Dated: 20020605 2002 SKCA 74 Docket: 476 THE COURT OF APPEAL FOR SASKATCHEWAN Coram: Cameron, Sherstobitoff Lane JJ.A. CHARLES PEARLMAN and THE UNIVERSITY OF SASKATCHEWAN, THE COLLEGE OF MEDICINE OF THE UNIVERSITY OF SASKATCHEWAN and THE DEPARTMENT OF SURGERY INVESTIGATION COMMITTEE RESPONDENTS and THE PROFESSIONAL ASSOCIATION OF INTERNES AND RESIDENTS OF SASKATCHEWAN INTERESTED PARTY COUNSEL: Mr. Brian J. Scherman, Q.C. for the Appellant Ms. Catherine A. Sloan and Mr. Collin K. Hirschfeld for the Respondents No one appeared for the Interested Party DISPOSITION: On Appeal From: Q.B.G. No. 2120 of 2001, J.C. Saskatoon Appeal Heard: May 15, 2002 Appeal Dismissed: June 5, 2002 Written Reasons: June 5, 2002 Reasons By: The Honourable Mr. Justice Lane In Concurrence: The Honourable Mr. Justice Cameron The Honourable Mr. Justice Sherstobitoff [1] The appellant was unsuccessful in his application before Queen’s Bench judge in chambers both to have his suspension and probation as medical resident rescinded, and to prohibit the Investigation Committee established to look into the matter from taking further action. He appeals the resulting order from the Queen’s Bench Chambers judge. The facts are more fully set out in the judgment below and only brief recitation is necessary here. [2] The appellant is medical resident pursuing certification as specialist in orthopaedic surgery at the respondent’s College of Medicine. He received unsatisfactory evaluations, the first occurring in October of 1999 which he appealed in November of 1999. An appeal committee was struck pursuant to the provisions of the College of Medicine, Regulations for Dealing with Unsatisfactory Evaluations and Disciplinary Action Part (“ regulations”). As well, the Orthopaedic Residency Training Committee met and placed the appellant on probation pursuant to the guidelines for Residency Training Committees. This latter committee’s minutes were forwarded to the Associate Dean of Postgraduate Medical Education who ruled the issues should be dealt with under Part of the regulations headed Regulations For Dealing With Disciplinary Action”. This choice was made after the appellant’s union (PAIRS) met with the Associate Dean and persuaded her this procedure should be followed for it would give the optimum benefit to the appellant. [3] Pursuant to Part B, an Investigation Committee (“committee”) was established. The proceedings and composition of this committee are the subject of the application and this appeal. Pending the investigation, the appellant was placed on probation with pay effective November 17, 1999. [4] The committee forwarded all letters of complaint and all related information to the appellant on December 15, 1999. It then met on approximately seven occasions and interviewed seven witnesses. On March 22, 2001, the committee met with the appellant, his counsel, the union’ counsel, and counsel for the University. At that time the appellant raised the issue of bias on the part of the committee. The committee considered the matter and, by letter dated August 21, 2001, advised the appellant the committee would proceed as constituted. [5] The appellant then brought the application for an order prohibiting the committee from proceeding further and ordering him reinstated as resident. The Chambers judge refused to grant the relief requested, finding the issues to be academic in nature and thus within the exclusive jurisdiction of the University, but did rule the appellant’s supervisor should be removed from the committee because of an apprehension of bias. [6] The appellant contends the issue is not academic in nature but is matter of disciplinary proceedings and the court has the power to review the matter. As it is disciplinary in nature and can ultimately result in his dismissal, he argues he is entitled to procedural fairness including full hearing, the right to cross-examine witnesses, to call his own witnesses, the right to active legal representation, and the right to full disclosure. He further argues all of the committee members, except the representative of the appellant’s union, should be excluded from serving on the committee by reason of bias. [7] As stated above, relying on the authority set out in Regina v. University of Saskatchewan, Ex parte King[1] (a decision of this Court affirmed by the Supreme Court of Canada), the Chambers judge found the issues to be essentially academic in nature and not subject to review by the courts except from the perspective and dicta of King, including the requirement the University’s processes be conducted fairly in accordance with the principles of natural justice. As the issues are academic matters the University has exclusive jurisdiction. He went on to rule the appellant’s supervisor should not sit on the committee because his presence gave rise to an apprehension of bias, but found no reason why the rest of the committee should not proceed to complete the task. [8] The Chambers judge refused to quash the committee’s work on grounds of delay and found the appellant responsible for at least some of the delay. He also found there were further procedural steps (including appeals pursuant to the regulations) available to the appellant, and it was not the committee’s decision to ultimately dismiss the appellant if the recommendations were unfavourable. In other words, the application was premature as the regulations provided further avenues of appeal. [9] We are all of the view there is no tenable basis for interfering with the Chambers judge’s disposition of the