CITATION: Tan v. Ontario Physicians and Surgeons Discipline Tribunal, 2024 ONSC 6609
DIVISIONAL COURT FILE NO.: 209/24
DATE: 20241127
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Backhouse, Ryan Bell, and O’Brien JJ.
BETWEEN:
ROMEO BANZON TAN
Applicant
– and –
ONTARIO PHYSICIANS AND SURGEONS DISCIPLINE TRIBUNAL and COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO
Respondents
Adam J. Patenaude and Gregory A. Cherniak, for the Applicant
Dionne Woodward, for the Respondent Ontario Physicians and Surgeons Discipline Tribunal
Ruth Ainsworth, for the Respondent College of Physicians and Surgeons of Ontario
HEARD at Toronto: September 10, 2024
REASONS FOR DECISION
RYAN BELL J.
Overview
[1] In June 2021, the Ontario Physicians and Surgeons Discipline Tribunal found that the applicant, Dr. Romeo Banzon Tan, had engaged in professional misconduct in that he had sexually abused a patient. In September 2021, the Tribunal revoked Dr. Tan’s certificate of registration. This court upheld the Tribunal’s decision in April 2022. Leave to appeal to the Court of Appeal for Ontario was denied in September 2022.
[2] In December 2023, two and half years after the Tribunal’s finding of professional misconduct, Dr. Tan sought to reopen his hearing to admit fresh evidence. In June 2023, Dr. Tan had been acquitted following his criminal trial in relation to the same conduct. The proposed fresh evidence involved alleged inconsistencies between the patient’s testimony at the criminal trial and before the Tribunal.
[3] This was Dr. Tan’s second motion to re-open the hearing to allow for the introduction of fresh evidence. In December 2020, prior to the release of the Tribunal’s reasons on liability, Dr. Tan argued that the patient’s evidence at the preliminary inquiry conflicted with her hearing testimony. The Tribunal dismissed that motion, in reasons released concurrently with its decision on liability. On appeal, Dr. Tan specifically challenged the Tribunal’s decision not to re-open the hearing; this court found no merit to Dr. Tan’s submissions: Tan v. College of Physicians and Surgeons of Ontario, 2022 ONSC 1431, at paras. 67-76.
[4] The Tribunal’s Case Management Chair dismissed Dr. Tan’s December 2023 motion, ruling that the Tribunal did not have jurisdiction to hear the motion. The Chair determined that Rule 13.3.1 of the Tribunal’s Rules of Procedure, which deals with when the Tribunal may vary, suspend, or cancel a Tribunal order “that continues in effect”, does not provide a statutory exception to the doctrine of functus officio.
[5] Before this court, Dr. Tan argues that the Chair’s interpretation of Rule 13.3.1 is incorrect. Dr. Tan asks this court to set aside the Chair’s decision and order that the Tribunal hear his motion to re-open his discipline hearing. The College of Physicians and Surgeons of Ontario submits that the Chair’s decision to dismiss based on no jurisdiction is both reasonable and correct.
[6] For the following reasons, I conclude that the Chair’s decision based on his interpretation of Rule 13.3.1 is reasonable. I would dismiss the application for judicial review.
The Chair’s Decision
[7] After receiving Dr. Tan’s motion to admit fresh evidence and to re-open his hearing, the Chair requested submissions from the parties on whether the Tribunal had lost jurisdiction over the matter as a result of the principle of functus officio. The parties agreed that because of the doctrine of functus officio, there must be specific statutory authority for the Tribunal to change its finding that Dr. Tan committed sexual abuse. Dr. Tan relied on Rule 13.3.1 which provides:
The Tribunal may vary, suspend or cancel a Tribunal order that continues in effect where:
a. there are new facts arising or discovered after the order was made, or a material change in circumstances has occurred after the order was made; and
b. the change to the order would be in the public interest.
