COURT FILE AND PARTIES

COURT FILE NO.: CV-15-00531527-0000
DATE: 20150908

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Dr. Waleed Alghaithy, Applicant

AND:

Attorney General of Ontario, Ministry of Health and Long-Term Care, College of Physicians and Surgeons of Ontario, Royal College of Physicians and Surgeons of Canada, University of Ottawa (Post Graduate Medical Education), Respondents

AND RE: Dr. Yasmin Sardar, Applicant

AND

Attorney General of Ontario, Ministry of Health and Long-Term Care, College of Physicians and Surgeons of Ontario, Royal College of Physicians and Surgeons of Canada, University of Ottawa (Post Graduate Medical Education), Respondents

BEFORE: Allen J.

REPRESENTATION: The Applicant, Dr. Waleed Alghaithy in person and Dr. Yasmin Sardar, in person

COUNSEL: Amy Block, for the College of Physicians and Surgeons of Ontario

Padraic Ryan for the Attorney General of Ontario and the Ministry of Health and Long-Term Care

Brandon D. Stewart for the Royal College of Physicians and Surgeons of Canada

Sally Gomery for the University of Ottawa

HEARD: September 4, 2015

RELEASED: September 8, 2015

ENDORSEMENT

BACKGROUND

[1] The Applicants, Dr. Waleed Alghaithy (between 2005 and 2011) and Dr. Yasmin Sardar, (between 2008 and 2011) held certificates of registration authorizing postgraduate education at the University of Ottawa, Dr. Alghaithy in Neurosurgery and Dr. Sardar in Obstetrics and Gynecology.

[2] Dr. Alghaithy appeared in person. He also sought to act as Dr. Sardar’s representative in this proceeding which I disallowed pursuant to Rule 15.01 (2) of the Ontario Rules of Civil Procedure. Dr. Sardar represented herself in the proceeding.

[3] Dr. Alghaithy’s registration certificate expired in 2011 when the College of Physicians and Surgeons of Ontario (“the CPSO”) learned he was terminated from the Neurosurgery program due to concerns about his professionalism. Dr. Sardar’s registration expired in June 2015 when she did not complete an annual application form required to renew her certificate. Dr. Sardar is currently under investigation by the CPSO with respect to her conduct and professionalism.

[4] Dr. Alghaithy appealed the University’s decision to the Senate Appeals Committee of the University, which appeal was dismissed on January 28, 2011. He also sought judicial review in the Divisional Court of the University’s decision. By decision on April 4, 2012, the Divisional Court upheld the termination finding there was ample evidence of prolonged unprofessional conduct on the part of Dr. Alghaithy: Alghaithy v. University of Ottawa, 2012 ONSC 142 (Ont. Div. Ct.).

[5] Dr. Alghaithy’s attempts to seek leave to appeal to the Ontario Court of Appeal and the Supreme Court of Canada were also dismissed.

[6] Dr. Alghaithy comes to this court seeking relief against the CPSO arising out of his 2011 termination from the Neurosurgery Program at the University and in relation to the Divisional Court decision upholding the termination.

[7] Dr. Alghaithy and Dr. Sardar style the Applications before this court as judicial reviews. They seek various forms of relief including, among other relief: declarations that R.R.O. 865/93 under the Medicine Act, 1991 S.O. 1991, c. 30 (“the Registration Regulation”), pertaining to registration, is invalid under s. 52 (1) of the Constitution Act; an order of mandamus requiring the CPSO to issue Dr. Alghaithy and Dr. Sardar certificates of registration; Dr. Sardar also seeks an order in relation to s. 24 of the Canadian Charter of Rights and Freedoms in the nature of a prohibition restraining the CPSO Registrar from investigating her conduct and capacity.

[8] The Applicants’ main claims are against the CPSO. The constitutional and Charter challenges to the CPSO’s governing legislation and to its administrative procedures engages the involvement of the Attorney General of Ontario and the Minister of Health and Long-Term Care.

APPLICATIONS DISMISSED

[9] The Applicants have not sought relief against the University of Ottawa or the Royal College of Physicians and Surgeons of Canada in the Applications before this court. Both Respondents sought to have the Applications against them dismissed. On consent of the Applicants and counsel I signed Orders dismissing the Applications against those Respondents without costs.

THIS COURT’S AUTHORITY

The threshold question required to be decided is what authority the Superior Court, sitting with a single judge, has to hear the Applications. Pursuant to s. 6 (2) of the Judicial Review Procedures Act, R.S.O. 1990, c. J. 1, an application for judicial review may be made to the Superior Court of Justice sitting with one judge, with leave of the judge, where it appears the case is one of urgency and where the delay required for an application to the Divisional Court is likely to involve a failure of justice.

[10] Counsel for the CPSO presented a recent Divisional Court decision that considered a single judge’s jurisdiction to hear a motion to quash an application for judicial review. It was held that a single judge sitting as the Divisional Court has the discretion to quash such an application when the application is “manifestly premature”. The court pointed out that judicial review is a discretionary remedy that will not be exercised where the applicant has “an alternative adequate remedy, except in exceptional circumstances”: Franssen v. Assn. of Professional Geoscientists of Ontario 2015 ONSC 651, at paras. 4 and 7, (Ont. Div. Ct.).

[11] Both Applicants have recourse to alternate avenues to pursue the relief they seek. Both are seeking certificates of registration. There is no evidence of exceptional circumstances in either case.

[12] In early 2015 Dr. Alghaithy applied to the Registration Committee of the CPSO for a certificate of registration to again take up training as a resident in the Neurosurgery Program at the University. The Registration Committee had not yet rendered a decision when Dr. Alghaithy took the position this court proceeding supersedes the Registration Committee’s proceeding. So the Registration Committee halted its proceeding. Pursuant to the Health Professions Procedural Code (“the Code”), when or if a determination by the Registration Committee is reached, and if Dr. Alghaithy wishes to challenge it, he has the option of appealing to the Health Professions Review Board and then to the Divisional Court.

