CITATION: Kastner v. Health Professions Appeal and Review Board, 2022 ONSC 5553

DIVISIONAL COURT FILE NO.: DC-21-972-JR

DATE: 20220930

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Sachs, Wilson, Charney JJ.

BETWEEN:

Danny Kastner

Applicant

– and –

Health Professions Appeal and Review Board, College of Physicians and Surgeons of Ontario, and Marko Duic

Respondents/Moving Party

– and –

Canadian Women in Medicine

Proposed Intervenor/Responding Party

Gregory Ko and Ruth Wellen, Counsel for the Applicant, Danny Kastner

Amy Block, Counsel for the Respondent, College of Physicians and Surgeons of Ontario

Steven Bosnick, Counsel for the Respondent, Health Professions Appeal and Review Board

Keary Grace and Crystal Gillis, Counsel for the Moving Party/Respondent, Marko Duic

Niiti Simmonds and Kylie Sier, Counsel for the Responding Party/Proposed Intervenor, Canadian Women in Medicine

HEARD at Toronto: September 20, 2022 by videoconference

REASONS FOR DECISION

CHARNEY J.:

Introduction

[1] The Respondent, Dr. Marko Duic, brings this motion under s. 21(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43, to set aside the Order of Corbett J. dated April 5, 2022, granting Canadian Women in Medicine (CWIM) leave to intervene in the judicial review of the decision of the Health Professions Appeal and Review Board (HPARB) to confirm the decision of the Inquiries, Complaints and Reports Committee (“ICRC”) of the College of Physicians and Surgeons of Ontario to take no further action with respect to a complaint brought by the Applicant, Danny Kastner against the Respondent.

[2] The issue on this motion is whether the Motion Judge properly considered and applied the relevant legal factors in granting CWIM leave to intervene as a friend of the Court in this Application for Judicial Review.

Background

Complaint to the College of Physicians and Surgeons

[3] The Respondent, Dr. Marko Duic, is the subject of a complaint brought by the Applicant, Mr. Danny Kastner, to the College of Physicians and Surgeons of Ontario (“College”). Mr. Kastner, a lawyer representing an anonymous group of women physicians, alleged that the Respondent engaged in discriminatory hiring practices against women physicians.

[4] The complaint alleged that the Respondent had consistently hired only male physicians and avoided working with women residents over the course of his combined 16-year tenure as Chief of Emergency Departments at two hospitals from 2002 to 2019. The complaint alleged that the Respondent engaged in discrimination against women in the profession by consistently supporting hiring and shift distribution for only male physicians, avoiding supervising female trainees, and making discriminatory comments about women doctors.

[5] The Applicant also alleged that the Respondent engaged in and encouraged improper billing practices.

[6] After conducting an investigation, the Inquiries, Complaints and Reports Committee of the College of Physicians and Surgeons of Ontario decided, on February 11, 2020, to take no further action regarding the complaint. The Committee concluded:

Considering that hiring and human rights issues are outside the purview of the Committee and the prejudiced behaviour alleged is not supported, the Committee determined that it would take no action on this area of concern.

[7] This conclusion was the lightning rod that attracted CWIM to this case.

HPARB Review

[8] On March 11, 2020, the Applicant requested that the HPARB review the Committee’s decision, stating that he had “concerns regarding the adequacy of the investigation and the factors considered in the decision.” The Applicant filed written submissions and made oral submissions at the Review, which was heard by the HPARB on April 21, 2021.

[9] Prior to the HPARB review proceedings, CWIM sought an order granting leave to intervene in the HPARB review as a public interest intervenor. CWIM argued that if leave to intervene was granted, CWIM would provide legal submissions and oral argument (at para. 7):

[O]n the narrow legal question of whether the ICRC was obligated to consider human rights issues on the grounds that CPSO professional standards 1) incorporate a duty on the part of physicians to comply with Ontario’s Human Rights Code (“Code”) in interprofessional contexts, such as physician hiring, collaboration and in their interaction with trainees; and 2) the ICRC has a legal obligation, consistent with it public interest mandate, to review allegations of discriminatory professional hiring in breach of the Code, under the College’s professional standards respecting Professional Obligations and Human Rights and Physicians Behaviour in the Professional Environment, among other professional standards applicable to physicians.

