Court File and Parties
CITATION: Mehar v. The University of Toronto, 2020 ONSC 1293
DIVISIONAL COURT FILE NO.: 060/20
DATE: 2020-02-28
SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT
RE: AFSHEEN MEHAR, Applicant AND: THE UNIVERSITY OF TORONTO, Respondent
BEFORE: LEDERER, J.
COUNSEL: Valerie Wise, Mira Karabit, for the Applicant Robert A. Centa, Emily Lawrence and Alysha Shore, for the Respondent
HEARD at Toronto: February 24, 2020
ENDORSEMENT
[1] This is a motion for an interim injunction. It is brought within an application for judicial review in which the Applicant, Afsheen Mehar complains that she was unfairly treated in respect of a decision denying her the ability to continue as a resident in the Emergency Medicine Program at the University of Toronto. The injunction sought would enjoin the Faculty of Medicine from advising the College of Physicians and Surgeons of Ontario of the failure of Afsheen Mehar to establish that she was “at level” with other residents in the program until an appeal taken within the University’s internal review structure and this judicial review have been concluded
[2] In the year 2000 Afsheen Mehar graduated from Jinnah Sindh Medical University in Karachi, Pakistan. She seeks to be accredited to practice in Ontario, particularly in the area of emergency medicine. On February 26, 2019, through the Canadian Resident Matching Service she was accepted into the Emergency Medicine Program at the University of Toronto. Her degree is not one which is recognized in this province. As a result, Asheen Mehar was required to complete a 12 week Assessment Verification Period before continuing on through the program.
[3] On September 12, 2019, she was advised that she had failed her Assessment Verification Period. Through discussions with Dr. Nazanin Meshkat, the director of the Emergency Medicine Residency Program, Afsheen Mehar was advised that she was “not at level” with other residents in her cohort.
[4] Afsheen Mehar does not accept this determination and contests both the result and the process.
[5] Afsheen Mehar has an outstanding appeal to the Faculty of Medicine Appeals Committee. Formal notice of this process was given by letter dated December 19, 2019 from counsel representing Afsheen Mehar to Todd Coomber, Faculty Affairs Officer – Faculty of Medicine. On January 8, 2020, Todd Coomber advised that the Chair of the Faculty of Medicine Appeals Committee, Dr. Douglas Templeton, had requested submissions on whether the committee has jurisdiction over a candidate in the Assessment Verification Period. As matters stand, Afsheen Mehar is waiting for the disposition of the question of the committee’s jurisdiction to hear her appeal.
[6] At the same time, out of concern that the Faculty of Medicine Appeals Committee may decide not to hear her appeal, Afsheer Mehar commenced this judicial review. In the meantime, she fears that the Faculty of Medicine will send material to the College of Physicians and Surgeons confirming her failure to complete the Assessment Verification Period in a satisfactory way and that the college will then act in a fashion detrimental to her and her ambition to be licensed to practice in Ontario. Thus, this motion for an interim injunction.
[7] The test to be applied is the well-known standard attributed to RJR MacDonald Inc. v. Canada (Attorney General) [994] 1 S.C.R. 311 (S.C.C.). It asks three questions:
Whether there is a serious issue to be tried?
Whether the moving party will suffer irreparable harm if the injunction is not granted?
Whether the balance of convenience favours the granting of an injunction?
[8] It is generally understood that these questions are not three criteria, each of which must be satisfied or considered in some understood proportion, each to the others, before an injunction will be imposed. Rather, they are three considerations to be taken into account in each case in which the prospect of an interim injunction is raised.
[9] The bar for the determination that there is a serious question to be tried is a low one. It is submitted, on behalf of Afsheen Mehar, that there is one and this is accepted by counsel acting for the University.
[10] The disagreement is as to the second and third of the three questions.
[11] It is submitted on behalf of Afsheen Mehar that she will suffer irreparable harm. Included in her material is a copy of her Application for a Certificate of Registration Authorizing Post Graduate Education to be delivered to the College of Physicians and Surgeons. It was signed by Afsheen Mehar on May 11, 2019, which is to say before she was advised that she had not been successful in completing her Assessment Verification Period. Even in filling out this document an Applicant for “Post Graduate Medical Education” is required to answer the following questions:
(vii) Have you ever been dismissed, suspended or removed from a postgraduate medical training program?
(viii) Have you ever been put on probation or remediation during a postgraduate medical training program?
(ix) Have you ever taken a leave of absence of six months or longer from or otherwise interrupted a postgraduate medical training program for six months or longer?
(x) Have you ever transferred from one postgraduate training program to another without having fully completed the first program?
(xi) Have you ever withdrawn or resigned from a postgraduate medical training program?
(xii) Have you ever been the subject of any type of investigation, inquiry or proceeding relating to misconduct of any type during your postgraduate medical education?
[12] It is plain from this that an unsuccessful participant in an Assessment Verification Period is expected to report such a failing to the College of Physicians and Surgeons of Ontario. Afsheen Mehar does not accept that she has, in fact, been unsuccessful. Her counsel readily acknowledged that even if successful on this Judicial Review the Court will not be in a position to set aside the finding that has been made. What counsel believes would be appropriate is that, with procedural errors pointed out, the Faculty would be required to reconsider the issue and would come to its own conclusion that an error has been made. This being so the harm caused by the reporting of the failure could not be recovered.
[13] What is that harm?
