Court File and Parties
CITATION: Rosenhek, Dr. I. v. Windsor Regional Hospital, 2010 ONSC 3583
HPARB FILE NO.: 89-PHA-0090
DIVISIONAL COURT FILE NO.: 135-10
DATE: 20100622
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
ISRAEL SHOEL ROSENHEK, M.D., Appellant (Moving Party)
– and –
WINDSOR REGIONAL HOSPITAL, Respondent (Responding Party)
COUNSEL:
Susan M. Chapman, Counsel for the Appellant
Paula Trattner and Aislinn Reid, for the Respondent
HEARD at Toronto: APRIL 29, 2010
ENDORSEMENT: GREER j.:
[1] Dr. Israel Shoel Rosenhek ("the Appellant") moves for an Order extending the time for service of the Appellant's Notice of Appeal from the decision dated October 20, 2009 of the Health Professions Appeal and Review Board ("the HPARB") and the Appellant's Certificate Respecting Evidence.
[2] The Appellant says that "...despite reasonable efforts, the Appellant has been unable to serve the Respondent within the time prescribed by Rule 61.04(1)", that is, by November 19, 2009. He says that he retained "additional counsel", Pape Barristers Professional Corporation, on November 20, 2009, to assist in perfecting the appeal materials and to argue the appeal, should leave be granted. He lastly says that he had formed the "intention to appeal" within the requisite time-frame.
[3] The Affidavit sworn to by the Appellant in support of this Motion is dated February 28, 2010. The decision of the HPARB is dated October 20, 2009. In the Appeal that the Appellant proposes to bring, he is seeking a Declaration that the Board of Directors of the Windsor Regional Hospital ("the Board" and "the Hospital") lacked jurisdiction to immediately revoke his privileges with that Hospital. He claims that the Hospital improperly revoked his privileges. In so making that claim, the Appellant seeks an Order granting his application for reappointment to the medical staff of the Hospital or, in the alternative, an Order granting the application on the condition that he comply with terms of an Undertaking, or with such other terms as the Court deems just.
The HPARB Decision of October 20, 2009
[4] On March 11, 2009, the Board, in a unanimous decision, accepted the recommendations of the Hospital's Medical Advisory Committee ("the MAC") to the Board dated September 24, 2008, that the Appellant's application for re-appointment to the Hospital for the 2008-2009 year be denied. The Board's decision held that "patient and staff safety" required that such a revocation of privileges be implemented immediately.
[5] The Appellant appealed that decision to HPRAB pursuant to the provisions of the Public Hospitals Act, R.S.O. 1990, c. P.40, as amended ("the PHA"). That Appeal is a hearing de novo, based on affidavit and documentary evidence and transcripts of oral hearings before the Board. No viva voce evidence is presented to the HPRAB.
[6] In para. 3 of the HPRAB's decision, it notes that it must be satisfied on a balance of probabilities that there is a legitimate hospital concern about patient safety that warrants remedial action against the physician in the form of altering or revoking privileges. See: Soremekun v. University Health Network, 2004 11892 (ON SCDC), [2004] 186 O.A.C. 122 (Sup. C.J. Div. Ct.). It further notes that there is no legislative requirement for the College of Physicians and Surgeons of Ontario ("the College") to disclose or advise a hospital of the complaints as they relate to a physician who may have privileges at a hospital.
[7] The HPRAB rendered a thirty-one (31) page decision covering how hospital privileges are granted. It set out important facts in the case before it regarding the Appellant's history with the Hospital from 1984 to the present. In para. 24 it states:
The parties have a long litigious history relating to previous measures taken by the Hospital to revoke Dr. Rosenhek's privileges. The HPARB's focus is on the information relevant to the Hospital Board's Decision to deny Dr. Rosenhek's application for re-appointment for 2008-2009 and revoke his privileges at the Hospital.
It goes on to examine the Appellant's 2007-2008 and 2008-2009 Applications for re-appointment, the Hospital Board Hearing in January 2009, conduct as a basis for revocation, referral to the College's Discipline Committee, quality of care, bias and fairness. The HPRAB found in para. 121 of its decision:
We are satisfied that possible concerns of bias on the part of Dr. Ing and Dr. Shaban, are overshadowed by patient safety concerns raised by Dr. Rosenhek's repeated misbehaviour and contempt in complying with the Hospital's ability to effectively fulfill its credentialing and quality of care responsibilities.
