CITATION: Kadri v. College of Physicians and Surgeons of Ontario, 2020 ONSC 5882

DIVISIONAL COURT FILE NO.: 207/20 DATE: 20201001

WARNING: By court order made September 18, 2020, there shall be no publication of personal information identifying patients contained in the court file.

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

Aston, Swinton and McCarthy JJ.

BETWEEN:

DR. ALBERT KADRI

Raymond Colautti and Andrew Colautti, for the Applicant

Applicant

– and –

COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO

Ruth Ainsworth, for the Respondent

Respondent

HEARD (by videoconference): September 18, 2020

Swinton J.

Overview

[1] The applicant, Dr. Albert Kadri, brought an application for judicial review of two interim decisions of the Inquiries, Complaints and Reports Committee (“ICRC”) of the College of Physicians and Surgeons of Ontario (the “College”) dated July 29, 2020 and August 13, 2020. These orders placed restrictions on the applicant’s medical practice, because the ICRC was of the opinion that his conduct was likely to expose patients to harm or injury. He argued that the decisions were unreasonable and that he had been denied procedural fairness.

[2] At the end of the oral hearing, the application was dismissed with reasons to follow. These are those reasons, as well as reasons with respect to the College’s motion to strike evidence that was filed by the applicant.

The Motion for a Sealing Order

[3] At the outset of the oral hearing, the College’s motion for a partial sealing order was granted. The order provides for the filing of a private record and a public record. The public record of the Application Record and the Record of Proceedings shall be redacted to prevent disclosure of personal health information of patients, as well as confidential information that could identify patients. As well, no personal confidential information of patients shall be published.

Factual Background

[4] The applicant has specialist certification in nephrology and internal medicine. He practises as a nephrologist in the Windsor region. At the present time, he carries on a private practice, as he has not held hospital privileges since the Medical Advisory Committee of the Windsor Regional Hospital (the “Hospital”) suspended his privileges on June 1, 2018. He has appealed that decision to the Health Professions Appeal and Review Board (“HPARB”), and a hearing is ongoing before HPARB.

[5] The Hospital is the site of the Multi-Care Kidney Clinic (“MCKC”), a Regional Renal Program funded by the Ontario Renal Network (“ORN”). The MCKC is responsible for coordinating dialysis and pre-dialysis care in its geographic area. One of its functions is the prescription of EPO/Eprex/Aranesp in relation to patients’ chronic kidney disease. When these drugs are not prescribed in a hospital setting, they are not funded by the ORN.

[6] The Hospital informed the College of the suspension of the applicant’s privileges, as it was required to do pursuant to s. 33(b) of the Public Hospitals Act, R.S.O. 1990, c. P.40 and s. 85.5(1) of the Health Professions Procedural Code, being Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (the “Code”). The Registrar decided to pursue an investigation of the applicant’s practice and obtained approval for the appointment of investigators from the ICRC pursuant to s. 75(1)(a) of the Code in July 2018.

[7] During the investigation, counsel for the Hospital communicated with the College to express concerns about the applicant’s conduct following the suspension of his privileges and enclosed supporting documentation and patient records.

[8] As part of the College investigation, an independent assessor, Dr. Yeates, was appointed in June 2019 to provide an opinion on the care that the applicant provided to his patients. Dr. Yeates is a staff nephrologist and Professor of Medicine at Queen’s University and Kingston Health Sciences Centre. She reviewed 28 patient files and met with the applicant. She also reviewed letters from the Hospital regarding individual patient care and further information sent by the applicant, including an audio recording in which he discussed the care provided to some of the patients whose care was in issue.

