Bengeri v. College of Physicians and Surgeons (P.E.I.), 2024 PESC 3

SUPREME COURT OF PRINCE EDWARD ISLAND Citation: Bengeri v. College of Physicians and Surgeons (P.E.I.) , 2024 PESC 3 Date: 20240111 Docket: S1-GS-30056 Registry: Charlottetown Between: Sheshagiri Bengeri Applicant And: The College of Physicians and Surgeons of Prince Edward Island (as represented by an Investigation Committee appointed by Council) Respondent Before: The Honourable Justice Nancy L. Key Appearances: Janet M.R. Clark and Gary G. Demeulenaere, K.C., lawyers for the Applicant Douglas R. Drysdale, K.C. and Melissa D.

Trowsdale, lawyers for the Respondent Place and dateof hearing - Charlottetown, Prince Edward Island October 10, 2023 Place and date of oral decision - Charlottetown, Prince Edward Island October 10, 2023

Place and date of written decision - Charlottetown, Prince Edward Island January 11, 2024 ADMINISTRATIVE LAW – motion for a stay of proceedings – test for availability The Applicant, a physician, moved for a stay of all proceedings by the Respondent pending the hearing and disposition of a JudicialReview. The Applicant did not satisfy the three-part test for a stay, and the motion was dismissed. STATUTES REFERRED TO: Judicial Review Act, R.S.P.E.I. 1988, c.J-3; Regulated Health Professions Act, R.S.P.E.I. 1988, c. R-10.1; Medical Act, R.S.P.E.I. 1988, c. M-5;

Interpretation Act, R.S.P.E.I. 1988, c. I-8.1. RULES REFERRED TO: Rule 37.12(1) CASES CONSIDERED: RJR-MacDonald Inc. v. Canada (Attorney General), (SCC), [1994] 1 SCR 311; Swart v.College of Physicians and Surgeons (P.E.I.), 2014 PECA 14; J.P.M. v. M.A.M., 2023 PECA 11; C.B. Powell Limited v. Canada(Border Service Agency), 2010 FCA 61; Newbould v. Canada (Attorney General), 2017 FCA 106; Talarico. v. The Law Society ofUpper Canada, 2012 ONSC 2493; CIBC v. Kollar, 2003 FC 985; Pan v. College of Physicians and Surgeons of Ontario, 2021 ONSC5325.

TEXTS REFERRED TO: Sara Blake, Administrative Law in Canada, 7th ed. (Toronto: LexisNexis, 2022). Key, J.: I. Background [1] In September 2020 the Applicant, Dr. Sheshagiri Bengeri (“Dr. Bengeri”), was a locum physician, specifically an anesthetistlicensed to practice under level 4 supervision on Prince Edward Island. Dr.

Bengeri has practised anaesthesiology in excess of 30 years,primarily in the United Kingdom where he has acted as a consultant since 2008. [2] The College of Physicians and Surgeons of Prince Edward Island (“the College”), regulates all physicians practicing in PrinceEdward Island in accordance with the Regulated Health Professions Act, R.S.P.E.I. 1988, c. R-10.1 (“the RHPA”). [3] On June 14, 2021 a complaint was made to the College by the widow of a man who died following a surgical procedure duringwhich Dr. Bengeri was an anesthetist. The complaint alleged errors by Dr. Bengeri and others. Dr.

Bengeri responded to the complainton November 2, 2021. [4] At the time the complaint was made, physicians were governed by the Medical Act, R.S.P.E.I. 1988, c. M-5 (“the MedicalAct”). The Medical Act was repealed on November 1, 2021. The parties agree the College will use the

definitions of ‘professionalmisconduct’ or ‘unfitness’ under the repealed Medical Act rather than the RHPA, but the discipline process itself is governed by theRHPA. (RHPA, s. 99 (3.1); s. 9(3)

Interpretation Act, R.S.P.E.I. 1988, c. I-8.1) [5] Pursuant to s. 40(4) of the RHPA, the Registrar requested council of the College appoint an Investigation Committee(“Investigation Committee”) and referred the complaint to the Investigation Committee. The Investigation Committee completed aninvestigation and reported its findings in writing to the complainant and Dr. Bengeri on January 26, 2023. [6] The Investigation Committee met as required on February 23, 2023. The Investigation Committee decided to refer the matter to ahearing committee (“Hearing Committee”) as it is statutorily mandated to do.

