COURT FILE NO.: 209/02

DATE: 20040518

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MacFARLAND, WILSON AND SWINTON JJ.

B E T W E E N: )

DR. SAMUEL O.A. SOREMEKUN ) Ronald Slaght, Q.C.,

) for the Appellant

Appellant )

• and - )

UNIVERSITY HEALTH NETWORK ) John Morris and Cynthia Clarke,

) for the Respondent

Respondent )

) HEARD at Toronto: April 1, 2004

MacFarland J.:

[1] This is an appeal by Dr. Soremekun pursuant to section 43(1) of the Public Hospitals Act, R.S.O. 1990, c. P.40 from a decision of the Health Professions Appeal and Review Board (HPARB) dated February 28, 2002. The HPARB confirmed the decision of the Board of Trustees of the University Health Network (UHN) suspending Dr. Soremekun’s appointment to the medical staff of the UHN until such time as he undertakes the Sunnybrook Anaesthetist Review Programme (Program) or a mutually agreed upon equivalent, and submits documentation demonstrating that his practice is of sufficient quality to ensure patient safety.

[2] The Board of Trustees’ decision was in accordance with the recommendation made to it by the hospital’s Medical Advisory Committee dated October 7, 1999.

[3] On appeal the HPARB added an additional term to any reinstatement, on the consent of the parties, that Dr. Soremekun must undergo a minimum of a one-year anaesthesiology refresher course due to the passage of time since his suspension.

[4] Dr. Soremekun had been an anaesthetist at The Doctors Hospital for some thirty years prior to its merger with UHN in June, 1998. Thereafter Dr. Soremekun joined the Anaesthesia Department of the Toronto Hospital (Western Division) – part of the UHN.

[5] On September 2, 1998 Dr. Soremekun was informed by Dr. Frances Chung, the then Deputy-Chief of the Anaesthesia Department, that Dr. Sandler, the Chief of the Department, wished to meet with him on September 9, 1998 in relation to complaints about his work.

[6] From September 2, 1998 onward Dr. Soremekun did not work again in the operating room at the hospital. His privileges were effectively suspended that day.

[7] On September 9, 1998 Dr. Soremekun met with Drs. Sandler and Chung in Dr. Sandler’s office and for the first time he was confronted with some seventeen complaints including two recent ones which had occurred on August 31, 1998 and September 1, 1998. The appellant’s factum says all the complaints were compiled during his tenure at UHN.

[8] Dr. Sandler decided that Dr. Soremekun’s difficulties could be resolved if he took a Peer Assessment Review for two weeks at Sunnybrook Hospital. Although Dr. Soremekun initially agreed to undergo that process, he soon changed his mind and declined to undertake the Program.

[9] Thereafter it was agreed that an independent review of the situation would be conducted by a mutually agreed upon anaesthetist and Dr. Crowell, an anaesthetist proposed by Dr. Soremekun, undertook such a review. Dr. Crowell concluded in his December 21, 1998 report that Dr. Soremekun should undertake the Program.

[10] Dr. Sandler, as the result of the Crowell report and Dr. Soremekun’s continued refusal to take the Program, referred the matter to the hospital’s Medical Advisory Committee (MAC).

[11] The MAC met on October 7, 1999. Dr. Sandler reviewed for the Committee the basic facts which had led to his recommendation to Dr. Soremekun that he undertake the Program. Dr. Crowell’s report was before the Committee as was the report of Dr. John Brebner. Dr. Brebner was, at the time, Chief of the Department of Anaesthesia at Orthopaedic and Arthritic Hospital. He had been retained on behalf of Dr. Soremekun and prepared a report wherein he stated that he saw no reason for Dr. Soremekun to take the Program. In addition to the reports, after hearing from Dr. Sandler, the Committee heard from Dr. Soremekun and Dr. Brebner. In addition to his oral presentation, Dr. Soremekun’s counsel provided the Committee with his detailed written response to the complaints. The MAC recommended to the Board of Trustees of the UHN that Dr. Soremekun’s privileges be suspended until he undertook the Program or a mutually agreed upon equivalent.