[9] On May 23, 2020, Dr. Yeates issued her 238 page report (revised June 3, 2020). The applicant was provided with a copy. She found that the applicant failed to meet the standard of practice in 17 of the 28 patient cases reviewed. His care displayed a lack of judgment and, in some cases, a lack of knowledge. She set out her findings with respect to each of the patients, and she then concluded that the applicant’s clinical practice, behaviour and conduct was likely to expose patients to harm or injury in 17 of the 28 cases she reviewed. In her words,

… the limitation this [suspension of hospital privileges] has placed on his clinical care and practice for patients in the WRH renal program, has, in my opinion, made Dr. Kadri’s care specifically in the management of patients with advanced chronic kidney disease or requiring dialysis challenging and, in my opinion, completely unmanageable without the risk of likely harm to these patients.

[10] Dr. Yeates’ concerns about patient care included the following (as summarized in the College’s factum at paras. 27 and 28, with the patients’ initials omitted):

• Failing to refer patients for dialysis at the MCKC in a timely manner, or bypassing referral to MCKC entirely. In several cases, this led to the late initiation of dialysis for patients, which exposed patients to harm. It also led to situations where physicians providing dialysis did not have adequate medical history for patients who presented needing dialysis on an urgent basis, which also exposed patients to harm …

• For patients who were cared for by both Dr. Kadri and renal program nephrologists, he failed to advise the renal program nephrologists responsible for patients of changes he made to the care plan, which risked interruptions to the patients’ care …

• Sending dialysis orders and requisitions for venous catheter insertions to a hospital where he no longer holds privileges, without notifying the renal program physicians, which is disruptive to hospital processes …

• Failing to advise patients of the implications of his loss of privileges, leading to a patient post-operatively not receiving his peritoneal dialysis supplies in-hospital post-surgery, because he was not a patient of the renal program …

• Forcing patients to take additional steps to obtain their EPO prescriptions, as he would not refer them to the MCKC …

• Undermining patients’ relationship with the renal program responsible for their dialysis, including by telling patients not to attend appointments there … and contradicting the dialysis orders of the renal program physician responsible for the patient’s dialysis …

• Failure to provide comprehensive management of one patient’s chronic kidney disease and failure to treat the patient’s anemia or acidemia

• Giving “uncommon and potentially dangerous” routine advice to increase water intake

• Providing inadequate education regarding advanced kidney disease.

[11] On June 15, 2020, the ICRC met and considered Dr. Yeates’ report, as well as an export report of another nephrologist, Dr. Levin, that had been produced for the HPARB appeal. Dr. Levin had reviewed 19 patients’ information, and she had concluded that there were numerous deficiencies in the treatment provided that placed the patients at risk of harm. Seventeen of the 19 patients reviewed by Dr. Levin were reviewed by Dr. Yeates, although Dr. Yeates did not review Dr. Levin’s report before providing her own assessment.

[12] The ICRC gave notice to the applicant pursuant to s. 25.4(6) of the Code that it was considering making an interim order and imposing terms, conditions or limitations on his certificate of registration. Section 25.4(1) of the Code allows the ICRC to take interim action to suspend or restrict a physician’s practice at any time during an investigation (either under s. 75 or in response to a complaint) if the ICRC forms the opinion that the physician’s conduct exposes or is likely to expose patients to harm or injury.

[13] The applicant was provided with information that included both expert reports and asked to provide a response by July 6, 2020. In response, he requested an extension of 90 days to make his submissions. An investigator informed him that his request would be presented to the ICRC at its meeting of July 13, 2020, and she asked that he provide details about the reason for the request and the length of time sought.

[14] In an email reply dated June 30, the applicant mentioned the need to obtain an independent expert. On July 7, the investigator again asked him to provide details about his efforts to obtain legal counsel or to retain an expert. He subsequently provided a USB key with extensive material in response, although he provided no details about his efforts to obtain legal counsel or an expert opinion.

[15] The ICRC met on July 13 and gave the applicant until July 26 to provide further information. On July 29, 2020, it issued an interim order in which it restricted the applicant from treating patients who are at very high risk of developing end-stage kidney disease. Those patients were described as:

a. Patients at a very high risk of developing end-stage renal disease, including but not limited to patients who have received a blood tests result showing an eGFR <30

b. Patients who have been prescribed, or require the prescription of erythropoiesis-stimulating agents

c. Patients undergoing dialysis

d. Patients receiving pre-dialysis care from a Regional Renal Program.

