BOARD OF DIRECTORS, 2018 ONSC 6112

COURT FILE NO.: DC-18-947-JR (Hamilton)

DATE: 2018/10/16

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: MANOJ K. TALWAR, Applicant

AND:

GRAND RIVER HOSPITAL BOARD OF DIRECTORS, ST. MARY’S GENERAL HOSPITAL BOARD OF TRUSTEES, PANEL OF GRAND RIVER HOSPITAL BOARD OF DIRECTORS, ST. MARY’S GENERAL HOSPITAL BOARD OF TRUSTEES, JOINT MEDICAL ADVISORY COMMITTEE, ST. MARY’S GENERAL HOSPITAL AND GRAND RIVER HOSPITAL, INTERVENOR SURGEONS GROUP, and HEALTH PROFESSIONS APPEAL AND REVIEW BOARD, Respondents

BEFORE: Justice D.A. Broad

COUNSEL: Applicant – Self-Represented

John Morris and Henry Ngan, for the Respondents Grand River Hospital Board of Directors, St. Mary’s General Hospital Board Of Trustees, Panel of Grand River Hospital Board of Directors St. Mary’s General Hospital Board of Trustees, Joint Medical Advisory Committee St. Mary’s General Hospital and Grand River Hospital

Steven G. Bosnick, for the Respondent Health Professions Appeal and Review Board

HEARD: October 10, 2018

ENDORSEMENT

Background

[1] The applicant (“Dr. Talwar”) is a qualified physician licensed to practice medicine in the Province of Ontario. He is a Fellow of the Royal College of Physicians and Surgeons of Canada with his specialty certification in general surgery and cardiothoracic surgery. He has been on the medical staff of Grand River Hospital and St. Mary’s General Hospital in the Region of Waterloo since August 1998.

[2] On June 13, 2016 the Joint Medical Advisory Committee (the “MAC”) of Grand River Hospital and St. Mary’s General Hospital (the “hospitals”) passed a resolution recommending that Dr. Talwar’s privileges at the hospitals not be renewed. On October 19, 2017 the panel of the Board of Directors of the hospitals (the “hospital boards”) accepted the recommendation of the MAC that Dr. Talwar’s hospital privileges not be renewed.

[3] On October 24, 2017 Dr. Talwar submitted a request for a hearing before the Health Professions Appeal and Review Board (“HPARB”) pursuant to s. 41(1)(d) of the Public Hospitals Act, R.S.O. 1990, 1990, c. P.40 (the “PHA”) in order to appeal the decision of the Hospital Boards not to renew his hospital privileges.

[4] S. 41 of the PHA provides as follows:

41 (1) Any,

(a) applicant for appointment or reappointment to the medical staff of a hospital who was a party to a proceeding before the board and who considers himself or herself aggrieved by a decision of the board not to appoint or not to reappoint him or her to the medical staff; or

(b) member of the medical staff of a hospital who considers himself or herself aggrieved by any decision revoking or suspending his or her appointment to the medical staff or under section 34 or the by-laws cancelling, suspending or substantially altering his or her hospital privileges,

is entitled to,

(c) written reasons for the decision if a request is received by the board, person or body making the decision within seven days of the receipt by the applicant or member of a notice of the decision; and

(d) a hearing before the Appeal Board if a written request is received by the Appeal Board and the board, person or body making the decision within seven days of the receipt by the applicant or member of the written reasons for the decision. R.S.O. 1990, c. P.40, s. 41 (1).

Procedure at hearing

(2) Section 39 applies to a hearing before the Appeal Board in the same manner as if the party or member were an applicant entitled to a hearing before a board under section 37. R.S.O. 1990, c. P.40, s. 41 (2).

Parties

(3) The board and person mentioned in subsection (1) and such other persons as the Appeal Board may specify are parties to proceedings before the Appeal Board under this section. R.S.O. 1990, c. P.40, s. 41 (3).

