



COURT OF APPEAL FOR ONTARIO

CITATION: Reid v. College of Chiropractors of Ontario, 2016
    ONCA 779

DATE: 20161024

DOCKET: M46840

Epstein J.A. (in chambers)

BETWEEN

Dr. Michael Reid

Appellant (Moving Party)

and

College of Chiropractors of Ontario

Respondent (Responding Party)

Zameer N. Hakamali, for the moving party

Chris Paliare and Karen Jones, for the responding party

Heard: August 25, 2016

On motion for an extension of time to file a notice of motion
    for leave to appeal the judgment of the Divisional Court (A.C.J.S.C. Marrocco,
    J. Wilson, Pattillo JJ.), dated June 13, 2016.

Epstein J.A. (in chambers):

[1]

The moving party, Dr. Michael Reid, wants to appeal the decision of the
    Divisional Court released on June 13, 2016, in which it dismissed three appeals
    Dr. Reid brought from decisions of a panel of the Discipline Committee of the
    responding party, the College of Chiropractors of Ontario. Such an appeal is not
    as of right. Dr. Reid must obtain an order from this court granting leave to
    appeal. However, Dr. Reid missed the deadline for filing his notice of motion
    seeking leave to appeal.  He therefore brings this motion for an extension of time.

[2]

The College opposes the motion on the basis that an extension would not be
    in the interests of justice. For the reasons that follow, I agree.

THE BACKGROUND

[3]

Dr. Reid, a chiropractor, has been the subject of disciplinary proceedings
    that arose out of a series of complaints made to the College by a fellow
    chiropractor, Dr. Chris Paynter, and his wife, involving Dr. Reids advertising
    practices.

[4]

In 2006, 2008 and 2009, Dr. Paynter and his wife complained to the
    College that Dr. Reid was engaging in impermissible advertising practices. The
    College reprimanded Dr. Reid and issued two cautions against him.

[5]

In 2010, Dr. Paynter and his wife made a further complaint to the
    College about Dr. Reids advertising practices. That complaint resulted in a
    Discipline Committee hearing (the 2012 Hearing) that proceeded by an agreed
    statement of facts.  Dr. Reid was found guilty of professional misconduct and
    was ordered to enter into an undertaking to abide by the Colleges policies.

[6]

Between the time Dr. Paynter complained to the College in 2010 and the
    2012 Hearing, Dr. Reid made three telephone calls to Dr. Paynter and visited
    his clinic twice. After the 2012 Hearing, Dr. Reid sent two emails to Dr.
    Paynter.  Dr. Paynter complained to the College about these contacts and
    communications.

[7]

On three occasions, the College provided Dr. Paynters complaint and
    another complaint made by an insurance company to Dr. Reid, asking for his
    response. After five months had elapsed without receiving a response from Dr.
    Reid, the College appointed an investigator. The investigator experienced
    difficulty dealing with Dr. Reid.

[8]

Five allegations of professional misconduct arising out of Dr. Reids
    conduct toward Dr. Paynter, his failure to reply to the Colleges requests for
    a response to complaints made against him and his treatment of the investigator
    became the subject of a Discipline Committee hearing that took place in 2014
    and 2015 (the 2014-5 Hearing).

[9]

At the commencement of the 2014-5 Hearing, Dr. Reid unsuccessfully moved
    to have the chairperson of the Panel disqualified on the basis that he had been
    the chairperson of the 2012 Hearing.

[10]

After hearing all the evidence, the Panel concluded that Dr. Reids
    communications with Dr. Paynter were threatening and amounted to harassment,
    and that Dr. Reids failure to respond to the Colleges requests and failure to
    cooperate with the College investigator amounted to professional misconduct.
    The Panel imposed a penalty of a twelve month suspension of Dr. Reids license,
    remedial measures and a fine of $10,000.  The Panel ordered Dr. Reid to pay the
    Colleges costs in the amount of $166,194.50.

[11]

Dr. Reid appealed the Panels decision as to costs (the Costs
    Decision), as to liability, including the issue of bias (the Liability Decision),
    and as to penalty (the Penalty Decision) separately to the Divisional Court. The
    three appeals were heard on February 11, 2016. In one combined decision, with
    one minor exception, the Divisional Court dismissed the three appeals.

