Raising Abuse of Process Concerns

The Divisional Court has again confirmed that abuse of process concerns should first be raised with the discipline panel rather than by an application for judicial review to stay the discipline hearing. In Pan v. College of Physicians and Surgeons of Ontario, 2021 ONSC 5325 (CanLII), https://canlii.ca/t/jhcdh a physician was referred to discipline for inappropriate sexual contact with a patient or former patient after having been found not guilty for sexual assault in respect of the same events. The Divisional Court declined to stay the commencement of the discipline hearing on the basis that the application was premature. The practitioner should raise the issue before the hearing panel first and, if unsuccessful, then raise the issue on an appeal of the panel decision. There were no exceptional circumstances warranting the Court’s intervention at this point in the process. The Court also said:

As held by this Court in Karkanis v. College of Physicians and Surgeons of Ontario, 2009 CanLII 18292 (Div. Ct.), at para. 25, another case where a physician sought a stay before the completion of disciplinary proceedings, “there is a public interest in permitting a self-regulating profession to carry out its supervisory jurisdiction over members without regular interventions by the courts as the process unfolds”.

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