The applicant was required to transfer his highest risk patients to a specialized hospital-based Renal Program to manage their complex care needs within 14 days of the effective date of the order. The order also required him to obtain a clinical supervisor acceptable to the College to monitor his practice.

[16] The ICRC gave detailed reasons for its decision, explaining that it relied on the expert evidence of the assessor, as well as the expert report of Dr. Levin dated July 24, 2019. Both doctors concluded that he failed to meet the standard of care in respect of numerous patients, and that his care would expose patients with advanced kidney disease to risk of injury or harm. In its reasons, the ICRC also discussed the applicant’s response and the information he had provided.

[17] The applicant requested changes to the interim order, both with respect to the timing of patient transfer and the criteria for transfer. On August 13, 2020, the ICRC met on an urgent basis to consider his request. It agreed to his request to extend the timeline to transfer his patients to September 30, 2020, given the number of patients that might be involved. However, it rejected his request to change the criteria for transfer by decreasing the level of eGFR<30 for patient blood test results, as it was not satisfied that this would provide adequate protection for patients.

[18] The applicant launched this application for judicial review on August 14, 2020. He served an Application Record and Supplementary Record before the College was able to serve him with the Record of Proceedings on August 28, 2020. The Application Record and Supplementary Record contain extensive material that was not before the ICRC when it made its decision. As the applicant refused to delete this material, the College brought a motion to strike the evidence. That motion was heard at the same time as the application for judicial review.

The Issues on this Application

[19] In order to evaluate the admissibility of the impugned evidence, it is useful to set out the grounds for judicial review.

[20] The applicant sets out the following issues:

1. The College improperly proceeded by way of the appointment of investigators pursuant to s. 75 of the Code, thus depriving the applicant of procedural protections under the Code.

2. The ICRC abused its powers by exercising an adjudicative role, rather than an investigative role, and imposing disguised discipline.

3. The ICRC reached an unreasonable conclusion by making an interim order on the basis of an incorrect test – namely, risk of harm rather than finding evidence of probable harm to patients.

4. The ICRC breached the rules of procedural fairness by failing to give the applicant a reasonable time to respond, failing to allow cross-examinations of the experts and failing to allow him to lead contradictory evidence.

The Motion to Strike

[21] Judicial review of a decision of an administrative decision maker is normally done on the basis of the material that was before the decision maker (see, for example, Sierra Club Canada v. Ontario (Ministry of Natural Resources and Ministry of Transportation), 2011 ONSC 4086 (Div. Ct.) at para. 40; 142445 Ontario Limited (Utilities Kingston) v. International Brotherhood of Electrical Workers, Local 636, 2009 24643 (Div. Ct.) at paras. 10-12). In this case, that material is found in the Record of Proceedings filed by the College.

[22] In limited circumstances, evidence may be adduced in a judicial review proceeding to supplement the record of proceedings (Sierra Club at para. 14; Utilities Kingston at paras. 15, 18). First, it may be adduced to show that there was an absence of evidence on an essential point in the decision. Second, it may be adduced to show that there was a denial of procedural fairness that is not evident from the record. Third, it may be adduced to provide general background that may assist the court in understanding the underlying issues in the application for judicial review. However, with respect to this third criterion, the evidence must not be an attempt to provide supplementary evidence going to the merits of the case (Association of Universities and Colleges of Canada v. The Canadian Copyright Licensing Agency, 2012 FCA 22 at para. 20).

