Court File and Parties

CITATION: Savic v. CPSO, 2022 ONSC 303

DIVISIONAL COURT FILE NO.: 639/21

DATE: 20220117

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MATHESON J.

BETWEEN:

MILE SAVIC Appellant

– and –

THE COLLEGE OF PHYSICIANS AND SURGEONS Respondent

COUNSEL:

Carlin McGoogan, for the Moving Party

Amy Block and Kirk Maijala, for the Respondent

HEARD at Toronto: December 23, 2021 (by videoconference)

WARNING: This is notice that the Discipline Committee of the College of Physicians and Surgeons has ordered that no person shall publish or broadcast the names or any information that could disclose the identity of patients referred to orally or in the exhibits filed at the hearing and any personal health information of the College’s expert witness, Dr. Catherine Faulds, under subsection 45(3) of the Health Professions Procedural Code, which is Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, as amended.

REASONS FOR DECISION

Matheson J.:

[1] The moving party seeks an extension of time to appeal two orders arising from disciplinary proceedings before the College of Physicians and Surgeons of Ontario (the “College”): the decision of the Discipline Committee dated December 18, 2018, and the related penalty decision dated August 23, 2019.

[2] In 2018, the moving party decided not to attend his Discipline hearing. The Discipline Committee proceeded in his absence, and found that the moving party had contravened terms, conditions and limitations on his certificate of registration, had failed to maintain the standard of practice of the profession and had engaged in disgraceful, dishonourable and unprofessional conduct by performing testing without clinical indication and by improperly billing for the unnecessary tests. This is the first decision the moving party now wishes to appeal.

[3] The moving party did attend his penalty hearing in 2019, with an agent, not a lawyer. The Discipline Committee decided that his certificate of registration should be revoked. This is the second decision the moving party now wishes to appeal.

[4] After these decisions were made, the moving party did not take steps to commence an appeal. He took other steps, including a civil lawsuit against the College and an application for judicial review.

[5] For the most part, the moving party now relies on financial strain impairing his ability to retain counsel and lack of legal knowledge to support his submissions that he should now have leave to extend the time to appeal. However, the moving party had notice from at least December 2019 that an appeal was the appropriate course of action to challenge the above Discipline Committee decisions, and he had retained counsel. This motion was not brought until July 2021.

[6] For the reasons set out below, this motion is dismissed.

Background to motion

[7] The moving party was a physician who had been authorized to practice since 2005. In February 2017, the Inquiries, Complaints and Reports Committee (the “ICRC”) of the College referred allegations about the moving party to the Discipline Committee. The allegations related to prescribing narcotics, ordering unnecessary diagnostic testing, billing practices and related matters.

[8] Prior to the hearing before the Discipline Committee, the moving party was represented by Gowlings. Pre-hearing steps included an unsuccessful negotiation between the moving party, represented by counsel, and the College, after which Gowlings resigned.

[9] The moving party then emailed the College to say that he saw “no point” to attending the scheduled pre-hearing conference. He further said that the College should simply proceed to the contested hearing as scheduled in August 2018. He went on to say that they would receive “one more communication” from him.

[10] The College confirmed the hearing dates with the moving party in writing and asked if he would be retaining counsel or be representing himself. The College also invited a discussion about whether they could agree on any issues that might shorten the hearing given the tariff rate of $10,180 per hearing day. The hearing was scheduled for four days.

[11] In response, the moving party sent a letter described as a “Notice Of Intention” stating as follows:

I am in receipt of your above referenced email dated July 18 2018 requesting notice of my intention regarding the Discipline Committee hearing scheduled for August 14-17, 2018. I hereby informing [sic] you that I will not be in attendance at the Discipline Committee hearing at the dates above.

Further, I do not consent to any future hearings or any proceedings without my participation.

[12] The College responded:

Please be advised that the College will ask the Discipline Committee to proceed with the hearing in your absence. The Committee has jurisdiction to proceed in your absence and may do so without any further notice to you.

[13] The moving party also sent a letter to the College, with a series of re-lines commencing with “Notice Of Copyright Infringement; Notice Of Personal Liability Regarding Breach Of Public Trust…”. He made a number of accusations against the College, and said that he would conduct his medical professional business “freely” as he saw in the best interests of his patients, and that he required that the College remove all the terms restricting his practice in his 2010 undertaking and the 2015 discipline order.

