CITATION: Hardick v. College of Chiropractors of Ontario, 2023 ONSC 1479

DIVISIONAL COURT FILE NO.: 060/23

DATE: 20230303

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: BENJAMIN HARDICK Applicant

AND:

COLLEGE OF CHIROPRACTORS OF ONTARIO Respondent

BEFORE: Justice O’Brien

COUNSEL: D. Cowling and A. Boissonneau-Lehner, for the Applicant

C. Paliare, K. Jones, and D. Rosenbluth, for the Respondent

HEARD: February 17, 2023

ENDORSEMENT

Overview

[1] The moving party Dr. Hardick seeks an interim stay of the operation of a bylaw of the respondent College of Chiropractors of Ontario (the “College”) pending the hearing of his application for judicial review. The by-law has the effect of disqualifying Dr. Hardick from running in the upcoming election to become a member of the College’s Council, which is akin to its board of directors.

[2] In approximately October 2022, after Dr. Hardick had contacted the College to express an interest in running for Council, the College’s Executive Committee (“EC”) began considering an amendment to its By-Law 6: Election of Council Members (the “Bylaw”). Until the events at issue in this proceeding, s. 6.9(e) of the Bylaw provided that members were ineligible to run for Council if they had been the subject of a finding of professional misconduct within the three years before the election. After a number of meetings and a process of consultation, the College decided to amend the Bylaw to provide that members were ineligible for election to Council if they had been the subject of a finding of professional misconduct in the preceding six years.

[3] In 2018, Dr. Hardick was the subject of professional discipline by the College’s Discipline Committee. According to the previous version of the Bylaw, Dr. Hardick would have been eligible to run for the upcoming election. However, the amended Bylaw precluded Dr. Hardick’s candidature.

[4] Dr. Hardick submits that the College amended the Bylaw specifically to render him ineligible to stand for election to Council in the 2023 election. In his submission, this constituted bad faith and an improper purpose. He further submits the Bylaw should be struck on the basis that it impermissibly purports to have retrospective effect by providing consequences for past conduct.

[5] Dr. Hardick goes on to say that in the absence of a stay, he will suffer irreparable harm, as he will have been wrongfully denied his right to run for the 2023 Council election. He submits that the balance of convenience weighs in his favour given that a stay would simply continue a status quo that existed for well over 20 years prior to the Bylaw amendment. He has undertaken to terminate his candidacy and/or resign his seat on Council should he win a seat but fail on the application for judicial review.

[6] The deadline for submitting nomination papers for election to Council was the date this motion was heard, February 17, 2023. At the conclusion of argument on the motion, I advised orally that the stay was denied and Dr. Hardick’s motion dismissed, with reasons to follow. I dismissed the motion for the following reasons.

Analysis

Test for Granting a Stay

[7] The test regarding whether to grant a stay is set out in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311. Ordinarily, the moving party must demonstrate that there is a serious issue to be tried; that it will suffer irreparable harm if the stay is not granted; and that the balance of convenience favours a stay. However, the minimal threshold at the first step assumes that the stay will operate as a temporary measure pending the full hearing. In cases where, as a practical matter, the rights of the parties will be determined by the outcome of the stay motion, the question becomes whether there is a strong likelihood that the case will succeed on the merits: Toronto (City) v. Ontario (Attorney General), 2018 ONCA 761, 142 O.R. (3d) 481, at para. 10.

[8] Dr. Hardick disputes the relevance of the Toronto case. There, the province passed legislation during a municipal election period to change the ward structure from 47 to 25 wards. The city successfully challenged the constitutionality of the new legislation in the Superior Court of Justice. In response to the Attorney General’s motion seeking a stay pending appeal, the Court of Appeal articulated the first part of the stay test as whether there was a strong likelihood that the appeal would succeed. This more onerous test was necessary because the Court’s decision on the stay could effectively determine whether the election proceeded on the basis of 25 or 47 wards.