Recording of evidence

(4) Oral evidence taken before the Appeal Board at a hearing shall be recorded and, if so required, copies of a transcript thereof shall be furnished upon the same terms as in the Superior Court of Justice. R.S.O. 1990, c. P.40, s. 41 (4); 2006, c. 19, Sched. C, s. 1 (1).

Powers of Appeal Board

(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. R.S.O. 1990, c. P.40, s. 41 (5).

Referral of matters to professional organization for report

(6) The Appeal Board may at any time during a hearing and prior to rendering a decision refer any matter to any professional organization for the purpose of obtaining expert assistance or a formal report. R.S.O. 1990, c. P.40, s. 41 (6).

[5] By Notice of Application issued March 20, 2018, Dr. Talwar applied for judicial review in respect of the decision of the hospital boards dated October 19, 2017 accepting the recommendation of the MAC that his hospital privileges not be renewed. In the prayer for relief in his Notice of Application Dr. Talwar sought, inter alia, an order of certiorari setting aside the decision of the hospital boards and in the alternative, an order of mandamus setting aside the decision and referring the matter back to the hospital boards for a rehearing. The prayer for relief also sought an order for an interlocutory, interim and/or permanent injunction restraining the HPARB from proceeding under the PHA until a decision has been rendered on the application for judicial review by the Divisional Court.

[6] Dr. Talwar brought a motion before the HPARB seeking, inter alia, an order that his appeal before the HPARB be held in abeyance pending the decision of the Divisional Court on his application for judicial review of the decision of the hospital boards. By Decision and Reasons on Motion issued May 14, 2018 the HPARB denied Dr. Talwar’s request for a stay of the HPARB proceeding.

[7] Dr. Talwar brought another motion before the HPARB again seeking, inter alia, an order that his appeal be held in abeyance pending decision of the Divisional Court on his application for judicial review on the ground that he was provided with inadequate legal representation before the hospital boards. He also sought dismissal of his appeal on the ground that it is moot and because the hospitals are unable or unwilling to entertain any supervisory models that would allow him to resume his surgical practice. By Decision and Reasons on Motion issued July 12, 2018 Dr. Talwar’s motions for a stay and for dismissal of his appeal were dismissed.

[8] The HPARB proceeding has commenced and evidence was led over four hearing days in July 2018 and additional hearing dates have been scheduled in November and December 2018.

[9] On May 9, 2018 Regional Senior Justice Arrell, at the request of counsel for the hospital respondents, directed that all motions in the judicial review proceeding be heard by me pursuant to rule 37.15(1) of the Rules of Civil Procedure. At a case management conference on May 17, 2018 Dr. Talwar signified his consent to my hearing all motions in the judicial review proceeding pursuant to the direction of RSJ Arrell.

Nature of the Motions

[10] Dr. Talwar has brought a motion before me as the judge directed to hear all motions in the judicial review proceeding for the following relief:

(a) for leave to prepare and file a Factum in the judicial review proceeding of up to 100 pages in length, if required;

(b) an order for an interlocutory, interim and/or permanent injunction restraining the HPARB from proceeding with his appeal before the HPARB until a decision has been rendered on his judicial review application of the hospital boards’ decision of October 19, 2017; and

(c) an order that service by facsimile or email upon the respondents represents good and sufficient service on them.

[11] Counsel for the respondent hospitals and for the HPRAB signified that they did not oppose an order permitting service on them by facsimile or email and by endorsement dated October 10, 2018 I made an order to that effect.

[12] HPARB brought a motion, on consent of Dr. Talwar and the hospital respondents, that it be added as a party respondent to the judicial review proceeding. By endorsement dated October 10, 2018 I made an order adding HPARB as a respondent to this proceeding.

