COURT OF APPEAL FOR ONTARIO

CITATION: Kadiri v. Southlake Regional Health Centre, 2015 ONCA 847

DATE: 20151204

DOCKET: C60036

Gillese, Epstein and Brown JJ.A.

BETWEEN

Yahaya Kadiri

Plaintiff (Respondent)

and

Southlake Regional Health Centre, Nancy Merrow, Robert Smyth, Michael Sullivan, Lee Ellis Heinrich, Ira Bloom and Giles Cruickshanks

Defendants (Appellants)

William Carter and Lee Lenkinski, for the appellants

Paul Harte and Giuseppe Michelucci, for the respondent

Heard: September 21, 2015

On appeal from the judgment of Justice Cory A. Gilmore of the Superior Court of Justice, dated January 27, 2015, with reasons reported at 2015 ONSC 621.

Brown J.A.:

I. OVERVIEW

[1] On April 11, 2008, the respondent, Dr. Yahaya Kadiri, was acting as the anesthetist during knee replacement surgery at the appellant hospital, the Southlake Regional Health Centre (the “Hospital”). Towards the end of the surgery, Dr. Kadiri turned off the flow of the anesthetic to the patient. Suddenly, Dr. Kadiri experienced a feeling of urinary urgency. He left the operating room without telling the other members of the surgical team. While he was away, the patient awoke from the sedation. Team members had to restrain the patient until another anesthetist was able to attend and care for the patient.

[2] The Hospital commenced an investigation. From April 2008 until December 2010, Dr. Kadiri was on reduced duties pending the results of medical and psychological assessments. Whether the reduction of Dr. Kadiri’s duties was voluntary or compelled during some or all of that period of time is a matter of dispute between the parties. What is not in dispute is that in January 2011, following a series of assessments and a period of re-training, Dr. Kadiri returned to full practice at the Hospital.

[3] On April 26, 2012, Dr. Kadiri commenced an action for loss of income and other damages as a result of the events between the date of the incident and his return to full practice at the Hospital. He named as defendants the Hospital, Dr. Nancy Merrow, the Chief of Staff and Chair of the Hospital’s Medical Advisory Committee during the period covered by the claim, Dr. Robert Smyth, who was the Chief of the Hospital’s Department of Anasthesiology until July 2010, and four other staff anesthesiologists: Drs. Sullivan, Heinrich, Bloom and Cruickshanks. The claims made against Drs. Bloom and Cruickshanks were different from those made against the other defendants.

[4] All the defendants brought a motion for summary judgment seeking to dismiss the action on several grounds, including that the court had no jurisdiction over the subject-matter of the action and the action was statute-barred. Alternatively, the defendants sought a stay of the action until Dr. Kadiri’s claims had been determined by the Health Professions Appeal and Review Board (the “HPARB”).

[5] The motion judge dismissed the action against Drs. Bloom and Cruickshanks as statute-barred. While Dr. Kadiri initially cross-appealed that part of the judgment, he has since abandoned his cross-appeal.

[6] The motion judge held that the action was not statute-barred as against any of the other defendants. No appeal has been taken from that part of her judgment.

[7] The motion judge denied the appellants’ request to dismiss Dr. Kadiri’s action on jurisdictional grounds. The appellants had submitted that the court had no jurisdiction over the subject-matter of the proceeding because Dr. Kadiri had not followed the process set out in s. 41 of the Public Hospitals Act, R.S.O. 1990, c. P.4 (the “PHA”) which, they contended, required him to proceed to a hearing before the HPARB before starting a lawsuit.

[8] The appellants seek to set aside that part of the judgment. Accordingly, the sole issue on this appeal is whether the motion judge erred in finding that the Superior Court of Justice possessed the jurisdiction to consider Dr. Kadiri’s April 2012 claim.

[9] For the reasons set out below, I would dismiss the appeal. In my view, the motion judge correctly concluded that the court had jurisdiction over the subject-matter of Dr. Kadiri’s claim and that, in the circumstances of this case, Dr. Kadiri was not required first to proceed to the HPARB before commencing his action.

