Court File and Parties

CITATION: Berge v. College of Audiologists and Speech-Language Pathologists of Ontario, 2022 ONSC 1220

DIVISIONAL COURT FILE NO.: 240/21

DATE: 20220224

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: BRENDA BERGE, Applicant

AND:

COLLEGE OF AUDIOLOGISTS AND SPEECH-LANGUAGE PATHOLOGISTS OF ONTARIO and BRIAN O’RIORDAN, REGISTRAR, Respondents

BEFORE: Lococo, Matheson, and Copeland JJ.

COUNSEL: Mr. E.J. Guiste, for the applicant

Ms. N. Danson and Ms. V.T. Sealie, for the respondent

HEARD at Toronto (by videoconference): February 22, 2022

ENDORSEMENT

[1] The applicant, a member of the respondent College of Audiologists and Speech-Pathologists of Ontario (“the College”), brings an application for judicial review seeking an order in the nature of prohibition, quashing the appointment of investigators under s. 75(1)(a) of the Health Professions Procedural Code, being sched. 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c.18 (the “Code”).

[2] After hearing the applicant’s submissions, we did not call on the respondent. We dismissed the application as premature, with reasons to follow. These are our reasons.

[3] The College appointed investigators on July 9, 2020, pursuant to s. 75(1)(a) of the Code. According to the College’s Appointment of an Investigator, the subject matter of the investigation is whether the applicant has committed acts of professional misconduct or is incompetent because she failed to comply with four orders requiring her to pay legal costs to the College.

[4] The applicant submits that the investigation should be quashed because it is not within the jurisdiction of the College. The applicant submits that there are not reasonable and probable grounds to believe she has committed professional misconduct. Section 75(1)(a) of the Code authorizes the Registrar of the College to appoint investigators “to determine whether a member has committed professional misconduct or is incompetent, if the Registrar believes on reasonable and probable grounds that the member has committed an act of professional misconduct or is incompetent and the Inquiries, Complaints and Reports Committee approves of the appointment”. The applicant submits that the alleged failure to pay the costs orders to the College is not capable of being professional misconduct where it is based on inability to pay, which she asserts is the circumstance in this case, or before all appeal rights and related litigation have concluded. On that basis, the applicant submits that failure to pay the costs orders cannot ground the appointment of investigators under s. 75(1)(a) in this case.

[5] The respondent submits that the application should be dismissed as premature. In the alternative, the respondent submits that the application should be dismissed for delay. In any event, the respondent submits that that appointment of investigators was properly made, and that the Registrar of the College had reasonable and probable grounds to commence the investigation.

[6] With respect to the prematurity argument, the applicant submits that in exceptional circumstances, a court may halt proceedings initiated in excess of jurisdiction, relying on the decision of this court in Gage v. Ontario (Attorney General) (1992), 90 D.L.R. (4th) 537, 1992 8517 (Ont. Div. Ct.). The applicant submits that this is an exceptional case because the Registrar lacked the authority to initiate the investigation.

[7] We find that the application is premature. It is well established that, absent exceptional circumstances, a court should not interfere in administrative processes until they are complete. The authorities supporting this proposition are based on the sound policy of allowing administrative proceedings to run their full course before a tribunal, and for the courts to consider the legal issues arising from an administrative proceeding, including procedural matters, based on a full record and a reasoned decision of the tribunal. This approach prevents fragmented and piecemeal review of administrative proceedings. See, for example: Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, 111 O.R. (3d) 561, at paras. 68-70; Walia v. College of Veterinarians of Ontario, 2020 ONSC 8057 (Div. Ct.) at para. 38; Bannis v. Ontario College of Pharmacists, 2020 ONSC 6115 (Div. Ct.) at para. 9.

[8] In our view, no exceptional circumstances have been demonstrated by the applicant.

[9] Where the issue is the appointment of an investigator it is preferable to allow the administrative proceedings to run their full course: Lala v. College of Physiotherapists of Ontario, 2003 37231 (Ont. Div. Ct.) at para. 2.

[10] The College’s investigation is ongoing. The next step will involve the Registrar of the College reporting the results of the investigation to the College’s Inquiries, Complaints and Reports Committee (the “ICRC”), pursuant to s. 79(a) of the Code. Once the ICRC is presented with the Registrar’s report, the ICRC will determine how to dispose of the matter. Under ss. 26(1) of the Code, the ICRC has several options, including referring specified allegations of misconduct to the College’s Discipline Committee, requiring the applicant to appear before the ICRC to be cautioned, taking no action, or taking other action that the ICRC considers appropriate and not inconsistent with the College’s governing legislation.

[11] It is unknown at this stage of the investigation what action, if any, the ICRC will take as a result of the investigation, as the ICRC has not yet been presented with the report of the investigation by the Registrar. If the College refers the matter to the Discipline Committee, the applicant will be entitled to procedural fairness and a full opportunity to respond to any allegations against her pursuant to ss. 38-56 of the Code.

[12] The applicant’s application is premature.

[13] The application is dismissed.

[14] Having considered the costs submissions of the parties, in the exercise of our discretion we order that the applicant pay costs to the respondent in the amount of $6,000 all inclusive. This amount is reasonable in all the circumstances.

Lococo J.

Matheson J.

Copeland J.

Date: February 24, 2022