COURT FILE NO.: 532/07

DATE: January 28, 2008

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: ISRAEL SHOEL ROSENHEK (Applicant)

• and -

WINDSOR REGIONAL HOSPITAL (Respondent)

BEFORE: LANE, MOLLOY and GANS JJ.

COUNSEL: R. Paul Steep and Christopher M. Hubbard, for the Applicant

Paula A. Trattner and Ricard F. Pochkhanawala, for the Respondent

HEARD: December 17, 2007

E N D O R S E M E N T

Background

[1] The Applicant, Dr. Israel Shoel Rosenhek is a member of the Active Medical Staff in the Department of Medicine of the Respondent, the Windsor Regional Hospital (the "Hospital"), with additional privileges in the Hospital's Coronary Care Unit (the "CCU"). In March, 2007, he made an application for reappointment to the active staff of the Hospital for the fiscal year 2007-2008, commencing on April 1, 2007 (the "Application"). He seeks judicial review of the manner in which the Hospital has dealt with his Application to date.

[2] There is a history of considerable conflict and litigation between these parties, revolving around successive challenges to the Applicant's privileges, in all of which the Applicant has succeeded to a large extent, in the end. The record contains comments by tribunals and judges that give rise to serious concerns about the manner in which the Hospital and senior members of its medical staff have dealt with Dr. Rosenhek in the past. Such comments include a description of an earlier review of the Applicant's privileges as an attempt to exclude the Applicant from a "fraternity" where he did not "fit in"; that the Hospital had failed "...to act within the principles of fairness"; that the Respondent's efforts to interfere with the Applicant's privileges were "extraordinary and unusual"; and, in July 2007, after a trial, a substantial award of damages to the Applicant for improper revocation of his privileges in 1989. Some of the individuals who played pivotal roles in the past disputes are also involved in the decision-making in respect of the current Application. It is against this backdrop that the current dispute must be viewed.

[3] In accordance with the normal procedure, Dr. Rosenhek's Application for reappointment was first reviewed by Dr. Shaban, the Chief of the Department of Medicine. On August 30, 2007, Dr. Shaban reported to the Hospital's Credentials Committee, a sub-committee of the Medical Advisory Committee (the "MAC"), that he could not support Dr. Rosenhek's reappointment, referencing 31 documented complaints received about Dr. Rosenhek from the Hospital's staff and patients between January 2006 and September 2007.

[4] The Hospital has a formal policy for dealing with such complaints. The applicable rules ensure full and timely disclosure to the person against whom a complaint is made, provide an opportunity to respond, and incorporate a fair process for resolving the complaint. With very few exceptions, this policy was all but ignored in respect of the complaints about Dr. Rosenhek that were cited in Dr. Shaban's report. For the vast majority of these complaints, Dr. Rosenhek had no notice whatsoever of the complaint until the Hospital was in the process of dealing with his reappointment Application. Without commenting at all on the accuracy of the complaints against Dr. Rosenhek or the fairness of the process involved, the complaints can generally be described as problems with his interpersonal skills in communicating with Hospital staff, patients and family members of patients, including some situations where it is alleged that patient care was compromised.

[5] On September 4, 2007, the Credentials Committee recommended to the MAC that the Application be denied unless the Applicant fulfilled or agreed to be bound by certain conditions attached to his reappointment. The Credentials Committee also recommended that the MAC initiate a further investigation into the Applicant's conduct and/or quality of care prior to making a recommendation to the Hospital's Board of Governors ("the Board") with respect to the Application.

[6] In the normal course, the MAC would make a recommendation to the Board of Governor's and the Board would then make a decision as to whether the doctor would be reinstated. A doctor who takes issue with a MAC recommendation may request a full administrative hearing before the Board. The doctor also has a full right of appeal from the decision of the Board, which involves a hearing de novo before the Health Professions Appeal and Review Board ("HPARB") under the Public Hospitals Act: R.S.O. 1990 c. P. 40, s. 41. There is then a further right of appeal to the Divisional Court from the decision of the HPARB: PHA, s. 43.

[7] On September 18, 2007, the MAC considered the Credentials Committee's recommendation. It did not follow its usual procedure of then making a recommendation to the Board. Instead, it passed a motion (the "Motion") recommending that the Applicant comply with a number of Department of Medicine policies and that it, the MAC, initiate a further investigation into concerns about (i) the Applicant's conduct and communication with Hospital staff and patients from January 2006 – September 2007; and (ii) his clinical judgment, skills and knowledge/quality of care with respect to his Cardiology and Internal Medicine practice at the Respondent during the same period of time. The investigation, which forms the subject matter of the Motion, is anticipated to be completed prior to any recommendation by the MAC to the Board with respect of the Application. It is this Motion that is the subject matter of the judicial review.

