Court File and Parties

Citation: Gupta v. William Osler Health System, 2017 ONSC 1294 Divisional Court File No.: DC- 212/16 Date: 2017-03-22

Ontario Superior Court of Justice Divisional Court Sachs, Nordheimer and Spies JJ.

Between:

Milan Gupta, MD Appellant

– and –

William Osler Health System Respondent

Counsel: Tanya A. Pagliaroli and Andrea M. Bolieiro, for the Appellant Patrick J. Hawkins and Stephanie J. Young, for the Respondent Elizabeth McIntyre and Michael Mandarino, for the Intervener, Nicky Gaidhu

Heard at Toronto: February 15, 2017

Reasons for Decision

SPIES J.

Introduction

[1] The Appellant, Dr. Milan Gupta, appeals a decision of the Health Professions Appeal and Review Board (Appeal Board), dated April 5, 2016. The Appeal Board upheld the decision of the Board of Directors (Hospital Board) of the William Osler Health System (the Respondent or the Hospital) in which the Hospital Board ordered that the Appellant’s hospital privileges at the Respondent’s Brampton Civic hospital (BCH) be revoked. Ms. Gaidhu, a registered nurse who is employed by the BCH, has been granted standing as an intervener in these proceedings.

[2] The Appellant asks that this Court set aside the Appeal Board’s decision and reinstate his privileges at the BCH with the exception of the catheterization lab (“cath lab”) which he asserts would allow him to avoid contact with Ms. Gaidhu. The Respondent and the Intervener ask that the Appellant’s appeal be dismissed.

Background

[3] The Appellant does not challenge the facts found by the Appeal Board, which can be summarized from their decision as follows.

[4] The Appellant is a cardiologist who has been on the active staff at the BCH since 1994. The Appeal Board accepted that the Appellant is an excellent cardiologist who, until February 2010, had an unblemished record at the BCH and with the College of Physicians and Surgeons of Ontario (CPSO).

[5] The Appellant developed a consensual, friendly relationship with Ms. Gaidhu beginning in 2010. He worked closely with her in the cath lab. However, this relationship unfortunately deteriorated over the ensuing months “into a one-sided obsession, disrupting both of their personal and professional lives” (Gupta v. William Osler Health System, 2016 ON HPARB 17015 at para. 6 [Reasons]).

[6] In February 2012, the Appellant sent Ms. Gaidhu a threatening letter (February 2012 letter). The Appellant was immediately suspended but then was given a second chance when he agreed to take a voluntary leave of absence pending an investigation.

[7] On March 6, 2012, the law firm that had been retained to carry out the investigation, delivered a preliminary report that concluded in part that a reasonable person reading the February 2012 letter could perceive it as a threat, potentially of physical force, but certainly of some form of harm. The report also noted that Dr. Gupta had admitted that he had the intention to take a step that had the potential to cause emotional harm to Ms. Gaidhu. The author of the report opined that the February 2012 letter constituted a “threat” as this term is used in the Hospital’s Workplace Violence Prevention Policy and Procedure.

[8] On March 14, 2012, Dr. Gupta and the Hospital signed a letter signifying their agreement to a return to work plan that provided in part that Dr. Gupta acknowledge that his behaviour was inappropriate, that the letter was a written reprimand and that he have no personal contact with Ms. Gaidhu. The Hospital warned in this letter that further violation of the Code of Conduct or other policies of the Hospital could result in discipline up to termination of privileges.

[9] Dr. Gupta and Ms. Gaidhu were not scheduled to work together and it appears they did not have contact until Dr. Gupta sent Ms. Gaidhu an unwanted card and a letter on August 18, 2012. Following a complaint by Ms. Gaidhu, Dr. Gupta was advised that he would be suspended under the Hospital’s By-laws. In lieu of an immediate suspension, Dr. Gupta agreed that he would take a voluntary leave of absence from the cath lab pending a mental health assessment.

[10] Dr. Gupta then retained new counsel who delivered a letter dated September 14, 2012 to the Hospital, withdrawing Dr. Gupta’s consent to take a leave of absence from work and to undergo a mental health assessment. The letter demanded a meeting of the Medical Advisory Committee (MAC) to request an immediate return to the cath lab, accused Ms. Gaidhu of being a “pathological liar” and suggested that she should undergo a mental health assessment and be suspended for lying and causing intentional harm to Dr. Gupta.

[11] Also on September 14, 2012, Dr. Gupta began treatment with a psychologist, Dr. Wiederman. He was also referred to the Ontario Medical Association’s (OMA) Physical Workplace Support Program (PWSP).

[12] On October 1, 2012, the MAC considered Dr. Gupta’s request but recommended to the Hospital Board that Dr. Gupta not be allowed to work in the cath lab pending receipt of the mental health assessment.

[13] On October 3, 2012, Ms. Gaidhu discovered that Dr. Gupta had accessed her personal health records at BCH. This revelation resulted in the immediate temporary suspension of Dr. Gupta’s hospital privileges. There is no dispute that the Appellant accessed Ms. Gaidhu’s records approximately 29 times in the period between May 25, 2010 and October 3, 2012. Although Dr. Gupta argued that early on he accessed Ms. Gaidhu’s records with her consent, he did not dispute that he continued to do so when he knew she was not consenting.