[8] The Chair issued his decision dismissing the motion for lack of jurisdiction on February 29, 2024. The Chair concluded that Rule 13.3.1 did not provide specific statutory authority because it “applies only when an ongoing aspect of an order like terms, conditions or limitations on a certificate of registration requires modification. Even in those circumstances, it does not allow for a reversal of the finding.” (Chair’s Decision, at para. 5)
[9] The Chair reviewed the history of Rule 13.3.1, noting that the “motion to vary” was introduced to the Tribunal’s Rules of Procedure in 2009. The previous year, this court held that the Health Professions Procedural Code[^1], implicitly allows the Tribunal to remove or vary an indefinite term, condition, or limitation on a certificate of registration but that it was “not for [the Court] to determine the circumstances in which a member may seek a variation of a term as that issue is not before us on this application”: Li v. College of Physicians and Surgeons of Ontario, 2008 37613 (Div. Ct.), at para. 30. Rule 13.3.1 sets out those circumstances and the procedure to bring a request. (Chair’s Decision, at para. 9) The qualification that the request must relate to an order that “continues in effect” was added in 2023. (Chair’s Decision, at para. 10)
[10] The Chair observed that, in interpreting Rule 13.3.1, he was required to apply the “modern approach to interpretation” and analyze the text, context, and purpose of the Rule to determine its intent. (Chair’s Decision, at para. 11)
[11] The text of Rule 13.3.1 suggests that its purpose is to set out the criteria and procedure for a request to change a term, condition, or limitation under the power discussed in Li, not to establish a review power under the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22. Section 21.2(1) of the SPPA allows for the review of a decision or order and based on that review, for the decision to be confirmed or changed.[^2] By contrast, Rule 13.3.1 does not use the word “review” or “reconsider” and it refers only to varying an “order.” (Chair’s Decision, at paras. 12-13)
[12] The Chair disagreed with Dr. Tan that a revocation “continues in effect” because the Code prevents him from applying for reinstatement for five years: “[r]evocation is an event that occurs at a set moment, with lasting consequences.” (Chair’s Decision, at para. 14)
[13] The Chair determined that the most important context is the principle of finality. According to the Chair, a provision that permitted a review of a decision years later, would be contrary to s. 21.2.(2) of the SPPA, which requires that any review is to take place “within a reasonable time after the decision or order is made.” (Chair’s Decision, at paras. 16-17)
[14] Finally, the Chair concluded that the history of Rule 13.3.1 suggests its purpose was to implement the power to vary identified in Li. The Chair cited Tribunal decisions in which Rule 13.3.1 has been used in the situations contemplated by Li. (Chair’s Decision, at para. 18)
No Appellate Jurisdiction
[15] Dr. Tan submits that this court has jurisdiction to hear this matter both as an application for judicial review and as a statutory appeal, pursuant to s. 70 of the Code. In regard to the former, there is no dispute. In regard to the latter, the College submits that s. 70 of the Code is not engaged.
[16] I agree with the College. Section 70(1) of the Code reads:
A party to proceedings before the Board concerning a registration hearing or review or to proceedings before a panel of the Discipline or Fitness to Practise Committee, other than a hearing of an application under subsection 72(1), may appeal from the decision of the Board or panel to the Divisional Court.
[17] Section 70(1) is intended to provide a right of appeal from decisions of the Discipline Tribunal that finally dispose of the issue between the College and an applicant – “that is, whether the applicant has committed an act of professional misconduct”: Rudinskas v. College of Physicians and Surgeons of Ontario, 2011 ONSC 4819 (Div. Ct.), at para. 73.
[18] The language of s. 70(1) restricts the right of appeal to a decision of the Board concerning a registration hearing or review and a decision of the panel of the Discipline or Fitness to Practise Committee. A panel of the Discipline Tribunal will be struck to hold a hearing and adjudicate the allegations: Code, s. 38. Only members of the panel who were present throughout a hearing shall participate in “the panel’s decision”: Code, s. 50. Reading s. 70(1) contextually, it is clear that the provision is not intended to provide a right of appeal from all decisions made by the Tribunal, including the decision of the Chair, but only from the decision of the panel empowered to hold the discipline hearing itself.
