CITATION: The College of Physicians and Surgeons of Ontario v. Kilian, 2022 ONSC 6345
DIVISIONAL COURT FILE NO.: 248/22
DATE: 20221108
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO, Appellant
AND:
ROCHAGNÉ KILIAN, Respondent
BEFORE: Leiper J.
COUNSEL: Peter Wardle and Evan Rankin, for the Appellant
Paul Slansky, for the Respondent
HEARD at Toronto: In Writing
ENDORSEMENT
PART I – INTRODUCTION
[1] These are the reasons for a motion in writing for leave to intervene in an appeal to this court from an interlocutory order made by Justice Pollak on April 9, 2022. In that order, Justice Pollak stayed an application for leave to intervene before her, which was argued on February 18 and March 22 of 2022.
[2] The underlying matter before Justice Pollack was an application by the College of Physicians and Surgeons of Ontario (the “College”) under s. 87 of the Health Professionals Procedural Code, (the “Code”), Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (“RHPA”).
[3] The College brought the s. 87 application to compel Dr. Rochagné Kilian to cooperate with an investigation by the College. At the time of the s. 87 application, a group of anonymous patients of Dr. Kilian applied to intervene. That application was argued before Justice Pollak, who did not rule on the intervention motion, or hear submissions on the s. 87 application. Justice Pollak stayed the proceedings on her own motion considering ongoing proceedings in a parallel judicial review involving Dr. Kilian and the College.
[4] On August 8, 2022, this court granted leave to appeal Justice Pollak’s interlocutory stay order. Following a case management conference on September 27, 2022, Justice Matheson fixed a hearing date for December 5, 2022.
[5] As a result of the case management order, the issues on the appeal are limited to two questions:
a. Whether to set aside Justice Pollak's order, and
b. Whether the Divisional Court should hear the College's application for s. 87 relief that was originally before Justice Pollak and if it does hear that request, how it should be heard.
PART II – POSITIONS OF THE PARTIES ON THIS MOTION
[6] A group of Dr. Kilian’s patients seek leave to intervene in this appeal pursuant to r. 5.03 of the Rules of Civil Procedure, or in the alternative, leave to intervene under r. 13.01(2) of the Rules of Civil Procedure. They also seek an interim order anonymizing their identities and granting leave to file their pleadings using “Janes Doe” and “Johns Doe” pursuant to r. 2.03 of the Rules of Civil Procedure. The grounds for intervention related to protecting the privacy interests of the proposed intervenors in their medical records, which are sought by the College from Dr. Kilian as part of their investigation.
[7] The College opposes the request of the proposed intervenors because they are not necessary parties to the issues on this appeal at this stage. The College submits that the court should not exercise its discretion to add the proposed intervenors. Doing so would add complication and delay to an investigation which has been delayed for over a year.
PART III- ISSUES ON THE MOTION
[8] The issues on the motion are as follows:
a. Should the proposed intervenors be granted leave to intervene as parties pursuant to r. 5.03 of the Rules of Civil Procedure?
b. Should the proposed intervenors be granted leave to intervene pursuant to r. 13.01(2) of the Rules of Civil Procedure?
c. If granted leave to intervene, should the proposed intervenors be permitted to participate anonymously and be permitted to file materials in the names of Janes Doe and Johns Doe?
PART IV – ANALYSIS OF THE ISSUES
Should the proposed intervenors be granted leave to intervene as parties pursuant to r. 5.03 of the Rules of Civil Procedure?
[9] R. 5.03 (1) of the Rules of Civil Procedure provides:
5.03 (1) Every person whose presence is necessary to enable the court to adjudicate effectively and completely on the issues in a proceeding shall be joined as a party to the proceeding.
[10] The proposed intervenors argue that their interests are engaged by the College’s request for relief on this appeal on two grounds. The first is that the very application which is involved in this appeal was their motion to intervene before Justice Pollak, which was fully argued but not decided. Secondly, the proposed intervenors submit that the College’s notice of appeal seeks costs of this motion for leave to intervene.
[11] The parties and the proposed intervenors have since confirmed that costs are not being sought on this motion.
