CITATION: Savic v. College of Physicians and Surgeons of Ontario, 2021 ONSC 4756
DIVISIONAL COURT FILE NO.: 036/21 DATE: 20210705
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
Mile Savic
Applicant/Responding Party
– and –
The College of Physicians and Surgeons of Ontario
Respondent/Moving Party
Carlin McGoogan, for the Applicant/Responding Party
Amy Block and Kirk Maijala, for the Respondent/Moving Party
HEARD at Toronto (by videoconference): June 30, 2021
REASONS FOR DECISION
Favreau J.
Introduction
[1] The applicant, Mile Savic, seeks to juridically review decisions of the Discipline Committee of the College of Physicians and Surgeons of Ontario revoking his licence and a decision of the College’s Inquiries, Complaints and Reports Committee (the “ICRC”) that suspended his licence before it was revoked.
[2] The College brings a motion to quash the application for judicial review on the basis that the applicant has a statutory right of appeal from the Discipline Committee’s decisions which it says is an adequate alternative remedy. The College also argues that challenge to the ICRC’s decision suspending the applicant’s licence should be dismissed because of undue delay in bringing the application and because the issue is now moot.
[3] I agree with the College. There are no exceptional circumstances in this case that justify allowing the applicant to challenge the Discipline Committee’s decision by way of an application for judicial review. In addition, the applicant has unjustifiably waited over two years to challenge the license suspension and the issue is now moot given that his licence has been revoked.
Background facts
[4] The applicant was licensed by the College to practice medicine in Ontario in 2005.
[5] He was the subject of two sets of disciplinary proceedings brought by the College that have led to this application for judicial review. The factual background to each of these matters is reviewed below.
Proceedings before the Discipline Committee
[6] On February 8, 2017 and on February 15, 2018, after investigating complaints made against the applicant, the ICRC referred allegations of professional misconduct to the Discipline Committee.
[7] The Discipline Committee held a hearing on August 14 and 15, 2018. The applicant did not attend the hearing. At the beginning of the hearing, the Discipline Committee considered whether the applicant had proper notice of the hearing and found that he did. The applicant now contests that he had proper notice of the hearing. However, as explained below, that issue is not relevant to the issues on this motion.
[8] The Discipline Committee released its decision on December 18, 2018 and found that the applicant was guilty of professional misconduct. The basis for the Discipline Committee’s conclusion included findings that the applicant had prescribed various drugs contrary to an undertaking he gave to the College in 2010, that he failed to maintain the standards of practice in his treatment of several patients and record keeping, and that he engaged in disgraceful conduct by performing and billing OHIP for medically unnecessary tests.
[9] The applicant received a copy of the decision after it was released, although he claims that he did not appreciate its significance at the time he received it.
[10] On June 3, 2019, the Discipline Committee held a penalty hearing. The applicant participated in the hearing where he was represented by an agent.
[11] The Discipline Committee released its penalty decision on August 23, 2019. The Discipline Committee found that revoking the applicant’s licence was the appropriate remedy based on a review of the applicant’s prior discipline history, the seriousness of the findings against him and his ongoing failure to change his practice.
[12] The applicant did not appeal the Discipline Committee’s decisions of December 18, 2018 and August 23, 2019. On this motion, he claims that he did not appeal the decisions soon after they were released because he could not afford a lawyer.
Proceedings before the Inquiries, Complaints and Reports Committee
[13] In parallel to the proceedings before the Discipline Committee, on July 25, 2018, the ICRC commenced another investigation against the applicant arising from different allegations of professional misconduct.
[14] As part of this investigation, on August 21, 2018, the ICRC issued an interim order suspending the applicant’s licence. The ICRC made the order pursuant to its powers under section 25.4 of the Health Professions and Procedural Code, under the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, to make an interim order directing the Registrar of the College to suspend a member’s licence where the ICRC is of the opinion that the member’s conduct “exposes or is likely to expose the member’s patients to harm or injury”.
[15] There is no dispute that the applicant received the ICRC’s order suspending his licence around the time it was issued.
[16] In October 2018, the applicant retained a lawyer who contacted the College about the interim licence suspension. The College provided information to the lawyer about the matter. On November 11, 2018, the lawyer contacted the College to advise that he was no longer retained on the matter.