[14] The immediate suspension was confirmed by the MAC on October 30, 2012, and by the Hospital Board on November 23, 2012, "…pending a further MAC meeting and recommendation to the Board on whether Dr. Gupta be allowed to return to work or have his privileges revoked" (emphasis added). The further process was deferred because Dr. Gupta had stated he was "not well enough" to participate at that time.

[15] Although not referred to in the reasons of the Appeal Board, the harassment of Ms. Gaidhu continued after the suspension. Dr. Gupta’s new counsel widely distributed requests for letters of support to physicians and nurses. These requests included Dr. Gupta's version of events which was highly critical of Ms. Gaidhu and blamed her and the Hospital for what had happened.

[16] On July 3, 2013, Dr. Peter Graham of Acumen Assessment LLC released a mental health assessment report on the Appellant, following the OMA’s referral. The report stated in part that it was not possible, based on the evaluation conducted, to determine whether or not Dr. Gupta should return to work at the same hospital. However, Dr. Graham opined that a specific threat of violence was not an active consideration at that time.

[17] On July 30, 2013, the PWSP released a Comprehensive Assessment containing fifteen recommendations designed to return the Appellant to work at the Hospital. One of the recommendations stated it would seem most reasonable that Dr. Gupta and Ms. Gaidhu not work in the same environment nor initiate any contact with each other.

[18] In the August to September 2013 timeframe, the Respondent refused to allow the Appellant to return to the BCH site, but offered to discuss a position at the Etobicoke site, which the Appellant refused.

[19] In October 2013, the MAC recommended that the Appellant’s hospital privileges be revoked. The recommendation was based on fourteen reasons, including that the Appellant had displayed gross misconduct and that his actions and behaviours were still significant enough to warrant a recommendation of revocation even if it were assumed that Ms. Gaidhu no longer worked at the hospital (which was not the case).

[20] The Appellant requested a full hearing before the Hospital Board. On July 31, 2014, following a nine-day hearing, the Hospital Board found that the MAC’s reasons for recommending the revocation of Dr. Gupta’s hospital privileges were supported by the evidence and issued a decision accepting the MAC’s recommendation that the Appellant’s hospital privileges be revoked. The Hospital Board concluded that Dr. Gupta's significant and repeated breaches of law and Hospital policy were sufficient to justify revocation. In fact, the Hospital Board concluded that Dr. Gupta’s repeated and unauthorized access to Ms. Gaidhu’s personal health record, in light of the Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Sched. A ("PHIPA") and the Hospital polices, displayed gross misconduct that on its own constituted a form of “cyber-stalking” and grounds for revoking Dr. Gupta’s privileges.

The Hearing Before the Appeal Board and the Decision and Reasons of the Appeal Board

[21] The Appellant requested that the Hospital Board’s decision be reviewed by the Appeal Board pursuant to s. 40 of the Public Hospitals Act, R.S.O. 1990, c. P.40 (the “Act”). In April 2015 the Appeal Board held a six-day hearing de novo.

[22] The Appeal Board heard from a number of witnesses and received the evidence that was before the Hospital Board, including a Joint Brief of Documents and transcripts of the witnesses’ testimony. In their decision, the Appeal Board summarized the evidence it heard from the Appellant and his treating psychologist, Dr. Wiederman, the evidence of Ms. Gaidhu and her treating psychologist, Dr. Bacchiochi, and the Hospital’s Chief Executive Officer.

[23] In the Analysis portion of the Decision and Reasons of the Appeal Board, the Appeal Board began by referring to s. 41(5) of the Act and set out the question to be decided; an issue I will come to. The Appeal Board found at paras. 56 to 59 that the appeal involved balancing of several disparate interests:

a) that the Appellant, subject to certain limitations, has a right to practice his profession and enjoy the income that it generates;

b) that the Respondent has a statutory duty to ensure a workplace free from harassment and free from threats of violence and the right to expect that its professional staff will follow its policies and their responsibilities;

c) that Ms. Gaidhu has a right to a safe working environment, free from discrimination, harassment and threats of violence; and

d) that the community, served by the Appellant and the Respondent, has the right to expect the highest quality in medical care provided by health professionals, showing the best attributes of both the Appellant and Ms. Gaidhu.

[24] The Appeal Board also considered the recommendations from the 2007 Inquest following the murder of Nurse Lori Dupont in Windsor, as well as the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 ("OHSA"). The Appeal Board then made the following factual findings:

a) Ms. Gaidhu was subjected to workplace harassment and, more importantly, to at least the threat of workplace violence, when the Appellant wrote the February 2012 letter calling her a liar, a coward and expressing his hatred towards her;

b) despite his agreement to have no further personal contact with Ms. Gaidhu, the Appellant sent her a “birthday card” in August 2012;

c) the Appellant’s then lawyer, presumably with his knowledge, sent the Respondent the letter dated September 14, 2012; and

d) the Respondent then discovered the Appellant had been accessing Ms. Gaidhu’s health records as recently as October 3, 2012.