A – Motion of Dr. Talwar for an injunction restraining the HPARB appeal from proceeding pending the disposition of his application for judicial review

(a) Position of Dr. Talwar

[13] The grounds set forth in Dr. Talwar’s Notice of Motion for an injunction restraining the HPARB proceeding are lengthy and comprise a combination of narrative and legal argument and for that reason are difficult to follow. From what I have been able to discern, Dr. Talwar bases his motion for an injunction on the following grounds:

(a) he has met the low threshold of demonstrating that there is a serious issue to be tried on the basis of his assertion that he has been excluded from the opportunity to practice active general surgery since his unlawful suspension on June 5, 2014 as well as his opportunity to provide surgical assisting and on-call duties since the fall of 2015 with denial of the principles of natural justice and procedural fairness. There has also been an inordinate and excusable delay on the part of the hospitals causing damage to his career, reputation and livelihood, amounting to an abuse of process;

(b) the loss of the right to earn a livelihood and loss of reputation as a surgeon constitutes irreparable harm that cannot be compensated in money;

(c) with respect to the balance of convenience, maintenance of the status quo is in the interest of all of the parties so as to allow the questions raised on his application for judicial review to be resolved, namely whether the HPARB has jurisdiction to hear his appeal since he has been constructively dismissed from the hospitals and whether or not his HPARB appeal is moot since he no longer has a license to practice active general surgery due to the passage of time and damage to his reputation as a surgeon;

there has been no decision under the hospital bylaws which cancelled, suspended or substantially altered his privileges and therefore he had no access to an appeal to the HPARB pursuant to section 41 of the PHA; and the voluntary suspension of his surgical practice on June 5, 2014 was not valid pursuant to the bylaws of the hospitals.

(b) Position of the Hospital Respondents

[14] The hospital respondents submit that it is a well-established principle of administrative law that, with respect to proceedings before administrative tribunals such as the HPARB, delays or interruptions occasioned by judicial review proceedings should be avoided except in exceptional circumstances. The principle that all avenues of statutory relief should be exhausted before recourse to the courts is all the more germane given that appeals at the HPARB under the PHA are de novo hearings.

[15] The hospital respondents further submit that Dr. Talwar has not demonstrated that there is a serious issue to be tried in respect of his application for judicial review. Moreover, he has not submitted any evidence to demonstrate that he will suffer irreparable harm if the HPARB proceedings continue pursuant to the process established under the PHA. Finally, the balance of convenience favours allowing the HPARB proceeding to continue. It would be inconvenient, and a squandering of administrative tribunal resources, to stay the HPARB proceedings.

(c) Position of HPARB

[16] The HPARB makes no comment with respect to the facts alleged in Dr. Talwar’s Notice of Motion. However it disputes the suggestion in the Notice of Motion to the effect that the HPARB has lost, or never had, jurisdiction to hear the appeal initiated by Dr. Talwar and disputes that the circumstances would justify the intervention of the court in the ongoing HPARB appeal process.

[17] The HPARB submits that the PHA establishes a comprehensive code under which hospitals determine the privileges for members of its staff and that, accordingly, Dr. Talwar is bound to exhaust the statutory review and appeal regime established by the PHA.

[18] The HPARB argues that Dr. Talwar’s appeal is not moot but rather issues as to his privileges at the hospitals are live issues which are squarely within the jurisdiction of the HPARB. The HPARB hearing is curative and in any event is subject to further appeal, as of right, to the Divisional Court. The HPARB states that the constructive revocation allegation raised by Dr. Talwar comes squarely within its competence under s. 41 of the PHA.

[19] Finally, the HPARB argues that, since judicial review is a discretionary remedy, the court can refuse to hear the merits of an application that is premature in order to avoid a piecemeal approach to judicial review of administrative action. It says that there is nothing extraordinary which warrants judicial scrutiny prior to completion of the appeal pending before the HPARB.

Analysis

[20] The parties agree that the test to be applied on Dr, Talwar’s motion for an injunction or a stay preventing the HPARB proceeding from going forward pending a disposition of his application for judicial review is that outlined by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney-General), 1994 117 (SCC), [1994] 1 S.C.R. 311, namely:

(a) is there a serious issue to be tried or adjudicated?

