No Circumventing the Appeal Route

Appeals from discipline hearings require a bit of effort. They have to be brought quickly. The appealing party has to prepare a copy of the record and order a transcript. There are tight timelines for completing the written argument. An application for judicial review can be a bit easier to initiate. At least in the past, there is no firm deadline to commence them (although taking more than six months to commence one can result in a presumption of delay). [Now applications for judicial review are to be initiated within 30 days.] The tribunal has to prepare a first copy of the record. If the tribunal has a copy of the transcript, that can result in a significant cost savings. Also, judicial reviews are not always limited to final decisions of tribunals.

However, in Savic v. College of Physicians and Surgeons of Ontario, 2021 ONSC 4756 (CanLII), the Court held that, where an appeal is available, that is the route that must be taken barring exceptional circumstances. In that case the former practitioner delayed over two years in commencing the application for judicial review. The Court held that difficulty in retaining counsel, the difficulty in now obtaining permission to appeal so late, the extra work and cost involved in preparing an appeal record, and the advantage of combining the challenge to the discipline hearing with that in another complaints matter do not constitute exceptional circumstances.

The Court also held that the delay in challenging the complaints matter provided a basis for not permitting the application for judicial review on that matter as well.

Where an appeal is available, that is the proper way of challenging a decision.

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