On March 28, 2023, reasons for the referral were providedin writing to the complainant and Dr. Bengeri by a Notice of

Section 52 Decision (s. 52(4) RHPA). The hearing was scheduled tocommence on November 1, 2023.

[ 7 ] On June 13, 2023, Bengeri filed a Notice of Application for Judicial Review requesting, among other things: (

a) an Order quashing a decision dated May 15, 2023 by a Fitness to Practice Committee acting as an Investigation Committee (“Investigation Committee”), appointed by Council of the College of Physicians and Surgeons of Prince Edward Island (“College”), along with acts or failures to act by the Investigation Committee prior to its May 15, 2023 decision; … [ 8 ] On June 14, 2023 the Application for Judicial Review was served on the College. The College advised counsel for Dr. Bengeri that the hearing would commence in any event on November 1, 2023. [ 9 ] More than 2 months later, on August 21, 2023, Bengeri filed a Motion Record requesting: … (

b) a stay of any and all proceedings by the Respondent [College] involving the Applicant from and after the May 15, 2023 decision of the Respondent’s Investigation Committee pending the hearing and final disposition of the Applicant’s application for judicial review filed on June 13, 2023; and … [ 10 ] On September 18, 2023, the College filed a Respondent’s Motion Record (Stay of Proceedings) and Respondent’s (Moving Party) Motion Record (Dismissal of Application for Judicial Review). [ 11 ] Dr.

Bengeri has continued to practice, without restrictions, throughout the entirety of the process. [ 12 ] The court heard only the motion for the stay of proceedings. The College’s request to dismiss the application for judicial review was adjourned to a date to be determined. ( Rule 37.12) At the end of the hearing, the court dismissed the motion for a stay with reasons to follow. The following are the reasons. Issue: Should the court grant a stay of the administrative proceeding? Applicant’s Position: [ 13 ] Dr.

Bengeri’s position is as follows: 1) the College has refused to suspend its discipline process pending the outcome of an application for judicial review; 2) the judicial review may result is a finding that the College has exceeded its legislative authority; 3) the judicial review process will be rendered moot if the discipline process continues to a hearing; 4) the discipline process, if continued, will subject Dr. Bengeri to a public hearing; 5) the written decision of the Investigation Committee, which included an option for certain orders, was made without consultation with Dr.

Bengeri; 6) the complaint and investigation process has been very stressful for Dr. Bengeri, and he is concerned about patient care if the complaint process impacts his health; and 7) the complaint process may impact his family and colleagues. Respondent’s Position: [ 14 ] In response, the College submits: 1) while the College’s participation in the stay request may cause Dr.

Bengeri concern, there is no other party who is able to make submissions in a case involving challenges to the College’s authority under the RHPA ; 2) any actions taken by the College were authorized by the enabling legislation and an application for judicial review is premature; 3) the compromise solution offered to Dr. Bengeri pursuant to the Notice of

Section 52 Decision and to which Dr. Bengeri provided a counter-proposal will not be made known to the hearing committee and, in any event, the Hearing Committee does not include members of the Investigation Committee; 4) Dr. Bengeri was not obliged to, nor did he consent to, the compromise solution put forward by the Investigation Committee; 5) until Dr. Bengeri refused the compromise solution he, and not the College, was in control of any orders being issued by the College; and 6) as a result, no order or decision has been made which affects the substantive rights of Dr. Bengeri. Analysis:

[15] Dr. Bengeri challenges the authority of the College to take certain actions pursuant to the RHPA. At some point, the legislationitself may be the subject of review. However, it is not the task of this court to make that determination. The only decision the court mustmake is whether Dr. Bengeri has satisfied the test for a stay of proceedings. [16] The leading authority is RJR-MacDonald Inc. v. Canada (Attorney General), (SCC), [1994] 1 SCR 311(“RJR – MacDonald”). At page 334, the court comments: Generally, the same principles should be applied by a court whether the remedy sought is an injunction or a stay.

