by Victoria Tremblett July 29, 2022 3 min read

A complaint to the College against a regulated health professional (“member” of the College) may take significant time to reach final adjudication, particularly in cases where the complainant pursues a review of the decision of the Inquiries, Complaints and Reports Committee (ICRC) by the Health Review and Appeal Board (HPARB), followed by an application to the Divisional Court for judicial review.

This lengthy process can undoubtedly be frustrating and stressful for the member, particularly when the member views the complaint as being without merit. 

In a decision earlier this year, the Court confirmed that it will not permit frivolous or vexatious applications for judicial review to proceed.

In Macmull v Ontario (Ministry of Health), 2022 ONSC 182, the Court dismissed the applicants’ request for review of a decision of the Health Professional Review and Appeal Board pursuant to Rule 2.1 of the Rules of Civil Procedure.The decision of the Board that the applicants’ sought to review was in relation to medical treatment provided to the applicants’ father.

The applicants in Macmullcommenced their application for judicial review by way of letter with various attachments, as opposed to the required Notice of Application for Judicial Review.

In their letter, the applicants failed to name any of the parties to the proceeding before the Board, and instead named several parties that were not parties before the Health Professions Appeal and Review Board, including the Ministry of Health, the Province and a hospital.

The relief sought by the applicants and the grounds for the application for judicial review did not address alleged defects in the Board's decision, but instead made broad allegations about the treatment the Macmulls' father received at the named hospital and sought relief that the Court described as “far beyond the Divisional Court's jurisdiction on an application for judicial review.”

Accordingly, the Court wrote to the applicants, informing them of the issues with their Notice of Application, and putting them on notice that the Court was considering dismissing the application for judicial review on the basis that it was frivolous and vexatious. The applicants were then given an opportunity to correct their errors, but chose not to, stating that they should not be required to do anything further to move the matter forward, and suggested it was the Court’s responsibility to investigate their allegations that the hospital mistreated their father. 

In determining whether to dismiss the application for judicial review, the court cited the decision of the Ontario Court of Appeal in Visc v Elia Associates Professional Corporation,2020 ONCA 690, at paragraph 8:

Rule [2.1] is not for close calls -- it may be used only in "the clearest of cases where the abusive nature of the proceeding is apparent on the face of the pleading and there is a basis in the pleadings to support the resort to the attenuated process".

In this case, the proposed proceeding did not meet the legal requirements for an application for judicial review as it did not name the proper respondents, it did not state the proper grounds for challenging the Board’s decision, and it raised numerous issues not properly before the Divisional Court on such an application. While some allowances will be made for self represented applicants, they must identify proper grounds for judicial review and name the correct parties.

Accordingly, the application for judicial review was dismissed.

This case demonstrates that while there may be leniency shown to self-represented complainants, they must nonetheless comply with basic procedural requirements. The Courts will not permit applicants to drag health professional through applications for judicial review that have no hope of success.

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