A PRIMER ON APPEALS FROM CPSO DECISIONS

Our firm is often retained to assist physicians with appeals or reviews of various decisions made by the College of Physicians and Surgeons of Ontario (“CPSO”). 

Different decisions of the CPSO have different rules about how to appeal the decision, including what Court or tribunal to appeal to, how quickly the appeal must be brought, what is subject to the appeal, the powers of the reviewing body, and the timeline to commence an appeal. We have summarized this information below. 

Physicians should seek legal advice as soon as possible if they are considering appealing a CPSO decision, as there are usually short timelines in place for commencing an appeal, and it is important to institute an appeal before the proper reviewing Court or tribunal. 

Complaint decisions 

Appeals from decisions of the CPSO Inquiries, Complaints, and Reports Committee (“ICRC”), which arise from public complaints, lie to the Health Professions Appeal and Review Board (“HPARB”) (section 29 of Health Professions Procedural Code HPPC”). Such appeals are typically referred to as “reviews.” 

HPARB is an independent administrative tribunal that deals with reviews for all health professions in Ontario. HPARB is not affiliated with the CPSO.  

An HPARB review must be brought within 30 days of the ICRC’s complaint decision (section 21 of the HPPC).

HPARB has limited statutory jurisdiction when it reviews an ICRC complaint decision, and can only consider (1) the adequacy of the ICRC investigation, and (2) the reasonableness of the ICRC decision (section 33 of the HPPC). It is important to direct HPARB submissions to these specific areas. 

HPARB reviews of ICRC complaint decisions are typically conducted orally. 

HPARB does not have jurisdiction to review an ICRC decision in which the ICRC referred the matter to the Discipline Committee or for incapacity proceedings. However, such decisions may be subject to judicial review. 

After conducting a review of the ICRC complaint decision, the HPARB may confirm all or part of the ICRC decision, refer the matter back to the ICRC for further consideration and make any recommendations it considers appropriate, or, in rare cases, substitute its own decision for that of the ICRC.   

Section 75 investigation decisions 

There is no statutory right to appeal or review decisions of the ICRC which arise from the appointment of an investigator under section 75 of the Health Professions Procedural Code. Because of this, ICRC decisions arising from section 75 investigations cannot be appealed to HPARB. 

However, an ICRC decision arising from a section 75 investigation is subject to judicial review by the Divisional Court. The judicial review procedure is governed by Rule 68 of the Rules of Civil Procedure and the Judicial Review Procedure Act. 

There is no specific time limit during which a judicial review proceeding of an ICRC decision arising from a section 75 investigation must be brought. However, it is a good practice to institute judicial review proceedings as soon as possible, ideally within 30 days of the decision subject to review. This avoids any potential opposing argument about undue delay in commencing the judicial review. 

Judicial review proceeding are decided by a panel of three judges of the Divisional Court. Judicial review proceedings typically require written argument (factum) and an oral argument to be presented to the Court by all parties subject to the judicial review. Typically, both the CPSO and the physician are parties to a judicial review proceeding of this nature. 

HPARB decisions arising from complaints decisions of the ICRC

HPARB decisions arising out of complaint decisions of the ICRC are subject to judicial review by the Divisional Court. 

There is no specific time limit during which a judicial review proceeding arising from an HPARB decision must be brought. However, it is a good practice to institute judicial review proceedings as soon as possible, ideally within 30 days of the decision subject to review. This avoids any potential opposing argument about undue delay in commencing the judicial review.

Judicial Review proceeding are typically decided by a panel of three judges of the Divisional Court. Judicial review proceedings typically require written argument (factum) and oral argument to be presented to the Court by all parties subject to the judicial review. Typically, the CPSO, the HPARB, and the physician are all parties to the judicial review proceeding of this nature. There may be additional parties depending on the nature of the underlying decision, for instance a patient with an interest in the outcome. 

Discipline Committee and Fitness to Practice Committee decisions 

Appeals from Discipline Committee decisions and Fitness to Practice Committee decisions lie to the Divisional Court (section 70 of the HPPC). 

Appeals to the Divisional Court from Discipline Committee decisions and Fitness to Practice Committee decisions must be brought within 30 days from the date of the order appealed from (section 61.04 of the Rules of Civil Procedure). 

Appeals can also be made in the case of interlocutory orders of the Discipline Committee or the Fitness to Practice Committee, for instance from a decision on a motion. 

The Divisional Court has statutory jurisdiction to consider both questions of fact and questions of law in an appeal from a decision of the Discipline Committee or the Fitness to Practice Committee. 

Appeals to the Divisional Court from decisions of the Discipline Committee or the Fitness to Practice committee are typically heard by a three-judge panel. Appeals of this nature typically require written argument (factum) and oral argument to be presented to the Court by all parties subject to the appeal. Typically, the CPSO and the physician are parties to an appeal. There may be additional parties depending on the nature of the underlying decision, for instance a patient with an interest in the outcome.

Registration Committee decisions 

Appeals from decisions of the CPSO Registration Committee lie to the Health Professions Appeal and Review Board (“HPARB”) (section 20 of the HPPC). 

An appeal to HPARB must be brought within 30 days of the Registration Committee’s decision (section 21 of the HPPC). 

Following either an oral hearing or a written review, the HPARB can make an order confirming the Registration Committee’s decision, an order requiring the Registration Committee to issue a certificate of registration and to impose any terms, conditions and limitations the Board considers appropriate, or an order referring the matter back to the Registration Committee for further consideration. 

HPARB decisions arising from decisions of the Registration Committee 

Appeals from HPARB decisions in registration cases lies to the Divisional Court (section 70 of the HPPC). 

Appeals to the Divisional Court from registration decisions must be brought within 30 days from the date of the order appealed from (section 61.04 of the Rules of Civil Procedure). 

The Divisional Court has statutory jurisdiction to consider both questions of fact and questions of law in an appeal from an HPARB decision in a registration case. 

Appeals to the Divisional Court from HPARB decisions in registration cases are typically heard by a three-judge panel. Appeals of this nature typically require written argument (factum) and oral argument to be presented to the Court by all parties subject to the appeal. Typically, the CPSO, the HPARB, and the physician are all parties to an appeal of this nature. There may be additional parties depending on the nature of the underlying decision.