[10] The HPARB dismissed CWIM’s motion to intervene, finding, at para. 9, that CWIM’s proposed legal position was identical to the Applicant’s legal position and that CWIM had provided “no explanation for why the Applicant cannot advance these same legal arguments as a direct party to the proceedings”.

[11] On November 26, 2021, HPARB issued its decision confirming the ICRC decision to take no further action (reported at Kastner v. Duic, 2021 120554 (ON HPARB)).

[12] In reaching this conclusion, the HPARB considered (at para. 19) a list of the Applicant’s submissions regarding the ICRC’s failure to properly investigate the allegations of gender discrimination, including an allegation that the ICRC failed to interview any witnesses other than the Respondent despite the fact that the Applicant provided the names of key witnesses, and that it was unreasonable for the ICRC to conclude that it lacked jurisdiction to consider “hiring and human rights issues”. In particular, the Applicant argued that the conclusion that the behaviour alleged was not supported “was the result of an inadequate investigation and incomplete record”.

[13] In the course of the review proceedings, the Respondent acknowledged (at para. 21) that the ICRC does have jurisdiction to consider human rights issues.

[14] The HPARB found that the ICRC investigation was adequate. The reasonableness of that decision is the subject matter of the current judicial review, and I make no comment in that regard.

[15] Significantly for the purpose of this motion, the HPARB expressly rejected the ICRC conclusion that “hiring and human rights are outside the purview of the Committee” and confirmed, at para. 46, that “the Committee does have jurisdiction to consider these issues as submitted by the Applicant and confirmed by the Respondent’s Counsel.”

[16] Notwithstanding that legal conclusion, the HPARB held that the ICRC’s decision to take no action on this area of concern was reasonable, and that conclusion is the focus of the current application for judicial review.

Application for Judicial Review of HPARB decision

[17] On December 23, 2021, the Applicant commenced an Application for Judicial Review of the HPARB decision. His application sets out the evidence submitted in support of the complaint and catalogues in great detail what he argues are the inadequacies in the ICRC’s investigation of his complaint.

Motion by CWIM to Intervene in the Judicial Review

[18] CWIM brought a motion in writing to intervene in Mr. Kastner’s Application for Judicial Review as a friend of the Court pursuant to Rules 13.02 and 13.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. CWIM asked for leave to file a factum of no more than 15 pages, and to make oral argument at the hearing of no more than 15 minutes.

[19] CWIM took the position that the judicial review raises issues of public importance and public policy because the Divisional Court is being asked to provide “important guidance…regarding the ICRC’s appropriate scope of jurisdiction to consider complaints involving allegations of discrimination in interprofessional hiring by members of the College, and to establish expectations in respect of how this duty is discharged.”

[20] CWIM’s Notice of Motion indicates that it intends to focus its legal submissions and oral argument on the obligation of the ICRC and the HPARB to “consider and apply the Human Rights Code robustly”, and to “meaningfully apply and engage with the Human Rights Code”, and that the ICRC has an obligation to “meaningfully grapple with issues of systemic gender discrimination in the profession”.

[21] CWIM’s Notice of Motion also states that it will focus on gender-based discrimination in medicine and the importance of members of the public and women physicians and other members of the College to be able to access the ICRC process when Human Rights Code issues are at stake. Its position would be distinct from the Applicant’s.

[22] Finally, CWIM would not take a position on the ultimate disposition of the Application nor any position with respect to the underlying complaint against the Respondent, Dr. Duic, nor would it seek to supplement the record.

