McIntosh v. College of Physicians, (1998) 116 O.A.C. 158 (DC)

• Judge: Southey, Rosenberg and Cusinato, JJ.
• Court: Ontario Court of Justice General Division (Canada)
• Case Date: November 25, 1998
• Jurisdiction: Ontario
• Citations: (1998), 116 O.A.C. 158 (DC)

McIntosh v. College of Physicians (1998), 116 O.A.C. 158 (DC)

MLB headnote and full text

Temp. Cite: [1998] O.A.C. TBEd. DE.025

William Charles McIntosh (applicant) v. The College of Physicians and Surgeons of Ontario (respondent)

(File No. 97-DV-90)

Indexed As: McIntosh v. College of Physicians and Surgeons (Ont.)

Ontario Court of Justice

Divisional Court

Southey, Rosenberg and Cusinato, JJ.

December 10, 1998.

Summary:

A sexual abuse complaint was made against McIntosh, a retired physician. The College of Physicians and Surgeons' Com­plaints Committee referred the complaint to the Discipline Committee. McIntosh sought judicial review.

The Ontario Divisional Court issued an order prohibiting the College of Physicians and Surgeons from proceeding with a hear­ing before the Discipline Committee.

Administrative Law - Topic 3348

Judicial review - General - Practice - Time for application - In 1991, a sexual abuse complaint was made against McIntosh, an 88 year old retired physician - The com­plainant continuously withdrew and refiled her complaint over four years - McIntosh was not notified of the complaint - In 1996, the College of Physicians and Sur­geons' Complaints Committee referred the complaint to the Discipline Committee - McIntosh sought judicial review - The Ontario Divisional Court allowed the ap­plication and issued an order prohibiting the Disciplinary Committee's hearing - The judicial review application was not prema­ture - Although it was preferable to allow administrative proceedings to run their full course, judicial review was avail­able where there existed a prospect of real unfairness through denial of natural justice - This was such a case - See paragraphs 36 to 39.

Administrative Law - Topic 6409

Judicial review - Prohibition - Time for application - [See Administrative Law - Topic 3348 ].

Medicine - Topic 2011

Discipline for professional misconduct - General - Complaints - Investigation of - A sexual abuse complaint was made against a physician in 1991 - The com­plaint con­tinuously withdrew and refiled her com­plaint - The College of Physicians and Surgeons' Complaints Committee did not deal with the complaint in any mean­ingful way for four and a half years - The physi­cian was only notified in 1996, when the complaint was referred to the Disci­pline Committee - On judicial review, the On­tario Divisional Court held that failure to notify the physician for four and a half years and to investigate the complaint within the mandatory statutory period did not meet the stan­dard of pro­cedural fair­ness - Once a com­plaint was made, the investigation must continue whether or not the complainant asks that it be halted - The court issued an order prohibiting the hear­ing of the com­plaint - See paragraphs 1 to 35.

Medicine - Topic 2063

Discipline for professional misconduct - Hearing - Complaint - [See Medicine - Topic 2011 ].

Medicine - Topic 2129

Discipline for professional misconduct - Judicial review - Procedure - [See Medi­cine - Topic 2011 ].

Medicine - Topic 2132

Discipline for professional misconduct - Judicial review - Denial of natural justice -[See Medicine - Topic 2011 ].

Medicine - Topic 2133

Discipline for professional misconduct - Judicial review - Time for - [See Admin­istrative Law - Topic 3348 ].

Words and Phrases

Complaint - The Ontario Divisional Court discussed the meaning of the word "com­plaint" as found in the Health Disciplines Act, R.S.O. 1990, c. H-4 and the Health Professions Procedural Code enacted under the Regulated Health Professions Act, S.O. 1991, c. 18 - See paragraphs 19 to 25.

Cases Noticed:

Mackin v. Judicial Council (N.B.) (1987), 82 N.B.R.(2d) 203; 208 A.P.R. 203; 44 D.L.R.(4th) 730 (C.A.), refd to. [para. 23].

Maxwell v. Law Society of New Brunswick (1990), 103 N.B.R.(2d) 342; 259 A.P.R. 342; 65 D.L.R.(4th) 754 (T.D.), refd to. [para. 24].

Ramsay v. Toronto (City) Commissioners of Police - see Ramsay v. Lang.

Ramsay v. Lang (1992), 60 O.A.C. 129; 96 D.L.R.(4th) 594 (Div. Ct.), refd to. [para. 30].

Latif v. Human Rights Commission (Ont.) (1992), 55 O.A.C. 204; 4 Admin. L.R.(2d) 227 (Gen. Div.), refd to. [para. 36].

Ontario College of Art et al. v. Human Rights Commission (Ont.) (1993), 63 O.A.C. 393; 99 D.L.R.(4th) 738; 11 O.R.(3d) 798 (Div. Ct.), refd to. [para. 36].

Howe v. Institute of Chartered Accountants (Ont.) (1994), 74 O.A.C. 26; 19 O.R.(3d) 483 (C.A.), refd to. [para. 37].

Jafine v. College of Veterinarians (Ont.) (1991), 5 O.R.(3d) 439 (Gen. Div.), refd to. [para. 37].

Turnbull et al. v. Canadian Institute of Actuaries et al. (1995), 107 Man.R.(2d) 63; 109 W.A.C. 63; 129 D.L.R.(4th) 42 (C.A.), refd to. [para. 37].

Gage v. Ontario (Attorney General) (1992), 55 O.A.C. 47; 90 D.L.R.(4th) 537 (Div. Ct.), refd to. [para. 38].

Statutes Noticed:

Health Disciplines Act, R.S.O. 1990, c. H-4, sect. 58.1 [para. 26].

Regulated Health Professions Act, S.O. 1991, c. 18, sect. 25(5), sect. 28(1), sect. 28(2) [para. 28]; sect. 26(1)(a) [para. 29].

Authors and Works Noticed:

Ontario, Health Professions Legislation Review, Striking a New Balance: A Blueprint for the Regulation of Ontario's Health Professions (1989), p. 56 [para. 20].

Steinecke, Richard, A Complete Guide to the Regulated Health Professions Act (1995), p. 4-2 [para. 21].

Counsel:

Steven M. Malek, for the applicant;

Richard Steinecke, for the respondent.

This application was heard on November 25, 1998, at Ottawa, Ontario, before Southey, Rosenberg and Cusinato, JJ., of the Ontario Divisional Court. Southey, J., deliv­ered the follow­ing judgment on December 10, 1998.