DIVISIONAL COURT FILE NO.: 360/18
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
JOHN M. WADDELL
Robert Waddell, for the Appellant/Responding Party
Appellant/Responding Party
– and –
WEENEEBAYKO AREA HEALTH AUTHORITY
Paula Trattner and Aislinn Reid, for the Respondent/Moving Party
Respondent/Moving Party
HEARD at Toronto: July 24, 2018
Background
1The respondent on appeal, the Weeneebayko Area Health Authority (“WAHA”), has brought a motion seeking interlocutory injunctive relief against the appellant Dr. John Waddell pending the outcome of his appeal. The appeal is made pursuant to s. 43 of the Public Hospitals Act, R.S.O. 1990, c. P.40 (“PHA”) from a decision of the Health Professions Appeal and Review Board (“the Board”) dated May 8, 2018. The Board rejected the appellant’s appeal of a March, 2017 decision by WAHA not to appoint or reappoint the appellant to its medical staff as a locum tenens during the 2015-16 year.
2WAHA provides medical services to a number of communities in the coastal region of James Bay and Hudson Bay in northern Ontario. The appellant first began working with it as a family physician in 2005.
3The appellant has been active on social media since May, 2017, criticizing his treatment by various individuals at WAHA and challenging the operations and direction of WAHA. The Board, in its reasons, described the appellant’s Facebook campaign as “highly inappropriate”, and took his conduct, including his harassment of staff, into account in determining whether he met the requirements to obtain medical privileges with WAHA.
4WAHA seeks an interlocutory order that would prevent the appellant from “publicly commenting on any of the matters at issue in the within appeal”, whether made on social media or any other form of media. As well, it seeks an interim mandatory injunction requiring him to remove all previous public comments on social media commenting on the matters at issue in the appeal from May 6, 2017 to the date of the decision in this motion.
Legal Framework
5An appeal court has the power to grant interim relief “that is considered just to prevent prejudice to a party pending the appeal” pursuant to s. 134(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”). The purpose of the predecessor section of s. 134(2) was discussed by the Court of Appeal in Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 74 O.R. (2d) 161, 1990 6956:
Generally, but not necessarily in all cases, the purpose of an order sought under this section is similar to a stay order; it is to prevent a situation arising where an appellant is successful on its appeal but, in the meantime, either the subject-matter of the proceeding has disappeared or in some other way the litigation and its ultimate result have been rendered nugatory.
6Thus, in the context of seeking an interlocutory injunctive order pending an appeal, the moving party must show prejudice in the appeal process if the relief is not granted. As the Court of Appeal stated in Waxman v. Waxman, 2003 CarswellOnt 84 (at para. 21):
The focus of any remedy provided under this section must be on preventing prejudice in the context of an appeal. The prejudice must relate to the party’s ability to meaningfully participate in the appeal or to the court’s ability to hear and decide the appeal on its merits in a timely fashion.
7The three part test for an interlocutory injunction is well-established in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311 at paras. 54-55.
Analysis
8The merits of the respondent’s case on appeal must be addressed at the first stage of the test, because it is WAHA that seeks the extraordinary remedy of an interlocutory injunction. That said, I am satisfied that there is a serious case to be made in response to this appeal.
Irreparable Harm
9The second part of the RJR test requires the respondent to show that it will suffer irreparable harm that cannot be compensated in damages if the injunction sought is not granted. In a civil law context, the party seeking the injunction must demonstrate that damages will not be sufficient to compensate for the infringement of the rights asserted in the action.
10I see no prejudice to WAHA’s ability to participate in the appeal process if injunctive relief is refused. WAHA suggests that it may be pressured to rehire the appellant if his public communications continue. This assertion is speculative at best, but even if WAHA’s Board decided to respond to public pressure and offer the appellant medical privileges again, that would be as a result of its own decision. Alternatively, WAHA could resist the pressure and continue to respond to the appeal.
11WAHA has not satisfied me that the continued commentary by the appellant on the matters at issue in the appeal will jeopardize in any way the fairness of the appeal proceeding before this Court. The appeal will turn on a consideration of the record before the Board, the transcript, and the applicable legal principles.
12The main thrust of WAHA’s argument is that there will be irreparable harm to WAHA’s reputation and to its ability to provide effective medical care to the northern community it serves if the injunctive relief is not granted. It is concerned that the appellant’s campaign is aimed at showing that WAHA provides poor patient care to the communities it serves and covers up misdeeds of medical staff, and this fosters mistrust in the communities. WAHA is also concerned that the campaign is having a serious deleterious effect on recruitment of medical staff.
13Irreparable harm must be with respect to the rights at issue in the proceeding. Normally, the moving party will show that failure to grant the relief sought would render the rights at issue in the appeal nugatory.
