Citation and Court Information

CITATION: Atkinson v. College of Physicians and Surgeons for Ontario, 2020 ONSC 6383

DIVISIONAL COURT FILE NO.: CVD-TOR-34-20-MV

DATE: 20201020

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: ZOE ATKINSON, Applicant

AND:

College of Physicians and Surgeons for Ontario, Respondent

BEFORE: Penny J.

COUNSEL: Zoe Atkinson on her own behalf Amy Block and Sayran Sulevani, for the Respondent

ENDORSEMENT

[1] Ms. Atkinson brought a “motion” to compel the College of Physicians and Surgeons for Ontario to investigate a complaint she made against physician. A case conference in connection with that motion was held. Ms. Atkinson failed to participate. As a result, in an order of June 29, 2020, Corbett J. dismissed Ms. Atkinson’s motion, finding that her failure to participate in the case conference demonstrated an intention to abandon it. He also noted that there was no underlying proceeding in this Court upon which to base any motion but that, if Ms. Atkinson had appeared at the case conference, he might have allowed her to “regularize” her motion i.e., to convert her motion into an application for judicial review.

[2] Ms. Atkinson sought to bring a motion before a full panel of the Divisional Court to set aside Justice Corbett’s order. There was a case conference conducted by Favreau J. Ms. Atkinson participated in that case conference. In Favreau J.’s endorsement of July 14, 2020, November 9, 2020 was set for the hearing of Ms. Atkinson’s proceeding. Justice Favreau directed Ms. Atkinson to address her arguments as to why Corbett J.’s order should be set aside. Justice Favreau also directed Ms. Atkinson to provide her materials in support of an application for judicial review to compel the College to conduct the investigation Ms. Atkinson had requested. A timetable was established requiring Ms. Atkinson to serve her materials no later than August 14, 2020. Ms. Atkinson’s materials were not served by this date.

[3] Ms. Atkinson then requested an extension of the date for service of her materials. A second case conference was scheduled for September 25, 2020. Ms. Atkinson did not attend this conference. The conference addressed two relevant issues. First, it was confirmed that Ms. Atkinson had not served any material in support of her motion or application scheduled for hearing on November 9, 2020. Second, on September 2, 2020, the College released its decision in relation to the complaint made by Ms. Atkinson and her request for an investigation.

[4] In her case management endorsement of September 25, 2020, Justice Favreau vacated the November 9, 2020 hearing date for two reasons. First, given that Ms. Atkinson had not yet served any material, it was not realistic for the matter to proceed on November 9, 2020. Secondly, the issues raised on the proposed motion and application (that is, to compel the College to conduct an investigation) appeared to be moot given that the College had released its decision arising from Ms. Atkins complaint. Further, the College advised that it took the position that if Ms. Atkinson wants to challenge the outcome of the complaint, the proper procedure is to seek a review before the Health Professions Appeal and Review Board. As such, an application for judicial review would be premature at this point. In addition, any request for a review would have to include the physician as a respondent. The College advised that it had communicated this position to Ms. Atkinson.

[5] Justice Favreau specifically provided in her case management endorsement that, if Ms. Atkinson wished to proceed in the Divisional Court with this matter, she must write to the Divisional Court explaining her request and attaching a notice of motion or notice of application for judicial review setting out the relief she is seeking and the grounds upon which she is seeking it.

[6] Ms. Atkinson now seeks to have the decision of Favreau J. (vacating the November 9, 2020 hearing date) reviewed by a panel of three judges. In an email to the Divisional Court office of September 30, 2020, Ms. Atkinson states that she wants to review the decision by Favreau J. “to dismiss the application for judicial review.” The ground advanced for this review is a duty to accommodate. She says she was very unwell and not able to attend the case conference and that she suffers from a severe disability and requires accommodations which would include extensions of time.

[7] None of the grounds asserted by Ms. Atkinson in her email state a basis to find that Favreau J. made a reviewable error of fact or law, or that she erred in the exercise of her discretion. Favreau J.’s September 25, 2020 case management endorsement did not “dismiss” Ms. Atkinson’s application for judicial review. The endorsement merely vacated the scheduled date for the hearing because the timetable originally set had not been followed such that a hearing could no longer reasonably proceed on that date. Further, the entire premise of the original motion/application was the alleged failure of the College to conduct an investigation. The College, it appears, has now conducted an investigation and issued its decision on Ms. Atkinson’s complaint. There may be other avenues of review for Ms. Atkinson to pursue but proceeding with an application for mandamus to compel the College to do what it apparently has now already done is, at first blush, not one that is available to her. Ms. Atkinson’s application and motion for review appear to be entirely without purpose in the circumstances.

Rule 2.1

[8] Ms. Atkinson should be provided with an opportunity to explain why her motion for review of the order of Favreau J. should not be dismissed as being frivolous and vexatious. In this context, a “frivolous” motion is one that cannot succeed. A “vexatious” motion is one brought for an ulterior or wrongful purpose, Currie v. Halton Regional Police Services Board.

[9] I question the utility of Ms. Atkinson trying to review the decision of Favreau J. to then try to review the decision of Corbett J. to then try to reinstate a motion (or application) that has no chance of success because it appears to be moot. This is especially the case where Favreau J. explained to Ms. Atkinson that she can still pursue her complaint through other avenues and means. Under Rule 2.1 therefore, Ms. Atkinson shall be required to file a submission to explain why the Court should allow this motion to proceed.

[10] On reviewing the material forwarded by the registrar, the Court therefore makes the following order:

a. under Rule 2.1.01(3)(1), as incorporated by Rule 2.1.02(2), the registrar is directed to give notice to Ms. Atkinson in Form 2.1A that the Court is considering making an order under rule 2.1.02 dismissing her motion to review the order of Favreau J. dated September 25, 2020;

b. pending the outcome of the written hearing under rule 2.1 or further order of the Court, the motion to review the order of Favreau J. is stayed under to s.106 of the Courts of Justice Act;

c. the registrar shall accept no further filings in the motion to the panel excepting only Ms. Atkinson’s written submissions if delivered in accordance with rule 2.1.01(3);

d. in addition to the service by mail required by Rule 2.1.01(4), the registrar is to serve a copy of this endorsement and a Form 2.1A notice on Ms. Atkinson and counsel for the respondent College by email if it has their email addresses.

Penny J.

Date: October 21, 2020