In Metropolitan Stores,at p. 127, Beetz J. expressed the position in these words: A stay of proceedings and an interlocutory injunction are remedies of the same nature. In the absence of a different test prescribedby statute, they have sufficient characteristics in common to be governed by the same rules and the courts have rightly tended to apply tothe granting of interlocutory stay the principles which they follow with respect to interlocutory injunctions. … Metropolitan Stores adopted a three-stage test for courts to apply when considering an application for either a stay or an interlocutoryinjunction.

First, a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried.Secondly, it must be determined whether the applicant would suffer irreparable harm if the application were refused. Finally, anassessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending adecision on the merits. It may be helpful to consider each aspect of the test and then apply it to the facts presented in these cases. [17] The Prince Edward Island Court of Appeal has adopted the position of the Supreme Court of Canada.

The test for granting a stayis the same as the test for granting an injunction. (Swart v. College of Physicians and Surgeons (P.E.I.), 2014 PECA 14 (“Swart”). Atparagraph 8 of the decision, Mitchell, J.A. stated: [8] I believe I must follow Matheson v. College of Physicians and Surgeons (P.E.I.), 2009 PECA 5 [2009] 282 Nfld. &P.E.I. R. 328 (PEICA), a more recent decision of our Court of Appeal. In that case, Murphy J.A. found that the test for a stay under s.34(14) of the Medical Act is the same as that for granting an injunction…and that test is as follows: 1. Is there a serious issue to be tried? 2.

Will the refusal result in the applicant suffering irreparable harm? 3. The balance of convenience. [18] Recently, on a motion to stay, the Court of Appeal made the following comments: [10] The applicable legal principles and test on a motion for a stay of proceedings have been set out many times by this Court, mostrecently in Doucette v. City of Charlottetown, 2022 PESC 5, at para. 9, where Murphy, JA, provided the following guidance: [9] The applicable legal principles and test or determining whether a stay of proceedings should be granted has been considered by thiscourt many times (D.E.M. v.

J.M.M., 2010 PECA 2; C.E.D. v. C.J.D., 2020 PECA 8). The usual test for making this determination isknown as the R.J.R. MacDonald Inc. v. Canada (Attorney General), (SCC), [1994] 1 S.C.R. 311). There are threequestions to be considered: i. whether on a preliminary assessment of the merits of the appeal, there is a serious question to be tried; ii. whether the appellant would suffer irreparable harm if the stay is denied; iii. whether the balance of convenience favours the imposition of a stay. (J.P.M. v.

M.A.M., 2023 PECA 11) (“J.P.M.”) 1) Is there a serious issue to be tried? [19] The threshold for this part of the test is low. At para. 11 of J.P.M., Laughlin, J.A. states: [11] The first question to be considered is whether the appellant has shown that het appeal raises a serious question to be tried. Aprolonged examination of the merits is neither necessary nor appropriate at this stage, nor is consideration of whether the appeal I moreor less likely to succeed. If the court is satisfied that the appeal is neither vexatious nor frivolous, consideration moves to the second andthird elements of the test. [20] Dr.

Bengeri submits the Investigation Committee exceeded its authority by attempting to impose an order upon him. TheCollege, however, has made no decisions on the merits nor any order which affects Dr. Bengeri’s rights. The only decision which theCollege has made is, after its Investigation Committee reported, to send the matter to a Hearing Committee which it is permitted bystatute to do. (s. 52 RHPA). The only order which may have been made, and on which Dr. Bengeri was in fact consulted, was subject toDr. Bengeri’s consent. He did not consent.

