Court considers 1) the length of the delay, 2) the explanation for the delay and 3) whether the delay will cause prejudice to the respondent.
Length of the delay
[5] In this case, the length of time between the Appeals Committee’s decision and the commencement of the application for judicial review is in excess of 14 months, which is far longer than the six month presumptive deadline established by the Court.
Explanation for the delay
[6] The applicant’s explanation for the delay is that there were “without prejudice” communications between her counsel and the respondent during the 14 month period. The applicant has produced copies of the relevant correspondence for the purpose of responding to the delay issue.
[7] The decision was issued on November 23, 2016. Dr. Kaur’s lawyer wrote to the respondent on May 10, 2017, raising issues with the Appeals Committee’s decision. The respondent wrote back to Dr. Kaur’s lawyer on June 22, 2017, with a substantive response and an indication that the Appeals Committee’s decision would stand. There were no further communications between Dr. Kaur and the respondent until February 6, 2018, when the application for judicial review was commenced. Therefore, close to six months elapsed between the decision and the May 2017 letter to the respondent. The respondent answered within less than six weeks, after which Dr. Kaur waited over six months before commencing this application.
[8] The applicant’s lawyer argues that his client would not have been aware that she could seek judicial review after receiving the Appeals Committee’s decision that stated that the decision was final. However, we note that in an email dated November 23, 2016, which was the day she received the results of the appeal, the applicant sent an email to the Board stating that, if she could not get a second appeal, she would go through the courts.
[9] This is not a situation where there were ongoing negotiations or discussions that may have resolved the issues. We do not accept the applicant’s argument that the letter from the Board reset the clock. In our view, these letters do not provide a satisfactory explanation for the delay in commencing the application for judicial review. In particular, there was no explanation for the delay between the June 2017 letter from the Board and February 6, 2018 when the application was commenced.
Prejudice to the respondent
[10] Given the length of the delay and the lack of a satisfactory explanation, prejudice to the respondent can be presumed.
[11] In any event, the respondent has provided compelling evidence of prejudice. In the affidavit filed in response to the application, the affiant states that if the matter is remitted back to a differently constituted Appeals Committee, the respondent will have to identify members who are familiar with the 2016 Assessment of Clinical Skills exam and the rules, regulations and by-laws that were in place at that time. The respondent anticipates that this will be a costly and time-consuming process.
[12] The respondent also anticipates that there would be significant costs in preserving typodonts indefinitely.
[13] The respondent also points out that allowing the judicial review to proceed at this late date may mean that Dr. Kaur, if successful in obtaining a new appeal hearing and if successful on that appeal, would be accredited on skills that were assessed in 2016, without any assurance that she has maintained those skills since then. This defeats the respondent’s mandate of protecting the public by ensuring that accredited dentists are competent and current in their skills. There is a clear public interest in ensuring that these types of matters are pursued in a timely matter.
Conclusion
[14] The application for judicial review is therefore dismissed for delay.
swinton j.
[15] I have endorsed the Application Record as follows: “This application is dismissed for oral reasons delivered today by Favreau J. Costs to the respondent fixed at $12,000.00, an amount agreed upon by the parties.”
___________________________ Favreau J.
I agree
Swinton J.
I agree
S.T. Bale J.
Date of Oral Reasons for Judgment: October 10, 2019
Date of Release: October 16, 2019
CITATION: Kaur v. The National Dental Examining Board of Canada, 2019 ONSC 5882
DIVISIONAL COURT FILE NO.: 076/18 DATE: 20191010
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Swinton, S.T. Bale, and Favreau JJ.
BETWEEN:
DR. TARANJOT KAUR
Applicant
– and –
THE NATIONAL DENTAL EXAMINING BOARD OF CANADA
Respondent
ORAL REASONS FOR JUDGMENT
Favreau J.
Date of Oral Reasons for Judgment: October 10, 2019
Date of Release: October 16, 2019