Court File and Parties
COURT FILE NO.: TBD DATE: 20200520 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
JOHN-LOUIE MAKSOUD., Applicant
– and –
CANADIAN ALLIANCE OF PHYSIOPTHERAPY REGULATORS et al., Respondents
BEFORE: F.L. Myers J.
COUNSEL: Ken J. Berger, for the Applicant
READ: May 20, 2020
Endorsement
[1] Mr. Maksoud seeks leave to commence an application on an urgent basis pursuant to the Notice to the Profession dated March 15, 2020 as amended. The applicant seeks Charter remedies concerning the alleged unconstitutionality of the regulation governing licensing of physiotherapists in Ontario.
[2] The court has had to restrict its services due personnel limitations caused by the Covid-19 pandemic. Although processes have been instituted to allow many categories of civil proceedings to be heard in Toronto at this time, the proposed application raises substantial constitutional questions. It requires a long hearing at best assuming there are no material facts in dispute. If the factual matrix is not complete or is contested, then a trial is likely required.
[3] Counsel for Mr. Maksoud provides the following basis for bringing this proposed proceeding as a summary application at this time:
I am asking for permission from the Court to file the attached Notice of Application.
I tried to file it today, and it was not accepted.
My concern is as follows:
- If my client were to file an Action he could do so electronically during Covid-19, but does not wish to move forward by way of action, due to delays and costs and is moving forward by way of Application.
- He has appealed to HPARB but his Constitutional Application should be heard first, as HPARB is not a court of competent Jurisdiction to adjudicate Charter matters.
- I tried to ask HPARB to suspend matters due to Covid-19 and because of this Application, so far they have not done so and there is a Prehearing Conference scheduled for June 18, 2020.
- We believe that there will be substantial prejudice if this Application is not filed in advance of the Prehearing Conference, and would ask the court to accept its filing.
- Of course, for the Application hearing, we are hopeful the Covid-19 situation will lift but are preparing factum etc..
[4] In other words, the applicant has been unable to obtain a stay of a proceeding before an administrative tribunal while he brings a Charter challenge. Counsel asserts baldly that there will be “substantial prejudice” to his client if this proposed application is not filed with the court prior to the pre-hearing conference before the tribunal. He does not explain how the relative timing of the filing of originating process in this court and the hearing of a pre-hearing conference at the tribunal matters at all.
[5] Neither does he explain his entitlement to characterize a tribunal declining a stay as “substantial prejudice.” If a party is unhappy with a ruling by an administrative tribunal, he or she can appeal if the statutory scheme allows an appeal. Otherwise he or she can seek judicial review. Unless and until either process is successful, the tribunal’s ruling is in effect and is respected as a subsisting ruling. It is disrespectful to the tribunal and to the rule of law to undermine a subsisting ruling with epithets.
[6] Moreover, I suspect that an application for judicial review would be dismissed as premature at this time. The Divisional Court has ruled many times in similar cases that parties are to finish a hearing at an administrative tribunal prior to seeking judicial review or appeal. This is both for efficiency and to provide the court with the benefit of the tribunal’s view on the issues raised by the applicant. See, for example, Cheng v. Ontario Securities Commission, 2018 ONSC 2502 citing Dioguardi Tax Law v. The Law Society of Upper Canada, 2016 ONCA 531 and Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541.
[7] Whether this tribunal is a “court of competent jurisdiction” for the purpose of striking down regulations under the Charter, it certainly can hear allegations that its process is infringing on the applicant’s constitutional rights.
[8] I note as well that the proposed notice of application alleges nine pages of grounds in support of the proposed application. Under the evidence heading, the applicant discloses that he will rely upon “affidavits and other evidence” on the application. No specific affidavits are listed as being ready to be delivered. There is no indication that this proposed proceeding has a fulsome and uncontested factual underpinning to allow it to be fairly heard and resolved summarily.
[9] I make no comment at all about the merits of the proceeding proposed by Mr. Maksoud. In his proposed notice of application, he raises serious issues about accommodation of physical disabilities. He is entitled to have his issues adjudicated fairly and efficiently.
[10] But what Mr. Maksoud is not entitled to do is to try to use the process of the court to do an end-run around the regulatory process of the tribunal before whom he has already been summoned to appear. There is nothing urgent or time-sensitive on the face of the proposed court proceeding or in counsel’s email. The matters in issue are too serious to allow the determination of Mr. Maksoud’s fundamental rights to be affected or the court’s process to be gamed by artificially rushing a step just so counsel can make some kind of strategic argument at an upcoming tribunal case conference.
[11] The proceeding proposed does not meet the terms of the Notice to the Profession dated March 15, 2020. It is not a proceeding that the court is able to hear at this time. It is not one that should be accommodated on account of urgency. Even absent the Covid-19 pandemic, the proposed hurried application is fundamentally inapt in face of the existing proceedings before the tribunal and the need for a full evidentiary underpinning for a constitutional challenge.
[12] The registrar is therefore directed to refrain from issuing the proposed notice of application or scheduling it for hearing at this time.
F.L. Myers J. Date: May 20, 2020