[21] There were two elements to the s. 52 decision. The first was to refer the complaint to a Hearing Committee. The second elementof the decision was a proposed order to be implemented only if the physician consented. The physician did not. The order was not made. [22] While Dr. Bengeri presents the motion as a straightforward stay of an order, the decision in question – to refer a matter to aHearing Committee – is not a final one on the merits. The Hearing Committee is authorized by the RHPA (s. 58(2)) to make a decisionon the merits. [23] The College submits the request for the Judicial Review is premature.

This context is important due to the concern aboutfragmenting and delaying administrative proceedings. In essence, Dr. Bengeri is seeking to prohibit the College from proceeding forwardin the statutory scheme established by the Legislature. The concern over fragmentation and delay is often expressed in judicial reviewcases, and it prompts judges in this context to look for exceptional circumstances: [68] The application judge recognized the principle that unless exceptional circumstances exist, a court should not interfere in anadministrative proceeding until it has run its course.

The principle has particular force where adequate alternative remedies are availableunder the administrative scheme. Ordinarily an affected individual must pursue these remedies before seeking relief from the court. [notproofed] (Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541) [24] In C.B. Powell Limited v. Canada (Border Service Agency), 2010 FCA 61 (“C.B.

Powell”) Stratas J.A. stated: [31] Administrative law judgments and textbooks describe this rule in many ways: the doctrine of exhaustion, the doctrine of adequatealternative remedies, the doctrine against fragmentation or bifurcation of administrative proceedings, the rule against interlocutoryjudicial reviews and the objection against premature judicial reviews. All of these express the same concept: absent exceptionalcircumstances, parties cannot proceed to the court system until the administrative process has run its course.

This means that, absentexceptional circumstances, those who are dissatisfied with some matter arising in the ongoing administrative process must pursue alleffective remedies that are available within that process; only when the administrative process has finished or when the administrativeprocess affords no effective remedy can they proceed to court.

Put another way, absent exceptional circumstances, courts should notinterfere with ongoing administrative processes until after they are completed, or until the available, effective remedies are exhausted. [32] This prevents fragmentation of the administrative process and piecemeal court proceedings, eliminates the large costs and delaysassociated with premature forays to court and avoids the waste associated with hearing an interlocutory judicial review when theapplicant for judicial review may succeed at the end of the administrative process anyway: … Further, only at the end of theadministrative process will a reviewing court have all of the administrative decision-maker’s findings; these findings may be suffusedwith expertise, legitimate policy judgments and valuable regulatory experience: … Finally, this approach is consistent with and supportsthe concept of judicial respect for administrative decision makers who, like judges, have decision- making responsibilities to discharge:… (citations removed from quotations) [33] Courts across Canada have enforced the general principle of non-interference with ongoing administrative processes vigorously.This is shown by the narrowness of the “exceptional circumstances” exception.

Little need be said about this exception, as the parties inthis appeal did not contend that there were any exceptional circumstances permitting early recourse to the courts. Suffice to say, theauthorities show that very few circumstances qualify as “exceptional” and the threshold for exceptionality is high: … Exceptionalcircumstances are best illustrated by the very few modern cases where courts have granted prohibition or injunction againstadministrative decision makers before or during their proceedings.

Concerns about procedural fairness or bias, the presence of animportant legal or constitutional issue, or the fact that all parties have consented to early recourse to the courts are not exceptionalcircumstances allowing parties to bypass an administrative process, as long as that process allows the issues to be raised and an effectiveremedy to be granted: … As I shall soon demonstrate, the presence of so-called jurisdictional issues is not an exceptional circumstancejustifying early recourse to courts. (citations removed from quotations) [25] Are there exceptional circumstances which raise Dr.

