Court File and Parties

Citation: Torgerson v. Health Professions Appeal and Review Board, 2021 ONSC 1185 Divisional Court File No.: 214/19 Date: 2021-02-22 Superior Court of Justice – Ontario Divisional Court

Re: Dr. Cory Torgerson, Applicant And: Health Professions Appeal and Review Board and College of Physicians and Surgeons of Ontario, Respondents

Before: Favreau J.

Counsel: William S. O’Hara and Tracey Tremayne-Lloyd, for the Applicant, Dr. Cory Torgerson David P. Jacobs and Steven G. Bosnick, for Respondent, Health Professions Appeal and Review Board Morgana Kellythorne, for the Respondent College of Physicians and Surgeons of Ontario Kirkor A. Apel, for the proposed Respondent, Helena George

Heard: at Toronto in writing

Endorsement

Favreau J.

Introduction

[1] Dr. Cory Torgerson is an otolaryngologist.

[2] Helena George was one of his patients. In 2017, she contacted the College of Physicians and Surgeons (the “CPSO”) to raise concerns about an incident involving Dr. Torgerson.

[3] The Inquiries, Complaints and Reports Committee of the CPSO (the “ICRC”) investigated the complaint. In a decision dated October 18, 2017, the ICRC decided not to refer the matter to the CPSO’s Discipline Committee for a hearing. However, the ICRC required Dr. Torgerson to attend before the CPSO to be cautioned and to complete some continuing education programs.

[4] Pursuant to section 29(1) of the Health Professions Procedural Code, Schedule 2 to the Regulated Health Professions Act, 1991, S.O., 1991, c.18 (the “Code”), Dr. Torgerson requested a review of the ICRC’s decision by the Health Professions Appeal and Review Board (“HPARB”). In a decision dated December 31, 2018, the HPARB dismissed the review request. In doing so, the HPARB found that the ICRC’s decision was reasonable and that the requirement that Dr. Torgerson be cautioned and complete some continuing education programs fell within the range of acceptable outcomes.

[5] Dr. Torgerson commenced an application for judicial review of the HPARB’s decision on April 23, 2019.

[6] Dr. Torgerson and the HPARB bring preliminary motions seeking the following relief:

a. Dr. Torgerson requests an order permitting him to file an affidavit sworn by Clare Wooland that attaches a three-page summary of the ICRC decision posted on the CPSO’s website; and

b. The HPARB seeks an order sealing portions of the record of proceeding and adding the complainant as a party to the application for judicial review.

Motion by Dr. Torgerson to file additional evidence

[7] Dr. Torgerson seeks to introduce additional evidence on the application for judicial review consisting of the summary of the ICRC’s decision the CPSO has posted on its website. The HPARB and the CPSO oppose the motion.

[8] The evidence at issue is a three-page summary of the ICRC’s decision that is publicly posted on the CPSO’s website. The summary sets out the nature of the complaint, the process followed by the ICRC, the ICRC’s findings and the disposition of the complaint.

[9] The Notice of Application for Judicial Review challenges the merits of the ICRC and HPARB decisions, and also raises issues with respect to the impact of the publication of the ICRC’s decision summary on Dr. Torgerson. For example, the Notice of Application for Judicial Review claims that “a disposition consisting of a ‘caution’ and SCERP publicized on the Internet without proper context, amounts to a sanction, which is outside the ICRC’s jurisdiction” and “the Board failed to consider that the summary of the ICRC’s decision, published on the Internet, could and ultimately did omit key information about the reliability of the complaint and the Complainant’s evidence…”

[10] Dr. Torgerson argues that he should be permitted to file an affidavit attaching the three page summary because it forms part of the record of proceeding pursuant section 20 of the Statutory Powers Procedure Act, R.S.O. 1990, c. s.22 (“SPPA”) or, alternatively, because the evidence meets the test for admitting affidavit evidence on an application for judicial review.

[11] I agree with the HPARB and the CPSO that the evidence does not form part of the record of proceeding. However, I am satisfied that Dr. Torgerson should be permitted to file the proposed evidence given that it forms part of the context for the application for judicial review.

[12] Section 20 of the SPPA sets out the documents to be included in a record of proceeding. These include, at subparagraph (f), the “decision of the tribunal and the reasons therefor, where reasons have been given”. Dr. Torgerson argues that the summary published on the CPSO’s website forms part of the ICRC’s reasons for decision and is therefore properly before the Court on the application for judicial review.

[13] The HPARB argues that the SPPA does not apply to its review of ICRC decisions under the Code and that its obligation to file a record of proceeding arises from section 10 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (“JRPA”) and not from the SPPA. It further argues that, given that the summary was not part of the record on the review, it does not form part of the record of proceeding to be filed with the court.

[14] I agree with the HPARB’s position. Its obligation to file a record of proceeding arises from section 10 of the JRPA and the SPPA has no relevance here. The summary is only to be included in the record of proceeding if it formed part of the record before the HPARB on the review. Even if section 20 of the SPPA applied to the review of a decision by the ICRC, which it does not, the summary of the decision posted on the CPSO’s website does not fall within the scope of section 20(f).