[8] Dr. Rosenhek was offered the option of having the conduct/communications part of the investigation conducted through the Physical Health Program ("PHP"), a program affiliated with the Ontario Medical Association with expertise in assessing problems related to stress and behavioural problems in hospitals. Dr. Rosenhek objected to that organization's involvement. The MAC therefore retained two external consultants to carry out the investigations. The conduct and communication assessment is to be done by Dr. Hy Bloom/Workplace.calm Inc. Dr. Bloom is a psychiatrist with expertise in assessing and managing disruptive professional behaviour. The clinical skills assessment is to be done by Dr. Arthur Friesen, a well-respected cardiologist from British Columbia. Dr. Rosenhek was invited to make submissions on the terms of reference for each. Under the terms of reference proposed by the MAC, Dr. Rosenhek has the option to participate actively by meeting with the assessors, or not, as he may choose.

[9] The investigation was enjoined pending this application for judicial review by Order of Carnwath J. made in early November, 2007 and has, accordingly, not been completed.

Position of the Parties

[10] Counsel for the Applicant advised during argument that the sole relief now sought by the Applicant is for an Order quashing the MAC's Motion dated September 18, 2007. He argued that the Motion was passed in circumstances where the Applicant was denied procedural fairness and natural justice; that the MAC, and in particular, the Chief of Staff and the Chief of Medicine (the "Chiefs"), have demonstrated bias against him, or at least, there was a reasonable apprehension of bias; and that the MAC in passing the Motion acted without jurisdiction.

[11] It was the Respondent's position that the MAC not only had authority to proceed with the proposed investigation prior to making its recommendation to the Board, but was under an affirmative obligation to do so under the PHA and the Hospital's Professional Staff By-Law, if only to ensure that all appointees to the active staff of the Respondent had the requisite competence and qualifications to guarantee appropriate patient care. The Respondent argued that the proposed investigation was designed not only to be thorough, but also impartial, independent and transparent. Finally, the Respondent argued that the application for judicial review was premature given that the investigation was not complete; that no recommendation had, in fact, been made to the Board; and, of equal importance, that the Applicant had more than enough procedural safeguards provided to him under the Act if the Respondent purported to revoke or not renew his privileges.

Standard of Review

[12] Where a tribunal's decision is attacked on the basis of a denial of natural justice, it is not necessary for the Court to engage in an assessment of the standard of review: Gismondi v. Ontario (Human Rights Commission), 2003 21371 (ON SCDC), [2003] O.J. No. 419 at para. 16 (Div. Ct.); Kalin v. Ontario College of Teachers (2005), 2005 18286 (ON SCDC), 75 O.R. (3d) 523 at para. 9 (Div. Ct.); London (City) v. Ayerswood Development Corp., 2002 3225 (ON CA), [2002] O.J. No. 4859 at para. 10 (C.A.). The duty of fairness is a flexible duty that may vary, based on all of the circumstances. In determining the content of the duty of fairness it is relevant to consider: (1) the nature of the decision, (2) the nature of the legislative scheme, (3) the importance of the decision to the individual affected, (4) the legitimate expectations of the person challenging the statute, and (5) the nature of the deference accorded to the body: Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village) (2004), 2004 SCC 48, 241 D.L.R. (4th) 83 at para. 5 per McLachlin C.J. (Iacobucci, Binnie, Arbour and Fish JJ. concurring; LeBel, Bastarache and Deschamps JJ. dissenting but not on this point).

[13] Natural justice also includes the right to a decision untainted by bias or the reasonable apprehension of bias. The question is whether a reasonable, informed person viewing the matter "realistically and practically" would think that it is more likely than not that the decision maker, whether consciously or unconsciously, would decide the matter fairly: Committee for Justice and Liberty v. Canada (National Energy Board), 1976 2 (SCC), [1978] 1 S.C.R. 369 at 394; McCormack v. Toronto (City) Police Service, [2005] O.J. No. 5149 at paras. 19-20 (Div. Ct.).