[12] The matter next proceeded before the Board of Trustees on December 11, 1999 by way of a full day hearing. On behalf of the MAC, the Board heard from Dr. John Wright who chaired the part of the MAC meeting that dealt with Dr. Soremekun’s privileges, Dr. Frances Chung, Dr. Crowell and Rhonda Warrien, a nurse-manager in the operating room area of the hospital. Ms. Thomson, on behalf of Dr. Soremekun, called two experts, Dr. Cain and Dr. Brebner, in addition to Dr. Soremekun. The Board concluded:

…that in making its recommendation, the Medical Advisory Committee acted in accordance with the University Health Network’s mandate and responsibility to provide prudent and safe patient care. The Board is satisfied that the proceedings before both the MAC and the Board were fair. While the process that resulted in the subject of Dr. Soremekun’s privileges coming to the attention of the Medical Advisory Committee and to this Board may not have been ideal, the Board’s paramount concern is in ensuring that safe patient care is provided. The Board’s view is that there were sufficient concerns that Dr. Soremekun’s skills as an anaesthetist were deficient to justify the MAC’s recommendation that Dr. Soremekun’s appointment to the medical staff of the University Health Network, Toronto Western Division, be suspended until such time as he undertakes the Sunnybrook Anaesthetist Review Programme or a mutually agreed upon equivalent, and submit documentation demonstrating that his practice is of sufficient quality to ensure patient care. Accordingly the Board accepts the MAC’s recommendation. Dr. Soremekun’s appointment to the medical staff is hereby suspended upon the terms and subject to the conditions contained in that recommendation.

[13] Dr. Soremekun appealed the decision of the Board of Trustees. The matter then proceeded before the HPARB by way of trial de novo over seven days. The HPARB, in addition to documentary evidence, heard the viva voce evidence of Dr. Soremekun, Dr. Chung, Dr. Wright, Dr. Crowell, Dr. Crago, Dr. Brebner, Mr. Sam Soremekun (son of the appellant) and Dr. Cain. The HPARB on February 28, 2002 confirmed the decision of the Board of Trustees.

[14] The appeal to this court is pursuant to section 43 of the Public Hospitals Act which provides:

Appeal from decision of Appeal Board

43. (1) Any party to proceedings before the Appeal Board may appeal from its decision to the Divisional Court in accordance with the rules of court.

Record to be filed in court

(2) Where any party appeals from a decision of the Appeal Board, the Appeal Board shall forthwith file in the Ontario Court (General Division) the record of the proceedings before it in which the decision was made, which, together with the transcript of the evidence if it is not part of the Appeal Board’s record, shall constitute the record in the appeal.

Powers of court on appeal

(3) An appeal under this section may be made on questions of law or fact or both and the court may exercise all the powers of the Appeal Board, and for such purpose the court may substitute its opinion for that of the Appeal Board or board or other person or body authorized to make the decision appealed from, or the court may refer the matter back to the Appeal Board for rehearing, in whole or in part, in accordance with such directions as the court considers proper.

[15] While the Act grants a right of appeal, questions pertaining to the standard of review must be assessed in light of administrative law principles. The Supreme Court of Canada in Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 778 (SCC), [1998] 1 S.C.R. 982 and cases since instructs us that the standard of review is to be decided in each case on the basis of a functional and pragmatic approach. As the Chief Justice stated in Dr. Q. v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226 at 238:

In the pragmatic and functional approach, the standard of review is determined by considering four contextual factors - the presence or absence of a privative clause or statutory right of appeal; the expertise of the tribunal relative to that of the reviewing court on the issue in question; the purposes of the legislation and the provision in particular; and the nature of the question - law, fact or mixed law and fact.

[16] Here there is a broad statutory right of appeal to this court and accordingly on the first factor, only limited deference is owed by this court to the decision of the tribunal. As for the second factor, one of the main functions of the HPARB is to review decisions respecting hospital privileges under the Public Hospitals Act. The questions before the HPARB were, in our view, squarely within its expertise and, accordingly, on this factor, some deference is owed by the Court. Here the third and fourth factors can be considered together. Ensuring patient safety in the provision of hospital services is a main purpose of the Public Hospitals Act and that is to be balanced against the interests of the physicians who come before the Board.