[25] The Appeal Board found, at para. 66, that in their view:

the totality of the Appellant’s actions were sufficiently serious so as to justify the revocation of privileges.

[26] The Appeal Board went on to note, however, that they accepted that:

the Appellant does not, on any objective basis, currently pose a threat of violence towards Ms. Gaidhu, nor does he pose a threat to the safety of patients or staff. We do not doubt that Ms. Gaidhu has a subjective basis for her fear of the Appellant returning to BCH. The threats, the obsession, the stalking through accessing her medical records still weigh heavily on her as we accept her evidence and that of Dr. Bacchiochi.

[27] The Appeal Board further noted:

a) that there had been no attempt by the Appellant to contact Ms. Gaidhu since October 2012;

b) that the Appeal Board accepted the evidence of Dr. Wiederman that the Appellant is not a violent person and that a specific violence threat is not an actual consideration;

c) that there appears to be a common understanding that the Appellant and Ms. Gaidhu should not work together; and

d) that the Appeal Board accepted Ms. Gaidhu’s evidence that if she were compelled to work with the Appellant, she could very well become distracted to the point that it could impact her care of her patients. However, the Board recognized that “this possibility seems slight and, again, we do not base our decision on the Appellant’s posing a risk to the safety of patients or staff.”

[28] The Appeal Board also considered the evidence with regards to the Appellant’s claim that his actions were attributed to his depressive state in 2012. The Appeal Board noted that up to October 2012, when the Appellant last accessed Ms. Gaidhu’s health records, he continued to practice as a cardiologist, seeing and treating patients and that “[w]hatever degree of depression he may have had does not in the Appeal Board’s view excuse or mitigate his conduct towards Ms. Gaidhu and his violation” of the March 14, 2012 agreement.

[29] The Appeal Board concluded at para. 70:

To summarize, the Appeal Board finds that even though the Appellant does not pose a continued threat to the safety of patients or staff at BCH, his actions through to October of 2012 were sufficiently serious or egregious to justify the revocation of his privileges.

Issues on Appeal

[30] The Appellant raises the following issues:

a) Did the Appeal Board apply the correct test for revocation?

b) Did the Appeal Board unreasonably reverse the burden of proof by requiring Dr. Gupta to prove a “defence” of “mitigating circumstances”?

c) Was the Appeal Board’s order upholding the revocation of Dr. Gupta’s privileges disproportionate and, therefore, unreasonable?

Standard of Review

[31] In my view the standard of review of the Appeal Board’s decision is reasonableness. I must assess whether the Appeal Board’s decision is sufficiently transparent, justified, and intelligible and whether the decision is within the range of possible, acceptable outcomes that are defensible in respect of the facts and the law; Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 47.

[32] The Appellant argues that the standard of review is correctness because the issue on this appeal is legal in nature and concerns the proper legal framework the Appeal Board must apply when deciding whether to revoke a physician’s privileges. I disagree.

[33] As both the Respondent and the Intervener submit, “deference imports respect for the decision-making process of adjudicative bodies with regards to both the facts and the law”; Dunsmuir at paras. 48-49 and 55. They also rely on the Supreme Court’s decision in Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47 at paras. 22-35 for the proposition that matters of law involving the interpretation and application of a tribunal’s home statute require deference from the reviewing court. That observation has been made before by this Court in the context of appeals from the Appeal Board. The Act is one of the Appeal Board’s home statutes.

[34] As stated by Dambrot J. in a recent decision of this Court, Valair v. Stoddart, 2016 ONSC 2896 (Div. Ct.) at paras. 44 and 45:

44 ….the respondent Board argues that … [t]he Board is a specialized expert tribunal … [that] is entitled to considerable deference in its deliberations, not only with respect to its determinations of facts but also as to its disposition.

45 …While the Board is of course constrained in its decisions by the applicable legislation, its application of that legislation to the facts before it and its disposition in any given case still attracts considerable deference. [Citations omitted]

Analysis

1. Did the Appeal Board apply the correct test for revocation?

[35] Before the Appeal Board, the Appellant submitted that the primary issue for the Appeal Board’s determination should be whether there was a “legitimate concern” for patient or staff safety that warranted revocation of the Appellant’s hospital privileges. In her oral submissions, Ms. Pagliaroli described this as a “legitimate concern test”.

[36] This argument changed somewhat on appeal. The Appellant now submits that the Appeal Board inappropriately strayed into the realm of private law when it considered whether the Appellant’s past conduct justified revocation and whether there were any mitigating circumstances that could excuse his past conduct. The Appellant submits that the concepts of “justification” and “mitigating circumstances” are private law concepts from employment and labour law and by employing them the Appeal Board’s inquiry assumed a “disciplinary or private-law retributive quality” that is incompatible with the public interest purposes of the Act and the forward-looking nature of the “legitimate concern” test.