It held in para. 125:
In accordance with the test in Soremekun, we are satisfied on a balance of probabilities that the events and conduct in question demonstrate a legitimate concern for patient safety such that immediate revocation of privileges was warranted.
[8] The Appellant's privileges were revoked by HPRAB as of the date of the Board's Decision, namely March 12, 2009.
The Appellant's position
[9] In his affidavit sworn February 28, 2010, the Appellant sets out some of the history of the litigious proceedings, which have taken place between him, the Board , the College and the HPARB over the period since he joined the medical staff of the Hospital in 1984 as a cardiologist. He says in para. 4 that "Certain key members of the Hospital administration began actively interfering with my privileges." He says it has continued throughout his tenure at the Hospital, setting out a description of the various court proceedings.
[10] It is clear from his affidavit that the Appellant feels that he has been picked on by the Board of the Hospital. He says that the Board has continued to "target me." He says the Hospital has "...backfilled its case against me by raising 'clinical' concerns said to stem from 'conduct' concerns."
[11] The Appellant says he seeks leave to appeal the Decision of the HPRAB on the following grounds:
(i) Revocation of privileges is not proportional to the conduct at issue;
(ii) The Board lacked jurisdiction to order immediate revocation;
(iii) The Board's decision is infected by bias; and
(iv) Such other and additional grounds as my counsel should identify after having the opportunity to fully review the record of the proceedings.
He sets out in great detail in his affidavit why he thinks that the Board erred in what it did in revoking his privileges and not re-appointing him to the Hospital.
[12] The Appellant says that since the release of the HPARB Decision, "...it has consistently been my desire and intention to appeal." This is not, however, what the evidence shows. The Decision was released on October 20, 2009. The Appellant read it the next day. He says he was "extremely disappointed" with the outcome. He spoke to his lawyers, Paul Steep and Christopher Hubbard, who had represented him at the hearing. He says he spent "the next few days" discussing his case directly with the Canadian Medical Protection Association ("CMPA"), telling them he wanted to appeal the decision. It told him, he says, to have his counsel write an opinion letter to the General Counsel of the CMPA requesting consideration of an appeal.
[13] In para. 35 of his affidavit, the Appellant says that on October 27, 2009, Mr. Steep called him back and was told that he "...did not think that there was any merit in the appeal." He then decided that he wanted to get a second legal opinion from Paul Pape, his current counsel, and the person who had worked on another appeal by the Appellant of another unrelated litigious matter.
[14] A copy of the Decision was sent to Mr. Pape followed by various e-mails. The Appellant met with Mr. Pape on November 12, 2009 to discuss the possibility of an appeal. In para. 39 of his affidavit, the Appellant states that "It was my understanding, at the conclusion of the meeting, that Mr. Pape shared Mr. Steep's view that there was no merit to the appeal."
[15] The Appellant subsequently changed his mind about what Mr. Pape had said and now says that he "misunderstood" what Mr. Pape had said. He now says that Mr. Pape is of the opinion that there is merit to his appeal.
[16] In the meantime, the Appellant was still in contact with his former lawyers, where one of them e-mailed him on November 15, 2009, saying that the CMPA had instructed the firm to prepare a Notice of Appeal of the Decision, attaching a copy of such notice for him. He says he later learned on November 18, 2009, that the CMPA decided not to authorize his appeal.
[17] Two key dates in this matter are November 19 and 20, 2009. The Appellant says that Mr. Pape e-mailed him on the 19th asking whether he was being retained in relation to the Appeal. He claims he was told by Mr. Pape to ensure that "McCarthy's files a notice of appeal to preserve your right of appeal." This seems to be odd, given that McCarthy's were not retained to act in the appeal and given that the lawyer who contacted the Appellant had attached a copy of the Notice to her e-mail.
[18] The Appellant says in para. 43 that he responded as follows by e-mail dated November 20, 2009 to Mr. Pape:
I will not be retaining you to act for me in respect of the most recent hospital appeal. There appears to be precious little prospect of success in such an appeal, judging from our discussion last week, wherein your (sic) were far from sanguine, as well as the independent determinations of Paul Steep and General Counsel for the Canadian Medical Protective Association who deemed there to be no grounds for an appeal. Thank you for your opinion. Please concentrate on the appeal imminent.
The last sentence refers to an appeal taken by the Appellant with respect to another decision Mr. Pape was working on.