[23] In the present case, the applicant provided an affidavit and supplementary affidavit in which he provided information and expressed his views, and he attached several exhibits that were not before the ICRC. The contested exhibits attached to the first affidavit were:

• Exhibit 5: letters from Sarah Pederson and Nancy Whitmore dated June 16, 2020

• Exhibit 7: a Practice Assessment Report dated July 10, 2015

• Exhibit 9: Transcript of the examination-in-chief and cross-examination of Dr. Levin before HPARB dated November 2, 2019

• Exhibit 14: CPSO Online Directory Printout of the CPSO registration of Benjamin Chen, a doctor on the staff of the College

• Exhibit 18: emails about the Timeline

• Exhibit 20: emails about the delivery of HPARB materials

• Exhibit 24: a letter from the Hospital’s counsel to applicant’s former counsel dated August 5, 2020

• Exhibit 29: Statement of Claim in a civil action

[24] With respect to the Supplementary Affidavit of the applicant, there were four contested exhibits:

• The transcript of evidence from the HPARB hearing of January 17, 2020

• A letter from Dr. Ingram dated May 28, 2018

• The CV of Dr. Mark Benaroia

• A letter from Dr. Mark Benaroia dated August 12, 2018

Finally, there was an affidavit from Dr. Vincent Siu-Jean Cheung sworn August 19, 2020 attaching a letter he wrote to applicant’s counsel on August 12, 2020.

[25] After hearing submissions from counsel, the Court ruled that all the material should be struck except for the affidavit of Dr. Cheung, which was admissible only to the extent that it addressed the issue of procedural fairness. However, to the extent that the affidavit provides evidence with respect to the merits of the decision of the ICRC, it is not admissible.

[26] The rest of the evidence was not before the ICRC. None of this evidence shows an absence of evidence on an essential finding of fact in the decisions. The ICRC had to determine whether the applicant’s conduct exposed or was likely to expose patients to harm, and if so, what measures were needed to protect patients. The applicant takes issue with the ICRC’s findings of fact, but there was extensive evidence to support those findings in the record, particularly the assessor’s report and the report of Dr. Levin from the HPARB proceeding.

[27] Moreover, much of the evidence that the applicant seeks to rely on was available to put before the ICRC at the time of the applicant’s responding submissions – for example, the Levin cross-examination and the evidence of Dr. Benaroia before HPARB. He did not place that information before the ICRC, and it is improper to seek to rely on it now to challenge the ICRC’s decisions.

[28] With respect to the issue of procedural fairness, affidavit evidence may be introduced in an appropriate case to show bias by the decision maker or the denial of procedural rights, such as notice. Here, the evidence, leaving aside the Cheung affidavit, is not necessary to demonstrate a denial of procedural fairness that is not apparent from the record.

[29] The applicant takes the view that the proceedings before the ICRC are unfair, given the ongoing appeal before HPARB and given the role of the Hospital in reporting him to the College and providing the College with information. However, the material related to the HPARB proceeding is irrelevant to the determination of whether the ICRC denied procedural fairness in making the interim orders under the Code. The applicant appears to believe that the College investigation was improperly orchestrated by the Hospital. However, the evidence he seeks to put forth does not establish any bias or reasonable apprehension of bias by the ICRC in carrying out its role pursuant to s. 25.4. In any event, it is clear from the decisions that the ICRC was aware of the HPARB proceeding.

[30] Finally, none of this material can be said to provide a general background for the Court with respect to underlying issues. The material in the applicant’s affidavits does not provide general background. Rather its purpose is clearly to influence the review of the merits of the ICRC decisions.

[31] For these reasons, the motion to strike was granted with the limited exception for the affidavit of Dr. Cheung.

The Merits of the Application for Judicial Review

The Standard of Review

[32] The parties agree that the standard of review with respect to the merits of the ICRC decisions is reasonableness (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at paras. 10, 13).

[33] With respect to issues of natural justice or procedural fairness, there is no need to determine the standard of review. The task for the reviewing court is to determine whether the required level of procedural fairness has been accorded.