[23] The Respondent opposed CWIM’s proposed intervention on the basis that the primary issue CWIM sought to address – the ICRC’s jurisdiction to consider the Human Rights Code – was not in dispute between the parties in the judicial review, and that CWIM’s proposed intervention sought to revive issues that were resolved in the proceeding before the HPARB.

[24] In addition, the Respondent argued that the issue before the Court on the judicial review was whether the HPARB’s decision was reasonable, and the proposed intervention would not address that issue.

[25] The Respondent argued that CWIM’s position was not different from the Applicant’s, and that CWIM’s perspective was not different from the group of anonymous female physicians represented by Mr. Kastner. As such their participation would only amplify Mr. Kastner’s submission and distort the focus of the judicial review.

[26] Finally, the Respondent argued that the case was best characterized as a private dispute relating to Dr. Duic’s professional conduct and the complainant’s allegations against him. CWIM’s intervention would expand the scope of the judicial review to raise wider public interest concerns about the College’s obligation to address gender discrimination in the medical profession.

[27] In a brief endorsement dated April 5, 2022, Corbett J. granted CWIM’s motion to intervene. The relevant portion of his decision states, at paras. 4 and 5:

In my view this is not “an essentially private dispute” as to whether a basis to investigate allegations has been made out on the basis of evidence before the ICRC. The basis of the ICRC’s decision to investigate no further appears to have been founded on a misunderstanding of its own jurisdiction. The HPARB’s decision to decide the underlying merits on the basis of a record compiled on an erroneous understanding of jurisdiction by the ICRC raises issues of general administrative law, and, with respect, may also raise issues about the nature of discrimination and the kind of record that is sufficient to conclude a proper investigation into allegations, though framed personally, may also be inherently systemic in nature.

I am not concerned that the proposed intervenor will only bring a “me too” perspective to this case. The proposed intervenor brings the broad perspective of women in the medical profession to bear on the potentially complex issue of discrimination in the medical profession. In characterizing in his factum the complainant as a representative of “anonymous” medical professionals, the responding party doctor implies that there is something purely personal in the complaints that is being shielded by the manner in which the complaint has been brought. Having a perspective before the court on issues of principle that cannot be characterized as simply a “private matter” may assist to case issues of discrimination in a broader context. The underlying complaint appears to have an essential public interest component to it, and the proposed intervenor may assist the court in fully appreciating this aspect of the case.

Review of an order of a single judge of the Divisional Court

[28] This is a motion to set aside or vary an order of a single Divisional Court motion judge pursuant to s. 21(5) of the Courts of Justice Act. The Divisional Court recently summarized the test on a s. 21(5) motion in Guillaume v. Barney Rivers Investments Inc., 2022 ONSC 1123, at para. 4:

The test on such a review is well established in this court: a motion to review is not a hearing de novo. This court will only interfere if it is established that the motion judge made an error of law or a palpable and overriding error of fact: Marsden v. Her Majesty the Queen, 2012 ONSC 6118 (Div. Ct.), at para. 2; Ontario Federation of Anglers and Hunters v. Ontario (Natural Resources and Forestry), 2017 ONSC 518, at para. 7 (Div. Ct.). Where a motion judge is exercising discretion, this court will not interfere unless a moving party shows that the impugned decision is “so clearly wrong that it amounts to an injustice” or the motion judge “gives no or insufficient weight to relevant considerations”: Franchetti v. Huggins, 2022 ONCA 111, at para. 5.

[29] The motion judge’s decision to grant CWIM leave to intervene was an exercise of discretion.

Position of the Parties

[30] The Respondent, Dr. Duic, argues that the central issue on this motion is whether the motion judge’s reasons are sufficient, and whether the motion judge properly considered and applied the relevant legal factors in granting CWIM leave to intervene.

[31] The Applicant and the Respondents, the Health Professions Appeal and Review Board and the College of Physicians and Surgeons of Ontario, take no position on this motion.