[12]

The evidence on this motion was provided by Mr. Douglas P. OToole,
    co-counsel to Dr. Reid with Mr. Hakamali in the 2014-5 Hearing and the
    Divisional Court appeals. In his affidavit, Mr. OToole says that he and Mr.
    Hakamali received the Divisional Court Decision on June 13, 2016. He and Mr.
    Hakamali discussed an appeal of the decision.  Both lawyers were of the view
    that the appeal was to this court, within 30 days of the decision. They therefore
    advised Dr. Reid that the deadline to appeal was July 13, 2016. In an email
    dated July 13, 2016, Mr. Hakamali indicated to counsel for the College that it
    had come to his attention that to appeal to this court, Dr. Reid had to seek
    leave to appeal within 15 days of the Divisional Court Decision.

THE ISSUE

[13]

The single issue is whether an extension of time to file the notice of motion
    for leave to appeal should be granted.

ANALYSIS

The Test for Extending Time

[14]

The test on a motion to extend time is well-settled. The governing principle
    is whether the justice of the case requires that an extension be given:
Rizzi
    v. Mavros
, 2007 ONCA 350, 85 O.R. (3d) 401, at para. 17;
Enbridge Gas
    Distribution Inc. v. Froese
, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15.
    Each case depends on its own circumstances. The relevant considerations
    include:

a)

whether the
    moving party formed a
bona fide
intention to seek leave to appeal
    within the relevant time period;

b)

the length of,
    and explanation for, the delay in filing;

c)

any prejudice to
    the responding party, caused, perpetuated or exacerbated by the delay; and

d)

the merits of
    the proposed appeal.

See
Rizzi
,

at
    para. 16;
Froese
, at para. 15.

[15]

This court has held that lack of merit alone can be a sufficient basis
    on which to deny an extension of time, particularly in cases such as this where
    the moving party seeks an extension of time to file a notice of leave to
    appeal, rather than an extension of time to file a notice of appeal:
Miller
    Manufacturing and Development Co. v. Alden
, [1979] O.J. No. 3109 (C.A.),
    at para. 6;
Froese
, at para. 16.

The Principles Applied

[16]

The record does not support a finding that Dr. Reid formed the intention
    to appeal the Divisional Court Decision within the requisite 15 days.  That
    said, it is clear that Dr. Reid had the requisite intention to have the Divisional
    Court Decision reviewed within a few days of the expiry of the 15 day period.  Dr.
    Reid should have filed the notice of motion for leave to appeal on June 27,
    2016 and his counsel advised the College of Dr. Reids intention to seek leave
    to appeal on July 13, 2016.

[17]

In terms of prejudice, I see nothing in the record, apart from the cost
    associated with permitting the litigation to continue, to suggest that the
    College will suffer prejudice if an extension is granted.

[18]

I turn, therefore, to a consideration of the merits of the proposed
    appeal.

[19]

It must be borne in mind that the decision Dr. Reid seeks to appeal was
    rendered by the Divisional Court exercising its appellate jurisdiction. 
    In
Sault Dock Co. Ltd. v. City of Sault Ste. Marie
, [1973] 2 O.R. 479
    (C.A.), at para. 6, this court explained that, as a general rule, decisions made
    by the Divisional Court in its appellate capacity are intended to be final. A
    review of such a decision by this court is an exception to the general rule.

[20]

Before granting leave, this court must be satisfied that the proposed
    appeal presents an arguable question of law, or mixed law and fact, requiring
    consideration of matters such as the interpretation of legislation; the
    interpretation, clarification or propounding of a general rule or principle of
    law; or the interpretation of an agreement or by-law where the point in issue
    involves a question of public importance:
Sault Dock Co.
at para. 8.

[21]

At para. 9 of
Sault Dock Co.,
the court added that it will also
    consider cases where special circumstances make the matter sought to be brought
    before it one of public importance or where it appears that the interests of
    justice require that leave should be granted. Finally, at para. 10, this
    court observed that there may be cases in which there is clearly an error in
    the judgment or order of the Divisional Court such that the Court of Appeal
    might grant leave to correct the error.



The Proposed Appeal of the
    Costs Decision

[22]

Dr. Reid submits that the appeal of the Costs Decision will affect
    future approaches to the reasonableness of cost awards under s. 53.1 of the Health
    Professions Procedural Code, Schedule 2 of the
Regulated Health Professions
    Act, 1991
,

S.O. 1991, c. 18 (the Code). He further argues that,
    given the dissent, the cost decision has merit.

[23]

I disagree.

[24]

Section 53.1 of the Code gives the College jurisdiction to order costs. 
    The courts have recognized this jurisdiction and have described it as being
    broad and discretionary:
Freedman v. Royal College of Dental Surgeons
,
    [2001] O.J. No. 1726 (Div. Ct.), at paras. 3, 6;
Aronov v. Royal College of
    Dental Surgeons
, [2002] O.J. No. 5973 (Div. Ct.), at para. 54.  The courts
    have also identified the Colleges right and responsibility to protect its
    members from the weight of the expense of protracted disciplinary hearings:
Aronov
,
    at para. 53.