[14] The Manager of the Hearings Office emailed the moving party about the upcoming hearing, noting that the Notice of Hearing expressly stated that if the moving party did not attend the hearing, the discipline panel may proceed in his absence and he would not be entitled to any further notice in the proceeding.

[15] A further reminder was sent by email on the day before the hearing. In response, the moving party emailed that he did “not consent to the hearing in absentia without proof of an injured party.”

[16] The Discipline Committee hearing commenced as scheduled in August 2018. At the outset of the hearing, the College sought an order that the hearing proceed in the moving party’s absence. The panel heard evidence from two witnesses and received documentation, including the correspondence mentioned above. The panel found, on the evidence, that the moving party had received reasonable and proper notice of the hearing and was aware of the hearing dates. The moving party had been told that the hearing could proceed in his absence. The Discipline Committee also noted that the moving party had not asked for an adjournment.

[17] The Discipline Committee decided to proceed. The moving party was deemed to have denied the allegations in the Notice of Hearing. Evidence was called by the College, including two expert witnesses.

[18] On the second day of the hearing, the moving party faxed a copy of a notice of objection to the testimony of an expert witness, marked urgent, for what he described as “this ongoing disciplinary hearing.”

[19] The evidence before the Discipline Committee included evidence about compliance with a 2010 undertaking the moving party gave to voluntarily relinquish his prescribing privileges regarding narcotics and other substances, evidence of prescribing, including narcotics and Holter monitor tests, and complaints from two patients. Although the moving party was not present, the Discipline Committee had the moving party’s responses to the College investigator, with his explanations.

[20] The hearing concluded within the scheduled dates, ending on August 15, 2018.

[21] There was another ICRC investigation underway regarding the moving party, which began prior to the discipline hearing in 2018. That investigation gave rise to an interim suspension of the moving party’s certificate of registration made on August 21, 2018. For a brief period in the fall of 2018, Gowlings was retained to represent the moving party with respect to the interim suspension.

[22] The Discipline Committee decision was released on December 18, 2018. The Discipline Committee found, in summary, that the moving party:

(i) breached his 2010 undertaking to the College regarding narcotics and therefore contravened a term, condition, or limitation in his certificate of registration;

(ii) breached the standard of practice in respect of the two patients, with respect to ordering unnecessary Holter monitor and other testing, in his record keeping and in his overall management of patients; and,

(iii) engaged in conduct that would reasonably be regarded by members of the profession as disgraceful, dishonourable, and unprofessional in his ordering of unnecessary tests and billing for related services.

[23] The Discipline Committee decision was provided to the moving party by fax, on the date of its release.

[24] In January 2019, the moving party notified the College that he was retaining counsel and requested an adjournment of the penalty hearing, which had been scheduled for February 9, 2019. The adjournment was granted. The moving party retained counsel, who requested an adjournment of the new penalty hearing date, which was scheduled in April. However, in mid-March that counsel notified the College that he was no longer retained by the moving party.

[25] The moving party now submits that he had used what limited funds he had left but the lawyer refused to proceed without a retainer. However, this submission is not supported by the evidence. On cross-examination, the moving party said that he terminated the lawyer because he was not moving fast enough, was ineffective and basically sided with the College.

[26] The moving party then engaged Stan McDonald to assist him. As the moving party knew at the time, Mr. McDonald was not a lawyer, but had some experience in Small Claims Court and with traffic offences.

[27] Mr. McDonald contacted the College, indicating that he had been asked to be the moving party’s legal counsel and he sent the College a written submission. The College’s response included information about when persons not licenced by the Law Society of Ontario were permitted to represent members before the College. The relevant College By-Law was provided to Mr. McDonald, and he was asked to provide relevant information. The By-law permitted assistance from a friend or neighbour who was not a lawyer or paralegal and did not expect to be paid, among other requirements.

[28] The moving party now complains that he had ineffective assistance from Mr. McDonald. The moving party does not, however, say that Mr. McDonald acted without instructions.

[29] The penalty hearing took place in June of 2019. At the outset of the hearing, the Discipline Committee considered whether to grant the moving party leave to be represented by Mr. McDonald, as his agent. Mr. McDonald and the College agreed that Mr. McDonald met the requirements in the By-law. Leave was granted.