[9] Dr. Hardick submits that the case is distinguishable in that there was no way to undo the municipal election once it occurred. In the current case, he says, it will be possible to reverse a decision to stay the Bylaw given that, should Dr. Hardick win a seat on Council but be unsuccessful on judicial review, he has undertaken to resign his Council seat.

[10] I disagree that Dr. Hardick resigning his seat would effectively “undo” the election. First, I am not as confident as Dr. Hardick that his judicial review, which has not yet been scheduled, will be heard and decided quickly enough to avoid a period during which he would be involved in the College’s governance. More importantly, resigning from his seat would not reverse the election. Although there was a suggestion in the evidence that the second-place candidate might be able to assume his seat, the College’s bylaws provide that when a seat of an elected Council member becomes vacant, an election will be held. This would be an entirely new election with new dynamics. It is unknown, for example, which of the previous candidates or which new candidates would choose to run. In other words, if Dr. Hardick won his seat and was ultimately unsuccessful on his judicial review, he likely would have held office for some period although unqualified to do so and a new election would then need to be held. In these circumstances, the stay effectively would determine the parties’ rights in the pending election. This leads me to apply the higher standard at the first stage of the stay test.

Is there a strong likelihood the judicial review will succeed?

[11] Turning then to the first part of the test, I am unable to find a strong likelihood that the judicial review will succeed. The standard of review applicable to the review of a professional regulator’s bylaw is reasonableness. As the Supreme Court of Canada stated in Green v. Law Society of Manitoba, 2017 SCC 20, 407 D.L.R. (4th) 573, at para. 20, in the context of a law society rule, the rule will be set aside only if it “is one no reasonable body informed by the relevant factors could have enacted.”

[12] Dr. Hardick has not demonstrated a strong likelihood that the Bylaw will be found to be unreasonable. Dr. Hardick does not take issue with what the College describes as a “cooling off period” following a finding of professional misconduct. His position is that it was unreasonable for the College to make the Bylaw amendment effective immediately. He submits that in implementing the amendment immediately, the College gave the amendment impermissible retrospective effect. He also submits that Council’s actions demonstrate bad faith and an improper purpose.

A. Retrospective Effect

[13] As explained by the Supreme Court of Canada in Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, [2017] 2 S.C.R. 289, at para. 43, the presumption against retrospectivity is a rule of statutory interpretation. Its purpose is to protect acquired rights and prevent a change in the law from attaching new prejudicial consequences to a completed transaction. The presumption works such that “statutes are not to be construed as having retrospective operation unless such a construction is expressly or by necessary implication required by the language of the Act”: Tran, at para. 43, quoting from Gustavson Drilling (1964) Ltd. v. Minister of National Revenue, [1977] 1 S.C.R. 271, at p. 279.

[14] However, the presumption exists to ensure laws will apply retrospectively only where the legislature has clearly signaled that it has weighed the benefits of retrospectivity with its potential unfairness. Where the legislature signals by express language or necessary implication that it has turned its mind to the issue of retrospectivity, the presumption does not apply: Tran, at para. 50.

[15] In this case, I accept, as submitted by the College, that there is a strong likelihood a panel would find that Council expressly engaged with the issue of retrospectivity.

[16] The issue of the Bylaw amendment came before Council at a special meeting held on January 20, 2023. Eleven of Council’s 16 members were present. They voted unanimously to approve the proposed amendment to the Bylaw.

[17] There was then a debate as to when the amendment should come into effect. Some Council members took the position that the effective date should be delayed until after the upcoming 2023 elections for Council. Others held the view that an immediate effective date was in the public interest. They reasoned that if it was in the public interest to amend the Bylaw, it was equally in the public interest to implement the amendments immediately and not wait until after the next election.

[18] Ultimately, Council voted 6-5 in favour of implementing the amendments immediately. Of Council’s 16 members, 9 are chiropractors who are elected by their peers in specific electoral districts and 7 are public members appointed by the Lieutenant Governor in Council. All six votes in favour of immediate implementation came from Council’s public members.