[37] The Appellant submits that the Appeal Board should only have considered past conduct if it demonstrated an ongoing risk to the safety of patients or staff and that the “legitimate concern” test does not seek to punish a physician for past misconduct. It is the Appellant’s position that had the Appeal Board not taken irrelevant private law considerations into account, it would have found that revocation was not warranted under the Act, because there are no current legitimate considerations for patient or staff safety, and the local patient community is interested in Dr. Gupta’s return.

[38] The Respondent disputes the Appellant’s position that the concerns for patient or staff safety should only be “forward looking” and be addressed, based on the state of affairs, solely as of the date of the hearing before the Appeal Board. The Respondent submits that there are both past and present components to be considered. The past component involves a consideration of whether the Appellant’s conduct was serious enough to justify revocation. The present component involves a consideration of mitigating circumstances and the public interest. These considerations can be based on both present and past information.

[39] The Appeal Board considered these positions and held, at para. 55, that:

Staff and patient safety are often concerns raised in considering a physician’s appointment or privileges in a public hospital. However, there may be situations where the past conduct of a physician may be so egregious so as to justify a revocation of privileges without there being specific ongoing concerns about staff or patient safety. In the Appeal Board’s view, this Appeal can be decided on this basis. [Emphasis added]

[40] In my view, for the reasons that follow, the Appeal Board applied the correct test in the circumstances of this case. Section 36 (c) of the Act provides that the Hospital Board may revoke or suspend the appointment of a member of the medical staff. Section 41(5) of the Act sets out the test on appeal and provides as follows:

41 (5) After a hearing, the Appeal Board may by order confirm the decision appealed from or direct the board or other person or body making the decision appealed from to take such action as the Appeal Board considers ought to be taken in accordance with this Act, the regulations and the by-laws, and for such purposes may substitute its opinion for that of the board, person or body making the decision appealed from. [Emphasis added]

[41] The jurisdiction of the Appeal Board is clearly very broad in that it considers what action “ought to be taken in accordance with this Act, the regulations and the by-laws.” That, in my view, is the test to be applied. I appreciate that this language pertains to action that the Appeal Board considers ought to have been taken, but in my view, it is clearly also applicable to the circumstances in which the Appeal Board may confirm the decision appealed from.

[42] In that context, the specific question before the Hospital Board or the Appeal Board will vary, depending on the relevant provisions of the Act, the regulations and the Hospital By-Laws, and the specific nature of the concern respecting the physician’s conduct, performance or competence that had triggered the action by the Hospital and resulted in the hearing.

[43] Before this court, counsel for the Appellant submitted that the Hospital Board’s jurisdiction in this case was governed by Article 2.3 of the Hospital By-Law #2 that deals with Immediate Mid-Term Action. That provision states that the action by the hospital is triggered when “conduct, performance or competence of a member exposes, or is reasonably likely to expose patient(s), healthcare providers, employees or other persons at the hospital to harm or injury and immediate action must be taken to protect such persons” (emphasis added). This is what the Appellant describes as the legitimate concern test. The test in this Article is a high one, given that it immediately imposes a temporary suspension by the Chief of Staff or the Executive Officer of the Hospital or their Deputies, pending a MAC meeting or a hearing by the Hospital Board. There is no immediate power of revocation under this Article.

[44] Although no reference to this provision is made in the decision of the Appeal Board, counsel for the Respondent submitted that Article 2.3 of By-Law #2 was only invoked in October 2012, when it was discovered that the Appellant had accessed Ms. Gaidhu’s personal health records at BCH and the Appellant’s hospital privileges were immediately suspended. That decision was not challenged and was not in issue before the Hospital Board or the Appeal Board. Thus, the Hospital Board was not acting pursuant to any Immediate Mid-Term Action power when it revoked the Appellant’s privileges.

[45] The Hospital Board's authority to revoke the appointment of a physician mid-term is set out in Article 1.6, which allows for revocation or suspension “at any time”. More particularly in this case, the Hospital Board’s authority is also governed by Article 2.1 of By-law #2, headed “Mid-Term Action”. That Article provides as follows:

Pursuant to the Public Hospitals Act and the Regulations thereunder and in accordance with this by-law, the Board [Hospital Board] at any time may revoke or suspend any appointment of a member of the Professional Staff or dismiss, suspend, restrict or otherwise take action and deal with the privileges of a member of the Professional Staff. [Emphasis added]

[46] By-Law #2 then sets out Article 2.2 headed “Non-Immediate Mid-Term Action” and Article 2.3, which the Appellant relies upon, that provides for Immediate Mid-Term Action. Article 2.4 then deals with the MAC and Hospital Board process for, among other things, Non-Immediate Mid-Term Action.