Analysis

[14] Much was made during the course of argument that the professional staff of the Respondent, and the Chiefs in particular, inadvertently or purposefully, failed to provide the Applicant with timely disclosure of the Complaints as they were being received and dealt with by the Respondent during the period of January 2006 to September 2007. The Applicant argued that this lack of contemporaneous disclosure was particularly egregious in light of the history of open conflict between the Applicant and the Respondent, which had resulted in hard fought litigation both before this Court and the HPARB. The Applicant further argued that any process or investigation tied to or founded on the Complaints would, by definition, prevent any fair hearing in respect of the Application and would, for all intents and purposes, result in a foregone conclusion against this application.

[15] In consequence, the Applicant argued that because there is more than a mere prospect of real unfairness, this Court should exercise its inherent supervisory jurisdiction to stop the injustice even before he has exhausted his alternative remedies. (See Gage v. Ontario (Attorney-General) (1992), 1992 8517 (ON SCDC), 90 D.L.R. (4th) 537 (Div.Ct.); Re Haber and Medical Advisory Committee of the Wellesley Hospital et al. (1987), 1986 2766 (ON SC), 56 O.R. (2d) 553 (Div. Ct.), affirmed at (1988), 1988 4714 (ON CA), 62 O.R. (2d) 756 (C.A.), leave to appeal to S.C.C. refused (1988), 63 O.R. (2d) x ("Haber"))

[16] We accept the principle expressed by Reid J. in his concurring decision in Haber, at page 557, recently considered by the B.C.S.C. in Cimolai v. Children's and Women's Health Centre of British Columbia, 2006 BCSC 1473, [2006] B.C.J. No. 2199 at para. 49 (S.C.), aff'd [2007] B.C.J. No. 2473 (C.A.), that where 'recommendations' can prejudice people's rights or interests, questions of fairness and natural justice can arise. We also accept his conclusion that in certain circumstances, this Court does have discretion to interfere even though another body can deal with the same issues and remedy any procedural transgression.

[17] However, in the instant case, there are a number of reasons for this Court to refuse to intervene. There is no doubt, having regard to the history of the relationship between the parties, that to accede to the Applicant's request will fragment the proceedings. It seems likely that any prejudice caused to the Applicant by the lack of timely disclosure of the Complaints can be cured, or at least alleviated, at a hearing before the Board or the HPARB, even assuming that the Applicant will not obtain any form of redress before the MAC prior to making its recommendation to the Board in the first instance. It is also germane to our decision on whether to intervene that there are patient safety aspects to the matters raised by the MAC's Motion. The court should be reluctant to intervene until such issues have been heard and decided by the responsible bodies.

[18] The proposed independent practice examinations to be conducted, one by a well-respected Ontario forensic psychiatrist and the other by a British Columbia cardiologist, both apparently unconnected to any party, have the potential to avoid any allegations of institutional bias, although potentially invasive of the privacy of the Applicant. However, the Terms of Reference of each assessment make it clear that while his practice records are to be available to the reviewer, the participation of the Applicant in any personally invasive aspects of each assessment is not mandatory. For example, the terms of reference for the inquiry into the Applicant's conduct with staff and patients indicate that, while the investigator will review the records and interview complainants, actually undergoing a personal psychiatric/psychological assessment is to be "optional", as it is contingent upon Dr. Rosenhek's cooperation/consent. Although the Applicant may find the decision difficult, if not unpalatable, to make, it is not unfair to present him with this choice.

[19] Even if there is some basis for suspecting institutional bias, there is no practical alternative to the proposed procedure as the Respondent is the body charged with the statutory responsibility to assess the qualifications of the Applicant. The appeal to the HPARB acts as a safeguard to ensure that bias has not manifested itself in the ultimate decision. To find at this early stage that the Respondent cannot complete its review of the Applicant because of their litigious history would prevent the respondent from carrying out its duty, insulate the Applicant from the discipline of peer review and, potentially, place the patients at risk.

Disposition

[20] In the result, we are persuaded that it would be premature to intervene in this matter at this stage. It may well be the case that after the independent assessments are conducted, the issues between the parties can be resolved without further resort to the legal process. If not, those issues are best addressed by a full hearing with an opportunity to review the factual basis underlying the Respondent's position, the results of the independent assessments conducted, the impact on Dr. Rosenhek of the failure to have timely notice of the complaints against him, and the overarching requirement of protecting the public. A proper evidentiary record is essential to resolve these complex matters in a just manner.

[21] Accordingly, the application for judicial review is dismissed. If the parties are unable to resolve the issue of costs, brief written submissions may be made to the Court within 30 days from the release of these reasons.

LANE J.

MOLLOY J.

GANS J.

Date: January 28, 2008