[13] Dr. Alghaithy also requested the CPSO issue him an independent practice certificate of registration. The CPSO rejected the application because Dr. Alghaithy refused to complete the application form and provide the reference and consent forms required of all applicants. Dr. Alghaithy has not properly pursued this alternate course of action.

[14] Dr. Sardar is also entitled to apply for an independent practice certificate and she has not pursued this avenue. If she makes such an application and is rejected she too has the option to appeal the decision to the Health Professions Review Board and then to the Divisional Court.

[15] The court must decline to offer relief by way of judicial review where other remedies are available: Lambton Kent District School Board v. Ontario (Workplace Safety Insurance Board), 2013 CarswellOnt 2044, at paras. 27-31, (Ont. Div. Ct).

[16] I find that both Applications are “manifestly premature”. Further, neither Dr. Alghaithy nor Dr. Sardar has demonstrated any urgency to their Applications or that any delay in seeking judicial review before the Divisional Court will result in a failure of justice.

FURTHER REVIEW OF THE APPLICATIONS

[17] The foregoing determination provides sufficient reason to dismiss the Applications. However, for completeness I will address some of the other deficiencies in the Applications that pose possible further grounds for dismissal.

[18] The Applicants have filed application records, factums and briefs of authorities. The Respondents filed responding materials. Cross-examination of a representative of the CPSO was conducted by Dr. Alghaithy on August 21, 2015. Dr. Alghaithy filed the transcripts with his materials.

[19] My review of the materials led me to the following additional determinations:

(a) The Applicants have not brought any sworn evidence in support of the relief they seek. Their Application records do not contain sworn affidavits although they have filed copious documents. Their factums largely contain bald and conclusory allegations lacking factual and legal foundation. These materials are not in compliance with the Rules of Civil Procedure. Rule 38.09 requires application records to contain affidavits of sworn evidence and factums containing an analysis of the facts and applicable law. In reality this court is left no evidence from the Applicants for the court’s consideration.

(b) Regarding the claims against the CPSO, there are no existing decisions in relation to either Applicant that are the proper subject matter of judicial review. As noted earlier with regard to the University, Dr. Alghaithy has exhausted his appeals of the University’s decision to terminate him from the Neurosurgery Program.

(c) As well, the forms of relief sought are not available. It appears that neither Dr. Sardar nor Dr. Alghaithy is actually seeking a review of a registration decision by the CPSO. They are seeking to force the CPSO to issue certificates of registration through relief in the nature of mandamus orders.

(d) An order of mandamus is an extraordinary remedy the purpose of which is to rectify inaction or misconduct by a party charged with duties of a public nature and is only available where there is recourse to no other avenues of relief: Dolan v. Ontario Civilian Commission on Police Services, 2011 ONSC 1376, 2011 CarswellOnt 1439, at para. 71, (Ont. Div. Ct.). Pursuant to the Code, the Registrar’s decisions are discretionary. Neither Applicant has a right to a certificate of registration: Chauhan v. Health Professional Appeal and Review Board and the College of Physicians and Surgeons of Ontario, 2013 ONSC 1621, at paras. 41 and 52 (Ont. S.C.J.). An order of mandamus is not available in the circumstances.

(e) Dr. Sardar is no longer a member of the CPSO as her certificate of registration expired on June 30, 2015. The investigation into her capacity ceased with the expiry of the registration certificate. The Code provides in this circumstance that the CPSO has no jurisdiction over Dr. Sardar’s capacity. Thus, the order sought to prohibit the Registrar from investigating her capacity is without basis.

(f) Dr. Sardar’s request for an order prohibiting the CPSO’s investigation into her conduct and her bald assertion that the investigation is contrary to the Charter are without foundation. Under the Code, the CPSO is legislatively mandated in the public interest to investigate a member’s conduct even after a termination of membership. Further, the investigation is not complete. There has been no decision. After the investigation, if the Executive Committee of the CPSO arrives at a decision that the matter should be moved on to the Quality Assurance Committee or the Discipline Committee, Dr. Sardar has a right to a full hearing and a right to appeal: Bhardwaj v. College of Physicians and Surgeons (Ontario), 2004 CarswellOnt 4700, at paras. 4. 5 and 8, aff’d [2005] O.J. No. 1969 (Ont. Div. Ct.).

(g) Also, the Applicants’ bald assertions that the Registration Regulation requirements are invalid under s. 52 (1) of the Constitution Act and violate section 7, 8 and 15 of the Charter have no factual or legal foundation.

ORDER

[20] I dismiss the Applications by Dr. Waleed Alghaithy and Dr. Yasmin Sardar against the University of Ottawa and the Royal College of Physicians and Surgeons of Canada.

[21] I have the authority to either dismiss the Applications against the remaining two Respondents or transfer them to the Divisional Court. Given my finding of prematurity for both Applications, I find the appropriate disposition is dismissal. I therefore dismiss the Applications by Dr. Waleed Alghaithy and Dr. Yasmin Sardar against the College of Physicians and Surgeons of Ontario and the Attorney General of Ontario and Ministry of Health and Long-Term Care.

[22] Order to issue accordingly.

COSTS

[23] The Attorney General for Ontario and the Ministry of Health and Long-Term Care sought no costs. The costs sought by the CPSO were unopposed by the Applicants. I fix costs of $3,589.30 against Dr. Alghaithy and costs of $1,830.30 against Dr. Sardar, both inclusive of interest and disbursements to be paid within 30 days of this Order.

Allen J.

Date: September 8, 2015