[30] The moving party’s position on penalty, advanced by Mr. McDonald, was that the College should apologize to the moving party, terminate the current suspension of his certificate of registration and compensate the moving party for the economic losses that he had sustained.

[31] At the penalty hearing, the Discipline Committee heard testimony from a College witness and testimony from the moving party. Documents received in evidence included the moving party’s discipline history and letters of support from patients and relatives of the moving party. The Discipline Committee refused to admit certain documents put forward for the moving party on the basis that they were not relevant to penalty, such as documents relating to the findings of misconduct.

[32] The Discipline Committee accepted their counsel’s advice that the penalty proposed by the moving party (an apology and monetary compensation) was outside their jurisdiction. In reaching their penalty decision, they followed well-accepted principles guiding the imposition of penalty. They had regard for aggravating factors, such as the moving party’s discipline history, which included a prior finding of failure to maintain the standard of practice of the profession and numerous cautions. They considered mitigating factors including the absence of demonstrated harm to patients. They considered past Discipline Committee penalty decisions. Mr. McDonald offered cases where there was a suspension of six months or less and submitted that the length of the moving party’s current suspension, then longer than nine months, should be taken into account.

[33] After the penalty hearing, but before the penalty decision, the moving party, representing himself, sued the College by statement of claim issued July 23, 2019. He sought “reinstatement of licence”, a public letter of apology, compensation for $960,000, described as his loss of one year’s income, compensation for loss of ten years of future income of $9.6 million, plus other damages, totalling over $16 million.

[34] The penalty decision was released on August 23, 2019. The Discipline Committee found that the moving party’s conduct was serious and posed a real risk to the public. They found no reasonable prospect for rehabilitation given the “magnitude, pervasiveness and persistence” of the moving party’s misconduct. The Discipline Committee ordered a reprimand, revocation of the moving party’s certificate of registration and costs at the tariff rate, in the amount of $30,730.

[35] The moving party had a right of appeal from both the misconduct and penalty decisions of the Discipline Committee under s. 70 of the Regulated Professions Procedural Code (the “Code”), to be commenced by a notice of appeal within 30 days of the decision appealed from.

[36] The moving party did not commence an appeal, although he did write to the College challenging the decision.

[37] In November 2019, the ICRC decided to take no further action on the other investigation for which there had been an interim suspension of the moving party’s certificate of registration. The ICRC did so because, despite a high level of concern that the moving party was ungovernable, the moving party’s certificate of registration had already been revoked in the above penalty decision and should the moving party reapply to practice medicine (as he could do after one year), the investigation information would be available for review and consideration.

[38] With respect to the civil action brought by the moving party, the College brought a motion to strike out the claim. The motion material was served on December 18, 2019. The same day, the College was notified that the moving party had retained counsel, who requested an adjournment of the motion.

[39] At least as of the service of the above motion materials in December of 2019, the moving party was both represented by counsel and had express notice that he had a right to appeal decisions of the Discipline Committee (and at this point would need an extension of time to do so), as set out in the College’s factum on the motion.

[40] The moving party did not take steps to appeal. His counsel served a fresh as amended statement of claim in February 2020, with amendments that included increasing the amount of the damages claim. The College’s motion to strike out the claim is scheduled to be heard in March 2022.

[41] The moving party also commenced an application for judicial review, in January 2021, challenging both the decisions he now seeks to appeal and the interim suspension. The College promptly notified the moving party of its position that judicial review was not available, providing case authority in support of that position. Further, in a letter dated January 20, 2021, the College noted that the moving party would need leave to extend the time to appeal.

[42] By decision dated July 5, 2021, the Divisional Court quashed the moving party’s application for judicial review.

[43] This motion was commenced by notice of motion dated August 5, 2021.

Issues

[44] As set out in 1250264 Ontario Inc. v. Pet Valu Canada Inc., 2015 ONCA 5, quoting Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15, the test on a motion to extend the time for the delivery of a notice of appeal is well-settled:

The overarching principle is whether the “justice of the case” requires that an extension be given. Each case depends on its own circumstances, but the court is to take into account all relevant considerations, including:

(a) whether the moving party formed a bona fide intention to appeal within the relevant time period;

(b) the length of, and explanation for, the delay in filing;

(c) any prejudice to the responding parties, caused, perpetuated or exacerbated by the delay; and

(d) the merits of the proposed appeal.