This application is not a review of the decision to appoint investigators

[34] This application for judicial review was brought to challenge the two decisions of the ICRC to make interim orders restricting the applicant’s medical practice. However, at times during the argument of the application for judicial review, the applicant seemed to go beyond the two decisions of the ICRC and sought to attack the appointment of investigators in 2018 pursuant to s. 75 of the Code. He complained that the College, by proceeding in this way, denied him procedural protections that would have been available had the investigation arisen out of a complaint – specifically a possible appeal to HPARB.

[35] Subsection 29(2) of the Code provides for an appeal to HPARB in certain circumstances where there has been a complaint, but the Code does not provide a right of appeal from a decision of the ICRC arising out of a s. 75 investigation. That is a policy choice of the Legislature.

[36] There is nothing in the record that provides any basis to judicially review the appointment of the investigators under s. 75 in the present case. Moreover, the lack of an appeal of a decision that the ICRC may make following the investigation does not call into question the propriety of proceeding with a s. 75 investigation, nor does it make the process before the ICRC unfair.

The reasonableness of the ICRC decisions

[37] The ICRC is a statutory committee of the College that considers and disposes of complaints and investigations. It has an important screening role, determining whether a matter that is the subject of a complaint or an investigation should be referred to the Discipline Committee or disposed of in another manner.

[38] Pursuant to s. 25.4 of the Code, the ICRC also has the responsibility to consider information obtained during an investigation that raises concerns about patient safety. If it concludes that the conduct of a member exposes or is likely to expose patients to harm or injury, it may make an order directing the Registrar to suspend the member or to impose terms, conditions or limitations on the member’s certificate of registration. Such an order remains in place until varied by the ICRC or the matter is resolved by the ICRC or the Discipline Committee.

[39] In this case, the ICRC reached its initial decision to make an interim order on the basis of the reports and opinions of Dr. Yeates and Dr. Levin. While the applicant challenged their conclusions with respect to the likely exposure of patients to harm, the ICRC observed in its reasons that he failed to provide a responding opinion to counter the two expert reports.

[40] In setting the criteria for restriction of the applicant’s practice, the ICRC relied in particular on Dr. Yeates’ report, a memorandum from Dr. Chen, a staff doctor, about the eGFR blood test and the KDIGO 2012 Clinical Practice Guidelines for the Evaluation and Management for Chronic Kidney Disease. The ICRC noted that the report of the assessor had identified major communication gaps between the applicant and the MCKC team, and there is “potential for these communication issues and conflict to lead not only to patient confusion, but to risk of patient harm, as identified in the Assessor report.” Examples were set out in the reasons.

[41] The applicant’s counsel submits that there was another expert opinion before the ICRC – namely, the opinion of the applicant, acting as a participant expert. In my view, the ICRC reasonably concluded that the evidence of the two independent experts was persuasive and established that the applicant’s conduct was likely to expose patients to harm. It was entitled to prefer the view of these experts.

[42] The applicant suggests that Dr. Yeates was unduly influenced by information from the Hospital about patient treatment. Counsel is critical of places in her report where, he says, she “cut and paste” a summary of concerns of the Hospital.

[43] While Dr. Yeates was provided with letters from the Hospital, she was also advised that “you are not bound by any conclusions reached in these letters and you must come to your own conclusions based on your review of the records and other relevant information.” The ICRC was satisfied that the assessor based her opinions on the information she gathered and did not simply reiterate the Hospital’s concerns. Moreover, she did not have Dr. Levin’s report before providing her assessment.

[44] I agree with the ICRC’s conclusion that Dr. Yeates’ report was based on her own judgment and expertise. It appears from her report that she included excerpts from the Hospital letters as part of the background information about each individual patient’s care. She then drew her own conclusions as to whether the applicant met the standard of care and whether there was a likelihood of harm to the patient because of his conduct. Sometimes she noted that she concurred with the views of the Hospital’s lawyer (for example, at pp. 59 and 135). She prefaced that statement by saying she reached her conclusion based on her own review of the patients’ records.