[25]

The standard of review of reasonableness applies to the Costs Decision
    as the College was interpreting its own statute and was exercising discretion
    in making the award:
Venneri v. College of Chiropractors of Ontario
,
    2010 ONSC 473, [2010] O.J. No. 334, at para. 6.  A decision is only unreasonable
    if there is no line of analysis in the reasons that could reasonably lead the administrative
    tribunal from the evidence to the conclusion reached:
Law Society of New
    Brunswick v. Ryan
, 2003 SCC 20, [2003] 1 S.C.R. 247, at para. 55.

[26]

The majority conducted a reasonableness review when assessing the Costs
    Decision. On the basis of this review, the majority concluded that the Panel had
    considered relevant factors, including the parameters of s. 53.1 of the Code,
    the Colleges costs, the findings of liability and the Colleges relative
    success.

[27]

In the light of the discretionary nature of the Costs Decision, the
    standard of review and the Divisional Courts thorough and unimpeachable
    approach to the issue, I conclude that the application for leave to appeal the
    Costs Decision is without merit.

[28]

My conclusion is not impacted by the dissent, as I am of the view that
    Wilson J.s analysis is, with respect, incorrect.  As is apparent from the
    above analysis, her view that no decisions have considered the issue of
    reasonable costs under s. 53.1 of the Code is clearly in error.  Moreover, she
    conducted her own independent cost analysis rather than conducting a
    reasonableness review, which was her mandate.

[29]

I therefore find there to be no merit in the leave application as it
    applies to the Costs Decision.

The Proposed Appeal of the
    Liability Decision

[30]

Dr. Reid submits that he was found guilty of professional misconduct because
    he breached standard practice when he failed to provide responses to complaints,
    as requested by the Inquiries, Complaints and Reports Committee (ICRC).  He
    argues that the College did not have the authority to create the Standard of
    Practice and that the proposed appeal will have far reaching implications for
    the conduct of investigations by Colleges.

[31]

I reject this argument.  First, the expert evidence called on behalf of both
    parties was that Dr. Reid was, in fact, obligated to respond to complaints and
    provide the requested response to the College. Second, Dr. Reid himself
    admitted that he had a professional obligation to respond to the ICRCs
    requests.

[32]

The conclusions of the Panel and the Divisional Court that Dr. Reid had
    an obligation to cooperate with the College and that he breached it by failing
    to provide submissions to complaints, are unassailable.

[33]

Dr. Reid further argues that there was no evidence to support findings
    of professional misconduct in relation to his conduct towards Dr. Paynter. 
    This part of the proposed appeal is entirely fact based.  It does not raise
    an arguable question of law, and certainly not one of the sort contemplated by
    para. 8 of
Sault Dock Co.
Moreover, the purported appeal does
    not involve a special circumstance or a matter of public importance.

[34]

Finally, Dr. Reid argued before the Panel and the Divisional Court that
    the Panels chairperson should have been recused on the basis that he had been
    the chairperson of his 2010 Hearing.  He raises this issue as a further reason
    why his leave application has merit.

[35]

Again, I disagree. Dr. Reids argument that the Divisional Court erred
    in finding there was no valid issue of bias completely lacks merit.  It is a
    bald assertion.  As previously noted the 2010 Hearing proceeded on an Agreed
    Statement of Facts. No evidence was called.  Dr. Reids credibility was not in
    issue.

The Proposed Appeal of the
    Penalty Decision

[36]

Dr. Reid has made it clear that his application to seek leave to appeal the
    Penalty Decision is dependent on his appeal of the Liability Decision.  Given
    my conclusion that the appeal concerning the Liability Decision is without
    merit, it follows that his appeal concerning the Penalty Decision is also
    without merit.

CONCLUSION

[37]

The College has not been prejudiced by the delay, nor fairly, does it
    claim to be.  The fact that there is no evidence that Dr. Reid formed an
    intention to appeal the Divisional Court Decision within the relevant time
    frame alone may constitute a sufficient basis upon which to dismiss Dr. Reids
    motion.  However, my decision to dismiss the motion rests on the basis that,
    given the lack of merit of the proposed appeal, justice requires that Dr.
    Reids motion for extension of time to file his motion for leave to appeal, be
    dismissed.

DISPOSITION

[38]

The motion is therefore dismissed.  Further to the parties consent,
    the College is entitled to its costs, including the costs of the
    cross-examination of Mr. OToole, in the amount of $5,000, all in.

Released: October 24, 2016                                             Gloria
    Epstein J.A.


