CITATION: Turek v. The College of Physicians and Surgeons of Ontario, 2021 ONSC 8105
DIVISIONAL COURT FILE NO.: 642/21
DATE: 2021/12/13
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Dr. Caroline Turek, Applicant
AND:
The College of physicians and Surgeons of ontario et al., Respondents
BEFORE: Sachs, Backhouse and Mandhane JJ.
COUNSEL: Rocco Galati, for the Applicant
Rob (Rabinder) Sidhu, for the Respondents
HEARD at Toronto: December 8, 2021
ENDORSEMENT
Sealing Order
[1] The Respondents seeks a sealing order that information that identifies patients and individuals who have provided information to the College should be sealed and not form part of the public record.
[2] Corbett J. issued an interim order, subject to further order of this Panel, requiring that the College redact the record of proceeding to remove information tending to identify persons who have provided information to the College in connection with the investigation of the Applicant.
[3] The sealing order in this case is to protect names and identifying information of the reporting individual and of a patient from public disclosure and, by extension, to protect the integrity of the College’s investigative process. The order sought does not contemplate sealing the entire record before the court but only information that tends to identify the two individuals whose identification information is irrelevant to the issues on the application.
[4] The parties consent to the requested order. The media have been given notice of this motion pursuant to Justice Corbett’s direction. We are satisfied that the three factors set out in Sherman Estate v. Donovan, 2021 SCC 25 at para.38 for granting a sealing order have been met in this case : 1) the integrity of the open investigation and of the College investigations generally are important public interests; 2) the order sought is necessary to prevent the serious risk that court openness poses in this case; and 3) as a matter of proportionality the benefits of the order outweigh its negative effect.
[5] The sealing order is granted upon the terms as set out in the draft order.
Prematurity
[6] The Respondents submit that the application for judicial review should be dismissed on the basis of prematurity. In doing so they rely on a number of authorities where applications have been found to be premature in similar circumstances.
[7] In Sutherland v. College of Physicians and Surgeons of Ontario 2007 51785 the Divisional Court struck an application to judicially review a decision to refer an allegation of professional misconduct to a formal hearing on the basis that the appointment of investigators that led to the referral was a nullity. The Divisional Curt dismissed the application as premature. In doing so the Court found that threshold issues of jurisdiction should be raised before the Discipline Committee.
[8] In Foulds v. Justice of the Peace Review Council 2017 ONSC 5807 the applicant sought to judicially review a decision to refer an allegation of judicial misconduct to a formal hearing on the basis that the Complaints Committee lacked the jurisdiction to proceed and on the basis of procedural unfairness and bias. The Divisional Court held that the application was premature and that all of the issues raised on the application could be dealt with at the formal hearing on the merits.
[9] In Halifax (City) v. Nova Scotia (Human Rights Commission), 2012 SCC 10, the Supreme Court of Canada considered an appeal from an early judicial review of a screening committee’s decision to refer a complaint to a board of inquiry. In that case the chambers judge granted the application and quashed the decision under review. The Court of Appeal overturned the chambers judge’s decision and the Supreme Court agreed with the Court of Appeal that the chambers judge should have not intervened in the proceeding at such an early stage. Doing so only caused unwarranted delay.
[10] The Applicant argues that her application for judicial review should not be dismissed for prematurity because only a court can grant the relief she is seeking. That relief includes a request for three declarations: (1) a declaration that the Respondent College, as a creature of provincial authority, has no jurisdiction under s. 92 of the Constitution Act to regulate free speech; (2) a declaration that the order for investigation of the Applicant was a nullity since there was no basis for an allegation of unprofessional conduct or incompetence, and (3) a declaration that a Statement on Public Health Misinformation issued by the Respondent College on April 30, 2021 is invalid and unconstitutional.
[11] The basis for the Applicant’s first declaratory request is an argument that the Respondents’ conduct has nothing to do with professional regulation, but is simply an attempt to regulate free speech. If there is a decision to refer the matter for a hearing on the merits, that is an issue that the tribunal hearing the merits can consider and rule upon. While administrative tribunals cannot grant declarations of invalidity, they have the authority to consider and rule upon any arguments directed at their own jurisdiction, including any arguments under sections 91 and 92.
[12] The basis for the second declaratory request is similar to the first – the Respondents are not investigating professional misconduct or incompetence; they are investigating speech. This, too, is an argument that can be considered by a tribunal who hears the merits of any complaint, if any complaint is laid after the investigation. If no complaint is laid, then the matter will be moot.
[13] With respect to the third request for a declaration, the Statement that the College issued on April 30, 2021 is not an instrument that can attract a declaration of invalidity. It is a guideline and a recommendation only. As such, it is not binding on any tribunal that may consider the matter further. The Applicant is not being investigated for breaching or violating the Statement; she is being investigated for professional misconduct and/or incompetence. If there is a hearing on the merits, and the Respondent College takes a position similar to the one outlined in the Statement or relies on the Statement, at that point the tribunal hearing the merits will have an opportunity to consider and rule upon whether the position taken in the Statement constitutes an unconstitutional violation of the Applicant’s free speech rights.
[14] For these reasons we find that the application is premature and should be dismissed. In accordance with the agreement of the parties, the Applicant shall pay the Respondents their costs of this application, fixed in the amount $5000.00, all inclusive.
Sachs J.
I agree _______________________________
Backhouse J.
I agree _______________________________
Mandhane J.
Date: December 13, 2021