II. THE STATUTORY FRAMEWORK GOVERNING DECISIONS THAT CANCEL, SUSPEND OR SUBSTANTIALLY ALTER PRIVILEGES

[10] What occurred during the period from the date of the operating room incident until the time of Dr. Kadiri’s return to full practice at the Hospital is not in dispute. The parties disagree, however, about how those events affect the jurisdiction of the court to consider Dr. Kadiri’s lawsuit. To put in context the evidence about those events and the motion judge’s findings of fact, a summary of the framework governing disputes about a physician’s hospital privileges is in order. The framework is set out in the PHA and a hospital’s bylaws.

The Public Hospitals Act

[11] The PHA vests in the board of a hospital the power to appoint physicians to its medical staff, to determine the hospital privileges to be attached to the appointment of a member of the staff, and to revoke or suspend the appointment of a member of the medical staff: PHA, s. 36. Privileges define the scope of a physician’s ability to use the hospital’s resources to care for his or her patients: Rosenhek v. Windsor Regional Hospital, 2010 ONCA 13, 257 O.A.C. 283, at paras. 4-5.

[12] Under the PHA and its regulations, a hospital’s medical advisory committee (“MAC”) receives applications from physicians concerning their appointments and privileges and makes recommendations on these applications to the board: PHA, s. 37. The medical advisory committee may also make recommendations to the board concerning the dismissal, suspension or restrictions of the hospital privileges of any member of the medical staff: R.R.O. 1990, Reg. 965, s. 7(2)(a)(iv).

[13] Section 41(1) of the PHA affords a physician a right to a hearing before the HPARB in certain disputes over privileges. The section provides, in part:

41. (1) Any,

(b) member of the medical staff of a hospital who considers himself or herself aggrieved by any decision… under… 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.

[14] The HPARB is constituted under the Ministry of Health and Long-Term Care Appeal and Review Boards Act, 1998, S.O. 1998, c. 18, Sch. H. The HPARB is charged with conducting the hearings and reviews assigned to it under the PHA and other statutes. In proceedings under the PHA, a party may appeal from a decision of the HPARB to the Divisional Court on questions of law, fact, or both: s. 43.

The Hospital’s By-laws

[15] The Hospital’s By-law No. 1 (the “By-law”) establishes procedures for applications by physicians to join the Hospital’s medical staff and their associated requests for privileges. Appointments of the medical staff are made for a one-year term.

[16] The By-law also describes in detail the process for cancelling, suspending or substantially altering the hospital privileges of a member of the medical staff. Section 7.6.1 concerns action taken during the mid-term of a physician’s appointment and provides:

7.6.1(1) Pursuant to the Public Hospitals Act and the Regulations thereunder and in accordance with this By-law, the Board at any time may revoke or suspend any appointment of a member of the medical staff or dismiss, suspend, restrict or otherwise deal with, the privileges of the member.

(2) Mid-term action in respect of a member of the medical staff, shall be processed in accordance with, and in the same manner provided in part 12 of this by-law.

[17] Part 12 of the By-law distinguishes two forms of mid-term action in respect of privileges: non-immediate action (s. 12.1) and immediate action in an emergency situation (s. 12.2).

[18] The appellants concede that they proceeded against Dr. Kadiri under s. 12.1, i.e. they took non-immediate mid-term action. In this form of action, only the Board can make a decision to cancel, suspend or substantially alter the privileges of a member of the medical staff, upon the recommendation of the MAC.

[19] By contrast, s. 12.2 applies where the conduct of a member “exposes, or is reasonably like[ly] to expose patient(s) to harm or injury and immediate action must be taken to protect the patients and no less restrictive measure can be taken”. In this situation, the Chief of Staff or Chief of Department, or his or her delegate, “may immediately and temporarily suspend the member’s privileges.” Where such immediate mid-term action is taken, the By-law requires two meetings be held on an expedited basis: first, a meeting of the MAC “to review the suspension and to make recommendations to the Hospital Board”, and then a meeting of the Board to decide either to follow or not to follow the MAC’s recommendations.

III. DECISION OF THE MOTION JUDGE

[20] The motion judge denied the appellants’ request for a stay of Dr. Kadiri’s action pending an appeal by him to the HPARB. She held that the court had jurisdiction over Dr. Kadiri’s action. In reaching that conclusion, the motion judge relied on two main findings:

(i) The appellants argued that if Dr. Kadiri had considered himself aggrieved by any of their conduct during the period from the April 2008 incident until his return to full practice at the Hospital in 2011, he should have sought a hearing before the HPARB. By not doing so and, instead, commencing his lawsuit, Dr. Kadiri was improperly trying to avoid the statutory process contained in s. 41(1) of the PHA. The motion judge did not accept this argument. She found that no decision was ever made within the meaning of s. 41(1)(b) of the PHA with respect to Dr. Kadiri’s privileges. In the absence of such a decision, the motion judge found that the statutory basis for any appeal to the HPARB lacked foundation: at para. 71.

