The Health Professions Appeal Board (the “Board”) conceded it had exceeded its jurisdiction by making findings of gross criminal misconduct against a physician and relying on materials which were never disclosed to the physician or his counsel. The Board agreed that its decision should be quashed but submitted that the matter should be remitted back for a new review before a differently constituted panel of the Board. The Court of Appeal refused to remit the matter back to the Board, and found that there were exceptional circumstances (the interest of the public in the matter was remote and the delay was serious) which warranted the exercise of its discretion to refuse to remit.

Administrative law – Decisions of administrative tribunals – Discretion of court – Judicial review – Jurisdiction of court – Tribunal decisions – Physicians and surgeons – Disciplinary proceedings – Evidence – Delay – Public interest

Rathé v. Ontario (Health Professions Appeal and Review Board), [2002] O.J. No. 4787, Ontario Superior Court of Justice, December 6, 2002, Blair, Kurisko and Lalonde JJ.

A physician made a complaint in 1996 to the College of Physicians and Surgeons of Ontario (the “College”), alleging misconduct of the applicant physician (a friend and colleague) for events which took place in 1990 and 1991, such as, drug use, falsifying records to obtain drugs, and falsifying claims to an insurance company. The College’s Complaints Committee decided not to take action on the complaints. The complainant physician then requested a review by the Health Professions Appeal Board (the “Board”).

The Board made findings of criminal conduct against the applicant physician, based on evidence that was not disclosed to the physician or his counsel. The Board referred the matter back to the Complaints Committee with specific directions to have his “irresponsible conduct” recorded and monitor his practice.

The applicant physician sought to quash the Board’s decision and an Order that the matter not be remitted back to the Board for reconsideration. The Board conceded that it exceeded its jurisdiction insofar as it could not make factual findings of misconduct against a physician and conceded that its decision should be quashed. However, the Board argued that the matter should be remitted back to a differently constituted panel of the Board for reconsideration.

The traditional common law rule with respect to the power of a superior court to review the legality of administrative tribunal action is that while a court may quash a decision of a tribunal, based on an error of law or breach of procedural fairness, it cannot encroach on the tribunal’s jurisdiction and prohibit it from rehearing the same matter again, unless there are exceptional circumstances (Re Labour Relations Board (Nova Scotia) and Little Narrows Gypsum Co. Ltd. et al. (1977), 82 D.L.R. (3d) 693). In the present case, such exceptional circumstances exist: the interest of the public in the matter is remote and the delay is serious. After 10 years, no solid evidence is forthcoming against the applicant physician. He has been unfairly prejudiced by the delay and revival of old allegations of misconduct. He has incurred very onerous legal expenses which would be increased by a further hearing. Too much time has elapsed since the original complaints were made. The public interest would not be protected by yet another assessment. A fresh assessment would offend the community’s sense of decency and fairness. The applicant physician was entitled to costs on a partial indemnity scale at $45,000.

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