(b) will the applicant suffer irreparable harm?

(c) where does the balance of convenience lie?

Serious Issue to be Adjudicated

[21] It is well-established that the question of whether there is a serious issue to be tried or adjudicated carries a low threshold.

[22] In the case of Beiko v. Hotel Dieu Hospital St. Catharines [2007] O.J. No. 331 (S.C.J.), affirmed 2007 ONCA 860, Morawtz, J. held at para. 54, that the legislature established a comprehensive code to deal with issues of hospital privileges by means of the PHA and that it is not open for the Court to usurp the statutory regime by conducting a hearing independent from the process is set out in the PHA and the court lacks the jurisdiction to do so. He held that parties do not have access to the court to determine issues of privilege in the absence of following the statutory route. The Court of Appeal, at para. 4, found these conclusions to be unassailable.

[23] In the case of Rosenhek v. Windsor Regional Hospital (2008), 2008 2614 (ON SCDC), 232 O.A.C. 325 (Div. Ct.) the Divisional Court observed, at para. 6, that in the normal course the MAC would make a recommendation to the board of the hospital and the board would then make a decision on the question of privilege. A doctor who takes issue with a MAC recommendation may request a full administrative hearing before the hospital board and has a full right of appeal from the decision of the board which involves a hearing de novo before the HPARB under the PHA with a further right of appeal to the Divisional Court from the decision of the HPARB.

[24] The court in Rosenhek declined to intervene on an application by the applicant doctor for judicial review of the manner in which the hospital had dealt with his application for reappointment to the active staff of the hospital on the basis that, to accede to the applicant’s request, would fragment the proceedings (see para 17).

[25] In Khan v. Scarborough General Hospital 2009 71015 (ON SCDC), [2009] 259 O.A.C. 172 (Div. Ct.) Wilson, J., writing for the Court, observed at para. 27:

The case law is clear that there is a strong presumption in all proceedings before administrative tribunals that the internal procedure should be followed to completion before seeking the remedy of judicial review. To hold otherwise would both disrupt the orderly flow of the administrative hearing and largely defeat and undermine the purpose of establishing administrative tribunals in the first place. Compelling facts are necessary to depart from this established principle to avoid fragmentation of procedures, as well as increases in costs and delay.

[26] At para. 31 Wilson, J. stated that it was premature to consider the applicant’s request for judicial review as he must exhaust his statutory remedies before seeking relief from the Divisional Court.

[27] Dr. Talwar argues that the HPARB lacks jurisdiction in respect of his claim because it is based on “constructive dismissal” or “constructive revocation” in reference to his “voluntary” suspension of his surgical privileges in June 2014, which he says was coerced. However, there is no pending action for damages for constructive dismissal or constructive revocation. Dr. Talwar’s application for judicial review is not in reference to an alleged constructive revocation in 2014 but rather is in reference to the decision of the hospital boards on October 19, 2017 to accept the recommendation of the MAC that his hospital privileges not be renewed. That decision falls squarely within paragraph 41(1)(b) of the PHA, an appeal from which is within the jurisdiction of the HPARB by virtue of paragraph 41(1)(d). The remedy which Dr. Talwar seeks on judicial review is to have the decision of the hospital boards set aside, which is a remedy also available in the PHA process.

[28] Dr. Talwar’s reliance on the case of Kadiri v. Southlake Regional Health Centre 2015 ONCA 847 (C.A.) does not assist him. In that case the plaintiff physician brought an action for damages for loss of income during a period in which he was on reduced duties while he underwent medical and psychological assessments. At the end of the assessment period the plaintiff returned to full duties. The Court of Appeal held that the plaintiff was not bound to follow through on the statutory privileges dispute resolution process under the PHA prior to commencing an action for damages because the plaintiff and the hospital had worked out an arrangement to deal with their dispute and at the time the plaintiff commenced his action he had returned to practice with full privileges.

