Executive Summary: Key Legal and Evidentiary Issues

• Physiotherapist challenged a professional caution issued for not wearing a mask during COVID-19.

• Sought judicial review but missed the statutory deadline by eight months.

• Argued the decision was unreasonable and based on hearsay evidence.

• Court found the regulatory decision justified, transparent, and supported by public health directives.

• Delay was not excused due to lack of diligence despite self-represented status.

• Motion for extension of time to bring judicial review was denied; no costs awarded due to absence of Bill of Costs.

Background and context of the dispute
Jethro G. Constant, a registered physiotherapist, was cautioned by the College of Physiotherapists of Ontario for not wearing a mask while treating a patient during the COVID-19 pandemic. The regulatory body’s Inquiries, Complaints and Reports Committee (ICRC) issued the decision on July 14, 2023. Constant sought to challenge this decision by judicial review, but filed his application well past the statutory deadline. As a result, he brought a motion seeking an extension of time to file his application.

Legal test for time extensions and burden on the applicant
Under section 5(2) of the Judicial Review Procedure Act (JRPA), the moving party must establish apparent grounds for relief and demonstrate that no substantial prejudice would result from the delay. The court also considers the length of the delay, the explanation provided, and the merits of the underlying case. Justice Nakatsuru emphasized that public interest weighs heavily in timely regulatory enforcement, and that prejudice to a professional regulator can be presumed.

Merits of the proposed judicial review
Constant argued that the College’s decision was unreasonable and based on hearsay evidence. However, the court found the decision grounded in both the physiotherapist’s own account and reasonable interpretation of public health directives. The ICRC had relied on COVID-19 safety guidelines issued by the Ministry of Health—an accepted standard under Ontario’s Regulated Health Professions Act. The court found no credible basis to challenge the College’s reliance on these directives or its interpretation of risk to patient safety.

Assessment of delay and justification
The delay of eight months was deemed unjustified. Constant had been informed of his right to seek judicial review and was directed to the appropriate court website. While the court acknowledged the challenges faced by self-represented litigants, it noted that such status does not absolve an individual from exercising due diligence. Constant’s confusion about whether the caution would appear on the public register was not accepted as a valid excuse.

Decision on the motion and costs
Justice Nakatsuru dismissed the motion for an extension of time. The court found both the procedural and substantive thresholds unmet. Although the College requested nominal costs, it had not filed a Bill of Costs, and therefore no costs were awarded. The decision reinforces the principle that regulated professionals must act within prescribed timelines, and that self-representation does not exempt parties from compliance with procedural rules.