[19] The vote as to whether the amendment should be delayed was an express engagement with the issue of retrospectivity. The only concern with immediate implementation was the question of fairness to anyone caught by the changes in the 2023 election. Council was aware that the issue of the Bylaw amendment was triggered by Dr. Hardick’s interest in running. Indeed, the package of material provided to Council members in advance of the meeting included letters from Dr. Hardick’s supporters specifically raising the issue of his disqualification for candidacy should the amendment be passed immediately. In short, there is a strong argument to say that Council, after debate and some dissent, voted that the amended Bylaw should have retrospective effect and should capture those who would be impacted retrospectively in the 2023 election.

[20] Dr. Hardick points to a statement in the EC report to Council for the January 20, 2023 meeting, which, he submits, provides evidence that Council did not consider the impact of the amendment on him. The report states: “Consistent with legal advice, Council was encouraged to make its policy decision on a principled basis, and information concerning individual(s) who had already expressed an interest in running for election was not part of Council’s deliberations.” The report goes on to state:

The By-law Amendments do not target any one member. Rather, the By-law Amendments will affect anyone who, following a full and fair investigation, hearing, and referral to the discipline committee, has been found to have committed an act of misconduct or is incompetent as reflected on the COO’s public register at any time up to six years from the finding.

[21] In my view, this excerpt should be read to say that Council was not targeting Dr. Hardick to prevent him from running for Council. This does not mean Council was unaware of the possible retrospective impact of the amended Bylaw.

[22] Dr. Hardick also submits that it was not open to Council to pass a bylaw with retrospective application where the enabling statute, the Health Professions Procedural Code (the “Code”), being Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (the “RHPA”), does not expressly authorize it to do so.

[23] It goes without saying that delegated legislation must fall within the bounds of the authority provided by the enabling statute. However, the Supreme Court of Canada has repeatedly emphasized a professional regulator’s broad discretion to regulate. In Green, for example, it compared rules made by a law society to bylaws passed by municipal councils. The Court emphasized that such bylaws “must reflect the broad discretion provincial legislators have traditionally accorded to municipalities engaged in delegated legislation”: at para. 21, quoting from Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5, at para. 19. The Court further underscored, at para. 22, the professional regulator’s “broad discretion to regulate … on the basis of a number of policy considerations related to the public interest.” See also Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33, [2018] 2 S.C.R. 453, at para. 18.

[24] Here, the College has a duty under s. 3(2) of the Code to serve and protect the public interest. Further, Council is granted broad powers to pass bylaws relating to the administration and internal affairs of the College, combined with express authority to pass bylaws regarding qualifications for members to run for Council, as well as conditions disqualifying members of Council. Subsection 94(1) of the Code provides, in relevant part:

94(1) The Council may make by-laws relating to the administrative and internal affairs of the College and, without limiting the generality of the foregoing, the Council may make by-laws,

(d.1) respecting the election of Council members, including requirements for members to be able to vote, electoral districts and election recounts;

(d.2) respecting the qualification and terms of office of Council members who are elected;

(d.3) prescribing conditions disqualifying elected members from sitting on the Council and governing the removal of disqualified Council members;

[25] In the circumstances of this case, Council expressly passed the Bylaw amendment to serve and protect the public interest. I will deal more fully below with the allegations that the College targeted Dr. Hardick with its amendments to the Bylaw. For now, I focus on the evidence the College relies on to say it was focused on the public interest.

[26] The College fully acknowledges that Council’s EC began to look into the issue of the cooling-off period after Dr. Hardick contacted the College’s Registrar in August and September 2022 to express an interest in running for Council. The EC was aware that Dr. Hardick had been found to have committed professional misconduct. This type of issue had not arisen at the College since 1999, when a Council member had been the subject of a Discipline Committee hearing.

[27] Since 1999, the environment in which the College operates as a regulatory health college had changed substantially. There had been significant changes to the expectation that regulatory colleges act in the public interest, including stricter requirements related, for example, to the publication of information regarding members on the public register. In addition, in 2020, the Ontario Ministry of Health established annual reporting requirements for all regulated health profession colleges using a College Performance Measurement Framework (“CPMF”) to measure and report, in a standardized manner, how they were acting in the public interest. An important aim of the CPMF was consistency across colleges. The College had been working to improve its processes and structures, guided by the goals of the CPMF.