(ii) The appellants also submitted that even following his return to full practice at the Hospital in January 2011, Dr. Kadiri was obliged to go before the HPARB to determine any privileges-related complaint he might have against the appellants before starting a lawsuit. The motion judge acknowledged that both Dr. Kadiri and the Hospital were obliged to follow through with the privileges-dispute process set out under the PHA, the By-laws and the Hospital’s Rules. However, she held that Dr. Kadiri in fact had followed through with that process as required, and the process ultimately concluded in his favour with his return to full practice in January 2011.

IV. STANDARD OF REVIEW

[21] In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court of Canada held, at para. 81, that absent an error of law, the exercise of powers by a motion judge under Rule 20 of the Rules of Civil Procedure attracts deference. Whether a genuine issue requiring a trial exists is a question of mixed fact and law. Where there is no extricable error in principle, findings of mixed fact and law should not be overturned, absent palpable and overriding error.

[22] The determination of whether a provincial superior court has jurisdiction over a matter is a question of law: Khan Resources Inc. v. W M Mining Company (2006), 2006 CanLII 6570 (ON CA), 79 O.R. (3d) 411 (C.A.), at para. 7. Whether the issue of jurisdiction is determined on a summary judgment motion, or on a motion under r. 21.01(3)(a) of the Rules of Civil Procedure, does not alter the standard of review.

V. DID THE MOTION JUDGE ERR IN CONCLUDING THAT THE COURT HAD THE JURISDICTION TO CONSIDER DR. KADIRI’S CLAIMS?

Overview of the Analysis

[23] The appellants submit that this court, in its decision in Beiko v. Hotel Dieu Hospital St. Catherines, 2007 ONCA 860, recognized that the PHA established a comprehensive statutory process for the determination of privileges disputes between physicians and hospitals. That statutory process consists of a dispute resolution mechanism under the bylaws of a hospital, coupled with the right of a physician to seek a hearing before the HPARB.

[24] A review of Dr. Kadiri’s statement of claim discloses that he seeks relief for conduct undertaken by the appellants in the April 2008 to January 2011 time period which he alleges wrongfully interfered with his ability to carry on a full practice at the Hospital. In other words, his action concerns his ability to exercise his privileges at the Hospital during that period of time. The main issue on this appeal is whether the motion judge erred in concluding that the court has jurisdiction over the subject-matter of Dr. Kadiri’s 2012 lawsuit.

[25] As I will explain below, I accept the appellants’ submission that certain of their conduct in May and June 2008 could have entitled Dr. Kadiri to seek a hearing before the HPARB on the basis that the appellants were substantially altering his privileges. In holding that the appellants made no such decision, I respectfully disagree with the motion judge. She erred in so finding. However, her error was without consequence to the key issue of whether, when Dr. Kadiri started his lawsuit in April 2012, the court had jurisdiction over it. In my view, the motion judge was correct in concluding that the court did because, by that point in time, Dr. Kadiri had properly followed through with the statutory process under the By-law and PHA as required in the specific circumstances of this case. Finally, I will explain why I do not accept the appellants’ argument that the Beiko decision stands for the proposition that only after establishing the basis for a remedy in damages at a hearing before the HPARB may a physician bring an action for damages in the courts.

The Principle in Beiko v. Hotel Dieu Hospital St. Catharines

[26] The starting point of the analysis is the decision of this court in Beiko. That case involved plaintiff opthalmologists who had entered into an agreement with the hospital under which they would recruit a new ophthalmologist. In return, the hospital undertook not to reduce their existing operating room time. Subsequently, the hospital’s operating room utilization committee reduced their operating room time. The doctors asked the hospital’s medical advisory committee to reverse that decision; the MAC refused. The doctors next went to the hospital’s board of directors; they affirmed the MAC decision. The doctors then launched an appeal to the HPARB under s. 41 of the PHA. However, before their appeal was heard, they withdrew it. Instead, they commenced an action seeking damages for breach of contract and negligent misrepresentation.

