Court File and Parties

Citation: Perron v. Guelph General Hospital, 2014 ONSC 1121 Divisional Court File No.: 486/13 Date: 2014-02-20

Superior Court of Justice – Ontario Divisional Court

Re: Dr. Roger Perron v. Guelph General Hospital

Before: Nordheimer J.

Counsel: L. M. Constantine, for the applicant J. D. Coop, for the respondent

Heard: February 19, 2014

Endorsement

[1] The applicant brings this motion on an urgent basis for: (i) a declaration that the respondent is functus with respect to any consideration of a motion to lift the automatic stay under s. 25(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22; (ii) a declaration that any motion by the respondent to lift the automatic stay is an abuse of process or res judicata; (iii) directions with respect to the implementation of the Divisional Court’s decision of February 5, 2014 and (iv) if necessary, an order for contempt to enforce the Divisional Court’s order of that same date. At the conclusion of the applicant’s submissions, I dismissed the motion with reasons to follow. I now provide those reasons.

[2] This motion arises out of a decision by the respondent’s Board of Directors reached on July 18, 2013 to revoke the applicant’s staff privileges at the respondent hospital. There was, at the time of the hearing, an issue whether the decision of the Board attracted the automatic stay provision contained in s. 25(1) of the SPPA. While the applicant took the position that it did and counsel for the Medical Advisory Committee took the position that it did not, the Board made no determination on that issue. The respondent thereafter took steps to exclude the applicant from the respondent’s facilities and he has been so excluded since that time.

[3] On the same day that the Board’s decision was released, the applicant appealed the Board’s decision to the Health Professions Appeal and Review Board. That appeal is scheduled to be heard next month. On October 31, 2013, the applicant brought an application in the Divisional Court for a declaration that the automatic stay provision in s. 25(1) of the SPPA applied to the Board’s decision or, in the alternative, for a stay of that decision pursuant to s. 106 of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[4] It does not appear that any effort was made to expedite the application to the Divisional Court with the result that it did not come on for hearing until February 5, 2014. At the conclusion of the hearing that day, the court granted a declaration that the automatic stay under s. 25(1) of the SPPA applied to the Board’s decision. Written reasons for that decision were provided by the court on February 14, 2014.

[5] Subsequent to the Divisional Court’s decision, the applicant sought to re-attend before the panel to address the matters that are the subject of the application that is now before me. It was not possible to reconstitute the panel on such short notice and, consequently, the Associate Chief Justice directed that the applicant’s motion be heard by a single judge of the Divisional Court on an urgent basis.

[6] Against that brief background, I begin by saying that, in my view, this motion is, at best, premature. The applicant seeks to have this court decide that the Board has no jurisdiction to hear any application that might be brought by the respondent to lift the automatic stay. The applicant’s position on that issue is essentially two-pronged. One is the assertion that the Board is functus and the other is that there is a reasonable apprehension of bias on the part of the Board arising from the fact that the Board is now the respondent on the applicant’s appeal to the Health Professions Appeal and Review Board.

[7] I do not find any merit in either of the applicant’s two-pronged challenge to the jurisdiction of the Board. On the first prong, while the issue of the applicability of the automatic stay was raised before the Board, it is clear that the Board did not make any determination of that issue. It is apparent that the respondent proceeded on the basis that there was no automatic stay – a situation that continued for many months until the Divisional Court’s ruling of February 5. The Board is not functus with respect to an aspect of the proceeding upon which it did not adjudicate. One of the authorities relied upon by the applicant makes this very point. In Jacobs Catalytic Ltd. v. International Brotherhood of Electrical Workers, Local 353, 2009 ONCA 749, [2009] O.J. No. 4501, Epstein J.A. referred to a definition of functus officio, at para. 60:

Black's Law Dictionary, 7th ed., defines "functus officio" as being "without further authority or legal competence because the duties and functions of the original commission have been fully accomplished".

[8] There is no dispute that, had it been known at the time that there was an automatic stay, the Board would have had the authority to consider a request to lift the automatic stay. The Board did not consider that issue because the issue of whether there was an automatic stay had not been settled. Consequently, the Board did not make any determination as to whether the stay should be lifted. That being the case, I can see no basis for invoking the principle of functus officio to now assert that the Board cannot consider that question.