[19] A panel of the Discipline Tribunal adjudicated on the merits of the allegations against Dr. Tan. Dr. Tan appealed those findings, unsuccessfully. His appeal right is spent and is not revived by his motion seeking to re-open his discipline hearing.
[20] Dr. Tan is not entitled to challenge the Chair’s decision by way of a statutory appeal. His recourse is an application for judicial review.
Standard of Review
[21] Dr. Tan asserts that the standard of review to be applied to his application for judicial review is correctness. The basis for Dr. Tan’s submission is the holding in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 that the presumption of reasonableness can be rebutted with regard to “general questions of law of central importance to the legal system as a whole.”
[22] An administrative body’s interpretation of its home statute is presumptively reviewed under the standard of reasonableness: Vavilov, at para. 25. This presumption applies with equal force to a tribunal’s interpretation of its own rules, which fall squarely within its home statute: Semykin v. Canada (Citizenship and Immigration), 2019 FC 496, at para. 16.
[23] Contrary to Dr. Tan’s submission, the scope of the doctrine of functus officio is not engaged on this application; the only issue is whether Rule 13.3.1 creates an exception to it. The interpretation of the Tribunal’s Rules of Procedure, applicable to a single regulated health profession and susceptible to change by the Tribunal at any time, does not engage a question of central importance to the legal system as a whole.
[24] The standard of review of the Chair’s decision is reasonableness.
The Chair’s Decision is Reasonable
[25] In my view, the Chair’s decision dismissing Dr. Tan’s motion to re-open his discipline hearing is reasonable. The Chair’s reasons for concluding that Rule 13.3.1 does not provide specific statutory authority for the Tribunal to re-open Dr. Tan’s discipline hearing are transparent, internally coherent, and justified in relation to the facts and the law.
[26] In relation to an administrative tribunal, the doctrine of functus officio provides that, as a general rule, once a final decision by the tribunal is made, the tribunal has no power to revisit its decision because the tribunal has changed its mind, made an error within jurisdiction, or there has been a change of circumstances. The general rule is subject to limited exceptions including, where there has been a slip in drawing up the decision, to correct an error in expressing the manifest intention of the tribunal, or if there is specific statutory authority to do so: Chandler v. Alberta Association of Architects, 1989 41 (SCC), [1989] 2 S.C.R. 848, at p. 861.
[27] Where a final decision of a court or tribunal is susceptible of appeal, as is the case here under s. 70(1) of the Code, functus officio promotes finality, which is a “practical necessity for the system of justice as a whole”, and effective appellate review: Canadian Broadcasting Corp. v. Manitoba, 2021 SCC 33, at para. 34.
[28] Section 21.2(1) of the SPPA authorizes a tribunal – if its rules permit – to “review all or part of its own decision or order” and, if so, to “confirm, vary, suspend or cancel the decision or order.” Under s. 21.2(2) of the SPPA, any review must take place within a reasonable time after the decision or order is made.
[29] The Chair was alert to important differences in the wording between s. 21.2(1) of the SPPA and Rule 13.3.1. Unlike s. 21.2(1), Rule 13.3.1 does not use the word “review.” While s. 21.2(1) refers to reviewing a decision or an order, Rule 13.3.1 refers only to the ability to vary, suspend, or cancel an order. Under s. 21.2(1), the tribunal may confirm the decision or order; Rule 13.3.1 does not use the word “confirm.” Having regard to these differences, it was reasonable for the Chair to conclude that Rule 13.3.1 is not an implementation of the review power contemplated by s. 21.2(1) of the SPPA.
[30] Rule 13.3.1 requires that only an order that “continues in effect” can be varied, suspended, or cancelled. The Chair rejected Dr. Tan’s argument that a revocation continues in effect because the Code prevents him from applying for reinstatement for five years. As the Chair explained, Dr. Tan’s interpretation would result in a general review power and render the words “continues in effect” meaningless because “[n]early every order has a lasting effect, at least those leading to an entry on the public register identifying the misconduct.”