[27] The motion judge in Beiko dismissed the physicians’ action: 2007 CanLII 1912 (Ont. S.C.). In a brief endorsement, this court affirmed the decision of the motion judge. At para. 4, this court stated:

The motion judge reviewed the PHA in detail and concluded that the legislature had established “a comprehensive code under which the hospital determines privileges for a member of staff.” He then found, again following a careful review of the record, that “[i]n the circumstances of this case, the allocation of OR time is a matter of privilege which was determined under the regime set out in the Act.” In our view, these conclusions are unassailable and fit comfortably within the analytical framework set out in Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] 2 S.C.R. 929. The appellants’ complaint is about their access to the respondents’ operating rooms. The essence of this complaint is about an alteration in the crucial professional privilege the appellants enjoy at the hospital. As such, their complaint is amenable to the statutory review and appeal regime established by the PHA.

[28] In Beiko, a decision was made under the hospital’s by-laws that substantially altered the privileges of members of the medical staff. The physicians sought to reverse that decision, utilizing the review mechanism established under the hospital’s by-laws. They were not successful and remained aggrieved by the decision. The physicians sought a hearing before the HPARB, but then shifted gears and commenced a lawsuit. The motion judge held, in effect, that the physicians were bound by the determinations relating to privilege matters made under the statutory process – i.e. the hospital bylaw’s dispute resolution mechanism and the right to a hearing before the HPARB under the PHA. Having abandoned their appeal to the HPARB, the physicians could not proceed with their loss of income claim. This court upheld that result.

[29] Here, the motion judge acknowledged that the Beiko decision required Dr. Kadiri to go through and exhaust the statutory PHA process prior to commencing an action in court: paras. 55 and 63. The appellants argue that although the motion judge purported to follow the decision in Beiko, she erred (i) in finding that between April 2008 and January 2011 the Hospital did not make a decision substantially altering Dr. Kadiri’s privileges which he could have appealed to the HPARB and (ii) in concluding that Dr. Kadiri had followed the statutory dispute resolution process under the Bylaw and PHA to its appropriate conclusion prior to commencing his action. I shall consider each of these submissions in turn.

Were decisions made within the meaning of s. 41(1)(b) of the PHA?

[30] As set out earlier in these reasons, under the By-law, the authority to cancel, suspend or substantially alter the privileges of a staff member lies with the Board, except in the case of immediate mid-term action in an emergency situation. There is no dispute that the Hospital’s Board never made a decision that cancelled, suspended or substantially altered Dr. Kadiri’s privileges. On the contrary, in February 2009, January 2010 and January 2011, the Hospital informed Dr. Kadiri that his applications for reappointment to the medical staff had been approved by the Board.

[31] Nor did the MAC decide to cancel, suspend or substantially alter Dr. Kadiri’s privileges. The appellants acknowledge that Dr. Merrow initiated an internal review process under s. 12.1 of the By-laws dealing with non-immediate mid-term action, not s. 12.2 concerning immediate mid-term action. Further, on her cross-examination, Dr. Merrow agreed that the MAC did not decide to suspend, cancel or substantially alter Dr. Kadiri’s privileges in relation to the incident.

[32] Given this evidence, the motion judge did not err in finding that no decision was made “according to the by-laws” that cancelled, suspended or substantially altered Dr. Kadiri’s privileges within the meaning of s. 41(1)(b) of the PHA: para. 75.

[33] However, the appellants argue that even if the MAC or the Board did not make a decision that cancelled, suspended or substantially altered Dr. Kadiri’s privileges, de facto decisions were made by hospital staff during the investigation and assessment process which had the effect of substantially altering Dr. Kadiri’s privileges within the meaning of s. 41(1)(b) of the PHA. The appellants therefore submit that the motion judge erred in concluding, at para. 75 of her reasons, that “no decision appears to have been made at all which Dr. Kadiri could appeal”. To consider this argument, a more detailed review of some of the evidence is required.

[34] The incident was first reported to Dr. Merrow on April 21, 2008, at which time she initiated an internal review process. She asked Dr. Smyth to investigate the matter. At a meeting with Drs. Merrow and Smyth on April 23, 2008, Dr. Kadiri agreed to take some time away from the operating room and on call duty pending Dr. Smyth’s completion of his investigation.