Analysis

[32] CWIM was granted leave to intervene as a friend of the court under Rules 13.02 and 13.03, which provide:

Leave to Intervene as Friend of the Court

13.02 Any person may, with leave of a judge or at the invitation of the presiding judge or associate judge, and without becoming a party to the proceeding, intervene as a friend of the court for the purpose of rendering assistance to the court by way of argument.

Leave to Intervene in Divisional Court or Court of Appeal

13.03 (1) Leave to intervene in the Divisional Court as an added party or as a friend of the court may be granted by a panel of the court, the Chief Justice or Associate Chief Justice of the Superior Court of Justice or a judge designated by either of them.

[33] The relevant factors to be considered on a motion to intervene were recently canvassed by the Divisional Court in Martin v. Health Professions Appeal and Review Board, 2022 ONSC 1340, at paras. 47 – 51 (citations omitted):

The relevant factors to consider upon such an application are:

1. The nature of the case;

2. The issues which arise; and

3. The likelihood of the applicant being able to make a useful contribution without causing injustice to the parties.

In 2003 Chief Justice McMurtry stated:

Today most intervenors who intervene as a friend of the court articulate a position that may generally be aligned with one or another side of the argument. The submission of the respondent that a friend of the court must be neutral, abstract and objective refers to a restricted notion of the amicus curiae that has long been rejected…

However, in 2021 Roberts J.A. noted in Baldwin that the historical role of a friend of the court is one of a neutral person, with no interest in the proceedings, who calls the attention of the court to some point of law or fact with an element of impartiality or altruism.

Leave will more likely be granted in matters of public importance. There has been a relaxation of the rules with respect to cases decided under the Canadian Charter of Rights and Freedoms. The burden on the party requesting leave to intervene is larger in cases that are closer to the private dispute end of the spectrum…

The controlling principle is whether the proposed intervenor will make a useful contribution to the proceedings. “The likelihood of assistance is a function of many variables, including, but not only, the experience and expertise of the proposed intervenor”.

The proposed intervenor must offer a contribution that is distinct from the contributions made by the parties to the dispute. Repetition or “me too” submissions provide no assistance to the court.

Entities who in the past have been granted intervenor status usually meet at least one of the following criteria:

1. a substantial and identifiable interest in the subject matter of the proceeding;

2. an important perspective, distinct from the immediate parties; or

3. the intervenor is a well-recognized group with special expertise and a broad identifiable membership base. [Emphasis added]

[34] While the motion judge’s reasons are brief, they are sufficient to meet the requirements set out by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 79: “Reasons explain how and why a decision was made. They help to show affected parties that their arguments have been considered and demonstrate that the decision was made in a fair and lawful manner.” In this regard it is important to note that the motion judge was not deciding the merits of the case – he was deciding a purely procedural question of whether a proposed intervenor would be granted leave to file a factum of no more than 15 pages, and to make oral argument at the hearing of no more than 15 minutes. His reasons touch upon the major factors to be considered on a motion to intervene, and it is clear why he exercised his discretion as he did.

[35] That said, I am of the view that the motion judge’s reasons are inconsistent with the decision of this Court in Martin, because he failed to consider whether the proposed intervenor’s legal position is really distinct from the Applicant’s, and failed to consider that, based on Martin, this case is closer to the “private dispute end of the spectrum”.

[36] These two factors are closely related – the closer something is to the public interest end of the spectrum, the more repetition may be tolerated in an intervention. Charter cases challenging the validity of legislation or government policy are at one end of the public interest spectrum, which is why there has been a relaxation of the rules with respect to intervenor cases decided under the Charter. As the litigation approaches the private dispute end of the spectrum, however, the more prejudicial repetition becomes to the interests of the private parties.

[37] In Martin, a full panel of the Divisional Court set aside the decision of a single judge granting the Ontario Trial Lawyers Association (OTLA) leave to intervene as a friend of the court in a judicial review application seeking to review the decision of the same tribunal – the HPARB – from which judicial review is sought in this case.

