CITATION: Buttar v. Hamilton Health Sciences Corporation, 2012 ONSC 6103
DIVISIONAL COURT FILE NO.: 358/12
DATE: 20121026
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
KULWANT BUTTAR
Respondent (plaintiff)
– and –
HAMILTON HEALTH SCIENCES CORPORATION and CHRISTOPHER FERNANDES
Moving parties (defendants)
John J. Adair, for the respondent (plaintiff)
John J. Morris, Melanie E. de Wit for the moving parties (defendants)
HEARD: October 25, 2012
DUCHARME J.
ENDORSEMENT
[1] This action for constructive dismissal arises out of a dispute between the plaintiff, Dr. Buttar, and the defendant hospital and physician in 2005, while Dr. Buttar was on staff at the defendant hospital and supervised by the defendant physician. The action was commenced in 2007 but by a Consent Order of this court dated May 10, 2011was stayed on agreement of the parties while Dr. Buttar pursued an appeal under the Public Hospitals Act R.S.O. 1990, c. P.40 [“PHA”] arising from an unrelated decision by the hospital in 2009.
[2] After Dr. Buttar’s PHA appeal was rejected by the hospital board in June 13, 2011, she moved before Belobaba J. for an Order lifting the stay. The defendants opposed the motion on the basis that as a matter of law, Dr. Buttar had no right to pursue the 2005 dispute in civil court because she had not first pursued it through the procedures set out in the Public Hospitals Act (the “PHA”).
[3] Justice Belobaba recognized that Beiko v. Hotel Dieu Hospital, [2007] O.J. No. 331 (S.C.J.), aff'd 2007 ONCA 860, [2007] O.J. No. 4785 (C.A.) stands for the proposition that the PHA provides a "comprehensive code" for the resolution of disputes about the revocation, suspension or alteration of the hospital privileges of Ontario doctors. Thus, where the PHA applies, doctors are required to follow the review and appeal procedures set out in the PHA, They cannot commence litigation. However, Belobaba J. found that on the record before him that he could not be satisfied that the PHA applied and he reluctantly granted the motion to lift the stay and permitted Dr. Bulwant’s action for constructive dismissal to proceed.
[4] The defendants seek leave to appeal Justice Belobaba’s decision under Rule 62.02(4) of the Rules of Civil Procedure on the basis that:
(a) There is reason to doubt Justice Belobaba’s decision that an action for constructive dismissal does not relate to a “decision revoking … her appointment to the medical staff” under s. 41(1)(b) of the PHA and that, as this is a matter of general importance with respect to the applicability of the PHA, leave should be granted;
(b) There is reason to doubt Justice Belobaba’s decision that where the issue is “a decision … substantially altering … her hospital privileges” the hospital must demonstrate that the decision complained of was actually made pursuant to s. 34 of the PHA or the hospital by-laws. The defendants submit that this also a matter of such general importance that leave should be granted;
(c) The decision of Belobaba J. is inconsistent with other decisions in Ontario including Beiko, Salmon and Baranick.
[5] I will consider each of these in turn.
Action for Constructive Dismissal Is Caught by the Language “Revocation of an Appointment in s. 41(1)(b) of the PHA
[6] Belobaba J. did discuss whether or not the action brought by the plaintiff was really an action for constructive dismissal rather that an action relating to the substantial alteration of Dr. Bulwant’s privileges. He was clearly of the view that it was the latter and the defendants object to this approach saying that he should have considered the matter on the basis of the Plaintiff’s pleadings. Whatever merit that submission might have, the fact remains that the first part of s. 41(1)(b) of the PHA speaks of the “revocation” of an appointment not the “constructive revocation” of an appointment. The difference between a revocation and a constructive revocation are potentially significant especially given the comprehensive code set out in the PHA. For example while a revocation would generally have a clear date the same cannot be said of a constructive revocation. This difference could have significant impact given the other provisions of the PHA. Thus, I do not think that there is reason to doubt Justice Belobaba’s conclusion that the plaintiff’s action was not caught by the first part of s. 41(1)(b) of the PHA and should more properly be dealt with under the second part of s. 41(1)(b) as relating to the “substantial altering” of her privileges.
The Need for the Hospital to Demonstrate that the Decision Made to Substantially Alter Dr. Bulwant’s Privileges was Made Pursuant to s. 34 of the PHA Or Under the By-Laws of the Hospital.
[6] Mr. Morris did not press this submission in oral argument. In my view Justice Belobaba did nothing more that apply the plain language of s. 41(1)(b) of the PHA. The defendants made no effort to prove that this decision was made pursuant to either s. 34 or the by-laws. While this is something that has not been discussed in several cases this does not mean that this was not done it simply means it was not a matter in dispute. Indeed, I note that in Davidson v. Sunnybrook Sciences Centre the hospital led precisely this kind of evidence. Justice Belobaba was correct in expecting such evidence from the hospital on this motion and there is no reason to doubt the correctness of his ruling in this regard.
Conflict with Other Cases
[7] I note that the defendants referred Belobaba J. to most of the other cases they claim conflict with his decision and he carefully considered them. His decision is not in conflict with these other cases. Belobaba J. ruled as he did because he found that, on the record before him, the PHA did not apply. Thus Dr. Buttar’s action can proceed. The other cases relied on by the defendant came to a different result because in those cases it was clear that the PHA did apply.
[7] For the foregoing reasons, the motion for leave to appeal the order of Belobaba J. is dismissed. On consent of the parties costs will be fixed in the amount of $3,000 all inclusive and are to be paid to the plaintiff.
Ducharme J.
Released: October 26, 2012
CITATION: Buttar v. Hamilton Health Sciences Corporation, 2012 ONSC 6103
DIVISIONAL COURT FILE NO.: 358/12
DATE: 20121026
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
KULWANT BUTTAR
Respondent (plaintiff)
– and –
HAMILTON HEALTH SCIENCES CORPORATION and CHRISTOPHER FERNANDES
Moving parties (defendants)
ENDORSEMENT
Ducharme J.
Released: October 26, 2012