[45] The applicant also suggests that the ICRC took on an inappropriate role and acted outside its statutory authority. Instead of acting only as a screening body with respect to complaints and investigations, he argues that it played an adjudicative role, effectively imposing disguised discipline in the form of the interim order.

[46] I disagree. It is true that the ICRC has an important screening role, and in carrying out that role it does not make findings of professional misconduct (see, for example, McKee v. Ontario (Health Professions Appeal and Review Board), 2009 55293 (Ont. Div. Ct.) at para. 13). However, the ICRC is also charged with the responsibility of making interim orders during the complaint and investigation process where a physician’s conduct exposes or is likely to expose patients to harm. In order to carry out that role, it must engage in a factfinding process to determine if patients have been exposed or are likely to be exposed to harm. Numerous cases have emphasized that the ICRC must have evidence to support its conclusions (see, for example, Fingerote v. College of Physicians and Surgeons of Ontario, 2018 ONSC 5131 (Div. Ct.) at paras. 6-7).

[47] In the present case, the ICRC properly performed its statutory role when it considered all the evidence before it, and it reasonably concluded that patients were likely to be exposed to harm, given the applicant’s recent conduct. It also considered the least restrictive order necessary to protect patients’ safety. It did not, for example, suspend the applicant’s certificate of registration, and it tailored its order to protect the most vulnerable of the patients.

[48] Finally, the applicant submits that the ICRC used the wrong statutory test. He points to a number of places in the reasons where the ICRC says that his conduct “put patients at risk”. The task for the ICRC was to determine whether there is evidence of probable harm to patients, not risk of harm or possible harm (see, for example, Rohringer v. Royal College of Dental Surgeons of Ontario, 2017 ONSC 6656 (Div. Ct.) at para. 54).

[49] While the ICRC does use the term “risk of harm” at times, I do not accept the submission that it was using an improper test of “possibility of harm”. The ICRC and the expert reports on which it relied spoke of the likelihood of exposing patients to harm. Dr. Yeates’ report details carefully and thoroughly the exposure of patients to harm, and her ultimate opinion was that the applicant’s conduct was likely to expose patients to harm in the future. Reading the reasons of the ICRC as a whole and in light of the expert reports, I am satisfied that the ICRC applied the correct statutory test.

[50] This is a case where the applicant does not agree with the factual conclusions of the ICRC or its assessment of the exposure of patients to harm. He also alleges bias against the ICRC because his submissions were not accepted while those of the two experts were accepted. Indeed, his counsel suggests that the ICRC did not consider the applicant’s submissions, even though the reasons refer to those submissions.

[51] The role of this Court is not to reweigh the evidence that was before the ICRC. Our task is to determine whether the factual conclusions were reasonable, given the evidence before the ICRC, and whether the conclusions were explained logically, coherently and rationally.

[52] The ICRC is a body with medical expertise, two of the three members being physicians. It plays an important role in fulfilling the College’s responsibility to regulate the profession in the public interest. In my view, the applicant has failed to establish that the ICRC’s decisions were unreasonable, either in outcome or in the reasoning process. There was adequate evidence to support its conclusions respecting the interim orders.

The allegations of procedural unfairness

[53] The applicant argues that he was denied procedural fairness for a number of reasons: the refusal to give him the requested 90 day extension to reply, thus interfering with his right to respond to the case against him; the denial of an opportunity to cross-examine the two experts whose opinions were accepted; and the denial of an opportunity to present evidence.

[54] There is no question that the ICRC owed the applicant a duty of procedural fairness. The issue for this Court to determine is the level of procedural fairness to which he was entitled, as the content of the duty of fairness is flexible and variable. As the Supreme Court of Canada made clear in Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817 at paras. 23-27, there are various factors to consider in determining the appropriate level of procedural fairness in a particular context.

