Supreme Court

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF; THE GOVERNMENT OF THE NORTHWEST TERRITORIES - AND -UMATHEVAN VISWALIN6AM UMATHEVAN VISWALIN6AM j - AND -

HELEN ROBERTS, ET AL

Transcript of the Reasons for Judgment delivered by the Honourable Mr. Justice J. E. Richard, sitting at Yellowknife, in the Northwest Territories, on Thursday, June 10, A.D. 1993.

APPEARANCES! MR. B. WILLIS behalf of Dr. Viswalingam MS. S. GULLBERG alf of the G.N.W.T. OFFICIAL COURT REPORTERS ^XiPf

^ CAV ^^ 0^1 CV 04709 CV 04712 m^ 23 ̂993

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1 THE COURT: On the two matters before the Court I 2 find that I am able to make a decision on these 3 applications today. In my view the issues are 4 straightforward, the evidence that is before the Court 5 is not in dispute, and there is no disagreement 6 between counsel as to the legal principles that are 7 applicable in connection with these matters. 8 On the first application in Action CV 4709, Dr. 9 Viswalingam seeks an order of mandamus requiring the 10 Minister and/or the Registrar to issue the renewal of 11 his license following his successful appeal to the 12 Minister pursuant to Section 18 of the Medical 13 Profession Act. The objections of counsel on behalf 14 of the Registrar and the Minister essentially revolve 15 around the proposition that the Minister did not reach 16 her decision under Section 18 of the Act, or did not 17 necessarily reach her decision under that Act or the 18 appeal section. I find on the evidence presented that 19 the Minister clearly did make her decision on Dr. 20 Viswalingam's appeal, and that he is entitled to have 21 her decision acted upon and complied with. Upon my 22 reading of the legislation it was not open to the 23 Minister to change her mind, or to revisit her 24 decision. I find that the prerequisites for a 25 mandamus order, as set out in the case law cited to 26 me, have been met in this case and that Dr. 27 Viswalingam is entitled to the order sought. OFFICIAL COURT REPORTERS

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1 with respect to the application of the Government 2 of the Northwest Territories in Action number CV 4712, 3 in paragraph two of the originating notice of motion, 4 the relief that is requested requires the Court to 5 give an interpretation to paragraph 10 of the 6 settlement agreement, it requires the Court to give an 7 interpretation to that paragraph which, with respect, 8 I am unable to give to it. The implication or 9 inference that that agreement means that the doctor 10 was agreeing not to practice medicine in the interim 11 is one that cannot be made, in my respectful view, on 12 a reading of the agreement. In paragarph three of the 13 originating notice of motion where the GNWT seeks an 14 injunction, an interim injunction, I find that upon a 15 consideration of the case law that is referred to me 16 by the government counsel, I find that Section 42 of 17 the Medical Profession Act is a bar to the granting of 18 the injunction. Therefore I dismiss that application 19 without prejudice to the right of that applicant, 20 which is the Minister of Health, to renew the 21 application for an injunction after the Minister's 22 Section 42 remedy has been exhausted. And I should 23 say I am not suggesting for a moment that the Minister 24 reapply, I am simply saying my decision today does not 25 preclude the Court entertaining a further application 26 after the Section 42 avenue has been utilized. 27 So, in Action CV 4709 there will be an order _ OFFICIAL COURT REPORTERS

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1 directing the Minister, the Registrar and/or the 2 Medical Registration Committee to forthwith issue the 3 renewal of Dr. Vizwalingam's license under the Medical 4 Profession Act. And the applicant. Dr. Viswalingam, 5 will be entitled to his costs, his costs of that 6 application. 7 In the second proceeding, CV 4712, there will be 8 an order denying the relief requested in paragraph two 9 and paragraph three of the originating notice of 10 motion filed, and there will be no costs to either 11 party in that action. 12 Now counsel, any clarification required? 13 MR. WILLIS: Sir, if I may speak briefly to costs. 14 Might the costs specifically include the disbursement 15 for my airfare in coming up here, that was something 16 in excess of $800? 17 THE COURT: I had considered that that might be 18 asked for, Mrs. Gullberg, do you have any submission 19 on that? 20 MS. GULLBERG: My Lord, I would submit that this is a 21 case that could properly be argued by a resident 22 lawyer upon instructions by Mr. Willis, it was his 23 decision to come and argue it, and therefore I submit 24 that the costs should not be granted. 25 THE COURT: I have given consideration to this 26 issue because it has come up before when non-resident 27 counsel appear. In my view, given the background of OFFICIAL COURT REPORTERS

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1 this matter which appears from the affidavit evidence, 2 it was not unreasonable in my view for Dr. Viswalingam 3 to maintain the services of his counsel Mr. Willis 4 through this application. I am going to direct that 5 costs awarded to Dr. Viswalingam in Action CV 4709 6 will include the necessary disbursements for counsel's 7 travel to Yellowknife for this hearing. 8 MR. WILLIS: Thank you, sir. 9 THE COURT: Anything further? 10 MR. WILLIS: Nothing further, sir. 11 THE COURT: Thank you counsel, we will adjourn. 12 (AT WHICH TIME THIS MATTER WAS ADJOURNED) 13 14 Certified a correct transcript. 15

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OFFICIAL COURT REPORTERS

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