Procedural Rulings

Most procedural rulings do not have a significant impact for regulators. However, Torgerson v. Health Professions Appeal and Review Board, 2021 ONSC 1185 (CanLII), may be an exception.

In that case a physician was seeking judicial review of a decision cautioning her and requiring her to complete some remedial training. The initial decision was made by the regulator’s complaints screening committee and was upheld by an independent appeal and review board.

A summary of the decision was published on the public register of the regulator, as required by the legislation. The physician challenged the decision as amounting to a sanction because of its publication. The physician sought to add the published summary in the record before the Court even though it had not been part of the record of decision by either the screening committee or the board. The Court conceded that there was a strong presumption that judicial review should be based solely on the record of the body being reviewed. However, it stated that an exception applied where important contextual information could assist the reviewing Court. The Court allowed the published summary to be added to the record, subject to reconsideration by the Court panel actually hearing the application. This ruling emphasizes the significance of published summaries of decisions.

A second issue was whether the portion of the record setting out the past complaints history against the practitioner should be sealed. During the proceedings before the board that portion of the record had not been shared with the complainant because of its sensitivity. The Court agreed to seal that portion of the record, similarly subject to reconsideration by the panel hearing the judicial review application itself. Again, this procedural ruling recognizes the sensitivity of this type of information.

Of course, it will likely be the decision of the panel hearing the application for judicial review on the merits that will be of most interest to regulators.

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