[28] In this context, the College’s EC considered Dr. Hardick’s potential candidacy to raise an important issue for consideration in the current regulatory environment. During its initial meetings to discuss the issue triggered by Dr. Hardick’s candidacy, the EC received information that a number of other regulated health colleges had a six-year cooling off period, including the three largest colleges: the College of Nurses of Ontario, the College of Physicians and Surgeons of Ontario and the Ontario College of Pharmacists.

[29] The EC came to the view and recommendation that the six-year cooling off period was a best practice. It reasoned that such a change increased the chances that the candidate would be running for election to regulate the profession in the public interest rather than to address their recent interactions with the College. Further, it found the amendment to be in the public interest because of enhanced public confidence in the College by members of the public who might be concerned about Council members who had recently been found to have committed professional misconduct or be incompetent. Finally, the EC was of the view that the amendment reduced the chance of a candidate, if elected, having a conflict of interest when dealing with issues related to a recent finding of professional misconduct.

[30] At the same time that it was considering the amendment in dispute, the EC also looked at other cooling off periods in the bylaws. It recommended an additional amendment so that the six-year cooling off period would also apply to the appointment of non-Council members to committees.

[31] The EC’s recommendation came before Council at the November 24, 2022 meeting. Council decided that it was in the public interest to solicit stakeholder feedback regarding the proposed amendments. Therefore, on December 2, 2022, it circulated a request for feedback. The College received extensive responses to this request, most of which were supportive of the proposed changes. Among other positive responses, the Ontario Chiropractic Association, which represents approximately 80% of the College’s members, sent a supportive letter. The College also received some feedback opposing the timing of the changes.

[32] Prior to the January 20, 2023 meeting at which Council held its votes, each Council member received an information package containing the complete set of feedback received during the consultation process. As set out above, the amendment passed unanimously, though the decision to implement the changes immediately passed 6-5 with the public members all voting in favour of immediate implementation.

[33] In brief, Council passed the amendment with a focus on adhering to best practices in protecting the public and in the context of a regulatory environment intent on public accountability. It also expressly considered and voted in favour of the Bylaw’s retrospective application.

[34] Dr. Hardick has not provided any authority for the proposition that a public regulator is not entitled to pass a bylaw with retrospective application where the bylaw is expressly intended to protect the public interest and where the delegated authority specifically turned its mind to its retrospective impact. In view of the College’s broad statutory mandate to serve and protect the public, combined with Council’s wide bylaw powers, Dr. Hardick has not demonstrated his claim on this point has a strong likelihood of success. Put otherwise, in the circumstances of this case, Dr. Hardick has not shown a strong likelihood that, on judicial review, a panel of this Court would find Council’s amendment to be outside the range of options available to the College applying a reasonableness standard.

B. Bad Faith/Improper Motive

[35] Dr. Hardick also submits that the Bylaw amendment should be quashed on the basis that Council passed it in bad faith and pursuant to an improper motive. He submits that the College’s claims that it was acting in the public interest constitute a “thin veneer” hiding the real substance of the matter, which was to target his candidacy. He asks the Court to infer bad faith and improper purposes from factors such as the following: But for the fact of Dr. Hardick having notified the College’s Registrar that he intended to run for election, there would have been no amendment prior to the current election cycle; the process was accelerated to capture him prior to the current election; he was the only member affected by the change for the current election; Council did not apply the same rule to sitting Council members; and there was no urgency to the amendment given that the College had considered the prior version of the Bylaw to be in the public interest for the previous 20 years.

[36] Bad faith connotes a lack of candour, frankness and impartiality. It includes arbitrary or unfair conduct and the exercise of power to serve private purposes at the expense of the public interest: Equity Waste Management of Canada Corp v. Halton Hills (Town), 35 O.R. (3d) 321, at para. 61. Bylaws also may be set aside where they are passed for an improper purpose, including a purpose collateral to the one for which the power to make the bylaw was granted: Hummel Properties Inc. v. Niagara-on-the Lake (Town), 2022 ONCA 737, at para. 26; Markham v. Sandwich South (Township of), at para. 24.

