Court File and Parties

CITATION: Pan v. College of Physicians and Surgeons of Ontario, 2021 ONSC 5325

DIVISIONAL COURT FILE NO.: 467/21

DATE: 20210804

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Luis Cesar Garcia pan, Applicant/Moving Party

AND:

college of physicians and surgeons of ontario, Respondent/Responding Party

BEFORE: Favreau J.

COUNSEL: Luis Cesar Garcia Pan, the moving party, representing himself

Simrat Dhamrait-Sohi and Carolyn Silver, for the responding party

HEARD at Toronto (by videoconference): July 27, 2021

ENDORSEMENT

Introduction

[1] Dr. Luis Cesar Garcia Pan, the moving party, seeks an order preventing the College of Physicians and Surgeons of Ontario (the “College”) from proceeding with a disciplinary hearing scheduled to start before the Discipline Committee on August 16, 2021.

[2] For the reasons set out below, Dr. Garcia Pan’s request for interim relief is denied.

Background

[3] Dr. Garcia Pan is a physician. He has been a member of the College since 1987.

Criminal Proceedings

[4] In 2011, Dr. Garcia Pan was charged criminally with sexually assaulting a patient. On January 29, 2013, after a trial in the Superior Court, Dr. Garcia Pan was found guilty of sexual assault.

[5] In a decision dated June 26, 2018, the Court of Appeal allowed Dr. Garcia Pan’s appeal on the basis of fresh evidence.

[6] Following a second trial in the Superior Court, in a judgment dated July 22, 2019, Bielby J. found Dr. Garcia Pan not guilty. In his reasons, the trial judge said that he found the complainant’s evidence credible and reliable, and that Dr. Garcia Pan was a poor witness and that his evidence was not believable. However, the trial judge ultimately dismissed the charges on the basis of other defence evidence which he found raised a reasonable doubt.

Proceedings before the Discipline Committee

[7] After being informed of the criminal charges, on September 20, 2012, the Registrar of the College appointed an investigator to investigate potential professional misconduct and incompetence by Dr. Garcia Pan. On February 8, 2013, the Registrar revised the appointment for the purpose of directing the investigator to look into whether Dr. Garcia Pan engaged in inappropriate sexual conduct with a patient or former patient.

[8] On September 23, 2020, after Dr. Garcia Pan was acquitted at his second trial, the ICRC referred him to the Discipline Committee for a hearing. The Notice of Hearing alleges that Dr. Garcia Pan has committed an act of professional misconduct and that he engaged in disgraceful, dishonourable and unprofessional conduct by sexually abusing a patient.

[9] The hearing was originally scheduled for March 1 to 3, 2021. The hearing was adjourned at Dr. Garcia Pan’s request, and is now scheduled to proceed from August 16 to 20, 2021.

[10] Dr. Garcia Pan is not currently practicing medicine. On December 18, 2015, he signed an undertaking that states that, before returning to practice, he will give the College eight weeks’ notice and abide by any reasonable conditions imposed by the Inquiries, Complaints and Reports Committee (the “ICRC”).

Application for judicial review and motion for interim relief

[11] On June 8, 2021, Dr. Garcia Pan commenced an application for judicial review in which he seeks an order prohibiting the Disciplinary Committee from proceeding with the disciplinary hearing. Dr. Garcia Pan’s position is essentially that the disciplinary proceedings are an abuse of process and res judicata given the acquittal in the criminal proceedings.

[12] Given the upcoming hearing dates, Dr. Garcia Pan brought this motion for an interim stay of the discipline hearing pending the hearing of the application for judicial review.

[13] While Dr. Garcia Pan filed extensive written submissions and documents in support of the motion, he did not file any affidavit evidence.

[14] During the hearing of the motion, I outlined the test Dr. Garcia Pan must meet on the motion for interim relief. He made extensive submissions from a prepared statement. Following the hearing, Dr. Garcia Pan sent the court additional written submissions that he said respond to some of the questions I asked during the hearing. While the court does not normally accept unsolicited supplementary submissions, I did review and consider those submissions in deciding this motion.