[38] Based on the materials filed, the Divisional Court found that the OTLA would not provide a contribution distinct from the appellant, and concluded, at para. 56:

OTLA’s contribution appears to be in the vein of a ‘me too’ submission. The concern it wishes to bring to the court’s attention are already raised by the applicant’s material and fundamentally reflect the applicant’s concerns… If OTLA was granted intervenor status, it would not be calling the attention to a fact or law not otherwise presented to the court by Mr. Martin.

[39] The Court also found, at para. 58, that the matter lay near the private dispute end of the spectrum between private and public disputes, and that OTLA had not met its heightened burden to intervene as a friend of the court. The Court stated, at paras. 59 and 60:

As well, it is important to recall that the matter before the Board was primarily a regulatory decision in an administrative setting. The issue before the Divisional Court will be whether the Board’s decision was reasonable.

OTLA’s focus is not on the reasonableness of the Board’s decision in the disciplinary process, but rather upon the impact of the Board’s interpretation of s.37(1) of PHIPA upon the litigation process.

[40] In my view, the same analysis applies to the present case. While there can be no doubt that CWIM is a well-recognized organization dedicated to gender equity in the medical profession, their motion material fails to articulate how their position will be distinct from Mr. Kastner’s.

[41] CWIM’s vague statements that it intends to focus its legal submissions and oral argument on the obligation of the ICRC and the HPARB to “consider and apply the Human Rights Code robustly”, and to “meaningfully apply and engage with the Human Rights Code” does nothing to distinguish its position from Mr. Kastner’s. Indeed, it is clear from Mr. Kastner’s Application for Judicial Review that this is precisely his position, even though he does not use the adjectives “robust” and “meaningful”.

[42] In her oral submissions, counsel for CWIM was asked to explain how CWIM’s position on the interpretation of the Human Rights Code differed from Mr. Kastner’s. She fairly answered that she did not yet know and would not know until she had an opportunity to review Mr. Kastner’s factum, which has not yet been filed. In my view, this is not sufficient, in the circumstances of this case, to meet the requirement that a proposed intervenor must offer a contribution that is distinct from the contributions made by the parties to the dispute.

[43] While this judicial review does raise public interest issues, that does not change the fact that the underlying proceeding is essentially a private dispute: it is a complaint before the College of Physicians and Surgeons against a single individual. The issue before the College was whether the Respondent - and only the Respondent - engaged in discriminatory hiring practices against women physicians and engaged in and encouraged improper billing practices. As in Martin, the matter before HPARB was primarily a regulatory decision in an administrative setting, and the issue before the Divisional Court will be whether the decision of the HPARB, and by extension the decision of the ICRC, was reasonable.

[44] Moreover, the ICRC’s jurisdiction to consider and apply the Human Rights Code is not in dispute in the judicial review – it was conceded by the Respondent and found to apply by the HPARB, which expressly rejected the ICRC conclusion that “hiring and human rights are outside the purview of the Committee”.

[45] While CWIM does, as the motion judge stated, bring a “broad perspective of women in the medical profession”, a “friend of the court” is not permitted to supplement the record, and its intervention is limited to legal submissions. A broad perspective does not necessarily translate into a materially different legal position (Wood v. CTS of Canada Co., 2018 CarswellOnt 6806 (Ont. C.A.), at para. 15), and it is incumbent on CWIM to explain how its broad perspective translates into a distinct legal position on this judicial review. In my view, it has failed to do so. The motion judge appears to assume that a broad perspective will translate into a distinct legal position, but the submissions of the proposed intervenor simply fail to bear this out.

Conclusion

[46] For these reasons the Respondent’s motion is granted, and the order of Corbett J. dated April 5, 2022, granting CWIM leave to intervene as a friend of the court, is hereby set aside.

[47] The parties agreed that there would be no costs order for this motion.

Charney J.

I agree

Wilson J.