[37] Dr. Hardick faces a heavy burden in seeking to demonstrate bad faith on the part of the majority of Council members: Friends of Lansdowne Inc. v. Ottawa (City), 2012 ONCA 273, 110 O.R. (3d) 1, at para. 79.

[38] Dr. Hardick has not identified any private purpose or other personal reason that the public members of Council voted in favour of the immediate implementation of the Bylaw. Indeed, he acknowledged on cross-examination that he was not aware of any public member of Council having a bias against him, nor was he able to identify any motivation against him.

[39] I do not find a strong likelihood that on judicial review this Court would find the College acted for a purpose other than the public interest. Although the process of amending the Bylaw was triggered by Dr. Hardick’s expression of interest, the basis for the review was to ensure the College’s qualification rules complied with best practice. The College proceeded on an expedited basis and ultimately Council decided to pass the amendment with immediate effect. But it only did so after engaging in consultations with the profession and public, through which the proposed amendment received broad support.

[40] With respect to the argument that the amendment did not potentially disqualify sitting Council members, there is a distinction between the retroactive and retrospective application of a bylaw. Retrospectivity changes the future legal effect of past events whereas retroactivity changes the legal effect of past events as if the law were different when those events occurred: Ruth Sullivan, Sullivan on the Construction of Statutes, 7th ed (Markham: LexisNexis, 2022), at § 25.02 [4] and 25.05 [1]; Gustavson, at p. 279. The fact that Council did not give the Bylaw retroactive effect does not detract from its ability to give the Bylaw retrospective effect. Sitting Council members are in a different position than those running for election. To disqualify them would mean undoing the results of an election ex post facto. Moreover, there is no evidence that any current Council member would have been captured by such a rule.

[41] Overall, in my view, a panel of this Court on judicial review would likely interpret the College as having acted in the public interest in a manner that impacted a particular member, Dr. Hardick, but not with the purpose of doing so. Therefore, in my view, Dr. Hardick has not demonstrated a strong likelihood that, on judicial review, the Bylaw would be found unreasonable.

Will Dr. Hardick suffer irreparable harm?

[42] I accept that Dr. Hardick will suffer irreparable harm if prevented from running in the election. The next election for the seat on Council in his electoral district will be in 2026. By then, the finding of professional misconduct against him will be sufficiently outdated that the Bylaw will not prevent him from running. Still, I do not consider the opportunity to run in the next election to obviate the three-year wait and lost opportunity to participate in the current governance of the College.

Does the balance of convenience favour a stay?

[43] Overall, the balance of convenience weighs in favour of denying a stay. When a court is considering a request for a stay suspending the operation of a validly enacted law, the law is presumed to be in the public good. In assessing the balance of convenience, therefore, the motions judge must proceed on the assumption that the law, or bylaw in this case, is directed to the public interest and serves a valid public purpose: Harper v. Canada (Attorney General), 2000 SCC 57, 2 S.C.R. 764, at para. 9; RJR-MacDonald, at pp. 348-49.

[44] This presumed public interest must be weighed against Dr. Hardick’s assertion of his own rights. I have found that he stands to suffer irreparable harm if he is prevented from running in the election. That said, and although not a cure for the harm he will suffer, he will have the opportunity to run again in the next election. Meanwhile, if the election proceeds on an invalid basis, this must be presumed to harm the public interest as a whole. Practically speaking, as I have said above, the election cannot simply be undone by Dr. Hardick’s undertaking to resign. Requiring that an entirely new election be held, potentially with new candidates, in my view constitutes a greater harm than requiring Dr. Hardick to wait for the next election cycle.

Disposition

[45] Therefore, as indicated at the conclusion of the hearing, the motion is dismissed. Dr. Hardick shall pay costs to the College in the agreed-upon amount of $20,000.

O’Brien J

Date: March 3, 2023