Analysis

[15] In order to obtain interim relief, Dr. Garcia Pan has the onus of proving that he meets the three part test in RJR MacDonald Inc. v. Canada (Attorney-General), 1994 117 (SCC), [1994] 1 S.C.R. 311:

a. There must be a serious issue to be tried;

b. He will suffer irreparable harm if interim relief is not granted; and

c. The balance of convenience favours granting the relief.

[16] In this case, I find that Dr. Garcia Pan has not met any aspects of the test.

No serious issue to be tried

[17] The College argues that there is no serious issue to be tried in this case for two reasons. First, the application for judicial review is premature. Second, contrary to Dr. Garcia Pan’s arguments, the acquittal at the second criminal trial does not mean that the disciplinary proceedings are an abuse of process or res judicata.

[18] The threshold for deciding whether there is a serious issue to be tried is low. However, I agree with the College that the application for judicial review appears to be premature and, therefore, there is no serious issue to be tried. Given my conclusion on the issue of prematurity, it would not be appropriate for this Court to decide at this stage whether the disciplinary proceedings are an abuse of process or res judicata; this is an issue that should first be decided by the Discipline Committee.

[19] In the absence of exceptional circumstances, the Divisional Court will not hear an application for judicial review until the proceedings before an administrative tribunal are completed: Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, at para. 69; Ontario College of Arts v. Ontario (Human Rights Commission) (1993), 1993 3430 (ON SCDC), 11 O.R. (3d) 798 (Div. Ct.); and Rew v. Association of Professional Engineers of Ontario (Discipline Committee), 2016 ONSC 4043 (Div. Ct.). In Rew, this Court explained that it “is the strong policy of this court to discourage fragmentation of the administrative process and prevent the piecemeal litigation of tribunal proceedings by the bringing of applications for judicial review before the completion of hearings. Such piecemeal litigation undermines the deference we pay to administrative bodies and is both costly and inefficient.”

[20] The court has also taken a very restrictive approach to the exceptional circumstances that justify judicial interference before the completion of proceedings before an administrative tribunal. As held in Canada (Border Services Agency) v. C.B. Powell Limited, 2010 FCA 61, “[c]oncerns about procedural fairness or bias, the presence of an important legal or constitutional issue, or the fact that all parties have consented to early recourse to the courts are not exceptional circumstances allowing parties to bypass an administrative process, as long as that process allows the issues to be raised and an effective remedy to be granted”.

[21] In the context of a motion for a stay of administrative proceedings pending the hearing of an application for judicial review, such as here, the Divisional Court has previously found that prematurity can form the basis for a finding that there is no serious issue to be tried; see, for example, Rew, at paras. 19-20; Spence v. University of Toronto, 2017 ONSC 3803 (Div. Ct.), at para. 15; and Talarico v. The Law Society of Upper Canada, 2012 ONSC 2493 (Div. Ct.), at para. 9.

[22] In this case, given that the hearing before the Disciplinary Panel has not started, Dr. Garcia Pan is asking this Court to interfere even before the Discipline Committee has made any decisions. The Regulated Health Professions Act, Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991 (the “Code”) sets out the Discipline Committee’s authority to conduct hearings into allegations of professional misconduct against physicians. Once the Discipline Committee makes a decision, section 70 of the Code provides that parties have a full right of appeal to the Divisional Court.

[23] The Discipline Committee should first be given an opportunity to decide the issue of whether proceeding with a disciplinary hearing in this case is an abuse of process or res judicata. If the Discipline Committee disagrees with Dr. Garcia Pan, the Discipline Committee will proceed with the allegations of professional misconduct and incompetence on the merits, after which Dr. Garcia Pan can appeal to this Court, including on the issues of abuse of process and res judicata. It would be premature at this stage for the Divisional Court to bar the Discipline Committee from going ahead with the scheduled hearing, especially since it has not had an opportunity to address the issues raised by Dr. Garcia Pan regarding abuse of process.