[47] The process applied by the MAC and Hospital Board in this case was pursuant to Article 2.2 of By-Law #2 which is for “Non-Immediate Mid-Term Action”. There is no suggestion that the rules for procedural fairness set out therein were not followed. The Criteria For Initiation in Article 2.2.1 for Non-Immediate Mid-Term Action are much broader than those for Immediate Mid-Term Action and consider not only conduct, performance or competence of a physician that is reasonably likely to be detrimental to patient [or staff] safety, but also conduct that is “reasonably likely to be detrimental to Hospital operations; or the same is, or is reasonably likely to constitute abuse; … or the same is contrary to the by-laws, Professional Staff Rules, the Public Hospitals Act or the regulations made thereunder or any other relevant law or legislated requirement.”

[48] Hospital By-Law #2, Articles 1.4.1 (iii) and 1.4.2. establish the criteria for membership in the Professional Staff , including:

a) “a demonstrated exemplary ability to communicate and relate to all members of the medical, dental, midwifery, and hospital staff in a cooperative, and professional manner”; and

b) “The applicant must agree to govern himself in accordance with the requirements set out in the Public Hospitals Act, applicable governing legislation, this by-law, and the Professional Staff Rules.”

[49] These provisions make it clear, as submitted by the Respondent, that as a condition of membership, the Hospital demands from its physicians that they lead by example and at all times behave in a professional and exemplary fashion.

[50] Hospital By-Law #2 further provides, as a condition for an application for appointment to the professional staff, that the applicant undertake to abide by the “applicable governing legislation, the by-laws, and the Professional Staff Rules of the Corporation and in accordance with ethical and professional standards as defined by the applicant’s regulatory and professional governing body”, and acknowledges that failure to do so may result in the applicant’s privileges being restricted, suspended, revoked or the applicant being denied appointment or reappointment. Any such actions will be in accordance with the Act, the applicable law, the by-laws and the Professional Staff Rules; see Articles 1.3.4 (ii) and (xiii).

[51] It is clear that the past conduct of the Appellant seriously breached many provisions of the Hospital by-Laws and its policies and Code of Conduct. The Appeal Board found that the Appellant had subjected Ms. Gaidhu to workplace harassment and workplace violence and had improperly been accessing Ms. Gaidhu’s medical records. Although not specified by the Appeal Board, this conduct violated the OHSA and the PHIPA. Thus, this past conduct was properly the subject matter for consideration by the Appeal Board.

[52] The Appellant relies on this court’s decision in Soremekun v. University Health Network (2004), 2004 ON SCDC 11892, 186 O.A.C. 122 (Div. Ct.), at paras. 18 and 25, in support of his position that the proper test to be applied by the Board in the mid-term revocation of privileges is that the Appeal Board has to be “satisfied, on a balance of probabilities, that there was a legitimate concern about patient safety that warranted remedial action.” The Appellant acknowledges that this includes staff safety and submits that the use of the past tense in this passage is only because the Court was referring to the issue that was before the Board. Ms. Gaidhu relies on the same passage from Soremekun at para. 18 for the proposition that the Appeal Board’s approach is in line with the retrospective approach taken by the courts.

[53] The test adopted by the Appeal Board in Soremekun, as approved by this Court, was specific to the question before the Appeal Board in that case, namely whether the Hospital Board was justified in their concerns regarding the physician’s qualifications and in suspending the physician until such time as he took the necessary training. Thus, I agree with the Appellant that the approach in Soremekun was not retrospective. Rather, the court looked at whether the physician’s refusal to undertake training constituted a threat to patient safety going forward. In my view however, this question was specific to the facts of that case and does not stand for the proposition asserted by the Appellant that the legitimate concern test is to be applied in every case.

[54] As I have said, the test that applies in all cases is what action “ought to be taken in accordance with this Act, the regulations and the by-laws”. The specific question that the Hospital Board and the Appeal Board must consider, and which varies depending on the specific conduct of the physician in issue, is informed by this test. In this case, the question depends on which of the Criteria for Initiation set out in s. 2.2.1(c) for Non-Immediate Mid-Term Action had prompted non-immediate action to be taken in respect of the physician’s privileges. In this case a number of those criteria were engaged. In all cases, the MAC, the Hospital Board and the Appeal Board must consider the physician’s past conduct in the context of the Act, the regulations and the Hospital by-laws, and must follow the hearing procedure laid down by the Act.

[55] For these reasons, the Appellant's argument that the test before the Appeal Board is "forward looking" and focused on whether the physician still presents "a legitimate concern for patient or staff safety" is fundamentally flawed. It would mean that, no matter how serious or egregious the past misconduct was, no mid-term action could be taken by the MAC and the Hospital Board to begin the process for revocation of a physician’s privileges for past egregious misconduct where there is no ongoing concern for patient and staff safety.

[56] This flaw in the Appellant’s argument was demonstrated by the inability of counsel for the Appellant to provide an answer to a question from this Court as to what the Hospital Board could do, should a physician be charged criminally for stealing and trafficking in narcotics, where there was no evidence of safety concerns for patients or staff. To suggest that the Hospital Board could not hold a physician accountable for his misconduct and decide to revoke the privileges of the physician mid-term, after following the process set out in By-Law #2, is absurd.

