Court File and Parties

CITATION: Brown v. HPARB, 2025 ONSC 1659

DIVISIONAL COURT FILE NOS.: 454/24; 463/24

DATE: 2025-03-17

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: JULIE BROWN, Applicant

AND:

HEALTH PROFESSIONS APPEAL AND REVIEW BOARD, COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO AND NAVEEN ARYA, MD, Respondents

RE: JULIE BROWN, Applicant

AND:

HEALTH PROFESSIONS APPEAL AND REVIEW BOARD, COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO AND FREDERICK DOUGLAS BAIR, MD, Respondents

BEFORE: Matheson J.

COUNSEL: Daniel Mulroy, for the Applicant David P. Jacobs and Steven G. Bosnick, for the Health Professions Appeal and Review Board Ruth Ainsworth, for the College of Physicians and Surgeons Jaan Lilles and Sam Johansen, for the Respondents Bair and Arya

HEARD at Toronto: March 14, 2025, in writing.

Endorsement

[1] These motions arise from two applications for judicial review, each involving the same applicant but a different physician. The applications have been directed to be heard by the same panel of this Court. The respondent physicians have brought motions to strike out the applicant’s affidavit affirmed on December 20, 2024, which she put forward in support of the applications for judicial review. The other respondents support the motions.

[2] The first application for judicial review (File 454/24) challenges the decision of the Health Professions Appeal and Review Board (HPARB) and the underlying decision of the Inquiries, Complaints and Reports Committee (ICRC) of the College of Physicians and Surgeons of Ontario (CPSO) arising from a complaint made against the respondent Dr. Arya. The second application for judicial review (File 463/24) challenges the HPARB decision and ICRC decision arising from the applicant’s complaint about the respondent Dr. Bair.

[3] In these applications for judicial review, the applicant delivered a supporting affidavit, giving rise to these motions to strike it out. The moving parties submit that the affidavit contains material that is not the proper subject matter for an affidavit on a judicial review including: (1) purported evidence outside the applicant’s knowledge; (2) duplication of evidence that is already shown on documents that are in the record of proceedings; (3) considerable argument, which is not evidence; and (4) statements that do not fall within the limits on evidence supplementing the record of proceedings.

[4] There is no question that the scope of the evidence on an application for judicial review is limited. Anything that is not in the record of proceedings must meet a well-established legal test. If the evidence is already in the record of proceedings, there is no need for the affidavit in any event.

[5] The applicant accepts that there are limits yet submits that her affidavit properly: (1) is evidence that should have been in the record of proceedings; (2) summarizes evidence therefore providing a fuller picture; (3) shows an absence of evidence on the applicant’s disability and medical history; (4) is relevant to procedural fairness arguments; and (5) broadly, that it is in the interests of justice to admit it.

[6] The applicant’s responding motion materials do not advance any significant argument, let alone a successful argument, that the record of proceedings is incomplete. That is not a basis upon which to permit the affidavit. Further, the affidavit does go beyond the general rule that the application record is limited to what was before the decision maker. The proposed evidence must therefore fall within an exception to the general rule.

[7] The affidavit is a mix of evidence, overlapping with events shown in the record of proceedings, and including considerable commentary by the applicant on various events and steps in the proceedings. Further, it purports to summarize the evidence that was before the decision makers. Affidavits that “summarize” evidence are generally not helpful to the Court, which must have regard for the evidence before the decision-maker without a concern that it may be characterized in a contentious way in an affidavit. That is the situation here, from the standpoint of the moving parties. The applicant has the opportunity to provide her summary of the evidence in her factum.

[8] The moving parties raised other issues as well. They dispute the applicant’s characterization of the evidence in many respects. Further, the affidavit includes evidence about her medical treatment after the ICRC decisions and statements regarding matters that are outside her knowledge. It also appears to include her opinions about medical matters beyond her own health and outside her expertise.

[9] One of the circumstances in which affidavit evidence is permitted is to show procedural unfairness where the facts do not appear in the record of proceedings. The applicant relies on this exception although her affidavit is not particularly clear on what facts are submitted under this exception.

[10] On a review of the affidavit, I see the basis for many of the issues raised on this motion. However, I must also consider a timing issue. I see that this motion was scheduled in advance of the hearing of the application and given the court’s directions I do not criticize the moving parties for bringing the motion now. However, courts are generally reluctant to deal with issues of admissibility and relevance of evidence in advance of the hearing on the merits: Hanna v. Attorney General for Ontario, 2010 ONSC 4058, at para. 7.

[11] There are exceptions to the above general rule. In Sierra Club Canada v. Ontario (Ministry of Natural Resources and Ministry of Transportation), 2011 ONSC 4086 (Div. Ct.), relied on by the moving parties, the court observed that in that case, the motion “should have been brought prior to the hearing by the panel, in order to clarify the contents of the record” and to “define the issues for the hearing based upon properly admissible evidence.” However, the Court in Sierra Club also held that if the motion judge is unsure about the relevance of certain material, the issues may be left to be determined by the panel hearing the judicial review.

[12] There are considerable issues with the affidavit, beginning with questions of admissibility through to questions about argument and spin, which is not permitted, and other issues about statements put forward as evidence. However, on the materials before me, it is not clear whether some of the evidence is needed for a procedural fairness ground. Given that uncertainty, and the mixed nature of the proposed evidence, it is not practical to strike out only those portions of the affidavit that are impermissible at this early stage. I conclude that this motion must be adjourned to the panel hearing the applications and decided at that time in full context.

[13] As a result, the parties must put forward their application materials without assuming, one way or the other, that this affidavit will be permitted. The applicant’s factum must therefore expressly state when a submission relies on the proposed evidence in the affidavit and cite the specific paragraphs of the affidavit for each of those submissions. The respondents must do the same.

[14] These motions, and any related costs orders, are adjourned to the panel hearing these applications. Within two weeks from today, the parties shall email the court with their agreed, or proposed, schedules for the exchange of the remaining court documents on these applications.

Matheson J.

Date: March 17, 2025