[17] On November 11, 2019, the ICRC ended the investigation that led to the interim licence suspension because by then the Discipline Committee had already revoked the applicant’s licence.
Civil action
[18] On July 23, 2019, after the ICRC issued its interim order suspending the applicant’s licence but before the Discipline Committee issued its penalty decision, the applicant commenced a civil action against the College seeking over $16 million in damages. At that time, the applicant was not represented by a lawyer.
[19] The College brought a motion to strike the claim which was originally scheduled to be heard on January 13, 2020. In support of its motion to strike, the College’s factum stated that the applicant had a right to appeal the decisions of the Discipline Committee, including the most recent decision revoking his licence.
[20] In advance of the motion, the applicant asked for an adjournment of the hearing on the basis that he had retained counsel. He has since served an amended statement of claim. The motion to strike is still pending.
Application for judicial review
[21] The applicant commenced this application for judicial review on January 14, 2021. The application for judicial review seeks to challenge the liability and penalty decisions of the Disciplinary Committee and the interim suspension order of the ICRC.
Issues
[22] The College raises the following two issues on this motion:
a. Whether the application for judicial review of the Discipline Committee’s decisions should be dismissed on the basis that the applicant has a right of appeal which is an adequate alternative remedy; and
b. Whether the application for judicial review of the ICRC’s interim decision suspending his licence should be dismissed on the basis of undue delay and mootness.
[23] As explained below, I agree with the College that the application for judicial review of the Discipline Committee decisions and the ICRC’s decision should be dismissed. But first, I address this Court’s jurisdiction to dismiss the application for judicial review on a preliminary basis.
Divisional Court’s jurisdiction and standard to be applied
[24] A single judge of the Divisional Court has jurisdiction to dismiss an application for judicial review on the basis that there is an adequate alternative remedy and on the basis of undue delay: Aljawhiri v. Pharmacy Examining Board of Canada, 2019 ONCA 798, at para. 3; Unimac-United Management Corp. v Metrolinx, 2016 ONSC 2032 (Div. Ct.), at para. 7; and Vangjeli v. WJ Properties, 2019 ONSC 5631 (Div. Ct.).
[25] Nevertheless, as held in De Pelham v. Human Rights Tribunal of Ontario, 2011 ONSC 7006, at para.12; Rayonier A.M. Canada Enterprises Inc. v. Independent Electricity System Operator, 2020 ONSC 5460 (Div. Ct.), at para. 17; and Knot v. State Farm Automobile Insurance Company, 2020 ONSC 7672 (Div. Ct.) at para. 18, a single judge of the Divisional Court should not dismiss an application for judicial review except in clear cases.
[26] As addressed below, in my view, this is a clear case where the application for judicial review should be dismissed on a preliminary basis.
Issue 1: An appeal to the Divisional Court is an adequate alternate for challenging the Discipline Committee’s decisions
[27] Judicial review is a discretionary remedy. This means that the court has the discretion to refuse the relief, even where the application has merit: Strickland v. Canada (Attorney General), 2015 SCC 37, at para. 37.
[28] It is appropriate for the court to decline to hear an application for judicial review when an applicant has an adequate alternative remedy. In Strickland, at para. 42, the Supreme Court of Canada identified a number of factors the court is to consider in determining whether there is an adequate alternative remedy, including the convenience of the alternative remedy, the nature of the alleged error, the nature of the alternative forum and its remedial capacity, expeditiousness and the economical use of judicial resources.
[29] The courts have also emphasized the need to respect legislative choice over how parties can challenge an administrative decision. Where the legislature has provided for an appeal mechanism, the Divisional Court should decline to entertain an application for judicial review absent exceptional circumstances: Stentsiotis v. Social Benefits Tribunal, 2011 ONSC 5948 (Div. Ct.), at para. 2; and Vangjeli, at para. 6.
[30] In this case, subsections 70(1) and (2) of the Health Professions and Procedure Code provide a right of appeal from a decision of the Discipline Committee to the Divisional Court on a question of law or fact or both. On an appeal, section 70(3) gives the Divisional Court “all the powers of the panel that dealt with the matter…”
[31] A party who appeals a decision of the Discipline Committee is required to comply with the Rules of Civil Procedure that govern appeals. In accordance with 61.04(1), an appeal must be brought within 30 days of the decision appealed from.