[19] On January 10, 2010, in yet another piece of litigation against the College by the Appellant, he retained the services of Thomas Curry to act for him in this new action. He says that Mr. Curry reviewed the Board's Decision and "concluded that there was merit to my appeal." He says he then contacted Mr. Pape's office on that date and Mr. Pape agreed to take the appeal.
[20] On January 14, 2010, Mr. Pape's office received four (4) banker's boxes of files from McCarthy's to assist it in preparing the Appeal. On that date also, Mr. Pape's office contacted the CMPA for information.
[21] The Hospital, however, on January 18, 2010, refused to consent to an extension of time to file the Notice of Appeal. Interestingly enough, on that same date, Mr. Pape received the decision of the Court of Appeal, in the appeal he had appeared on December 2, 2009 before it. The award of the trial judge was upheld and the Appellant received damages.
[22] Mr. Pape's office worked on the Motion materials for the extension of time from then until March 4, 2010, when discussions began between counsel for the Appellant and the Hospital. The Motion date was eventually worked out between them.
The position of the Hospital
[23] Under the PHA, the Appellant has an automatic right of appeal from the HPARB decision to this Court. In order to preserve that right, the Appellant was required to file his Notice of Appeal before November 20, 2009. It is the Hospital's position that since he failed to do so, and since the Hospital refused to consent to an extension of time, he is now out of time.
[24] The Hospital says that it had no communication from the Appellant until January 15, 2010. It found his explanation to be inadequate and disingenuous, given that he had gone through this procedure in another contentious matter involving the College and HBARB. It also points to the fact that the Appellant had a draft Notice of Appeal in hand before the thirty (30) day limit expired. He failed to act on that.
[25] The Hospital points to the fact that the Appellant has, in the past, "...devoted almost three years and over a million dollars of Hospital resources to various proceedings," between the years 2007 and 2009. The Hospital says that it has "moved on" and dealt with its staffing requirements. Since the end of the appeal period in question, the Hospital has made "...important budgeting decisions, and has worked to improve collegiality and morale which were compromised by Dr. Rosenhek's disruptive conduct and the challenges of protracted litigation."
[26] There is a lengthy history provided by the Hospital in its documentation regarding the Appellant's 2007/8 Application and the process, which took place after the Hospital reviewed the report of Dr. Shaban dated August 30, 2007, which referenced thirty-one (31) complaints from staff and patients from January 2006 until August 2007, about the Appellant. The Hospital says that the Appellant chose not to participate "to any degree", choosing instead to seek judicial review. It was unsuccessful.
[27] A Clinical Review process took place and a Special Meeting was held on September 18, 2008, at which the MAC recommended that it not reappoint the Appellant to the Hospital staff. This was followed by the Hearing in January 2009. The Board's Decision, as noted earlier, was released on March 12, 2009. On October 20, 2009, the HPARB released its decision, confirming that of the Board.
[28] The Hospital's first communication about the Appellant's request for an extension of time to appeal came on January 15, 2010 from Mr. Curry, the Appellant's counsel retained by the CMPA to represent the Appellant, on a matter with the College. The second contact was on January 18, 2010 from Ms. Chapman of Mr. Pape's office, advising that the motion materials would be "prepared expeditiously."
[29] The Hospital maintains that the Appellant did not maintain a firm and unwavering commitment and bona fide intention to appeal the HPARB Decision from the outset. The onus lies on the Appellant to do so. It further says that he did not provide a candid or adequate explanation for his failure to file a Notice of Appeal within the thirty (30) day period. It says that the appeal is without merit. It is not in the interests of justice for this Court granting an extension to file a notice of appeal, since it will suffer significant prejudice should such an extension be granted.
[30] Dr. Joseph Shaban, Chief of the Department of Medicine of the Hospital provided an extensive affidavit sworn on April 19, 2010, in support of the Hospital's position. He was the author of the August 30, 2007 report, which outlined his concerns regarding the Appellant's "...clinical care practices, his inability to effectively communicate with patients and staff, and his disruptive behaviour." He recommended re-appointment subject to a number of conditions, as set out in para. 15 of his affidavit. What followed was the procedure noted earlier in these reasons.