Bengeri’s concerns to the level where judicial intervention is warranted atthis time? The answer is no. Dr. Bengeri argues the Investigation Committee had no jurisdiction to make the order proposed via theNotice of s. 52 Decision.

A party labelling something as “jurisdictional” does not mean that it is exceptional. [45] It is not surprising, then, that courts all across Canada have repeatedly eschewed interference with intermediate or interlocutoryadministrative rulings and have forbidden interlocutory forays to court, even where the decision appears to be a so-called “jurisdictional”issue: see e.g., Matsqui Indian Band, above; Greater Moncton International Airport Authority, above, at paragraph 1; Air Canada v.Lorenz, [2000] 1 F.C. 94 (T.D.), at paragraphs 12 and 13; Delmas, above; Myers v.

Law Society of Newfoundland (1998), (NL CA), 165 Nfld. & P.E.I.R. 150 (Nfld. C.A.); Canadian National Railway Co. et al. v. Winnipeg City Assessor (1998), (MB CA), 131 Man. R. (2d) 310 (C.A.); Dowd v. New Brunswick Dental Society (1999), (NB CA), 210N.B.R. (2d) 386 (C.A.). [46] I conclude, then, that applying the “jurisdictional” label to the ruling of the President of the CBSA under subsection 60(1) of theAct in this case changes nothing. In particular, applying the “jurisdictional” label to the President’s ruling did not permit C.B.

Powell toproceed to Federal Court, bypassing the remainder of the administrative process, namely the appeal to the C.I.T.T. under subsection67(1) of the Act. (C.B. Powell, para. 45 and 46) [26] It appears to be beyond doubt that the Investigation Committee in question had, at the very least, the legal authority to refer thecomplaint to the Hearing Committee. This determination was not ultra vires and squarely inside its statutory authority. [27] Dr. Bengeri submits the College did not consult with him and negotiate a resolution. In effect, he is alleging the College wasunfair.

However, the record suggests that there was in fact a counter-proposal put forward by Dr. Bengeri although the negotiations wereultimately unsuccessful. More importantly, the statute does not appear to expressly or implicitly require negotiation or consultation. Thestatute speaks of consent (or not).

[28] However, while I am not persuaded by Bengeri’s submissions, there is a serious issue to be tried. The proceeding is neithervexatious nor frivolous. 2) Will the refusal to stay result in Dr. Bengeri suffering irreparable harm? [29] What is irreparable harm? Sara Blake in her text Administrative Law in Canada describes irreparable harm. Citing RJR-MacDonald, she states: Second, the applicant must show that it will suffer irreparable harm if the stay is not granted. “Irreparable” refers to the nature of theharm suffered rather than its magnitude.

It is harm which cannot be quantified in monetary terms or which cannot be cured. … Irreparable harm must be proven with explicit and detailed evidence. (Glooscap Heritage Society v. Canada ((Minister of NationalRevenue – M.N.R.), 2012 FCA 255 , [2012] F.C.J. No. 1661 (F.C.A.); … [30] Dr. Bengeri submits that a refusal to stay the proceedings until the Judicial Review has been heard and determined will causehim irreparable harm. His concerns are set out at paragraph 13 of his factum: 13. Dr. Bengeri has found the complaint and the process followed by the College to be very stressful. Dr.

Bengeri is concerned hisreputation will be forever damaged if allegations proceed to a public hearing, even if the allegations are later determined to beunfounded. He is concerned about patient care if the complaint process impacts his health. He is concerned about the impact on hisfamily, his colleagues and himself. [31] Dr. Bengeri has submitted Swart as authority for his position. In Swart, the parties conceded the serious issue and irreparableharm. However, unlike the case at bar, Dr.