[17] Taking all four factors into account, we are satisfied that the standard of review we are to apply in reviewing the decision of the HPARB in the case before us, is reasonableness simpliciter.

[18] The HPARB conducted a hearing de novo to consider whether there was a reasonable basis to require Dr. Soremekun to undertake the Program and then to suspend his hospital privileges when he refused to do so. We agree with the respondent’s submission that the question before the HPARB was not whether the appellant had failed to meet a reasonable standard of care but rather whether the events demonstrated a valid concern for patient safety, such that a requirement that he undertake the Program was warranted. Put another way, the HPARB had to be satisfied, on a balance of probabilities, that there was a legitimate concern about patient safety that warranted remedial action.

[19] Dr. Soremekun was first informed that there had been complaints in relation to his work on September 2, 1998 but was provided with no detail of those complaints until September 9, 1998 when he met with Drs. Sandler and Chung, respectively the Chief and Deputy-Chief of his Department. The complaints numbered seventeen, were described for the most part as “minor” in nature and had been accumulated over the appellant’s fairly recent tenure at the hospital. Two of the complaints were described as “critical incidents” and had occurred on August 31 and September 1, 1998.

[20] In our view, confronting Dr. Soremekun on September 9 with a “package” of some seventeen “complaints” without affording him an opportunity to investigate and consider the complaints before the meeting was a denial of procedural fairness. These matters ought to have been raised with Dr. Soremekun by Dr. Chung at the time the complaints were made. The hospital, however, in our view “righted” that wrong when it agreed to have the entire situation reviewed by an independent expert agreeable to both parties. Dr. D. E. Crowell was proposed by Dr. Soremekun and the hospital agreed. Dr. Crowell’s involvement is detailed in paragraphs twenty-one through twenty-eight of the decision of the HPARB. Dr. Crowell concluded that Dr. Soremekun should undertake the Program.

[21] The appellant also submits that he was again denied procedural fairness when the HPARB seemed to instruct itself that it would not consider the seventeen “minor” complaints but rather would consider only the events of August 31 and September 1, 1998 and then seemed to use those complaints in addition to the two critical incidents to conclude that the hospital was justified in insisting that the appellant take remedial steps.

[22] The HPARB’s reference to concerns expressed about Dr. Soremekun with regard to intubating patients arose initially as part of the seventeen original complaints. However, it also arose in relation to Mr. Z’s case, one of the two critical cases in relation to which there can be no complaint about procedural fairness. Further Dr. Chung, the Deputy-Chief of the Department also testified before the HPARB in relation to her personal observations of the appellant’s difficulties in this regard. Further, the HPARB noted in paragraph 35 of its reasons:

Dr. Cain acknowledged in his written report that the events of August 31 and September 1, 1998 were serious and that Dr. Soremekun may have problems with intubation.

Dr. Cain was the expert witness retained by Dr. Soremekun.

[23] In our view the HPARB’s conclusion in relation to “the concerns expressed about Dr. Soremekun with regard to intubating patients” is supported not only by Mr. Z’s (one of the two critical cases) chart but also by the evidence of his own expert. We are of the view that the issue of the appellant’s difficulty with intubation of patients was squarely before the HPARB and that the appellant had every opportunity to address that concern.

[24] The appellant takes issue with the HPARB’s conclusion that “there was a sufficiently valid suspicion that there were medical concerns” and, in particular, with the word “suspicion”. While the HPARB might have used more appropriate language, it serves no useful purpose to seize on a single word used in the decision.

[25] Earlier in these reasons we stated the test - HPARB had to be satisfied on a balance of probabilities that the events demonstrated a legitimate concern for patient safety such that a requirement for remedial action was warranted. In our view, it is clear from the overall reasons that the HPARB understood its role and applied the proper test. In all the circumstances, its conclusion was a reasonable one. The appeal is dismissed.

[26] If counsel are unable to agree on costs, they may make brief written submissions to the court within thirty days of the release of these reasons.

MacFarland, J.

Wilson, J.

Swinton, J.

Released: May 18, 2004