[35] Dr. Smyth completed his report on April 28, 2008, and Dr. Merrow sent a copy to Dr. Kadiri two days later. In that April 30 communication, she wrote that “in accordance with the hospital By-Laws the report needs to be reviewed by the Chief of Staff, Chief of Department and Chief Executive Officer to determine whether any further action may be required.” Those steps are set out in ss. 12.1.1(10) and (11) of the By-law. Dr. Merrow went on to write: “I am recommending at this time that you extend your voluntary leave through May 9, 2008, to allow ample time for consultation on the matter. Please respond in writing so that I may know we have an agreement on the length of time you will be away from your operating room and on call duties…”

[36] Dr. Kadiri responded to Dr. Merrow on May 5, 2008. He did not dispute the facts of the case, and he apologized for the incident, assuring Dr. Merrow that the incident “was an anomaly and that it will not occur again.”

[37] Dr. Merrow informed Dr. Kadiri that she was relying on a section of the Hospital’s Rules to establish a subcommittee of the MAC to receive Dr. Smyth’s report. The minutes of that subcommittee’s May 6, 2008 meeting stated that “[t]he physician is presently working with the Chief [of Anesthesiology] to provide service to the department without attending patients in the operating rooms, birthing unit or on call.”

[38] The MAC met on May 12, 2008, to consider the subcommittee’s report. The minutes of that meeting recorded that the MAC was proceeding under s. 12.1.2 of the By-Law dealing with non-immediate midterm action. The MAC decided to refer Dr. Kadiri for a medical and psychological assessment by an external consultant. By resolving to refer him to an external consultant, the MAC adopted one of the possible courses of action available to it under s. 12.1.2(4) of the By-law.

[39] The Minutes recorded Dr. Merrow as stating that “at present we have the cooperation of this physician in voluntarily restricting his duties and it is hoped that this level of collaboration will continue.” The MAC passed a motion indicating its support of “the present arrangement that the physician will have clinic duty as directed by the Chief of Anesthesiology in the service of the department without providing operative anesthesia.”

[40] Dr. Merrow wrote to Dr. Kadiri on May 14, 2008, informed him about the MAC’s recommendation, and requested his consent to make a referral for a comprehensive assessment of his physical and neuropsychological health. Dr. Kadiri did not consent to submitting to a comprehensive assessment. His counsel took the position that the Hospital was not treating Dr. Kadiri fairly and was inappropriately restricting his privileges.

[41] The MAC subcommittee met again on May 23, 2008. The minutes of the meeting acknowledged that Dr. Kadiri had “withdrawn his cooperation with voluntary restriction in his duties and is requesting immediate reinstatement of full duties.”[^1] The subcommittee concluded that “[i]f the physician holds his position it would seem that the only option is for the Chief of Staff to suspend his privileges pending a MAC meeting to begin an Immediate Mid Term Action.” As noted above, immediate mid-term action is available under s. 12.2 of the By-laws in emergency situations and allows the Chief of Staff to immediately and temporarily suspend physician privileges.

[42] Later on May 23, the Hospital’s counsel informed Dr. Kadiri’s counsel that Dr. Merrow was requesting the respondent agree to an assessment and continue with the existing work arrangement in the clinic. The Hospital’s counsel continued:

If this is not acceptable to Dr. Kadiri, then Dr. Merrow considers this a situation in which immediate midterm action is necessary under section 12. 2 of the by-laws. Under section 12.2.1(1), if Dr. Kadiri is not prepared to extend his voluntary leave and agree to the recommended assessment process, then she will suspend his privileges with the required notices and make arrangements for the MAC meeting under section 12.2.2.

[43] During the hearing of this appeal, much was made of the May 23 MAC subcommittee meeting. Appellants’ counsel pointed to the conduct of Dr. Merrow and the MAC subcommittee as providing Dr. Kadiri with reason to request a hearing before the HPARB under s. 41(1)(b) of the PHA on the basis that he had been aggrieved by a decision of Hospital administrators which, unless complied with, would result in the involuntary reduction of his privileges. On his part, Dr. Kadiri described the message that emerged from the May 23 meeting as a threat of unlawful action which, because of its unlawfulness, could not amount to a “decision…under…the by-laws” of the Hospital within the meaning of s. 41(1)(b).