Swart had proceeded through what is now known as the Investigation Committee, and theHearing Committee, and a decision was rendered against him suspending him from practice. The motion for a stay was decided upon theissue of the balance of convenience and not irreparable harm. Mitchell, J.A. noted that the case was approaching its third anniversary andcommented on the number of surgeries the doctor had performed. He stated: [13] … I would think that if the stay is not granted and the doctor’s career is effectively over, the appeal might be moot. [32] As noted earlier, Dr. Bengeri has continued to practice.

There has been no suspension nor any restrictions placed, unlike Dr.Swart’s situation, on Dr. Bengeri. His career continues. This is contrasted with the situation in Matheson where the physician wassuspended in a final decision and sought a stay pending an appeal of the final decision. [33] Reputational harm or damage to other social attributes such as credibility, can be inferred from the whole of the surroundingcircumstances. (Newbould v. Canada (Attorney General), 2017 FCA 106 (“Newbould”).

This case involved an appeal of a decisiondismissing a motion for a stay of the decision of a discipline panel pending a judicial review. The court was also, as here, encouraged todetermine jurisdiction issues. [34] On behalf of the court, Pelletier, J.A. discussed reputational harm. [27] Two issues have been raised in relation to irreparable harm, (

i) whether the Federal Court chose the right evidentiary standard and(ii) whether the Federal Court made a palpable and overriding error in concluding that the appellant would not suffer irreparable damageif the stay was not granted. [28] As regards the first issue, the Federal Court applied the clear and compelling evidence standard set out in cases such as ChosonKallah Fund of Toronto v. Canada (National Revenue), 2008 FCA 311, 383 N.R. 196, at paragraphs 5–11 and Gateway City Church v.Canada (National Revenue), 2013 FCA 126, 445 N.R. 360 (Gateway City Church), at paragraph 14 and the cases cited therein.

Theappellant argues that in cases involving reputational damage or damage to other social attributes such as credibility, the occurrence ofirreparable harm can be inferred, … [29] In my view, the presence of two lines of cases such as these shows that the quality of the evidence— “clear and compelling” orsomething less—is a function of the nature of the irreparable harm being alleged. Where the harm apprehended is financial, clear andcompelling evidence is required because the nature of the harm allows it to be proven by concrete evidence such as that set out atparagraph 17 of Gateway City Church.

In the case of harm to social interests such as reputation or dignity, as in Douglas, the occurrenceof irreparable harm can be satisfied by inference from the whole of the surrounding circumstances. [30] In my view, the Federal Court erred in law in excluding the possibility of proof of damage to reputation by inference. [31] That said, the question is whether the appellant is able to show such damage to his reputation. The appellant says that theproceedings before the Inquiry Committee will irreparably harm the reputation he acquired in the course of his years on the bench.

I amsensitive to this argument, but the difficulty I have is that the harm of which the appellant complains is inherent in the process in whichhe is engaged. If the appellant is likely to suffer irreparable harm solely from the fact that his conduct will be the subject of InquiryCommittee proceedings, then all judges who find themselves in the same position also suffer irreparable harm. I am not prepared tomake such a finding.

… [33] This is not to say that judicial conduct proceedings can never give rise to irreparable harm to a judge’s reputation. But in order to do so, it appears to me that there must be some factor, some element in the surrounding circumstances that takes the case out of the normal run of such proceedings. The judge would have the burden of showing the presence of such a factor.

Once the presence of such a factor was shown, the issue is whether it permits the inference of the likelihood of irreparable harm. [34] In the cases the appellant put to us as examples of proceedings stayed on the basis of irreparable harm, there were such factors. In Douglas , the issue was a privacy interest in relation to certain photos, whereas in Bennett and Malmo-Levine , the issue was the risk of an adverse result by a tribunal which was alleged to be biased.

These factors raise issues of reputational damage but, in my view, it was the addition of another element which gave rise to the inference of irreparable harm. [ 35 ] Does an allegation of lack of jurisdiction permit an inference of irreparable harm? It could but I do not believe that it gives rise to that inference in every case. The threat of damage to reputation inherent in Inquiry Committee proceedings does not flow from the Committee’s jurisdiction but from the evidence it hears.