[31] Dr. Shaban points out that the Appellant's protracted litigation with the Hospital for over twenty (20) years has no bearing on, nor relevance to the recommendations of the Hospital's Credentials Committee to the MAC. He outlines the findings of this Court in a previous decision involving the Appellant released in January 2008 and outlines the history of the more recent complaints leading up the Hospital's Decision to not re-appoint him. He says in para. 55, "I agree generally with HPARB's observations with respect to the relationship between physician conduct and patient safety."
[32] As to issue of prejudice, Dr. Shaban says the Hospital would be prejudiced if the Appellant is allowed an extension of time to appeal. Three years have passed since the process began. The Hospital has taken steps to move forward. In March 2009, it recruited three new internists as well as a cardiologist, some of whom seek cross-privileges with two hospitals, now that the Appellant is no longer there. Their morale of the Hospital old and new staff would suffer if they were faced with more years of litigation, it says.
[33] As the Hospital properly points out, "No physician has a right to hospital privileges. Patient safety and quality of care are the paramount concerns when making a decision with respect to physician privileges."
[34] The Hospital would also suffer financially, if there was another appeal, since it did not budget for legal expenses given that the time to appeal had passed. The legal budget was $581,000 less in the 2010-2011 budget than it would have been if the appeal had been filed within the thirty (30) day period.
Analysis
[35] The Appellant's Motion to extend the time to file his Notice of Appeal of the HPARB's decision is dismissed for the reasons which follow. Order to go accordingly.
1. The Appellant has not maintained a firm bona fide intention to appeal
[36] Our Court has held that the Appellant must maintain a firm intention from the beginning to appeal and the failure to observe the time limits must be reasonably explained. The broader rule, however, is that extensions should be granted if the "justice of the case" requires it. See: para. 3 of Frey v. MacDonald, 1989 CarswellOnt 343, 33 C.P.C. (2d) 13 and Miller Manufacturing & Development Co. v. Alden (1979), 13 C.P.C. 63 (Ont. C.A.).
[37] In my view, the evidence shows that the Appellant did not maintain a firm intention from the beginning to appeal. He sought a number of opinions on his chances of success on such an appeal, and was told by his own lawyers that there was no merit in the appeal. He contacted the CMPA and was told to have his counsel prepare a letter of opinion on the merits of his case. The General Counsel of the CMPA also told the Appellant his case was without merit. The Appellant understood that Mr. Pape, himself, did not give him much hope, since he shared Mr. Steep's view that there was no merit to the appeal. This was despite the fact that Mr. Pape had told the Appellant on November 12, 2009 that he would be happy to act for him in the matter.
[38] The Appellant's own e-mail dated November 20, 2009 to Mr. Pape, saying that he would not be retaining Mr. Pape since "there appears to be precious little prospect of success in such an appeal." This shows that the Appellant never had a "firm intention" from the beginning to appeal. He gave up on the day after the thirty (30) day limitation ran out.
[39] As is noted in Lombardi v. Mehnert, 2009 CarswellOnt 2230 (S.C.J.) in para. 65 that failure to observe time limits must be reasonably explained. In my view, the Appellant only changed his mind about the appeal when he received a favourable decision in court, which gave him monetary damages he could use to fund his continuing litigation.
[40] The Appellant relies on Plouffe v. Blackmore, [2009] O.J. No. 2665 (S.C.J.) as a case where the Court exercised a two-year delay in a family law matter, and leave to extend the time to appeal was granted. There the Court found that the wife did maintain over the years her intention to appeal and there was enough merit in the case to move it forward. In my view, this can be distinguished from the case at bar. Here the effect of such an extension would have a huge impact on the Hospital, as a whole, in defending an appeal with no merit.
2. Explanation for the delay
[41] The Appellant's explanation for the delay is to blame others. He clearly had, in hand, a draft copy of a Notice of Appeal, which was sent to him by his former lawyers, who had not been retained to take the Appeal. They apparently had been instructed by the CMPA to forward a draft Notice of Appeal to him on November 15, 2009, before the time limit had run. The Respondent then "fired" his former lawyers on November 18, 2009.
[42] The Appellant sat on that Notice and did not move the appeal forward. By the time the Appellant heard on January 10, 2010 from Mr. Curry about his other matter with the College, he then contacted Mr. Pape again, who then agreed to take on the matter.
[43] The matter still did not move with much haste. Two (2) and one- half (1/2) months passed before the documentation was sent to the Hospital's counsel. By the time this took place, nearly two years had passed since the Hospital's MAC had recommended that the Hospital Board deny the re-appointment of the Appellant.