[24] At the hearing of the motion, counsel for the College confirmed that it will be open to Dr. Garcia Pan to raise these issues at the hearing before the Discipline Committee. In the materials Dr. Garcia Pan sent to the Divisional Court following the hearing of this motion, he included notices of motion addressed to the College that appear to raise many of the issues he raises on this application for judicial review, including the issue of abuse of process. Dr. Garcia Pan suggests that he has already tried to raise these issues with the Discipline Committee and that he has been denied the opportunity to do so. Based on the materials provided, it is not possible for me to determine how the College or the Discipline Committee dealt with the documents Dr. Garcia Pan sent to the Court. However, Dr. Garcia Pan should take the statement made by College counsel at the motion as a recognition that he will be entitled to raise these issues before the Discipline Committee. Ultimately, if the Discipline Committee chooses not to entertain arguments on these issues or hears the arguments and decides against Dr. Garcia Pan, these are issues that can be raised at a later date on an appeal to the Divisional Court once all proceedings before the Discipline Committee are completed.

[25] During the argument of the motion, Dr. Garcia Pan suggested that the College is tailoring the evidence it intends to present to the Discipline Committee and that the evidence before the Discipline Committee will be different than the evidence at his second criminal trial. Again, this is an issue he can raise before the Discipline Committee. It would not be appropriate for this Court to rule in advance of the hearing before the Discipline Committee on what evidence should or should not be admitted at the hearing. Ultimately, the Discipline Committee’s rulings on these issues may form grounds for appeal but there is no basis for the Divisional Court to interfere at this time.

[26] During his argument and in his written submissions, Dr. Garcia Pan also raises broader issues about the College and how it conducts investigations. While Dr. Garcia Pan may have strong views on these issues, they are not relevant to the issue of whether his application for judicial review raises a serious issue. That decision has to be based on the circumstances of his own case and not on anecdotal concerns about other cases or the College’s broader processes.

[27] Dr. Garcia Pan has not identified any exceptional circumstances in this case. Essentially, he takes issue with the proceedings before the Disciplinary Committee because he has been acquitted in the criminal proceedings. However, the issue of the impact of the acquittal on the disciplinary proceedings is an issue that should first be raised before and decided by the Discipline Committee.

[28] Given my finding that the application for judicial review appears to be premature, I find that it does not raise a serious issue to be tried.

No irreparable harm

[29] The court has held that evidence of irreparable harm must be clear and not speculative.

[30] As indicated above, Dr. Garcia Pan did not put forward any evidence on this motion. On this basis alone, it is not possible to find that Dr. Garcia Pan has met his burden of demonstrating that he will suffer irreparable harm.

[31] During the motion, despite the lack of evidence on the issue, Dr. Garcia Pan suggested that he and his patients will suffer irreparable harm because he is currently not allowed to practice medicine. However, the undertaking signed by Dr. Garcia Pan does not preclude him from practicing medicine until the completion of the disciplinary proceedings. Rather, the undertaking allows Dr. Gracia Pan to resume practice if he gives the College eight weeks’ notice and abides by reasonable conditions imposed by the ICRC.

[32] Accordingly, I find that Dr. Garcia Pan has not established that he will suffer irreparable harm if the Discipline Committee hearing is allowed to proceed.

The balance of convenience favours denying the stay

[33] I accept the College’s argument that the balance of convenience favours denying the stay.

[34] Pursuant to its mandate to protect the public, the College is responsible for ensuring that physicians in Ontario comply with their professional obligations. In the context of disciplinary proceedings, Dr. Garcia Pan’s interests must be balanced against the public interest in allowing the Disciplinary Committee to complete the proceedings. As held by this Court in Karkanis v. College of Physicians and Surgeons of Ontario, 2009 18292 (Div. Ct.), at para. 25, another case where a physician sought a stay before the completion of disciplinary proceedings, “there is a public interest in permitting a self-regulating profession to carry out its supervisory jurisdiction over members without regular interventions by the courts as the process unfolds”.

[35] Accordingly, in my view, the public interest outweighs any interest Dr. Garcia Pan may have in this case.

Conclusion

[36] The motion is dismissed.

[37] The College is entitled to the costs of the motion, which I fix at $3,500.

Favreau J.

Date: August 4, 2021