[57] Counsel did not provide any decision of the Appeal Board or this Court where the issue under consideration was a non-immediate mid-term revocation of a doctor’s privileges. A decision relied upon by the Appellant, Kaila v. Bluewater Health, 2014 ON HPARB 19532, considered an immediate mid-term temporary suspension and as such is not of assistance. Counsel, however, did provide a number of cases where the Appeal Board was considering re-appointment or a refusal to re-appoint a physician. In my view those cases are of assistance to the extent that they show that the past conduct of a physician, where the physician’s competence is not in issue, is a relevant consideration and can lead to a decision not to appoint or re-appoint.

[58] In Chin v. Salvation Army Scarborough Grace General Hospital (1988), 28 O.A.C. 388 (Div. Ct.) Dr. Chin appealed a decision of the Appeal Board dismissing his appeal from a decision of the hospital board that denied him privileges as a general surgeon. Galligan J., speaking for the court, stated that it was apparent from the reasons of the Appeal Board that its major concern was that Dr. Chin was a “difficult individual who might have caused friction or tension” and the Appeal Board had made a number of significant findings in that regard (at para. 26). Justice Galligan went on to note at paras. 28 and 29:

28 Since the decisions in Schiller v. Scarborough General, supra, and Macdonald v. North York General, supra, there can be no doubt that the personality traits of an applicant to the medical staff of a hospital are relevant matters to be taken into account when deciding whether or not the applicant should be appointed to staff. This is so because the hospital is entitled to choose persons who it thinks will work well with other members of the medical staff. …

29 … I have no hesitation in concluding that Dr. Chin’s character was a relevant consideration…

[59] In Rosenhek v. Windsor Regional Hospital, 2009 ON HPARB 88685, the Appeal Board considered the decision of the Hospital Board that accepted the recommendation of the hospital’s MAC to deny Dr. Rosenhek’s application for re-appointment. The Appeal Board confirmed that a physician is accountable for compliance with hospital rules of conduct and made a number of relevant observations, including:

10. A physician cannot practice at a hospital or admit a patient without hospital privileges. A physician does not have a right to hospital privileges...

11. … through the PHA structure, the physician remains accountable to the hospital (e.g., to a Chief or Head of the physician's department, the MAC and the hospital's Board of Directors) for compliance with a hospital's quality of care requirements, by-laws, policies and rules of conduct. …

12. … Disruptive physician behaviour has repeatedly been found to affect a physician's hospital privileges and even constitute a ground for termination of privileges (See for example, Cooper v. Hospital Privileges Appeal Board, 1999 ABQB 165).

13. The courts have affirmed that a physician's character and ability to be a ‘team player” is relevant to privileging decisions. (Chin v. Salvation Army Scarborough Grace General Hospital [1988] O.J. No. 517 (H.C.J., Div. Ct.).

14. In Smyth v. Perth and Smiths Falls District Hospital (2008), 2008 ONCA 794, 92 O.R. (3d) 656 (C.A.), the Ontario Court of Appeal upheld an arbitration decision in which the arbitrator found that the recurrence of disruptive and aggressive behaviour by the physician, Dr. Smyth, over a prolonged period of time was justification for revocation of the physician’s privileges. …

15. At a certain stage in troubled and disruptive relations between Hospital administration and staff, and a physician, it is fair to say that a breakdown has occurred such that renewal of privileges would not be able to restore the trust required for the Hospital to effectively manage the physician and the quality of patient care and safety. …

[60] In Smyth, supra, at paras 21-22, after disposing of a jurisdictional issue in favour of the arbitrator’s interpretation of his mandate, MacPherson J.A., speaking for the Court, went on to consider the remaining question of whether the arbitrator’s award was reasonable within the meaning of the test set out by the Supreme Court of Canada in Dunsmuir, supra at para. 47. Justice MacPherson found (at para. 25) that conclusions reached by the arbitrator were open to him to make in light of the documentary and oral evidence before him and that his “decision clearly [came] ‘within a range of possible, acceptable outcomes which are defensible in respect of the facts and law’”.

[61] In Khan v. The Scarborough Hospital, 2012 ON HPARB 38575, the Appeal Board confirmed the Hospital Board’s decision to deny renewal of Dr. Khan’s privileges as a courtesy staff of the hospital based on his overall conduct (at para 50). Dr. Khan’s conduct was found to be in violation of the hospital by-laws dealing with Professional Staff Duties and Responsibilities. There was no issue as to the doctor’s medical competence.

[62] In Gopinath v. Toronto East General Hospital, 2014 ONSC 2731 (Div. Ct.), the principal issue for the Appeal Board was to “determine if the conduct reflected in Dr. Gopinath’s communication or lack of communication and the concerns about his collegiality led them to conclude that he was ungovernable or that his conduct might affect patient safety” (at para. 20). In that case, the Appeal Board considered the past concerns raised about the physician’s conduct to have been resolved to the point where the physician’s privileges should be renewed without condition. This decision was upheld on appeal to this court.

