Permission to Appeal Late Refused in Two Cases

In two recent cases the courts have refused to extend the time a practitioner could appeal a disciplinary decision. In the first case, the practitioner had agreed to the facts, a finding of professional misconduct and a six month suspension: Khahra v College of Veterinarians of Ontario, 2016 ONSC 4692. There was no notice of an intention to appeal until the start date of the suspension became an issue. The Court described the test to extend the time to appeal as follows:

  1. Whether the moving party formed an intention to appeal in the relevant appeal period
  2. The length of the delay and the explanation for the delay
  3. Any prejudice to the responding party
  4. The merits of the appeal
  5. Whether the “justice of the case” requires an extension

The Court refused to extend the time to appeal on all of the grounds, but appeared to be significantly persuaded by the fact that the communications suggested that an appeal was considered only after the practitioner could not obtain a deferral of the suspension.

The case is also interesting in its discussion of the issue of when a practitioner can challenge their agreement to a joint submission. The Court was not persuaded that the agreement was involuntary even though the practitioner indicated that his lawyer had stated he would not represent the practitioner if the practitioner did not proceed with a joint submission. The Court also relied on the fact that the practitioner provided no medical evidence to establish that the stress he was undergoing at the time made his decision to proceed with the joint submission involuntary.

In the second case the Court found that the pattern of delay by the practitioner, including one year to file materials, undermined any basis to grant an extension of time: Abi-Mansour v. Ontario College of Teachers, 2016 ONCA 602.

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