[12] The College responds that due to the September 27, 2022 case management direction, the hearing of the appeal on December 5, 2022 will only decide whether to send back the question of the motion to intervene on the s. 87 application or whether the Divisional Court should decide the s. 87 application on another date. The outcome of that hearing will determine where and when any subsequent leave to intervene motion may be brought by the proposed intervenors. In effect, the College submits that this motion is premature.
[13] I agree. The questions at the argument of this appeal relate to the decision to stay the s. 87 application, which has not yet been argued. There has been no substantive decision yet made which engages the legal interests of the proposed intervenors directly. The issues on this appeal do not engage those legal interests. This appeal is concerned with an interlocutory stay and potentially, a direction for a further hearing to have this court determined the underlying application. That decision is not yet known. I conclude that at this stage the proposed intervenors are not “necessary to enable the court to effectively adjudicate” the issue on the appeal from Justice Pollak’s decision to stay the proceedings before her.
Should the proposed intervenors be granted leave to intervene pursuant to r. 13.01(2) of the Rules of Civil Procedure?
[14] R. 13.01(2) is an alternative route to participation in a proceeding. This rule provides:
13.01 (1) A person who is not a party to a proceeding may move for leave to intervene as an added party if the person claims,
(a) an interest in the subject matter of the proceeding;
(b) that the person may be adversely affected by a judgment in the proceeding; or
(c) that there exists between the person and one or more of the parties to the proceeding a question of law or fact in common with one or more of the questions in issue in the proceeding.
(2) On the motion, the court shall consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding and the court may add the person as a party to the proceeding and may make such order as is just.
[15] The proposed intervenors submit that if they are denied leave to intervene at this stage, their future rights of participation would be extinguished. This could prejudice their privacy interests over their confidential health records to the College if the s. 87 application is decided in their absence.
[16] The College does not seek to have the proposed intervenors’ participation determined for all time. It submits that the number of intervenors, including children, without any proposal for litigation guardians, will unnecessarily complicate this appeal and risk further delay in a matter involving the public interest in timely regulation of the medical profession.
[17] I find that the proposed intervenors have an interest in the subject matter of this proceeding: it was their motion to intervene below which was stayed, after Justice Pollak heard submissions on their behalf. The proposed intervenors have satisfied r. 13.01(2)(a). However, would intervention at this stage cause undue delay or prejudice the rights of other parties? The goal at this stage is to consider those realities and to make such order “as is just.”
[18] The appeal in this matter is scheduled for December 5, 2022. The parties have exchanged their materials for that argument. If leave is granted at this stage, the questions of the intervenors who are under a disability would have to be considered, as would the filing of intervenors materials and time for the preparation and delivery of responding materials from the parties. This would add complexity and could add delay to this appeal from an interlocutory step.
[19] The decision on the December 5 appeal may mean that the parties will return before a single judge of the Superior Court of Justice to decide the question of intervention and the underlying s. 87 application. If that happens, adding intervenors at this stage would not be a reasonable use of time or resources. It would add a layer of complication before the privacy interests of the proposed intervenors are involved.
[20] Alternatively, the decision on appeal may mean that the Divisional Court will decide the underlying s. 87 application. That will not happen on December 5, 2022 but on a date that is not yet determined. At that stage, the privacy interests of the proposed intervenors may be engaged. An order permitting them to renew this motion will address the concern that their future rights could be extinguished.
[21] I conclude that it is not in the interests of justice to order leave to intervene at this stage. The just order to be made is to dismiss the motion for leave to intervene without prejudice to the ability of the proposed intervenors to renew their application in the appropriate forum when their privacy interests arise in the records sought by the College in its investigation.
If granted leave to intervene, should the proposed intervenors be permitted to participate anonymously and by filing their materials in the names of Janes Doe and Johns Doe?
[22] Based on my decision that it is not in the interests of justice to grant leave to intervene to the proposed intervenors it is unnecessary to consider the question of anonymizing the names of the intervenors or the other relief sought in relation to their material.
PART V – CONCLUSION AND COSTS
[23] The application is dismissed without prejudice to the proposed intervenors’ right to seek leave on an updated record and following the decision in this appeal.
[24] Costs are not being sought by either party. No costs are ordered.
Leiper J.
Date: November 8, 2022