[63] The Appellant also relies on a decision from the Court of Appeal, Rosenhek v. Windsor Regional Hospital, 2010 ONCA 13, where the hospital appealed a decision of the trial judge who awarded Dr. Rosenhek damages following a finding that the Hospital Board had acted in bad faith in revoking Dr. Rosenhek’s privileges. In that case the Court noted at para. 21:

Hospitals are funded largely through the public purse. A purposive reading of the statutory provisions relating to the power to revoke privileges [a reference to s. 33 (c) of the Act] demonstrates that it is exercised having regard to various public-interest factors relating to, in particular, the quality of care provided by the hospital. Having regard to these features, we think that the exercise of the revocation power is properly characterized as public in nature. [Emphasis added]

[64] Ms. Gaidhu also relies on para. 21 of the Court of Appeal decision in Rosenhek and submits that the Court endorsed a broad approach to exercising the power to revoke hospital privileges that has regard to various public-interest factors.

[65] I agree with the position of the Intervener. It is clear that the Court in Rosenhek was not suggesting that the only public-interest factor to be considered related to the quality of care provided by the hospital. I appreciate, as stated by this Court in Soremekun at para. 16, that ensuring patient safety in the provision of hospital services is a main purpose of the Act and it was the one factor singled out in the Rosenhek case. However, the Court there referred to “various public-interest factors” (emphasis added). As the Appeal Board held, there must be a balance of several disparate interests, including the Respondent’s right to expect that its professional staff will follow its policies and their responsibilities. As the Respondent argues, public interest must include maintaining public confidence in public institutions, and egregious misconduct by people working in those institutions, particularly physicians, attacks this public confidence. Furthermore, as the Appeal Board noted, Ms. Gaidhu has a right to a safe working environment, free from harassment and threats of violence. This is not a matter of punishing the Appellant, or applying private law concepts, as the Appellant suggests, but rather furthering the various public objectives of the Act. I do not accept that those objectives are as narrow as the Appellant suggests.

[66] For these reasons I do not accept the submission of the Appellant that the Board’s primary function under the Act is to inquire whether revoking a physician’s hospital privilege is in the best interests of the patients, which is a public law function, and that the private law function of disciplining physicians or vindicating private complaints rests with the CPSO. For the same reasons I do not agree with the Appellant’s submission that Ms. Gaidhu’s interests should only be addressed by the Arbitrator hearing the grievance that the Ontario Nurses Association filed on Mr. Gaidhu’s behalf. These bodies have different mandates and are not responsible for appointing medical staff, regulating physician privileges, and applying the Act.

[67] The Respondent also responds that the Appellant equates his private interest in maintaining his practice with a public interest in quality patient care. On the evidence before the Appeal Board, the Appellant’s absence has not affected the quality of patient care at the Hospital. The Appellant agreed when he testified before the Appeal Board that his skills are not essential to quality of patient care at the Hospital and that he was not asserting that the “quality of care suffers at the hands of my not being there.” There are other cardiologists and staff who, in any event, care for the Appellant’s patients “five out of every six weeks when he is not on call.”

[68] The Appellant also argues that the Hospital lifted the concepts of "justification" and "mitigating circumstances" from private law, and specifically, from employment and/or labour law. The Appellant submits that before the Appeal Board, rather than relying on decisions about physician privileges under the Act, the Hospital relied almost exclusively on labour and employment cases dealing with the termination of employees.

[69] None of these cases were referred to by the Appeal Board in its decision and, in fact, the Appeal Board found that it was not necessary to quote from the case law provided. I agree with the Appellant that these cases are not directly relevant, in that physicians are not employees of the hospital. However, if the Appeal Board considered these cases, to the extent they provide guidance in the labour context as to when issues such as workplace harassment and breaches of privacy are serious enough to warrant discharge for cause, that would not constitute an error in law in my view.

[70] For these reason I find that the Appeal Board applied the correct test and set out the proper question for consideration in determining whether or not to confirm the decision of the Hospital Board.

2. Did the Appeal Board unreasonably reverse the burden of proof by requiring Dr. Gupta to prove a “defence” of “mitigating circumstances”?

[71] There is no dispute that the onus was on the Respondent to prove that revocation of the Appellant’s privileges was warranted. Before the Appeal Board, the Respondent argued that this “onus” shifted to the Appellant as he had raised the defence of “mitigating circumstances” and had put forward his alleged mental illness as justification for his past misconduct. The Respondent argued that the Appellant had to present “cogent, persuasive and sufficient” evidence establishing a direct causal link between his conduct and his mental state.

[72] According to the Appellant, the Board erroneously accepted and applied this reversed burden of proof.

[73] The Respondent submits that it was reasonable for the Board to expect that as the Appellant raised his mental health as an explanation for his past conduct, that he would support that explanation with evidence. I accept that submission. The information concerning the Appellant’s mental state was primarily within the control of the Appellant. He raised the issue of his mental health in an attempt to persuade the Appeal Board that there was a reason why he acted in the past in the manner he did. Perhaps it would have been better if the Respondent had characterized this as a shift in the evidentiary burden, rather than a shift in onus, but I am satisfied from the reasons of the Appeal Board that they understood throughout their deliberations that the onus was on the Respondent to prove that revocation of the Appellant’s privileges was warranted based on his past conduct.

