November 12, 2014

More than financial loss is needed for a court to suspend a supervision order pending an appeal or judicial review

Administrative Law
Inquiry and Investigations
Professional Regulation

An Ontario court declined to suspend a supervision order made by a Quality Assurance Committee (a “QAC”) against a physician, as he could not prove that that the supervision requirement, if left undisturbed until his judicial review, would result in irreparable harm. Furthermore, the interest in public safety outweighed the prejudice to the physician, where the supervision terms permitted him to continue his practice: Chong v. College of Physicians and Surgeons of Ontario, 2014 ONSC 6040.

The case involved a QAC order that a physician obtain a supervisor who would engage in weekly chart reviews, directly observe his practice, and report to the College, but also required that if he could not obtain a supervisor, he had to cease practising. The physician sought judicial review, and a stay of the supervision requirement. However, he had to prove that the supervision order would cause irreparable harm, even should he succeed on his judicial review, and that the benefits of staying the harm to him outweighed the harm to the public interest if the court were to grant the stay. The court found that he failed on both elements.

First, the irreparable harm had to be more than merely financial, and it also had to be clear, and not speculative. The court found no evidence that the QAC intended to effectively suspend the physician, and it was not persuaded that the physician could not find a supervising physician to assist him. Secondly, potential risk to patient safety (even though the case was not one that arose “from the death of a patient or findings of abuse or assault” outweighed the physician’s risk of financial loss, especially where the College had “imposed terms and conditions which would permit Dr. Chong to continue to practice while addressing or managing any potential risk to patient safety”. [11]

Chong v. College of Physicians and Surgeons of Ontario, 2014 ONSC 6040

Lisa C. Fong and Michael Ng