[32] The Divisional Court has recognized that delay in appealing a decision is not an excuse for bypassing an appeal route. Rather, in those circumstances, the appropriate avenue is for the appellant to bring a motion to extend the time for an appeal. As held in Vangjeli, at para. 11, where the Court quashed an application to judicial review a decision of the Landlord and Tenant Board:
Late receipt of the Board’s decision is not a basis to supplant the appeal process with judicial review. The correct course for the applicants, if they wished to challenge the Board’s decisions, was to seek an extension of time in which to bring an appeal. Having failed to pursue their appeal rights, the applicants are foreclosed from pursuing judicial review.
[33] In this case, the appellant had a full right of appeal from the Disciplinary Committee’s decisions to the Divisional Court, but instead chose to bring an application for judicial review.
[34] The applicant argues that there are exceptional circumstances in this case that warrant allowing the application for judicial review to proceed.
[35] First, the applicant argues that the fact that he was not given an opportunity to participate in the proceedings before the Disciplinary Committee is an exceptional circumstance. I do not need to resolve the issue of whether the applicant was given proper notice of the hearing to address this issue. Even if the applicant did not get notice of the hearing, this is an issue of procedural fairness that can be raised on appeal. It is a proper ground of appeal and often the basis on which fresh evidence may be admitted on an appeal. Accordingly, the allegation of procedural unfairness does not constitute an exceptional circumstance.
[36] Second, the applicant argues that an application for judicial review will give him a procedural advantage because it will require the College to prepare a record of proceedings; given that he did not participate in the liability portion of the Disciplinary Committee proceedings, he argues that he does not have access to the transcript and exhibits. There is no evidence that the applicant has been unable to obtain copies of the transcript and exhibits. As a party, and even as a member of the public, he should be able to get access to these documents. In any event, the fact that on an application for judicial review, the tribunal has an obligation to prepare a record of proceeding does not give rise to an exceptional circumstance. Parties should not be permitted to bypass the appeal procedures and associated costs on this basis.
[37] Third, the applicant argues that he should be allowed to proceed with this application for judicial review because the proceedings before the Disciplinary Committee and the ICRC are interrelated. He submits that, in combination, these proceedings suggest an abuse of process on the part of the College. For example, he suggests that the ICRC’s interim suspension interfered with his financial ability to retain a lawyer for the proceedings before the Disciplinary Committee. The chronology of events in this matter does not support this argument; the interim suspension was made after the initial hearing before the Disciplinary panel. In any event, other than the applicant’s bald speculation, there is no evidence of abuse of process and, if there was any such evidence, this is an issue that could nevertheless be raised in the context of an appeal.
[38] Finally, the applicant argues that judicial economy gives rise to an exceptional circumstance. He has already commenced the application for judicial review. Both an appeal and an application for judicial review would proceed before the Divisional Court. What is the harm in allowing the judicial review to proceed? This argument ignores the consistent case law to the effect that judicial review should not be used to bypass appeal procedures.
[39] This is not an exceptional case. The applicant has an adequate alternative route for challenging the Discipline Committee’s decisions. If he wishes to challenge those decisions, he must do so by way of an appeal. Given the delay in moving forward with this matter, the first step would be a motion to extend the time for bringing an appeal. Given the length of the delay, it may be challenging for him to succeed on such a motion; but that is nevertheless the proper avenue for seeking to set aside the Disciplinary Committee’s decision.
Issue 2: The delay in judicially reviewing the ICRC’s decision is excessive and the issue is moot
[40] The College argues that the applicant’s attempt to judicially review the ICRC’s interim suspension of his licence should be dismissed due to excessive delay and because the issue is moot. I agree.
Excessive delay
[41] As held by this Court in The Canadian Chiropractic Association v. Dr. Barry McLellan, Coroner, 2011 ONSC 6014, at para. 14, “[j]udicial review is an extraordinary equitable and discretionary remedy which can be denied in the face of excessive delay”.
[42] The test developed by this court for determining whether an application for judicial review should be dismissed for delay is as follow:
a. Has the delay been excessive?
b. Is there a reasonable explanation for the delay?
c. Is there prejudice arising from the delay?
See Canadian Chiropractic Association, at para. 15.