To the extent that the possibility of vindication at the end of the proceedings exists, any harm suffered in the course of proceedings could be remedied in whole or in part. [ 36 ] It is no doubt infuriating to be dragged into a process which one believes has no basis in law but that does not amount to irreparable damage to reputation.

It may, in particular circumstances, give rise to some other kind of irreparable harm but, on this record, there is no reason to believe that we are in the presence of such circumstances. [35] Perell, J. also dealt with irreparable harm in a decision involving the discipline of a lawyer ( Talarico v. The Law Society of Upper Canada , 2012 ONSC 2493 (“ Talarico ”)). In that decision, the lawyer cited irreparable harm in his motion to stay a discipline hearing.

At paragraphs 15, 16 and 17 of the decision, Perell J. held: [15] If the disciplinary hearing proceeds before the judicial review application is determined, and Mr. Talarico is unsuccessful before the Hearing Panel, he has an unlimited right to appeal to a Law Society Appeal Panel, … and a further unlimited right of appeal to Divisional Court, where his application for judicial review would no longer be regarded as premature. … [16] I also do not see irreparable harm in the requisite sense from the fact that Mr. Talarico’s reputation will suffer from the discipline proceeding not being stayed.

Any stay would be temporary, and there inevitably will be a discipline proceeding. Similarly, the fact that he will incur irrecoverable legal costs if the discipline proceedings begin is not a harm caused by not staying the discipline proceedings. [17] Unfortunately, Mr. Talarico will inevitably incur irrecoverable legal costs and inevitably he will be taken away from practising law and inevitably he will suffer stress and worry in defending the discipline proceedings.

Put somewhat different, there may be irreparable harm, but it will not be caused by refusing a stay, nor will it be avoided by granting a stay. [36] Dr. Bengeri has alleged he would have to endure the stress and embarrassment of a public proceeding. However, the statute expressly authorizes and directs a public hearing ( RHPA , s. 56(3) ). The Legislature made those choices. The starting position is that the College will have to prove its allegations. The physician will be able to defend himself on the merits.

It is difficult to see how a hearing on the merits to decide if the complaint is founded (or not) impacts the reputation of the physician. If the physician wishes to have a closed hearing, the physician is also able to make that request of the hearing committee. Finally, this judicial review process, including this motion, is also a public hearing process. It is difficult to see how an additional public hearing negatively impacts the reputation of the physician. The physician may ultimately be successful on the merits. [ 37 ] Contrary to Dr.

Bengeri’s submissions, the College did not issue a “threat” of a public hearing. The matter was referred to a Hearing Committee which will ultimately decide the merits of the complaint. [ 38 ] Indeed, s. 56(3) of the RHPA states: Hearing open to public (3) a hearing shall be open to the public unless the hearing committee is of the opinion that (

a) the interests of a person other than the respondent may be detrimentally affected if the hearing, or part of the hearing, is not held in private; and (

b) the desirability of avoiding public disclosure of financial, personal or other matters in the interest of a person affected or in the public interest outweighs the desirability of adhering to the principle that inquiries be open to the public. (my emphasis) [ 39 ] Therefore, Dr. Bengeri may ask the Hearing Committee to hold the hearing out of the public domain so long as he meets the requirements as mandated by statute in s. 56(3). [ 40 ] If Dr. Bengeri is ultimately dissatisfied with the decision of the Hearing Committee he may then ask a court to judicially review the order on grounds including jurisdiction.

A further appeal may be taken of the decision on the judicial review. [ 41 ] To this point in the proceedings, Dr. Bengeri has made broad statements that the discipline process has caused him stress and may harm his ability to work and his reputation. This, he submits, may affect his patients, colleagues and family. As noted in Newbould , the onus is on Dr. Bengeri to provide sufficient evidence of… ”some factor, some element in the surrounding circumstances that takes the case out of the normal run of such proceedings” (para. 33).