H. SACHS J. (dissenting):

[48] The Respondent seeks to set aside a discretionary order. To do so, he must satisfy us that this order is ‘“so clearly wrong that it amounts to an injustice” or the motion judge “gives no or insufficient weight to relevant considerations”’( Guillaume,supra, at para. 4). The Respondent has not satisfied this test.

[49] According to the majority “the motion judge’s reasons are inconsistent with the decision of this Court in Martin” because the motion judge “failed to consider whether the proposed intervenor’s decision is really distinct from the Applicant’s, and failed to consider that, based on Martin, this case is closer to the ‘private dispute end of the spectrum’”.

[50] Martin does not stand for the principle that every case involving a disciplinary complaint lies closer to the private end of the spectrum. It recognized that cases involving constitutional issues do not lie at the private end of the spectrum and that, leave will more likely be granted in cases where the issue raised is one of public importance. As the motion judge recognized, this case concerns alleged discrimination under the Human Rights Code, an issue that has long been recognized as quasi-constitutional in nature. Further, as the motion judge and the majority recognized, this judicial review does raise public interest issues Therefore, it cannot be said that the motion judge was clearly wrong when he found that this was not “an essentially private dispute.”

[51] The majority also found that the proposed intervenor had not established how their position would be distinct from Mr. Kastner’s. The motion judge dealt with this issue and found that the proposed intervenor would not just bring a “me too” perspective to the case. As he found, and the majority agreed, the “proposed intervenor brings the broad perspective of women in the medical profession to bear on the potentially complex issue of discrimination in the medical profession.” As such the proposed intervenor was in the position to raise issues of principle concerning the nature of discrimination in that profession. The motion judge found that this perspective could contribute to understanding “the kind of record that is sufficient to conclude a proper investigation into allegations of discrimination” which “may also be inherently systemic in nature.”. The motion judge also explicitly outlined why this perspective would be different from that of Mr. Kastner’s. The motion judge found that the Respondent doctor’s factum implied that the complaints of the medical professionals Mr. Kastner was representing were “purely personal in nature”. The motion judge concluded that having the principled ( as opposed to purely personal) perspective of what the majority acknowledged to be “a well-recognized organization dedicated to gender equity in the medical profession” would be helpful to the court in understanding the nuanced and complex issue of systemic gender discrimination in the medical profession. Again, while the majority may not agree with this conclusion, it cannot be said that it is “clearly wrong”.

[52] Furthermore, it is not sufficient to establish that the decision under review is “clearly wrong”. It must be “ so clearly wrong that it amounts to an injustice.” In this case, the motion judge was careful to take a number of steps to ensure that the proposed intervenor’s participation would not cause an injustice to the Respondent doctor. He limited the length of their factum to 15 pages; he gave them only 15 minutes to make oral submissions; and he made sure that their participation would not add to the record or delay the proceedings.

[53] As can be seen from the above, the motion judge considered all the relevant factors that he had to consider. He just came to a different conclusion about them than the majority.

[54] The majority based its decision on the reasoning in Martin. It is worth pointing out that in Martin the Divisional Court ( for reasons unique to that case) had been invited to make a first instance decision. This is not what this court is being asked to do. We are being asked to set aside a discretionary decision of a single Divisional Court judge. We owe that decision considerable deference and it is important that we do not encourage the use of s.21(5) of the Courts of Justice Act, as an opportunity to get a “second kick at the can” in front of three, as opposed to one, Divisional Court judge. The strain on the already limited resources of our court that this causes is obvious.

Sachs J.

Released: September 30, 2022

CITATION: Kastner v. Health Professions Appeal and Review Board, 2022 ONSC 5553

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

Danny Kastner

Applicant

– and –

Health Professions Appeal and Review Board, College of Physicians and Surgeons of Ontario, and Marko Duic

Respondents/Moving Party

– and –

Canadian Women in Medicine

Proposed Intervenor/Responding Party

REASONS FOR DECISION

Wilson and Charney JJ. (concurring)

Sachs J. (dissenting)

Released: September 30, 2022