A judicial review application brought on by a physician was dismissed by the Ontario Superior Court as it declined to intervene during the course of the administrative proceeding

Administrative law – Decisions of administrative tribunals – College of Physicians and Surgeons – Jurisdiction – Investigations – Physicians and surgeons – Competence – Disciplinary proceedings – Judicial review application – Premature – Independent legal counsel – Bias

Rudinskas v. College of Physicians and Surgeons of Ontario, [2011] O.J. No. 4714, Ontario Superior Court of Justice, September 28, 2011, J.R.R. Jennings, L.K. Ferrier and K.E. Swinton JJ.

A Notice of Hearing was issued against the applicant setting out the acts of professional misconduct. The applicant brought a motion before the Discipline Committee (“Discipline Committee”) of the College of Physicians and Surgeons of Ontario (the “College”) on the basis that the College did not have jurisdiction to deal with those allegations that were not specifically identified in the Schedule to the Notice of Hearing. The Discipline Committee dismissed the applicant’s motion. The applicant first appealed the decision and then brought an application for judicial review essentially on the same legal grounds.

The College received four complaints regarding the quality of care provided to four patients of the applicant. Investigators were appointed to investigate the applicant’s practice pursuant to s. 75(a) of the Health Professions Act. As part of the investigation, the College retained a medical inspector who opined that the applicant failed to meet the standard of care of the profession with respect to 14 of the 24 patients identified in the report (the “report”). A copy of this report was provided to the applicant. The College issued a Notice of Hearing setting out the acts of professional misconduct. Particulars with respect to the allegations of the four patients of the applicant, who had been the subject of complaints and investigation, were identified in the Schedule to the Notice of Hearing and disclosed to the applicant. Following the College’s disclosure, the applicant brought a motion to challenge the jurisdiction of the Discipline Committee with respect to those allegations of misconduct dealing with those patients who were not specifically identified in the Notice of Hearing. The Discipline Committee dismissed the motion. The applicant sought judicial review of this decision.

The Court dismissed the “premature” application. The applicant had a right of appeal to the Divisional Court from the decision of the Discipline Committee. The Court found that there were no exceptional circumstances that permitted the Court, in the judicial review application, to intervene during the course of the administrative proceeding. Further, the Court held that when the body of the Notice of Hearing is read in conjunction with the Schedule, and in light of the record, it is evident that the applicant’s conduct with respect to the 14 patients discussed in the report was before the referring committee when it decided whether to make a referral to the Discipline Committee. The Court also noted that the applicant had been provided with extensive disclosure and that if the applicant required further particulars, these could be sought from the College.

Another issue raised by the applicant, and rejected by the Court, concerned the conduct of independent legal counsel (“ILC”); the applicant argued that the ILC exceeded the proper limits placed on her role. The applicant argued that the advice given by the ILC concerned the “ultimate issue” and that the ILC, on occasion, favoured the position taken by the prosecutor. The Court held that there was no evidentiary foundation for any allegations of impropriety and that nothing in the conduct of the ILC gave rise to a reasonable apprehension of bias.

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