[29] In the present case the hospital boards, in contrast to the situation in Kadiri, did make a decision not to renew Dr. Talwar’s hospital privileges and moreover Dr. Talwar has not commenced a claim for damages.

[30] Although the threshold on the first branch of the RJR-MacDonald test is low I would characterize the claim of Dr. Talwar for judicial review of the hospital boards’ decision prior to completion of the statutory HPARB process as weak.

Irreparable Harm

[31] Dr. Talwar’s characterization of the issue of irreparable harm as relating to the loss of his right to earn a livelihood and loss of reputation as a surgeon is misplaced. The question is whether Dr. Talwar will suffer irreparable harm if the HPARB process is allowed to continue as scheduled.

[32] In my view Dr. Talwar has failed to show that he will suffer irreparable harm if the HPARB proceeding is permitted to proceed. It is accepted that the HPARB process involves a hearing de novo at the conclusion of which the HPARB has a broad range of powers. Subsection 41 (6) provides that it 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.” Moreover, s. 43 of the PHA provides for a right of appeal to the Divisional Court from a decision of the HPARB on questions of law or fact or both.

[33] Given that the process under the PHA involves a hearing de novo before the HPARB and affords ultimate access to the Divisional Court on appeal on questions of law or fact or both, it is difficult to see how Dr. Talwar would suffer irreparable harm should the process be allowed to continue. The expense of continuing with the process before the HPARB does not constitute irreparable harm for this purpose, as to hold otherwise would serve to encourage parties to bypass the statutory process laid down by the PHA and to proceed directly to the Divisional Court on judicial review.

Balance of Convenience

[34] In my view the balance of convenience favours the process before the HPARB being allowed to continue. The hospitals have an interest in having the question of Dr. Talwar’s privileges decided. Dr. Talwar initiated the HPARB process and it has proceeded through four days of evidence to date and further dates have been set aside for its continuation. As observed by Swinton, J. in Khan v. Scarborough General Hospital 2009 CarswellOnt 6001 (Div. Ct.), involving an application to stay a hearing before a hospital board respecting the termination of the applicant’s privileges, “there is substantial jurisprudence in this Court cautioning against applications for judicial review that disrupt the course of proceedings before administrative tribunals.” The disruption of the process before the HPARB will result in a waste of administrative resources and will likely cause additional delay.

Disposition

[35] For the foregoing reasons the motion of applicant Dr, Talwar for an interlocutory, interim and/or permanent injunction restraining the HPARB from proceeding with his appeal before the HPARB pending disposition of his application for judicial review in this proceeding is dismissed.

B - Motion for leave to file a Factum of up to 100 pages

[36] Dr. Talwar grounds his motion for leave to file a Factum of up to 100 pages on an assertion in his Notice of Motion that “this matter has been ongoing for over 18 years with countless actions against Dr. Talwar, and encompassing more than 4,000 pages of documents.” No further particulars or elaboration in support of this assertion were provided in his affidavit in support of his motion and he offered nothing further in submissions. As set forth in the Consolidated Practice Direction for Divisional Court Proceedings, at para 12, the rules require a “concise summary” of fact and law. I am not satisfied on the current record that the Factum of more than 30 pages is necessary or warranted. The applicant Dr. Talwar’s motion for leave to file a Factum of up to 100 pages is therefore dismissed.

Costs

[37] The parties are encouraged to agree upon costs.

[38] If the parties are unable to agree upon costs the hospital respondents and the HPARB may make written submissions as to costs within fourteen (14) days of the release of this Endorsement.

[39] The applicant may have ten (10) days after receipt of the said respondents’ submissions to respond.

[40] All such written submissions shall not exceed four (4) double-spaced pages, exclusive of Costs Outlines or Bills of Costs, Offers to Settle and Authorities, and are to be forwarded to me at my Chambers at 85 Frederick Street, 7th Floor, Kitchener, Ontario N2H 0A7 with copies to the other parties or their counsel. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.

D.A. Broad, J.

Date: October 16, 2018