In my view, the record discloses no such evidence. [ 42 ] Another argument put forward by Dr. Bengeri is that the College sought to impose costs on him and that this was punitive in

nature. The facts do not support this position. The Investigation Committee completed its report. In its decision it proposed, in order to resolve the entire matter, a number of items including a requirement that Dr. Bengeri pay costs. However, as is clear in the Investigation Committee report which was made known to Dr. Bengeri and his counsel, costs would be imposed only if he consented to the proposal. He did not. [ 43 ] In any event, the imposition of costs would not, of itself, constitute irreparable harm. [ 44 ] In CIBC v.

Kollar , 2003 FC 985 (“ Kollar ”), Kelen J. made the following comments on the subject of irreparable harm: [8] The jurisprudence makes clear that the applicant has failed to meet the second stage of the test. The applicant argues it “ought not to be put to major expense and effort to prepare for and defend itself before the Tribunal panel, with its attendant negative publicity and stigmatization” [ sic ].

Similar arguments have been rejected in the past by this Court as insufficient to constitute irreparable harm: … Special circumstances must be present for the Court to treat costs as irreparable harm and there is no evidence that such circumstances are present in this case. It is well settled that the inability of the applicant to recover costs from the Canadian Human Rights Tribunal Inquiry does not constitute irreparable harm. [ 45 ] Further, the evidence also shows that Dr. Bengeri’s statement that the resolution proposed was carried out without his input is inaccurate.

The correspondence submitted by counsel for both parties acknowledges the counterproposal on resolution put forward by Dr. Bengeri. A counterproposal is input despite the refusal by the College to accept it. Until Dr. Bengeri’s refusal to accept the resolution proposed in the s. 52 Decision, he and not the College was very much in control of the proceedings. There was no irreparable harm. [ 46 ] In conclusion, Dr.

Bengeri has not met the onus of proving irreparable harm and therefore, fails to satisfy this part of the test for a stay. 3) The balance of convenience [ 47 ] For the sake of completion, notwithstanding the failure of Dr. Bengeri to meet the second element of the test for a stay, the court will consider the argument that the balance of convenience favours Dr. Bengeri. I am not persuaded by that argument for a number of reasons. [ 48 ] Dr. Bengeri is seeking to stay, not a decision or order on the merits, but a continuation of a process authorized by statute.

He is asking the court to fragment proceedings which courts are reluctant to do without special circumstances. To hear and determine a judicial review the court requires a “final result and a full record from the tribunal” ( Talarico , at para. 19 ). [ 49 ] I agree with the position of the College that the balance of convenience favours denying Dr. Bengeri’s motion to stay. As stated by Favreau, J. in Pan v.

College of Physicians and Surgeons of Ontario , 2021 ONSC 5325 . [34] Pursuant to its mandate to protect the public, the College is responsible for ensuring that physicians in Ontario comply with their professional obligations. In the context of disciplinary proceedings, Dr. Garcia Pan’s interests must be balanced against the public interest in allowing the Disciplinary Committee to complete the proceedings.

As held by this Court…”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”. [ 50 ] Dr. Bengeri’s interests must be balanced against the public interest in completing the disciplinary process. In completing the process as set out in the RPHA , Dr. Bengeri will have the opportunity to fully argue his case before the Hearing Committee. He and his counsel may raise the jurisdictional issue at the hearing. He may also seek judicial review on the merits after the issue is decided.

Conclusion : [ 51 ] For the reasons set out above, the motion for a stay of proceedings is dismissed. Costs are awarded to the College on a partial indemnity basis. Counsel requested the issue of costs be dealt with at a date to be fixed. Counsel is directed to contact the court in relation to submissions on costs within 30 days of this decision. ____________________________ Key J. January 11, 2024