Court File No.: 445/09

Released: 20091001

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Re: Dr. Akbar Nauman Khan v. The Scarborough Hospital

Before: Swinton J.

Counsel: Lisa M. Constantine for the Applicant (Moving Party)

James Morris and Théa Lowry for the Medical Advisory Committee

Paula Trattner for the Board of Directors, The Scarborough Hospital

Heard at Toronto: September 29, 2009

ENDORSEMENT

Background

[1] The applicant brought a motion to stay the hearing scheduled to commence before the Executive Committee of the Board of Directors of The Scarborough Hospital on September 30, 2009 (“the Board”). The hearing, scheduled to continue for four days, is to determine whether the September 25, 2008 recommendation of the Medical Advisory Committee (“MAC”) to terminate the applicant’s hospital privileges should be accepted.

[2] Earlier in September 2009, the applicant brought a motion before the Board on several grounds. In particular, he argued that he had not had proper notice of the MAC meetings in May and September 2008, and that there was a reasonable apprehension of bias on the part of the MAC (in particular Dr. Jackson, the Chief of Staff and Chair of MAC) and on the part of the Board. The motion was dismissed with detailed reasons.

[3] The applicant intends to bring an urgent application for judicial review to challenge this decision, and he seeks a stay of the Board hearing until that application is determined.

Is there a serious issue to be tried?

[4] The first question is whether there is a serious issue to be tried. This is a low threshold. Nevertheless, the argument that Mr. Devitt should not be called as a witness does not pass this threshold, as the issue has never been raised before the Board, and it is clearly premature.

[5] The applicant also raises an issue of procedural fairness based on lack of notice of the MAC meetings and reasonable apprehension of bias on the part of the MAC and the Board. Neither argument appears strong on the merits. This is particularly true with respect to the notice argument, given the content of the correspondence set out in the two records and the considerations set out at pp. 8-9 of the reasons of the Board. It is telling that there is no affidavit from Dr. Khan about this issue.

[6] As well, the argument respecting bias of the Board is weak, for the reasons set out in the Board’s reasons at p. 14.

[7] However, given the low threshold, I shall go on to discuss the issue of irreparable harm and come back to the merits in discussing balance of convenience.

Will the applicant suffer irreparable harm?

[8] The applicant claims he will suffer irreparable harm if the Board proceeds to a decision upholding the MAC recommendation, both because of the damage to his professional reputation and the possibility of action by the College of Physicians and Surgeons.

[9] I am not satisfied that he will suffer irreparable harm if the hearing proceeds as scheduled. At this point, one can only speculate whether the recommendation will be accepted. In any event, the Board will hold a full hearing to determine whether to accept the MAC recommendation, and it will base its decision on the evidence and submissions before it.

[10] If the Board terminates the applicant’s privileges, an appeal lies to the Health Professions Appeal and Review Board, which holds a de novo hearing, and a further appeal lies to the Divisional Court. Even if the recommendation is accepted, the applicant’s privileges are likely to continue pending the outcome of the appeal process, as there is no issue of his competence or risk to patient safety.

[11] Although the applicant fears possible action by the College, there is no evidence as to when and how the College might proceed if the recommendation is accepted.

[12] Moreover, counsel for the MAC suggested a way in which to respond to the applicant’s concern about his reputation pending the outcome of the judicial review – namely, by requiring the Board not to disclose its decision until the outcome of the application for judicial review.

The Balance of Convenience

[13] The Hospital has an interest in having the matter of Dr. Khan’s privileges determined. The MAC recommendation dates back to September 25, 2008. A first hearing before the Supervisor in November 2008 ended after he recused himself for reasonable apprehension of bias. The record shows that there has been difficulty in finding dates suitable to all parties, and these dates were set in July 2009. To stop the hearing now would push the process out several months.

[14] The Hospital has suffered from various leadership and personnel problems, as set out in the applicant’s materials. The recommendation concerning the applicant’s privileges comes as a result of an email he sent in March 2008 and concerns about his lack of collegiality and allegations of harassment and mistreatment against Hospital officials that date back at least two years. The Hospital and those affected have an important interest in having the issue of the applicant’s privileges determined.

[15] There is substantial jurisprudence in this Court cautioning against applications for judicial review that disrupt the course of proceedings before administrative tribunals. While it is not my task to determine whether the application for judicial review is premature, again, the strength of the case is a factor that I take into account.

[16] Counsel for the applicant argued that a stay of the hearing should be granted, rather than just an order restricting disclosure of the decision, because the applicant should not have to proceed with a hearing that is fatally flawed. This brings me back to the merits of the applicant’s case. In my view, the case is not strong on the issues of notice or of bias by the Board. Moreover, in its reasons, the Board rejected the argument of bias on the part of the MAC on the material before it “at this time”. That does not preclude further arguments on this issue when all the evidence is before the Board.

[17] In my view, the balance of convenience favours continuing with the hearing. Therefore, at the end of the oral argument, I ordered the following for the reasons set out above: the motion for a stay is granted only to the extent that the Executive Committee of the Board shall not disclose its decision until after the disposition of the application for judicial review, which is to be scheduled before November 30, 2009, or until further order of this Court.

[18] If the parties cannot agree on costs, the MAC shall file brief written reasons within 14 days of the release of these reasons, and the applicant shall respond within 10 days thereafter. The submissions are to be made through the Divisional Court office.

Released: October , 2009

Swinton J.