2015 QCCA 148, 2015 QCCA 148

Neumann c. Comité exécutif du Collège des médecins 2015 QCCA 148 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTRÉAL No: 500-09-024872-145 (500-17-077663-139) MINUTES OF THE HEARING DATE : January 28, 2015 THE HONOURABLE MARK SCHRAGER, J.A. PETITIONER COUNSEL PETER Z. NEUMANN Mtre PASCAL ALEXANDRE PELLETIER ( Pelletier & Cie Avocats) RESPONDENT COUNSEL COMITÉ EXÉCUTIF DU COLLÈGE DES MÉDECINS Mtre CAROLENA GORDON Mtr e ALEXANDRE TEASDALE ( Clyde & Cie Canada s.e.n.c.r.l.) IMPLEADED PARTY COUNSEL COLLÈGES DES MÉDECINS DU QUÉBEC CHRISTIAN GAUVIN Mtre CAROLENA GORDON Mtr e ALEXANDRE TEASDALE ( Clyde & Cie Canada s.e.n.c.r.l.)

DESCRIPTION : Requête pour permission d’appeler d’un jugement final en matière de révision judiciaire rendu le 5 novembre 2015 par l’honorable Richard Nadeau de la Cour supérieure dans le district de Montréal. (Art. 26, 494 et 846 Code de procédure civile) Clerk: Asma Berrak Courtroom: RC.18 HEARING 10 :15 Commencement of hearing. Identification of counsel. Submission by Mtre Pelletier. 10 :31 Submission by Mtre Gordon. 10:40 Reply by Mtre Pelletier. 10:43 Suspension of hearing. 14:15 Resumption of hearing. Judgment-see page 3. 14:20 Conclusion of hearing.

Clerk BY THE JUDGE JUDGMENT [ 1 ] This is a motion for leave to appeal a judgment of the Superior Court, District of Montreal of November 5, 2014 (the Honourable Richard Nadeau) which dismissed Petitioner’s application for judicial review of a decision of the Executive Committee of the Collège des médecins du Québec (“the Executive”). [ 2 ] The decision of the Executive requires Petitioner to follow a training program in paediatric medicine over 20 half days (or until completed) without restriction to his right to practice.

The Executive also recommended that Petitioner follow a course of instruction on file maintenance. [ 3 ] Before the Superior Court, Petitioner urged that the reasons given by the Executive were insufficient to allow Petitioner to clearly identify the reproaches against him and did not respond to his written submissions made to the Executive so that the procedure was unfair, thus opening the door to judicial review by the Superior Court.

Petitioner also pleaded that the inspection visit at his office which gave rise to the Executive’s decision was too long for a man of his age (80 at the time) and his state of health, so that this too added to the unfairness in the procedure which justified review by the Superior Court. [ 4 ] The judge of the Superior Court decided that though the decision of the Executive on its face may have been lacking in explanation, when taken in context, that is when read by the Petitioner as the physician involved in the process and particularly when considering the other documentation in support of the Executive’s decision such as the report of the inspection committee, the Petitioner was in a position to adequately know the reasons for the Executive’s decision.

Concerning the manner in which the procedure of review and inspection was carried out, the judge felt that because Petitioner had time to rest during the visit at his office and between questions put to him by the inspectors, that this ground of review was also unfounded.

[ 5 ] In his motion for leave to appeal, Petitioner raises four grounds. The first two allege errors of law stemming from the inadequate reasons in the Executive’s decision and, the erroneous choice of the applicable norm of judicial review. [ 6 ] The latter two grounds are mixed questions of law and fact stemming from the reasonableness of the inspection process. [ 7 ]

Article 26 C.C.P. , second paragraph provides, in part, that leave may be granted: “… when the matter at issue is one which ought to be submitted to the Court of Appeal, particularly where, in the opinion of the judge, the matter at issue is a question of principal, a new issue or a question of law that has given rise to conflicting judicial precedents …” [ 8 ] The latter two grounds of appeal invoked, being mixed questions of law and fact, do not meet the test.

The judge decided on the evidence before him that the manner in which the inspection was carried out was not unfair to Petitioner, in the circumstances of the case. I do not see in this a question of principle nor other grounds on which this Court would intervene. [ 9 ] However, the first two grounds do raise questions of law. [ 10 ] Nevertheless, as Petitioner himself points out in his motion, these points have been dealt with by this Court in Comité exécutif du Collège des médecins c.

Pilorgé. [1] In that case, the judgment of the Superior Court was upheld to the effect that the norm of review as to adequacy of reasons is correctness. [ 11 ] Upon an application for leave to appeal under the second paragraph of

Article 26 C.C.P. , it is not sufficient that the judgment of the lower Court may be incorrect; [2] a point of principal is required as appears from

Article 26 C.C.P. quoted in part, above. The principal here (i.e. of the applicable norm of judicial review for decisions of the Executive) has been addressed by this Court in the Pilorgé case. [ 12 ] In Pilorgé , the decision of the Executive is quoted at length. I note that the form and substance of the decision of the Executive in the present case, drafted before Pilorgé was decided, is strikingly similar to that in Pilorgé . It appears to me that the issue has been fully dealt with by this Court in Pilorgé . In these circumstances, it is in my opinion not appropriate that leave to appeal be granted in virtue of

Article 26, second paragraph C.C.P . I am aware that the judge does not mention the decision of this Court in Pilorgé but I do not consider that omission determinant on whether this is a proper case for leave. [ 13 ] FOR THE ABOVE REASONS , THE UNDERSIGNED : [ 14 ] DISMISSES Petitioner’s motion for leave to appeal entitled “Requête pour permission d’en appeler d’un jugement final en matière de révision judiciaire”, without costs. mark schrager , J.C.A.