Administrative law – Decisions of administrative tribunals – College of Physicians and Surgeons – Publication ban – Physicians and surgeons – Disciplinary proceedings – Competence – Suspensions – Judicial review – Disclosure – Evidence – Compliance with legislation
Menon v. College of Physicians and Surgeons of New Brunswick,  N.B.J. No. 124, New Brunswick Court of Queen’s Bench, February 25, 2008, W. T. Grant
On February 6, 2007. Dr. Menon was suspended from practising medicine pursuant to an Order by the Executive Committee of the College of Physicians and Surgeons of New Brunswick (the “College”). On February 18, 2007, the Review Committee of the College ordered an assessment of Dr. Menon’s practice and retained two pathologists for that purpose. They delivered a report to the College on May 9, 2007 (the “Assessor’s Report”).
On April 26, 2007 Dr. Menon filed an application for judicial review of the order suspending him. In response to the application, the College filed an Affidavit by Dr. Schollenberg, the Registrar of the College, attaching a copy of the Assessor’s Report.
On May 17, 2007 Dr. Menon filed a motion requesting an order that certain paragraphs of the Schollenberg Affidavit be struck and that the file be sealed. Brunswick News made submissions with respect to the publication ban at this point. At the initial hearing, the Court accepted Dr. Menon’s submissions that as the report was prepared subsequent to the suspension it was not relevant to the issues raised on judicial review. The Court concluded that the Assessor’s Report and the options open to the College under the Medical Act were not relevant and should be removed from the Affidavits.
Following the judicial review, the Court ordered that the College convene a Board of Inquiry into the complaints against Dr. Menon. That proceeding resulted in an agreement between the College and Dr. Menon resolving all outstanding matters related to the status of his medical licence.
On or about February 11, 2008, the Miramichi Regional Health Authority (the “MRHA”) revealed it was investigating approximately 15,000 cases handled by Dr. Menon. This was reported in the media in the days following. On February 13, 2008, the College filed a motion requesting that it be permitted to release the Assessor’s Report to the MRHA. Following this, Brunswick News and CBC filed a motion requesting that the publication ban with respect to the Assessor’s Report be immediately removed.
With respect to the publication ban, the Court noted that the onus is on the person seeking such a ban to prove it is necessary, citing Dagenais v. CBC  3 S.C.R. 835. Once the Court is satisfied that circumstances have changed since the initial ban, the onus shifts back to the person supporting the publication ban to prove that its continuation is necessary. In this case, the publication ban was ordered with respect to evidence that was concurrently ruled inadmissible as the Court was concerned that Dr. Menon may be prejudiced in the judicial review hearing by further publication of inadmissible evidence. Once the judicial review was complete, circumstances had changed and the need to ensure that Dr. Menon did not suffer prejudice by reason of further publication no longer existed. Consequently, there was a change in circumstances which gave rise to the publication ban in the first instance. The Court held that there was no evidence before it that a continuation of the publication ban was necessary to prevent serious risk to the proper administration of justice. The reasons advanced by Dr. Menon did not satisfy the Court that the salutary effects of continuing the ban outweighed its deleterious effects and ordered that the ban be dissolved subject to the proviso that the identity of any complainant or patient not be published or broadcast in any way.
The Court held that there was nothing in the Medical Act that would prohibit the College from disclosing the Assessor’s Report to the MRHA and this motion was granted.
As Dr. Menon indicated that he would be appealing these decisions, the Court ordered a stay of its decision for a period of thirty days or such longer period as was necessary for the Court of Appeal to hear a motion for a stay.
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