application. The remedies prayed for are discretionary by nature, the writs being writs of grace (see Harelkin v. University of Regina[2]). Thus the appellant must demonstrate the Chambers judge abused his discretion. We are not persuaded he did so. No error of principal, nor any misapprehension of or disregard for any material fact has been demonstrated. Nor did the Chambers judge fail to act judicially and the result is not so plainly wrong as to warrant intervention (see Rimmer v.Adshead[3]). [10] Further, given the long delay, including the delay in seeking recourse attributable to the appellant we would not be prepared to grant the relief in any event. We note, for example, the appellant’s initial concern was that of alleged bias, and the issue of jurisdiction, i.e. the proceedings being disciplinary in nature and not academic, was not raised until the application below. We agree the application is premature as there are other avenues of appeal open to the appellant as provided for in the regulations, (Part provides as follows: ACTIONS AND ALTERNATIVES FOR THE APPEAL COMMITTEE The Appeal Committee will meet and determine the procedure which the Committee intends to follow. This procedure shall be communicated to the resident. The Appeal Committee will determine if the resident has received due process and if the disciplinary penalty is appropriate in the circumstances of the case. If the Appeal Committee decides that the decision should be reversed or altered, they will ask the Residency Training Committee to do so. If the Program Director does not see fit to do so, the decision shall be referred to the Dean of Medicine who will review the evidence and render decision. If the decision made by the College of Medicine is dissatisfactory to the resident, he/she may appeal to the Joint Senate-Council Board for Student Appeals. January 1995 The proceedings should not be allowed to be fragmented and should be allowed to run their course so the court has complete record from the tribunals below (see Jones v. College of Physicians and Surgeons (Sask.);[4] R. v. Manjanatha (C.P.),[5] and R. v. DeSousa.[6] Further where there is right of appeal certiorari should not be granted except in exceptional circumstances (see Re Wilfong[7] and Harelkin[8]). [11] The appellant, as a preliminary matter, made an application to adduce fresh evidence consisting of a letter received by the appellant from the Investigating Committee describing how the committee intended to proceed. We dealt with this application in the usual manner, but are of the view the material does not meet the test for the admission of fresh evidence upon appeal (see Maitland v. Drozda[9]) and it simply re-states what was already in issue below and found to have had no effect (see Gaetz vs. Gaetz[10]). The appellant’s application is therefore dismissed. [12] The appeal is therefore dismissed with costs on double Column V. DATED at the City of Regina, in the Province of Saskatchewan, this 5th day of June, A.D. 2002. concur Cameron J.A. concur Sherstobitoff J.A. [1](1969), 1968 CanLII 524 (SK CA), D.L.R. (3d) 721. [2]1979 CanLII 18 (SCC), [1979] S.C.R. 561. [3]2002 SKCA 12 (CanLII), [2002] W.W.R. 119; [2002] S.J. No. 22, QL. [4](1996), 1996 CanLII 5045 (SK CA), 148 Sask. R. 74. [5](1994), 1994 CanLII 4645 (SK CA), 125 Sask. R. 73. [6]1992 CanLII 80 (SCC), [1992] S.C.R. 944. [7](1962) 1962 CanLII 289 (SK CA), 37 W.W.R. 612 at 615. [8](unreported Sask. C.A. June 22, 1977); [1977] S.J. No. 348 QL. [9](1983), 1983 CanLII 2050 (SK CA), 22 Sask. R. 1. [10](1996), 1996 CanLII 5033 (SK CA), 144 Sask. R. 268 at 271.
The appellant was unsuccessful in Queen's Bench in having his suspension and probation as a medical resident rescinded or to prohibit the Investigation Committee, which met on approximately seven occasions and interviewed seven witnesses, from taking further action. The Chambers judge refused to grant relief, finding the issues to be academic in nature and within the exclusive jurisdiction of the University, but ruled his supervisor should be removed from the Committee because of an apprehension of bias. The appellant applied to adduce fresh evidence consisting of a letter from the Investigating Committee describing how it intended to proceed. The appellant argued the matter was disciplinary, not academic, and as it can ultimately result in his dismissal, he is entitled to procedural fairness, including a fair hearing, the right to cross-examination of witnesses, to call his own witnesses, to active legal representation and to full disclosure. He argued all committee members, except the union representative, should be excluded by reason of bias. HELD: The appeal was dismissed with costs on double Column V. 1)The material did not meet the test for the admission of fresh evidence. It simply restated what was at issue and found to have had no effect. 2)There was no tenable basis for interfering. The remedies are discretionary. 3)The Court was not prepared to grant the relief in any event, given the long delay in seeking recourse. The initial concern was bias and jurisdiction. The issue of whether the proceedings were academic or disciplinary was not raised until the application below. 4)The application was premature as there are other avenues of appeal provided in the regulations. Proceedings should not be allowed to be fragmented and should be allowed to run their course so the court has a complete record from the tribunals below. Certiorari should not be granted where there is a right of appeal, except in exceptional circumstances.