[44] There may be some merit in the appellants’ argument on this point. In Baranick v. Queensway Carleton Hospital, 2009 CanLII 88687 (Ont. HPARB), the HPARB took a broad view of its jurisdiction, holding, at para. 61:

The argument was made before us that the hospital had not made any decision under section 41 (1) (b) and in particular that it had not suspended Dr. Baranick pursuant to the by-laws but rather had done so “wrongfully”. In the Board’s view, to the extent that the Hospital may have failed to follow the requirements of the by­laws for a mid-term suspension, our jurisdiction is triggered under the Act in a situation where the question is whether there was either a wrongful suspension of the appointment or the wrongful suspension of the privileges.

[45] In light of the HPARB’s broad view of its jurisdiction to hear privileges disputes, the motion judge’s conclusion that “no decision appears to have been made at all which Dr. Kadiri could appeal” was not completely accurate. However, I do not regard that error by the motion judge to be of any ultimate consequence to the issue of whether the court has jurisdiction over Dr. Kadiri’s 2012 action. One cannot freeze the sequence of events at May 23, 2008 and consider only whether Dr. Kadiri could have, or should have, gone to the HPARB at that time. To take that approach would ignore the evidence of the significant events that followed, which I review below.

Did Dr. Kadiri exhaust the remedies available to him under the By-law and the PHA?

[46] The motion judge looked at the totality of the events in the dispute between Dr. Kadiri and the Hospital, including those which followed the May 23, 2008 meeting of the MAC subcommittee. What that evidence showed was that by the end of May 2008, Dr. Kadiri and the Hospital had worked out an arrangement to deal with the dispute, albeit an arrangement that did not fit four-square within the process set out in the Hospital’s By-law. As put by Dr. Merrow in her May 26, 2008 report to the Board Committee on Quality: “The physician has agreed with the Chief of Anesthesia to reduce his duties until a full report and plan to prevent recurrence is available.” And on May 29, 2008, Dr. Kadiri’s counsel wrote to the Hospital’s counsel stating:

At no time has Dr. Kadiri “withdrawn his cooperation with voluntary restrictions in his duties.” Dr. Kadiri is, clearly, not happy about the restriction in his duties but he is carrying on, nonetheless.

[47] After June 2008, the communications and dealings between Dr. Kadiri and the Hospital focused on two issues: arranging the appropriate psychological assessments of Dr. Kadiri, and addressing his concerns that the Hospital was not assigning to him a fair share of the clinical assessment work, with adverse effects on his income.

[48] On two further occasions prior to the completion of the assessment process – in July 2008 and August 2009 – Dr. Kadiri’s complaints about the lack of fairness in the process elicited responses from the Hospital’s counsel that if Dr. Kadiri withdrew his co-operation with the process, the Hospital could proceed “with a by-law process before the MAC and the Board.” In both cases, Dr. Kadiri continued to co-operate with the assessment process, and the Hospital did not initiate a By-law process before the MAC and the Board.

[49] The motion judge found that, for a variety of reasons, the assessment process was prolonged and the final assessment was not provided to the Hospital until May 2010. Dr. Kadiri attended and addressed the MAC during its meeting on July 20, 2010, during which the MAC resolved to re-integrate Dr. Kadiri into full practice following clinical re-training at another institution with reports satisfactory to the Chief of Department and Chief of Staff.

[50] In December 2010, Dr. Kadiri underwent re-training at Mount Sinai Hospital from which he received a letter attesting to his competence to resume operative anesthesia clinical practice at the Hospital. Dr. Kadiri returned to work at the Hospital in January 2011.

[51] When considered as a whole, the evidence discloses that while the Hospital initially proceeded with an investigation under s. 12.1 of its By-laws, ultimately the parties participated in an informal process of psychological assessments and reduced duties. Even though Dr. Kadiri occasionally complained about that process, he saw it through to its end – the assessments were completed; he underwent re-training at the Mount Sinai Hospital; and he returned to full practice as part of the Hospital’s medical staff in January 2011.

[52] By the time Dr. Kadiri started his lawsuit in April 2012, there was no decision in place – formal or de facto – that cancelled, suspended or substantially altered his hospital privileges. Dr. Kadiri had resumed a full practice more than a year before.

[53] Notwithstanding that state of affairs, the appellants submit that Dr. Kadiri was required to seek a hearing before the HPARB before he could commence his action. Only upon the completion of such a hearing, according to the appellants, could Dr. Kadiri bring an action in court seeking relief in respect of the events that took place between the date of the incident and his return to practice.