Analysis

[45] Intention to appeal within the relevant time period: As set out in s. 70 of the Code, the moving party had a right of appeal to the Divisional Court. Rule 61 of the Rules of Civil Procedure requires that the appeal be brought within 30 days of the decision appealed from. In turn, the moving party ought to have commenced his appeal from the misconduct decision in January 2019, and from the penalty decision in September 2019. The College has acknowledged that it does not always insist on a notice of appeal on misconduct provided that there is a timely notice of appeal served after the related penalty decision. I therefore focus on the later date in considering this motion. A timely appeal would have been commenced before the end of September 2019.

[46] The moving party has attested that he intended to challenge the above decisions of the Discipline Committee as soon as he became aware of them. His course of conduct suggests otherwise. Before the penalty decision was released, he took steps to sue the College. When the moving party commenced his lawsuit, he was self represented. He therefore had some ability to take legal steps on his own behalf. However, even if I assume, for the purposes of this motion, that he was unaware of the proper route to challenge the Discipline Committee decisions, that assumption ends in December 2019. At that point, the moving party was expressly notified of the College’s position that to challenge the above decisions he needed to commence an appeal and, to do so, needed leave to extend the time to appeal. As well, by that time he was represented by counsel.

[47] Despite being properly informed, and represented by counsel, the moving party still took no steps to appeal the Discipline Committee decisions. This motion could have been brought in December 2019 if the moving party’s priority was to challenge the decisions. He did not do so.

[48] Length and Explanation for delay: In this case, there was a very lengthy delay. By the time this motion was commenced, almost 2 years had passed since the penalty decision was rendered.

[49] The moving party relies in part on his lack of legal knowledge and training, and his self-representation. However, there was a 1½ year delay since he was told of the correct process to follow and was represented by counsel.

[50] The moving party now relies heavily on his financial circumstances to explain his delay. I accept that his financial means were affected by the interim suspension of his certificate of registration. However, in 2019 he was taking legal steps. The moving party attests that he had to borrow money from his family for his lawsuit against the College and his application for judicial review. However, he has provided no adequate explanation for why the borrowed funds could not have been used to pursue an appeal. Further, his financial documentary evidence is inadequate to explain his delay. While he did put forward bank statements, he did not put forward his income tax returns for the relevant years, which would been more informative given his other evidence about his practice.

[51] Overall, I find the moving party’s explanation for his delay is mainly relevant to the early period of delay in 2019, not the subsequent 1½ years of further delay.

[52] Prejudice: The moving party submits that he will be significantly prejudiced if he is not permitted to proceed with an appeal. He submits that he would have been deprived of his medical licence without ever having the opportunity to meaningfully participate in a hearing. This submission overlaps with his submissions regarding the merits of his proposed appeal and is therefore discussed below. Considering all the evidence, the moving party has not shown significant prejudice that was not of his own making.

[53] The College relies on both specific and general types of prejudice. From a general standpoint, the College relies on the public interest in finality of decisions in the regulatory context. In addition, there is case authority to the effect that significant delay is presumptively prejudicial and there has been significant delay in this case. The moving party seeks to appeal decisions arising from two hearings conducted years ago, with testimony from lay and expert witnesses. On the proposed appeal, the moving party seeks to begin that entire process again.

[54] With respect to specific prejudice, the College also relies on the disposition of the other investigation into the moving party. That matter was not proceeded with because of the outcome of the penalty hearing and would need to be resumed.

[55] As well, the College notes that it is open to the moving party to apply to reinstate his certificate of registration. He had to wait one year from his revocation. He has been able to apply since 2020, under s. 72 of the Code, and seek to show that he should be readmitted to practice.

[56] The merits: The moving party submits that his appeal has merit for these reasons:

(1) because he had the right to be heard and the Discipline Committee ought not to have proceeded in his absence at the first hearing; and,

(2) because, for the penalty hearing, he had ineffective legal assistance from his agent.

[57] With respect to the right to be heard, the moving party had the opportunity to meaningfully participate in the Discipline Committee hearing that gave rise to the misconduct findings. He chose not to do so. He was entitled to make that choice, but the prejudice arising as a result was his own responsibility. The Discipline Committee had the jurisdiction to proceed in his absence, heard testimony about the course of events including the moving party’s correspondence, and decided to proceed. The moving party has not shown that an appeal of that decision has merit. Further, the Discipline Committee was provided with his responses given in the investigatory process and took them into account.