[44] Despite retaining counsel on January 10, 2010, there was a further unexplained delay before the parties on March 4, 2010 scheduled a Motion to be heard. Another twelve (12) days passed before the Hospital was served with the Notice of Motion on March 16, 2010.
[45] The Respondent was not without legal knowledge about how appeals are begun by litigants and he had much familiarity with the legal process given his years of litigation with the Hospital and the College. He, therefore, has no real excuse for the delay in moving the matter forward.
3. Is an extension of time required by the justice of the case?
[46] As is noted in Chuang v. Royal College of Dental Surgeons of Ontario, 2005 28853 (ON SCDC), [2005] O.J. No. 3473, 77 O.R. (3d) 280, in considering the "justice of the case", the court examines the existence of a bona fide intention to appeal within the time period, the length of the Appellant's delay in pursuing the appeal, and the merits of the appeal.
[47] Legislative time limits on appeal matters are one of the key factors in moving forward matters of merit, that have a reasonable chance at succeeding on appeal. Litigants need to know when all chances of appeal have expired, in order to move forward themselves. In the case before me, the "justice of the case" requires closure, not another expensive legal step that was said by counsel and the CMPA to have no merit.
[48] The long litigious history between these parties and the extraordinary amounts, which have been spent by the parties on legal fees, is not favourable precursor to the parties even attempting to work together to another solution. The Board's Decision and the confirmation by HPARB each sets out the serious problems that existed, which led to the Hospital taking the step of not renewing the Appellant's Hospital privileges. One cannot ignore the fact that such privileges are not a "right" that the Appellant was entitled to in the first instance.
[49] The HPARB has the jurisdiction to immediately revoke a doctor's privileges, which it did in this case. It is an administrative tribunal with significant expertise so its decisions must be seriously looked at before a Court will intervene in them. In this case, the Appellant's stated grounds on which he would base his appeal, if leave to extend the time is granted, do not, in my view, show merit.
4. Prejudice to the Respondent
[50] The Hospital has said that it will suffer prejudice if leave to extend the time to appeal is granted. Any lapse of time can contribute to the prejudice. In Marche D'Alimentation Denis Theriault Ltee v. Giant Tiger Stores Ltd., 2007 ONCA 695, [2007] O.J. 3872 (C.A.), in para. 34 the Court states:
The Rules of Civil Procedure must be interpreted in a manner that recognizes that expeditious justice is only one value to be weighed against others and that delay may be excused where necessary to ensure complete justice.
The Appellant, therefore, must convince the court that the defendants have not demonstrated any significant prejudice in presenting his position. In my view, the Appellant has not done that.
[51] The Hospital points to the fact that it waited for an extended period of time before it moved forward and replaced the Appellant on the Hospital staff with another cardiologist. In addition, it added other new doctors to its roster. The Hospital, when planning its budget for the next year, once it knew the time for an appeal had passed, did not need to budget the over $500,000 it would have had to budget for legal fees.
[52] The Hospital says that it would not be in the public interest after this length of time has passed, to have to fund an appeal that has no merit. I agree with that conclusion. The Hospital has moved forward. The Appellant is still entitled to practice medicine without hospital privileges in that Hospital.
[53] Although the Appellant says it would help his case with the College to have a parallel proceeding going on in the Court, these two bodies are separate and distinct from one another, and neither proceeding can be judged by what is happening in the other.
[54] The prejudice to the Hospital is great, if the time is extended to appeal.
Costs
[55] Since the Motion for Leave to extend the time to appeal is dismissed, the Hospital is entitled to its Costs. If the parties cannot agree on the quantum of those Costs, I will receive brief written submissions not longer than three (3) pages plus time dockets and a Bill of Costs within a month of the date of this Order. The Appellant shall have seven (7) days after that to respond.
Greer J.
Released: June 22, 2010
CITATION: Rosenhek, Dr. I. v. Windsor Regional Hospital, 2010 ONSC 3583
HPARB FILE NO.: 89-PHA-0090
DIVISIONAL COURT FILE NO.: 135-10
DATE: 20100622
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
ISRAEL SHOEL ROSENHEK, M.D., Appellant (Moving Party)
– and –
WINDSOR REGIONAL HOSPITAL, Respondent (Responding Party)
ENDORSEMENT
Greer J.
Released: June 22, 2010