[54] The motion judge rejected this argument in para. 71 of her reasons where she stated, in respect of the process followed by Dr. Kadiri and the appellants:

Having followed through with the process, the defendants insist Dr. Kadiri must appeal to the HPARB. But what is he to appeal? The matter within the Hospital was concluded in his favour. The HPARB can only confirm a decision related to privileges…

[55] I see no error in the motion judge’s conclusion. First, as set out above, ample evidence supported the motion judge’s finding that Dr. Kadiri had followed through with the Bylaw’s dispute resolution process as required, albeit an informal process worked out by the parties in the particular circumstances. The principle in Beiko – which required Dr. Kadiri to go through and exhaust the PHA process prior to commencing an action in court – was satisfied, with the result that the court has jurisdiction over his action.

[56] Second, her conclusion accorded with the reality that, in April 2012, Dr. Kadiri was back at the Hospital enjoying full privileges. Under s. 41(1)(b) of the PHA, a member of the medical staff “aggrieved by any decision…under…the by-laws cancelling, suspending or substantially altering his or her hospital privileges” is entitled to a hearing before the HPARB. The powers of the HPARB are set out in s. 41(5) of the PHA, which provides:

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.

[57] It is very difficult to see what action the HPARB could have taken, or opinion it could have expressed, in April 2012 relating to any cancellation, suspension or substantial alteration of Dr. Kadiri’s hospital privileges because at that time he enjoyed full privileges. In April 2012 there were no privileges of Dr. Kadiri to restore.

Is an appeal to HPARB a condition precedent to an action in court?

[58] The appellants advance one further argument. They submit in their factum that the decision of this court in Beiko “stands for the proposition that, only after establishing the basis for a remedy in damages through the statutory process [HPARB], is it open for the applicant to bring an action for damages in the ordinary courts. The specialized tribunal must first determine that there is conduct respecting an issue of privileges to sustain a civil remedy.”

[59] In my view, the Beiko decision does not stand for such a proposition. Whether a physician has followed through with the statutory privileges dispute-resolution process under a hospital’s bylaws and the PHA will turn on the specific facts of each case. Depending on the specific circumstances of a case, proceeding to a hearing before the HPARB may or may not be required of the physician. In the present case, it was not because (i) Dr. Kadiri and the Hospital worked out an arrangement to deal with their dispute which they saw through to its end and (ii) at the time Dr. Kadiri commenced his lawsuit, he had returned to a full practice at the Hospital with full privileges. In those two respects, the facts of this case differ fundamentally from those in Beiko.

[60] Moreover, the appellants’ proposition that the HPARB has the exclusive jurisdiction to act as a gatekeeper for any court action a physician may wish to bring after being restored to full privileges does not fit comfortably with the HPARB’s statutory framework or the prevailing approach to civil litigation.

[61] As to the statutory framework, neither of the HPARB’s home statutes – the PHA and the Ministry of Health and Long-Term Care Appeal and Review Boards Act, 1998 – contains a provision granting the HPARB the exclusive jurisdiction to hear any and all matters that may touch on the issue of privileges, including claims for compensation by a physician who has been restored to full privileges.

[62] As to the prevailing approach to civil litigation, in Hryniak the Supreme Court of Canada recognized, at para. 2, “that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system.” The appellants’ proposition that a physician who has been restored to full privileges nevertheless must seek a hearing before the HPARB so that it could “first determine that there is conduct respecting an issue of privileges to sustain a civil remedy” would impose cost and delay on the physician’s ability to access the civil justice system. Absent clear legislative direction that a physician must incur that cost and delay before accessing the courts, in my view a court should be loath to interpret the jurisdiction of the HPARB in a fashion so antithetical to the culture shift the Supreme Court directed in Hryniak.

VI. DISPOSITION

[63] For the reasons set out above, I would dismiss the appeal. The parties agreed that the successful party would be entitled to costs of the appeal in the amount of $10,000. I would order the appellants to pay the respondent his costs of the appeal in the amount of $10,000, inclusive of disbursements and HST.

Released: December 4, 2015 (EEG)

“David Brown J.A.”

“I agree E.E. Gillese J.A.”

“I agree Gloria Epstein J.A.”

[^1]: As noted below, Dr. Kadiri later disputed that he had withdrawn his co-operation.