[74] I also find that it was reasonable for the Appeal Board to conclude, based on the evidence, that the Appellant’s mental health condition did not explain his past actions. Having reviewed the particular submissions of counsel set out in their facta and in oral submissions, I find that there was ample evidence to support that finding. It was a finding that was open to the Appeal Board to make. As submitted by the Respondent, the mental health evidence tendered by Dr. Gupta showed that he only sought treatment after his misconduct had occurred. The evidence of the doctors who assessed Dr. Gupta as to whether or not he suffered from depression prior to their seeing him was based on what Dr. Gupta told them and on his retrospective belief that he had been suffering from depression.

3. Was the Appeal Board’s order upholding the revocation of Dr. Gupta’s privileges disproportionate and, therefore, unreasonable?

[75] Having found that the Appeal Board made no error in law, the remaining issue is the Appellant’s assertion that the Appeal Board’s decision to confirm the decision of the Hospital Board revoking the Appellant’s hospital privileges is unreasonable in that it is the most extreme measure under the Act. The Appellant submits that revocation of privileges profoundly affects the physician’s ability to practice in his chosen field and the patients’ access to the physician they rely upon. He submits that lesser measures were available.

[76] This submission is tied in with the Appellant’s argument, which I do not accept, that a hospital must only take “reasonable steps” to address patient or staff safety, and that in the Appellant’s case, revocation was not reasonably necessary.

[77] As the Respondent points out, revocation of hospital privileges is not “capital punishment” – that would be a revocation of Dr. Gupta’s licence by the CPSO. Furthermore, as already stated, there was no evidence of an adverse impact of Dr. Gupta’s loss of privileges on his patients. In addition, he was offered privileges at the Hospital’s Etobicoke site, which he refused. Finally, although not referred to by the Appeal Panel, the Appeal Panel heard evidence that the Appellant’s practice had continued and expanded since 2012, with hospital work becoming only a small component of it.

[78] The Hospital policies and by-laws establish standards of conduct that physicians are expected to meet. These standards have been developed to address the Hospital's legal obligations to protect its workers and to ensure that the Hospital operates effectively and maintains a high quality of patient care. Every person working in the Hospital is expected to meet the standards of behaviour that the Hospital has established, and the standards cannot be different for Dr. Gupta. Dr. Gupta was given multiple chances to comply and failed to do so.

[79] I have already referred to the Khan decision, where the Appeal Board confirmed a decision revoking Dr. Khan’s privileges based on his conduct. The Appellant relies on para. 57 of that decision where the Appeal Board noted that the result of the appeal might have been different had Dr. Khan chosen to testify as “he could very well have acknowledged his past intemperate conduct and communications and given us some assurance that he could change his ways.” That observation made sense in the specific context of the Khan decision because the conduct of Dr. Khan was not nearly as serious as the conduct Dr. Gupta has admitted to in this case. This case is simply another example of the Appeal Board coming to a reasonable decision on the evidence before it. It does not suggest that the conclusion of the Appeal Board in the case at bar is in error.

[80] This was a decision for the Appeal Board to make. The only issue is whether the Appeal Board’s decision is sufficiently transparent, justified, and intelligible and that the decision is within the range of possible, acceptable outcomes that are defensible in respect of the facts and the law. The reasons of the Appeal Board explain the evidence they considered, the test they applied and the conclusion they came to. Notwithstanding the favourable findings made by the Appeal Board in terms of patient and staff safety that the Appellant relies upon, the Appeal Board found that the Appellant’s actions were sufficiently egregious to justify the revocation of his privileges. In my view, on the evidence, their decision did not violate the principle of proportionality under the Act. In fact, the decision was reasonable and could easily have been made solely on the basis of Ms. Gaidhu’s right to privacy in her medical records and the repeated and flagrant breaches of that right by the Appellant’s unauthorized access to those records.

Disposition

[81] For these reasons the appeal is dismissed.

[82] As the successful party, the Respondent is entitled to costs on a partial indemnity scale. The Intervener does not seek costs.

[83] The appeal took a full day to argue and was factually complex, given the long procedural history. The issues raised are important to the parties and the Intervener and have not been fully canvassed by this Court before. In my view, considering all of the factors in Rule 57.01(1), an award of costs in the amount of $40,000 all-inclusive is reasonable and shall be paid by the Appellant to the Respondent.

SPIES J.

I agree _______________________________

SACHS J.

I agree _______________________________

NORDHEIMER J.

Released: March 22, 2017

Citation: Gupta v. William Osler Health System, 2017 ONSC 1294 Divisional Court File No.: DC-16-212-00 HPARB File No.: 14-PHA-0422 Date: 2017-03-22

Ontario Superior Court of Justice Divisional Court Sachs, Nordheimer and Spies JJ.

Between:

Milan Gupta, MD Appellant

– and –

William Osler Health System Respondent

Reasons for Judgment

SPIES J.

Released: March 22, 2017