[31] The Chair carefully considered the history of Rule 13.3.1 and its purpose. Dr. Tan submits that the Chair’s “logic” does not follow from this court’s decision in Li because Li does not deal with the issue of facts arising or discovered after an order was made. In Li, this court held that the Code implicitly allows the Tribunal to remove or vary an indefinite term, condition, or limitation on a certificate of registration. Previously, the Tribunal had concluded that it did not have the power to do so. The court did not determine the circumstances in which a member could seek a variation or a term because that issue was not before it. The predecessor to Rule 13.3.1 was added the following year.
[32] It was reasonable for the Chair to conclude that Rule 13.3.1’s history suggests its purpose was to implement the power to vary identified in Li. And, as the Chair identified, Rule 13.3.1 has been used in situations contemplated by the Court in Li, including: Buttoo v. College of Physicians and Surgeons of Ontario, 2021 ONPSDT 40; College of Physicians and Surgeons of Ontario v. Kingstone, 2012 ONCPSD 26; College of Physicians and Surgeons of Ontario v. Wyatt, 2011 ONCPSD 10.
[33] The Chair identified the principle of finality as “the most important context here” and cited the Supreme Court of Canada’s explanation for the principle: “If lower courts could continuously reconsider their own decisions, litigants would be denied a reliable basis from which to launch an appeal to a higher court. The appeal record would be written on ‘shifting sand’, ultimately inhibiting effective review”: Canadian Broadcasting, at para. 34. The principle of finality is recognized in s. 21.2(2) of the SPPA, which requires that any review must take place within a “reasonable time” after the decision or order is made. The Chair concluded, reasonably, that a provision allowing review of a decision with no time limits on the request – the position advocated for by Dr. Tan – would be contrary to s. 21.2(2).
[34] Dr. Tan challenges the Chair’s reliance on Khan v. College of Physicians and Surgeons of Ontario, 2022 ONPSDT 37 and contends the Chair failed to provide “further explanation” for his conclusion that “Khan is clear that the rule is not intended to allow reconsideration.” I do not agree. The Chair explained that “[a]pplying functus officio, the Tribunal [in Khan] found that the application to vary rule ‘is not an appeal or reconsideration provision’ and did not provide for the reversal of a decision on the basis it was allegedly wrong.” (Chair’s Decision, at para. 19) The Chair’s reliance on Khan is consistent with his textual, contextual, and purposive analysis of the provision.
[35] In detailed, clear, and internally coherent reasons, the Chair identified and applied the correct interpretative principles. His interpretation of Rule 13.3.1 and his dismissal of Dr. Tan’s motion based on no jurisdiction were reasonable.
Disposition of the application
[36] The application is dismissed. Costs to be paid by Dr. Tan to the College in the agreed upon amount of $7,500. No costs were sought by or against the Tribunal; none ordered.
Ryan Bell J.
I agree:
Backhouse J.
I agree:
O’Brien J.
Date of Release: November 27, 2024
CITATION: Tan v. Ontario Physicians and Surgeons Discipline Tribunal, 2024 ONSC 6609
DIVISIONAL COURT FILE NO.: 209/24
DATE: 20241127
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Backhouse, Ryan Bell, O’Brien JJ.
BETWEEN:
ROMEO BANZON TAN
Applicant
– and –
ONTARIO PHYSICIANS AND SURGEONS DISCIPLINE TRIBUNAL and COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO
Respondents
REASONS FOR DECISION
Ryan Bell J.
Date of Release: November 27, 2024
[^1]: Schedule 2 to the Registered Health Professions Act, 1991, S.O. 1991, c. 18.
[^2]: Section 21.2(1) of the SPPA reads:
(1) A tribunal may, if it considers it advisable and if its rules made under section 25.1 deal with the matter, review all or part of its own decision or order, and may confirm, vary, suspend or cancel the decision or order.
(2) The review shall take place within a reasonable time after the decision or order is made.