Length of the delay
[43] With respect to the length of the delay, the Divisional Court has consistently held that delays of more than six months in commencing an application for judicial review and more than twelve months in perfecting an application for judicial review are excessive and can be serious enough to warrant dismissal for delay: Gigliotti v. Conseil d’administration du Collège des Grands Lacs, 2005 23326, at para. 30.[^1] In this case, the delay between the ICRC’s decision suspending the applicant’s licence, which occurred on August 21, 2018, and the commencement of the application for judicial review, which occurred on January 14, 2021, is over 28 months or almost 2 ½ years. This is well beyond the expectation that applications for judicial review will be commenced within six months of the decision under review.
Explanations for the delay
[44] The applicant provides a number of explanations for his delay, but in my view none of them are satisfactory.
[45] First, he says that he was not able to afford a lawyer until recently. This explanation is belied by the facts that the applicant initially consulted a lawyer when the order was first made and has had a lawyer since January 2020 who has represented him in his civil action against the College. In any event, on its own, this is not a satisfactory explanation for such a lengthy delay.
[46] Second, the applicant says that he did not understand the legal process and he therefore started a civil action rather than an application for judicial review. Again, this is not a credible explanation given that the applicant initially consulted a lawyer and has been represented by a lawyer in the civil proceeding since January 2020, which is approximately one year after he started the application for judicial review.
[47] Third, the applicant suggests that the delay is due to the interrelationship between the decisions of the Disciplinary Committee and the ICRC’s decision. As discussed above, I do not accept the argument that these matters are interrelated and should therefore proceed together by way of application for judicial review. In addition, I do not accept the applicant’s argument that the delay in seeking judicial review of the ICRC’s decision is due to Disciplinary Committee proceedings. The Disciplinary Committee released its decision on penalty on August 23, 2019. Yet, the applicant did not start the application for judicial review until almost 17 months later.
Prejudice to the College
[48] Besides finding that there is no reasonable explanation for the delay, I find that there is prejudice arising from the delay. In several cases, this Court has found that prejudice is presumed where the delay is lengthy: for example, Nahirny v. Human Rights Tribunal of Ontario, 2019 ONSC 5501, at para. 9; Toronto District School Board v. Child and Family Services Review Board, 2019 ONSC 7064, at para. 28; and Knot v. State Farm Automobile Insurance Company, 2020 ONSC 7672, at paras. 31-32. In this case, the delay of almost two and half years is long enough to give rise to a presumption of prejudice.
[49] In any event, there is real prejudice to the College and to the public given that the College terminated its investigation over 18 months ago.
Mootness
[50] I agree with the College that the issue of the interim suspension is moot.
[51] Section 25.4(4) of the Health Professions and Procedural Code provides that an interim order remains in force until the ICRC finally disposes of an investigation. In this case, the ICRC terminated its investigation into the allegations that led to the interim suspension on November 11, 2019, due to the Discipline Committee’s revocation of the applicant’s licence.
[52] Given that the Discipline Committee revoked the applicant’s licence, the issue of the interim suspension is moot. Even if the Divisional Court were to find that the interim suspension was unreasonable, the applicant’s licence remains revoked. Ultimately, if the applicant succeeds in challenging the revocation by way of an appeal, the interim suspension is no longer in effect and it would therefore have no impact on the applicant’s ability to practice medicine.
[53] During argument, the applicant’s counsel was not able to identify issues of general importance that would justify dealing with this matter even if it is moot. I see none.
Conclusion
[54] For the reasons above, the motion to quash the application for judicial review is granted.
[55] The College is entitled to costs in the amount of $3,500 in accordance with the agreement between the parties.
___________________________ Favreau J.
Released: July 5, 2021
CITATION: Savic v. College of Physicians and Surgeons of Ontario, 2021 ONSC 4756
DIVISIONAL COURT FILE NO.: 036/21 DATE: 20210705
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
Mile Savic
Applicant/Responding Party
– and –
The College of Physicians and Surgeons of Ontario
Respondent/Moving Party
REASONS FOR JUDGMENT
FAVREAU J.
Released: July 5, 2021
[^1]: Section 5(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, now requires that “judicial review shall be made no later than 30 days after the date the decision or matter for which judicial review is being sought was made or occurred”. However, this provision does not apply to decisions made prior to the date on which this section came into force and therefore the presumptive deadlines established in cases such as Gigliotti apply in this case.