[58] The moving party now says, by way of explanation, that he believed he would be liable for costs of the Discipline Committee hearing and therefore did not attend. The record does not demonstrate that this was his reason for not attending. At the time, the moving party was free with his accusations but did not give this reason for staying away.

[59] With respect to the penalty hearing, the moving party attended, testified, and was heard. The moving party had retained counsel, but that retainer was terminated before the hearing. The moving party then chose to appear with an agent without legal training. The moving party now complains based on ineffective assistance by his agent.

[60] The College By-law permitted assistance from a friend or neighbour who was not a lawyer or paralegal and did not expect to be paid. The moving party put Mr. McDonald forward as his agent knowing that he was not a lawyer or paralegal. Now, the moving party puts forward several complaints about Mr. McDonald, as if he was a lawyer or paralegal.

[61] The Discipline Committee was satisfied that Mr. McDonald was permitted to act as agent under the By-law. The College agreed that Mr. McDonald met the By-law’s requirements. Mr. McDonald indicated that he had read the By-law and he met its requirements. He said he was appearing as agent to help his friend. He confirmed that he was not in the legal profession – he was a machinist (or millwright) by trade – and did not expect to be paid. The moving party was present for this discussion, yet he now complains about Mr. McDonald’s occupation.

[62] The moving party further complains that Mr. McDonald did not cross-examine the College witness (who testified about the moving party’s discipline history) and did not call witnesses. He suggests that Mr. McDonald should have called expert witnesses and should have called patients who received good care. However, the penalty hearing was not the place to call experts on the standard of practice, and letters from the patients were put forward at the hearing.

[63] The moving party also complains that Mr. McDonald did not do an adequate examination of him, did not take the proper steps to have documents admitted into evidence, and did not adequately address the issues raised by the College. He further says that Mr. McDonald did not provide the right cases to the Discipline Committee (even though he did put forward the prior Discipline Committee decisions that the moving party says should have been before the panel).

[64] The College questions whether ineffective assistance can be a ground of appeal at all because it generally is not a ground of appeal in civil cases, relying on D.W. v. White, (2004), 189 O.A.C. 256 (C.A.).

[65] For purposes of this motion, I am prepared to proceed on the basis that ineffective assistance of counsel may be a ground of appeal given the severity of the penalty of revocation. However, this is not a case of ineffective assistance of counsel. The moving party chose to proceed with an agent without legal training. The By-law contemplates a role for “friends and neighbours” that should not bring with it obligations of the sort imposed on counsel.

[66] Even in the criminal context, an accused who chooses to be represented by an agent who is not a lawyer “cannot be heard to contend that the agent’s performance should be tested against the standard reserved to counsel trained in the law”: R. v. Romanowicz (1999), 178 D.L.R. (4th) 466 (Ont. CA), at para. 29.

[67] Further, the moving party’s complaints do not bear scrutiny. It was not open to the moving party to challenge the findings of misconduct at the penalty hearing. Further, the moving party has not identified any evidence that would have been admissible, was not put forward by Mr. McDonald, and would have had a significant impact on the outcome. Although Mr. McDonald’s submissions on penalty were certainly unusual, seeking an apology for example, the evidence does not show that the submissions departed from the moving party’s instructions.

[68] The justice of the case: Overall, I find that the justice of this case requires that this motion be dismissed. The moving party made a series of choices which have led him to where he is today. He has not provided an adequate explanation for the very lengthy delay. Bearing in mind all the factors discussed above, leave to extend the time to appeal is not granted.

Order

[69] This motion is dismissed. The moving party shall pay the respondent costs in the agreed amount of $5,000.

Justice W. Matheson

Released: January 17, 2022

CITATION: Savic v. CPSO, 2022 ONSC 303

DIVISIONAL COURT FILE NO.: 639/21

DATE: 20220117

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MATHESON J.

BETWEEN:

MILE SAVIC Appellant

– and –

THE COLLEGE OF PHYSICIANS AND SURGEONS Respondent

REASONS FOR DECISION

Released: January 17, 2022