CITATION: Nahas v. Health Professions Appeal and Review Board, 2021 ONSC 6940
DIVISIONAL COURT FILE NO.: 546/19
DATE: 20211019
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett J.
B E T W E E N:
DR. RICHARD NAHAS
Applicant
- and -
HEALTH PROFESSIONS APPEAL
Stephen G. Bosnick, for HPARB
AND REVIEW BOARD, THE COLLEGE
OF PJYSICIANS AND SURGEONS OF
Michael Brown, self-represented
ONTARIO and MICHAEL BROWN
Ruth Ainsworth, for CPSO
Respondents
Heard by ZOOM: April 22, 2021
REASONS FOR DECISION
D.L. Corbett j.:
[1] This is a motion for a sealing order for part of the record on this application for judicial review from a decision of the Health Professions Appeal and Review Board (“HPARB”) sitting on review of a decision of the Inquiries, Complaints and Reports Committee (the “ICRC”) of the College of Physicians and Surgeons of Ontario (the “CPSO”).
[2] Under the Health Professions Procedural Code (the “Code”), the CPSO registrar is obliged to provide the HPARB with the ICRC Record. Pursuant to s.32(2) of the Code, the HPARB is required to provide a copy of the Record to the parties, subject to a discretion in the HPARB to order that portions of the Record not be disclosed pursuant to s.32(3) of the Code. The HPARB made a disclosure order dated September 28, 2018 under which it directed that portions of the Record not be disclosed to the parties pursuant to Code, s.32(3), including personal health information of an individual who was not a party to the complaint review and the applicant’s conduct profile and prior decisions with the College.
[3] In this motion, the Board seeks an order “sealing those parts of the… [Record] which the Board ordered not to be disclosed pursuant to the Board’s statutory discretion.” The CPSO supports the HPARB’s motion. The applicant filed no materials and did not oppose the motion. The respondent Michael Brown, the complainant before the ICRC, does not contest to an order sealing the personal health information of the third party to these proceedings. He does, however, contest the motion to seal the applicant’s conduct profile and prior decisions with the College.
[4] The Disclosure Order is a decision made by the HPARB in its adjudicative role. That Order is subject to challenge in this court, whether by way of appeal or by way of application for judicial review. Unless and until it is varied or set aside in this court, it is effective. Thus it is that this court grants sealing orders co-extensive with sealing orders made by tribunals below, without prejudice, of course, to any appeal or application for judicial review that may be brought in respect to the protective order made below.
[5] Further, I note that no party objected to the HPARB’s Disclosure Order in the proceedings below. Where a party has not raised an issue with the tribunal below, this court will seldom permit the party to raise the issue for the first time in this court. Thus, although the HPARB’s Disclosure Order could be challenged in this court, such a challenge could founder on the failure to raise the issue below.
[6] Finally, I note the arguments in this court about the merits of the HPARB’s Disclosure Order. The effect of the order – as it pertains to the applicant’s conduct history – was explained and it puts the effect of the order in a rather different context than might appear by the generic description “the applicant’s conduct history”. Certain discipline decisions are matters of public record and are published on the CPSO web site. Those records are available publicly. “Conduct history” covers matters including information about matters that did not lead to publicly reported discipline decisions. The distinction between a public discipline history and a private conduct history is well established in the CPSO’s practice and is the basis of this aspect of the HPARB’s Production Order. In saying this, I do not rule on this issue: if this practice is challenged by review or appeal from an HPARB order, it will be for a panel of this court to decide that issue.
[7] The requested order is co-extensive with the HPARB’s order and is granted in the form proposed by the HPARB. There shall be no order as to costs.
[8] The parties are directed to finalize a schedule for exchange of application materials and to provide this court with their agreed schedule by November 12, 2021, after which the court will provide them with a return date for the application.
D.L. Corbett J.
Released: October 19, 2021
CITATION: Nahas v. Health Professions Appeal and Review Board, 2021 ONSC 6940
DIVISIONAL COURT FILE NO.: 546/19
DATE: 20211019
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett J.
BETWEEN:
Dr. Richard Nahas
Applicant
- and –
Health Professions Appeal and Review Board, College of Physicians and Surgeons of Ontario and Michael Brown
Respondents
REASONS FOR DECISION
D.L. Corbett J.
Released: October 19, 2021