[14] The Application for Registration: Assessment Verification Period For Residents describes what happens where a party is unsuccessful in completing this part of the program:
If AVP it is not completed successfully, the AVP pre-entry certificate immediately expires and cannot be re-issued. Enrolment in a subsequent AVP in the same discipline is not permitted.
[15] This is a statement of what happens when a party fails to successfully complete an Assessment Verification Period and would apply during the course of any appeal where such a determination has been made. The Application for a Certificate of Registration Authorizing Postgraduate Education to be filled out and delivered to the College of Physicians and Surgeons of Ontario foresees this situation:
If the matter is under appeal or has been successfully completed/remediated, you must still answer “yes”.
[16] There is nothing to suggest that in the event of a successful appeal, and the determination that the Assessment Verification Period had been successfully completed, the College would continue and treat the individual as if that was not the case. The College is not a party to this proceeding. To grant the injunction sought on the basis that the College would continue to treat Afsheen Mehar as if she had not been successful in circumstances where it has been found that she was is to speculate that it would act contrary to that finding. I am not prepared to make that assumption. This being so there is no irreparable harm. Afsheen Mehar has to wait out any appeal or judicial review and any subsequent action taken by the Faculty of Medicine to see if the decision denying she has successfully completed the Assessment Verifcication Period is changed.
[17] What about the balance of convenience?
[18] Her counsel has submitted that this lies to the favour of Afsheen Mehar. There is nothing she can do in the interim. Her permission to act under the Assessment Verification Period has expired. She is on a leave of absence without pay. This being so she should be protected by the injunction which would serve to maintain the status quo. The Health Protection Procedural Code is a Schedule to, and by section 4 of the Regulated Health Professions Act, is made part of that legislation:
85.5 (1) A person who terminates the employment or revokes, suspends or imposes restrictions on the privileges of a member or who dissolves a partnership, a health profession corporation or association with a member for reasons of professional misconduct, incompetence or incapacity shall file with the Registrar within thirty days after the termination, revocation, suspension, imposition or dissolution a written report setting out the reasons. 1993, c. 37, s. 23; 2000, c. 42, Sched., s. 36.
- Where a member resigns, or voluntarily relinquishes or restricts his or her privileges or practice, and the circumstances set out in paragraph 1 or 2 apply, a person referred to in subsection (3) shall act in accordance with those paragraphs:
Where a person referred to in subsection (3) has reasonable grounds to believe that the resignation, relinquishment or restriction, as the case may be, is related to the member’s professional misconduct, incompetence or incapacity, the person shall file with the Registrar within 30 days after the resignation, relinquishment or restriction a written report setting out the grounds upon which the person’s belief is based.
Where the resignation, relinquishment or restriction, as the case may be, takes place during the course of, or as a result of, an investigation conducted by or on behalf of a person referred to in subsection (3) into allegations related to professional misconduct, incompetence or incapacity on the part of the member, the person referred to in subsection (3) shall file with the Registrar within 30 days after the resignation, relinquishment or restriction a written report setting out the nature of the allegations being investigated. 2014, c. 14, Sched. 2, s. 12.
(3) This section applies to every person, other than a patient, who employs or offers privileges to a member or associates in partnership or otherwise with a member for the purpose of offering health services.
[19] The College of Physicians and Surgeons of Ontario has provided a document titled “Guidance for Ontario Postgraduate Medical Education Offices: Mandatory Reporting to CPSO Under Section 85.5 of RHPA Code”. It explains that the college anticipates that all reports to be delivered under this provision must be submitted within 30 days of the “triggering event” and addressed to the Registrar of the College. Triggering events includes, among others,
• any of a (1) dismissal or (2) suspension from a training program or (3) where practice restrictions are imposed on the trainee or (4) where a trainee is placed on a leave of absence for reasons of professional misconduct, incompetence or incapacity;
• where any recommendation by the training program for dismissal has been initiated or intended but the trainee went on leave, resigned or transferred to another program before the dismissal took effect; and
• where a trainee voluntarily withdraws, resigns or takes leave, restricts practice or transfers to another program either during or as a result of an investigation by the training program for reasons of professional conduct, incompetence or incapacity
[20] It is apparent that, by legislation, the Faculty of Medicine is a party to which s. 85.5(3) applies. Accordingly, it is required by statute to report to the college where a trainee does not succeed. Counsel for Afsheen Mehar says she is not properly the subject of such reporting because she is not a “member” of the College. The permission which allowed her to take part in an Assessment Verification Period has expired. The Guidance document defines trainee as: including “any member of the CPSO appointed to and Ontario postgraduate medical training program for any type or duration, e.g. residency, fellowship, elective, assessment verification period, pre-entry assessment.” Counsel for the University submits that as an individual on a “leave of absence” Afsheen Mehar remains as a “trainee” within an “assessment verification period”. In the absence of the college as a party, it is not possible to know how it would understand the obligations of the Faculty of Medicine in this circumstance. I note that the College of Physicians and Surgeons of Ontario is the regulator of those licensed to practice medicine in Ontario. It is hardly surprising, and is, in fact, logical, that it be informed of the status of all those seeking registration. The balance of convenience lies in favour of the University of Toronto.
[21] For these reasons, the application for an interim injunction is dismissed.
[22] As agreed to, by the parties, costs to the University of Toronto, as a successful party, the amount of $12,000.
Lederer, J.
Date: February 28, 2020