Administrative law – Decisions of administrative tribunals – Health Professions Appeal and Review Board – Complaint – Multiple registrants – Physicians and surgeons – Disciplinary proceedings – Statutory provisions – Compliance with legislation – Public interest – Judicial review – Jurisdiction – Standard of review – Reasonableness simpliciter
Wilcock v. Ontario (Health Professions Appeal and Review Board),  O.J. No. 961, 2012 ONSC 1249, Ontario Superior Court of Justice, February 21, 2012, D.R. Aston, J.R. MacKinnon and J.P. Moore JJ.
The Complaints Committee of the College of Physicians and Surgeons rendered a decision in respect of two complaints made against three doctors: Drs. W, J and A. The Committee decided to take no further action against Drs. W and J, who were not treating physicians, and had acted in a limited supervisory role at the hospital. Based on Dr. A’s retirement and undertakings, the Complaints Committee also decided to take no action against him. Both complainants sought reviews to the HPARB but later withdrew their requests for review against Drs. W and J and maintained their request for review of the decision only regarding Dr. A.
The HPARB advised the parties that despite the withdrawal of the two review requests, it planned to proceed with a review in respect to all three of the doctors. Drs. W and J sought judicial review.
The Court agreed that since the HPARB was interpreting provisions of the Health Professions Procedural Code, the standard of review was reasonableness. Here, the HPARB’s decision that, where there are multiple registrants and complaints, it must review the conduct of all of them even though the complainant had withdrawn the request for review against all but one, was unreasonable.
The public interest function of the HPARB is not engaged unless or until there is a request for review which has not been withdrawn. The Court further noted that if Dr. A had not retired and given undertakings, he alone would have been referred to the Discipline Committee. If HPARB’s interpretation of its jurisdiction was correct, in those circumstances, s. 29(2) of the Code would close the door on any review for any of the doctors and not just Dr. A. That result would be unreasonable.
The Court accordingly quashed the decision of the HPARB to proceed with a review of a decision in respect of Drs. J and W.
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