[15] However, in my view, Dr. Torgerson should be allowed to file an affidavit attaching the summary of the decision. As a general rule, applications for judicial review are to be decided on the record before the original decision maker. There are limited exceptions to this principle. The Divisional Court summarized these exceptions in Canadian National Railway Company v. Teamsters Canada Rail Conference, 2019 ONSC 3644 (Div. Ct.), at paras. 10 to 12. One of the exceptions, as set out in para. 11 of that decision, is that affidavit evidence may be admitted “to provide general background that might assist the court in understanding the underlying issues”.

[16] In this case, one of Dr. Torgerson’s arguments on the application of judicial review is that the HPARB’s decision was unreasonable because it failed to have regard to the punitive effect of the caution given its publication on the CPSO website. In order to understand and address this argument, it will be helpful for the Divisional Court panel to have access to the summary posted on the CPSO’s website.

[17] Ultimately, it will be up to the panel to decide whether this argument is available to Dr. Torgerson, having regard to whether it was raised before the HPARB or whether the HPARB would even have had jurisdiction to consider the issue. However, at this early stage in the application for judicial review, given the issues raised in the Notice of Application for Judicial Review, I find that the Dr. Torgerson can file the proposed affidavit and it will be up to the panel on the hearing of the application for judicial review to determine what relevance, if any, it may have to the issues to be decided.

[18] While I recognize that this Court has directed that it is generally preferable for the record on an application for judicial review to be determined in advance of the hearing: Sierra Club Canada v. Ontario, 2011 ONSC 4086 (Div. Ct.), at paras. 7-9. In cases such as this one where the evidence the applicant seeks to adduce is inextricably intertwined with an issue raised on the application, the panel hearing the application will be in the best position to determine what, if any, relevance the evidence may have to the merits of the application.

Motions by the HPARB to seal parts of the record and to add the complainant as a party

[19] The HPARB seeks an order adding the complainant as a party to the application for judicial review and sealing parts of the record of proceeding.

[20] The CPSO and Dr. Torgerson do not oppose the relief sought by the HPARB.

[21] I am satisfied that the orders sought by the HPARB should be granted.

[22] There is no doubt that the complainant should be a party to the application for judicial review given that she was a party to the review proceedings before the HPARB.

[23] In addition, I am satisfied that the sealing order sought by the HPARB is warranted.

[24] The Board seeks to seal portions of the record of proceeding that contain the information relating to Dr. Torgerson’s CPSO conduct profile.

[25] In the context of a review, section 32(1) of the Code requires the College to provide the HPARB with a “record of the investigation and the documents and things upon which the decision was based”. In turn, section 32(2) of the Code requires the HPARB to disclose to the parties everything it has received pursuant to section 32(1). However, section 32(3) gives the HPARB the discretion to withhold documents or information that fall within specified exceptions:

The Board may refuse to disclose anything that may, in its opinion,

(a) disclose matters involving public security;

(b) undermine the integrity of the complaint investigation and review process;

(c) disclose financial or personal or other matters of such a nature that the desirability of avoiding their disclosure in the interest of any person affected or in the public interest outweighs the desirability of adhering to the principle that disclosure be made;

(d) prejudice a person involved in a criminal proceeding or in a civil suit or proceeding; or

(e) jeopardize the safety of any person.

[26] In this case, in its disclosure to the complainant, the HPARB exercised its discretion not to disclose Dr. Torgerson’s conduct profile.

[27] Section 10 of the JRPA requires that “[w]hen notice of an application for judicial review of a decision made in the exercise or purported exercise of a statutory power of decision has been served on the person making the decision, such person shall forthwith file in the court for use on the application the record of the proceedings in which the decision was made”.

[28] The Board argues that, in order to meet this obligation, it must file the full record received from the College. However, in order to maintain the integrity of the process it followed, which in this case was the exercise of its discretion to withhold certain documents from disclosure to the complainant, those items should be sealed, and the complainant’s counsel should be required to sign an undertaking not to share disclosure of the documents with his client.

[29] I accept this submission. An application for judicial review is to be conducted based on the record below, which in this case included withholding the information that the HPARB now seeks to seal.

[30] None of the parties argue that that information should be made public for the purpose of this proceeding. If it turns out that the evidence at issue becomes relevant to the issues on the application for judicial review, the issue of whether the information should remain sealed can be revisited.

Conclusion

[31] For the reasons above, the following orders are granted:

a. The complainant, Helena George, is added as a respondent;

b. A sealing order in the form proposed by the HPARB and to be released at the same time as this endorsement is granted; and

c. Dr. Torgerson is permitted to file an affidavit attaching the summary of the ICRC’s decision published on the CPSO’s website.

[32] None of the parties seek costs and I make no order as to costs.

[33] For the purpose of scheduling the application for judicial review, the parties are to agree on a schedule for the exchange of materials and direct it to my attention, after which a date for the hearing will be scheduled. If the parties are unable to agree on a schedule or there are other preliminary issues to be addressed, the parties can contact the Court to request a case conference.

Favreau J.

Date: February 22, 2021