[9] I also do not see any foundation, in the record that is before me, for the assertion that there is a reasonable apprehension of bias on the part of the Board. The test for a reasonable apprehension of bias was set out in Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623, where Cory J. said, at para. 22 (QL):

The test is whether a reasonably informed bystander could reasonably perceive bias on the part of an adjudicator.

[10] The mere fact that the Board reached the conclusion that the staff privileges of the applicant should be revoked is no basis for assuming that the Board will not hear and determine, in an impartial manner, the issue of whether the automatic stay should be lifted. Nor does the fact that the statutory appeal process deems the hospital to be the respondent in the appeal change that conclusion. Neither situation would cause a reasonably informed bystander to reasonably perceive bias on the part of the Board.

[11] Had the correct state of affairs, regarding the applicability of the automatic stay to the Board’s decision, been known at the time, the appropriate step would have been to ask the Board to lift it. That, as I understand it, is what the respondent now proposes to do in light of the Divisional Court’s decision. Any issues of functus or bias should be addressed, in the first instance, before the Board on whatever evidentiary record is put before it. It is not appropriate to attempt to pre-empt the Board’s consideration of those matters, and the underlying issue respecting the stay, by seeking relief before this court. I should note on that point that none of the relief sought on this motion was raised before the panel who heard and determined the stay issue. Even if it had been, it is not clear to me that the panel would have entertained the granting of any such relief.

[12] I would also observe that, even if the applicant is correct and the Board is not the appropriate body to consider a request to lift the automatic stay (whether for jurisdictional or other reasons), it does not follow that this court is the default body to consider the matter. Under the Public Hospitals Act, R.S.O. 1990, c. P.40, the first avenue of appeal from the Board is to the Health Professions Appeal and Review Board under s. 41 and only after that appeal is held does the matter then proceed to this court under s. 43. I do not see any reason why, if the Board cannot determine the issue surrounding the automatic stay, the HPARB is not the next logical body to consider that issue.

[13] Finally, I should record the fact that the applicant asked, if I determined that no relief should be granted on the applicant’s motion, that the matter be referred to the panel for a separate determination. I question whether there is any authority for me to take that step but, in any event, I see no reason to do so. The matter came upon before me as a substitute for the panel on the basis of urgency. For me to then refer the matter back to the panel, after having made a ruling, would result in a complete duplication of the process and an unnecessary multiplicity of proceedings.

[14] For these reasons I dismissed the motion.

[15] The respondent sought costs of the motion on a substantial indemnity basis. The asserted ground for the higher scale of costs was the allegation that counsel for the applicant had engaged in an improper and personal attack against counsel for the respondent.

[16] There are numerous references in the applicant’s factum to the conduct of the respondent’s counsel that are problematic for two reasons. One reason is that the submissions in the factum frequently fail to properly recognize that there is a distinction between counsel’s personal actions and the actions taken by counsel on behalf of his or her client. There seems to be an increasing tendency these days for counsel to fail to draw this distinction and to paint both counsel and the client with the same brush of attacks. It is a very unfortunate tendency and one that fails to honour the historic distinction between those very different roles. Counsel may fairly criticize the position of the opposing party but should be very careful before personalizing that criticism to the party’s counsel. As noted in the commentary to rule 6.03 of the Rules of Professional Conduct of the Law Society of Upper Canada:

Any ill feeling that may exist or be engendered between clients, particularly during litigation, should never be allowed to influence lawyers in their conduct and demeanour toward other legal practitioners or the parties.

[17] The other reason, that reflects another unfortunate tendency, is that counsel choose to use language, both in her communications and in her factum, that carries negative and personal connotations. The use of such language does nothing to advance the cause of the party but it does carry the potential (most often unintended) to offend and to malign the professional reputation of counsel. It behoves all counsel to be especially careful in the language that they use when referring to the conduct or positions taken by opposing counsel.

[18] Assuming, without deciding, that the concerns raised here could warrant a change in the scale of costs as between parties, I do not consider the asserted transgressions in this particular case to rise to the level where an award of substantial indemnity costs should be made. If counsel feels that there is something more that ought to be done regarding the complained about conduct, there are other avenues open to pursue that relief.

[19] The respondent is entitled to its costs of the motion on the partial indemnity scale. The respondent sought costs in excess of $14,000 on a partial indemnity basis. The applicant submitted that the costs should be $3,000. I fix the costs at $5,000 inclusive of disbursements and HST.

NORDHEIMER J.

DATE: February 20, 2014