Dr Kadri v. College of Physicians and Surgeons, 2020 ONSC 5296

CITATION: Dr Kadri v. College of Physicians and Surgeons, 2020 ONSC 5296

COURT FILE NO.: 207/20

DATE: 20200908

SUPERIOR COURT OF JUSTICE - DIVISIONAL COURT - ONTARIO

RE: Dr Kadri v. College of Physicians and Surgeons

BEFORE: D.L. Corbett J.

COUNSEL: Raymond Colautti, for the Moving Party / Applicant

Ruth Ainsworth, for the Responding Party / Respondent

DATE: September 8, 2020

CASE MANAGEMENT ENDORSEMENT

[1] This endorsement reflects a case management teleconference held on September 3, 2020. A previous teleconference was held on August 24, 2020 (2020 ONSC 5156).

[2] The parties have not been able to resolve issues respecting the applicant’s materials. The respondent takes the position that documents produced by the applicant that are not in the Record of Proceedings can only be placed before the court if admitted as fresh evidence. The applicant takes the position that these materials are admissible under exceptions to the principle against fresh evidence; the applicant is not seeking to have these materials admitted as fresh evidence. Given these positions, it is for the respondent to move to strike portions of the applicant’s materials that it says are not properly before the court on this application. That motion to strike will be heard by the panel hearing the underlying application. The applicant shall not be permitted to move to admit fresh evidence on the application as an alternative to his position that the materials are admissible without such an order.

[3] The respondent shall serve its responding application materials and its motion to strike by September 11, 2020. The applicant shall serve any reply materials and any responding materials on the motion to strike by September 15, 2020. The application shall be heard by a panel of three judges of the Divisional Court on September 18, 2020 for an estimated 1.0 days, by Zoom videoconference. Neither counsel nor the court shall gown. Counsel will be provided with a link to the videoconference in due course by email from court staff.

[4] In my endorsement of August 24th I directed the applicant to provide a file-sharing platform for this case. Today the respondent offered to do this and I agreed. Therefore, the respondent shall establish a file sharing platform and provide the court with the link and password by September 11, 2020, 12 noon. I had hoped all materials would be available by September 8th, but the unresolved evidentiary issues will require more time to address – however the dates set out in this order are peremptory so that judicial clerks and judges will have some preparation time in advance of the hearing.

[5] The applicant takes the position that the impugned decision will have the effect of terminating his medical practice and will cause him irreparable harm if it is implemented pending a decision by this court on the merits of the underlying application for judicial review. The respondent agreed to take the steps necessary to expedite the hearing of the underlying application during the week of September 14th. The respondent has not agreed to a stay of the College’s decision beyond the hearing date. Therefore, if the decision is taken under reserve, the parties may need to address the issue of a stay pending release of the court’s decision. The respondent indicated that it intends to file materials directed to the stay issue. It may do so, but those materials should be identified clearly as placed into evidence solely on the issue of a stay pending decision and not on the underlying merits, so as to be clear about the record that is before the court on the underlying merits. The applicant may file responding materials on the stay issue as part of his reply materials, and again shall clearly identify these materials as placed before the court solely on the merits of the stay issue and not in respect to the underlying application. If the applicant relies on contested materials from his application record on the stay issue, he shall identify those materials in his reply materials, so that it is clear that he relies on those materials both in respect to the underlying application, and in respect to the stay.[^1]

[6] I have explained to the parties that the panel will have the benefit of this court’s case management endorsements and so will know (a) that this application has been expedited because of the potential prejudice of granting or not granting a stay pending return of the application in the ordinary course; (b) it is open to the panel to provide its decision at the end of the hearing or shortly thereafter, with reasons to follow; and (c) the panel may be reluctant to spend considerable time on the stay issue once the panel has had the benefit of full argument on the merits. All of this said, of course, it is for the panel to decide how to address the “stay pending decision” issue at the return of the application.

[7] The parties expect to provide me with a consent order respecting protection of patient confidentiality, which may include redaction of patient names, a sealing order respecting confidential patient medical records, and an order for non-publication of information tending to identify patients. These are routine orders in cases involving discipline of health professionals and the court expects counsel to sort out agreed wording for the order and then to send a consent order to this court for approval prior to the hearing.

[8] Since the hearing is proceeding by videoconference, there is an issue about possible display of documents by video during the hearing. Counsel may include such documents in their compendium for oral argument and to ask judges to turn up these documents without displaying them by video. Alternatively, counsel may display documents with information tending to identify patients redacted. It is counsel’s responsibility to ensure that sensitive patient information is not displayed by video.

[9] The court has endorsed its fiat on this endorsement this day; the unsigned version distributed to the parties today without a neutral citation has the authority and effect of the signed version, a copy of which will be provided to the parties in due course, with a neutral citation, when circumstances permit.

D.L. Corbett J.

Date: September 8, 2020

[^1]: To be clear, while “the merits” are relevant to a potential stay, the merits are decided on admissible evidence. All admitted evidence on the merits may be considered by the panel on the stay issue without being identified or referenced by the parties in the materials respecting the stay issue. If the panel strikes portions of the application materials, those materials will not be considered on the stay issue unless (a) they have been identified in the applicant’s reply materials as evidence upon which he relies on the stay issue; and (b) they are relevant to some issue on the stay issue other than the underlying merits of the case.