[55] One of those factors is the statutory scheme (at para. 24). In the present case, the Code makes clear that an individual who may be the subject of a s. 25.4 interim order is not entitled to a full adjudicative hearing like the hearing to which he or she would be entitled if faced with allegations of professional misconduct before the Discipline Committee. While an interim order may well negatively affect a physician’s professional reputation, it is imposed not for the purpose of discipline, but rather to protect patient safety.

[56] The Code specifically requires that the affected individual be given notice of the ICRC’s intention to make an interim order. The individual then must be given at least 14 days to make written submissions (Code, s. 25.4(6)). However, in urgent cases, the ICRC can make a protective order without giving notice in advance, although the individual must be given a right to make submissions subsequently (Code, s. 25.4(7)). Thus, the process contemplated by the Code is one based on a paper record. There is no contemplation of an oral hearing, and there is no provision for cross-examinations.

[57] The process followed by the ICRC here was procedurally fair. The applicant was given the appropriate notice, and a chance to respond in writing, including a short extension of time to respond. He was also able to obtain an urgent hearing before the ICRC when he requested a variance of the original order.

[58] The applicant submits that he was denied procedural fairness because of the failure to grant him a 90 day extension to obtain an expert report. He argues that this interfered with his right to respond.

[59] The ICRC considered and rejected his request for a 90 day extension in its July reasons, describing the request as unreasonable. One reason given for the request was to allow the applicant to obtain legal counsel. The ICRC concluded that the applicant had had adequate time to retain counsel, and indeed, he had counsel in the HPARB proceeding. Moreover, the applicant failed to provide any explanation, in the period between July 16 and July 29, about his progress in retaining counsel.

[60] With respect to obtaining an expert report, the ICRC pointed to the email from the College investigator on July 7 asking him to provide details of his efforts to obtain one. Again, the applicant provided no information about his efforts to obtain an expert or the timeline required to obtain an expert report.

[61] In the present proceeding, the applicant provided an affidavit dated August 12, 2020 from Dr. Cheung. This was admitted only with respect to the procedural fairness issue. Dr. Cheung said, “With respect to a detailed review of the CPSO report, it is unreasonable to expect that an undertaking of this size and gravity be completed in under 30 days.” This information was not provided to the ICRC. I note, as well, that Dr. Cheung does not say that 90 days would be required to complete a report.

[62] I do not find this evidence establishes a denial of procedural fairness by the ICRC in refusing a 90 day extension. The applicant had been invited to provide information about his efforts to obtain an expert, and he failed to respond. The ICRC then reasonably concluded that it should proceed to make an interim order, given its “grave concerns about the Respondent’s care and conduct, and the evidence of likely exposure to harm or injury that these pose to patients.”

[63] I note, as well, that the applicant is not barred from now obtaining an expert report and requesting a reconsideration of the ICRC order. He requested changes to the initial order, and the ICRC convened an urgent meeting in August, and made some changes.

[64] In my view, there is no basis for this Court to interfere with the ICRC decisions on the grounds of procedural fairness.

Conclusion

[65] Accordingly, the application for judicial review is dismissed. Costs are awarded to the College in the agreed amount of $15,000.00.

[66] The College has requested an order addressed to its obligation to file the paper materials in this case with the Court when normal operations resume. It asks to be excused from filing Tab 4A

of the Record of Proceedings (a 38 GB drive with the applicant’s reply submissions to the ICRC) in paper form. This request is granted, and the College is given leave to file Tab 4A on a USB drive without filing a paper copy.

___________________________ Swinton J.

I agree

Aston J.

I agree

McCarthy J.

Date of Release: October 1, 2020

CITATION: Kadri v. College of Physicians and Surgeons of Ontario, 2020 ONSC 5882

DIVISIONAL COURT FILE NO.: 207/20 DATE: 20201001

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Aston, Swinton and McCarthy JJ.

BETWEEN:

DR. ALBERT KADRI

Applicant

– and –

COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO

Respondent

REASONS FOR JUDGMENT

Swinton J.

Date of Release: October 1, 2020