14The dispute before the Divisional Court in the present appeal is with respect to a decision about medical privileges in 2015-16. In the appeal, the Court must determine whether the Board’s decision should be upheld, a decision that turns on a review of the Board’s application of criteria under WAHA’s Professional Staff By-law to the evidence before it and a determination of the fairness of the proceedings. Pursuant to s. 134(2), the Court can grant interlocutory relief only if the relief is needed to protect against prejudice to WAHA, as a party, in respect of this appeal. Harm of this type has not been demonstrated.
15The Court in this appeal has no authority to deal with past and ongoing attacks on the reputation of WAHA or individuals associated with it. Its role is not to assess the merits of the various views expressed in an ongoing dispute about the quality of care provided by WAHA or the adequacy of its management. Although WAHA relies on defamation cases in its factum, it acknowledges that it has not commenced a defamation proceeding (see para. 49 of the factum). It has also acknowledged that the relief it seeks in the nature of the mandatory injunction is not a subject of the underlying appeal (para. 50).
16WAHA submits that the order it seeks is similar to the non-publication order made by the Board part way through its hearing. I disagree. The order of the Board applied to all parties, not just the appellant. The Board was concerned about the publication of documents that had been admitted into evidence and discussed in the proceeding, as well as other public disclosure and comments relating to issues in what was a de novo hearing that lasted for three weeks. The Board explained in its reasons that the order was made to protect the integrity of its ongoing hearing process.
17The order now sought by WAHA is very different from the Board’s non-publication order. It is only addressed to the appellant. It seeks to expunge material from the appellant’s Facebook page that has long been in the public domain, as well as to curb further public commentary by the appellant.
Balance of Convenience
18In my view, WAHA has not demonstrated that it will experience irreparable harm in the appeal process if the relief is not granted. However, even if I were to accept that there is likely to be harm to WAHA’s reputation and operations, I do not find that the balance of convenience favours WAHA.
19The order sought is a serious curtailment of the appellant’s freedom of expression. Although counsel for WAHA described the order as “measured” and readily enforceable, the words in the draft order are quite broad. Counsel indicated that the order would be respected if the appellant changed the privacy settings on his Facebook account, so that only his friends could have access. Given that he has some 1,600 friends, I have reason for concern about the clarity of the order sought and its reach, and whether public communications would be interpreted to include comments to his large group of friends or their posting his statements to others.
20As well, counsel takes the view that the “matters at issue” in the appeal include the ongoing and past operations of WAHA, including posts made after the Board’s decision, even though the decision under appeal focusses on the decision not to award privileges for the 2015-16 period. In my view, this is a very broad order that is a serious constraint on the appellant’s freedom of expression. The conduct of which WAHA complains in its factum and affidavit material is not limited to the issues in the appeal.
21There is no question that the language used by the appellant is often intemperate or offensive. To the extent that he has revealed confidential patient information, that raises a significant concern, as Morawetz R.S.J. advised in this endorsement with respect to the scheduling of this motion. However, WAHA and/or its staff may well have other avenues to challenge some of the comments or disclosures made by the appellant. Indeed, the appellant’s materials contain a letter showing that the College of Physicians and Surgeons of Ontario has commenced an investigation.
22However, some of the appellant’s comments are addressed to issues of health care in the community, a subject that is evidently of broad interest and debate in the community, as shown by the responses to his Facebook posts and by the articles in the Timmins newspaper which the appellant submitted in evidence.
Conclusion
23WAHA has not satisfied me that the interlocutory injunctive relief sought pursuant to s. 134(2) of the CJA is just and required to prevent prejudice to it, as a party, pending the appeal. Accordingly, I would dismiss the motion.
Costs
24I would fix costs to the appellant on a partial indemnity scale at $7,500.00, an amount that is fair and reasonable in my view.
25After writing these reasons and having determined the result, I considered the offers to settle made by the appellant prior to the hearing of this motion, which had been provided to me in a sealed envelope. The appellant made an offer to settle on June 29, 2018 that would have put in place a non-publication ban similar to that before the Board, plus other terms. On July 13, 2018, he offered to remove posts from his Facebook page, on the condition that WAHA would do the same to the extent it could do so. WAHA chose to reject the offers.
26I would not rely on those offers to grant costs on a substantial indemnity basis. However, I am satisfied that the appellant should receive his costs within 30 days, rather than in the cause, given his reasonable attempts to settle.
27Accordingly, the motion is dismissed. Costs to the appellant are fixed at $7,500.00 all inclusive, payable within 30 days.
___________________________ Swinton J.
Released: July 30, 2018
CITATION: Waddell v. Weeneebayko Area Health Authority, 2018 ONSC 4535
DIVISIONAL COURT FILE NO.: 360/18
DATE: 20180730
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
JOHN M. WADDELL Appellant/Responding Party
– and –
WEENEEBAYKO AREA HEALTH AUTHORITY Respondent/Moving Party
REASONS FOR JUDGMENT
Swinton J.
Released: July 30, 2018