Court File and Parties

CITATION: Moore v. The College of Chiropractors of Ontario, 2024 ONSC 6402

DIVISIONAL COURT FILE NO.: 338/24

DATE: 20241118

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: DR. BRIAN MOORE, Appellant

-and-

THE COLLEGE OF CHIROPRACTORS OF ONTARIO, Respondent

BEFORE: FL Myers J

COUNSEL: Antoine d’Ailly, for the Appellant Megan Shortreed and Karen Jones, for the Respondent Nicholas Smith, for One Chiropractic, proposed intervenor

HEARD: November 18, 2024

CASE CONFERENCE ENDORSEMENT

[1] I have signed the order for a publication ban made at the last hearing. Counsel need to do a better job communicating before coming to court. I suggest telephone rather than email to encourage cooperation on mundane matters.

[2] I will not settle the order made by Davies J. But based on the submissions I heard, the comment above applies. If someone requires a settlement hearing on the terms of the order, he or she may well expect a costs award for unnecessary proceedings.

[3] The appellant shall perfect the appeal by December 31, 2024. While 60 days expires December 9, 2024 and the appellant had months before then, I am not going to hold counsel to a technical date if he says he needs a couple of extra weeks in the absence of articulable prejudice to the College. Moreover, giving the date sought by the appellant frees the respondent from concerns about working through the holidays.

[4] The appellants should be briefing fully the issue of costs under Ontario law. The issue is squarely presented for appeal. Issues of whether costs are reasonable or punitive and whether an unsuccessful regulated member ought to be liable for the costs of retaining the panel members are issues before the court. Whether the proposed intervenor has anything to add will be seen after the appeal is perfected. However, if the intervention is denied, the appellant should not leave itself without the ability to raise whatever arguments it wishes. No further factum should be expected by the appellant.

[5] One Chiropractic shall deliver its motion record, including its proposed intervenor’s factum for the appeal by January 31, 2025.

[6] The respondent shall deliver its responding motion record, if any, by February 21, 2025.

[7] Cross-examinations shall be completed by March 14, 2025.

[8] One Chiropractic shall deliver its factum on or before March 28, 2025.

[9] The respondent shall deliver its factum for the motion no later than April 11, 2025.

[10] The motion will be heard for up to two hours on April 30, 2025 by Zoom.

[11] The respondent’s factum in the appeal will be delivered within 30 days of the decision on the intervenor’s motion.

[12] The Registrar is requested to schedule a hearing before a panel for up to one-half day once the decision on the motion to intervene is released.

[13] The appellant brought an application for judicial review in 2022 under Divisional Court File No. 1343/22. That application sought to enjoin the hearing of the discipline committee on the basis that the Chair was improperly appointed or that the bylaw allowing his appointment was improper. The appellant’s request for an interlocutory injunction was denied as premature. Now that the hearing is completed, the appellant wants to bring his judicial review proceeding forward with this appeal.

[14] The College opposes the merger of the two applications. Ms. Shortreed says that the earlier proceeding was concluded. Today was the first she has heard of it. (See my comment in para. 1.) Moreover, Ms. Shortreed submits that the appeal includes, or should include, any issue about the appropriateness of the appointment of the Chair. There is no independent life left of the JR proceeding.

[15] In my view, the appellant should be entitled to raise his issue of law concerning whether, under the definition of “member” and sections regarding the composition of the discipline committee and the hearing panel contained in the Health Professions Procedural Code, Schedule 2 to the Regulated Health Professions Act, 1991, SO 1991, c. 18, the College was entitled to appoint the Chair of the panel that heard the case below. Whether this is by way of appeal or the old JR proceeding is not terribly important subject to the following. The scope of review of the two proceedings differs and the court retains a discretion to decline judicial review under s. 2 (5) of the Judicial Review Procedure Act, RSO 1990, c J.1 and Strickland v. Canada (Attorney General), 2015 SCC 37 as discussed in Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8. Whether JR should be considered when an appeal does not succeed in the procedural and substantive facts of this case is for the panel.

[16] It would be unnecessarily inefficient and costly to separate the proceedings especially where there is only a question fo law involved and there is so much time available for the parties to brief the issue. Mr. d’Ailly made a clear statement to me that there is no challenge the hearing panel’s bias decision. Nor is he relying on the grounds found unavailable by Davies J. The issue being joined is simply and solely whether the Chair of the hearing tribunal was improperly appointed to the panel as a matter of law under the Health Professions Procedural Code sections mentioned above because he is neither a member of the regulated profession nor a lay member appointed to the Council of the College by the Lieutenant Governor in Council.

[17] There is no need for the College or the panel to produce a Record of Proceedings under s. 10 of the JRPA. The appellant’s question of law does not turn on the factual record.

FL Myers J

Date: November 18, 2024