COURT FILE NO.: 445/09
DATE: 20091203
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
DR. AKBAR NAUMAN KHAN
Applicant
- and -
THE SCARBOROUGH GENERAL HOSPITAL
Respondent
Christopher M. Hubbard and Elder C. Marques, for the Applicant
John J. Morris and Thea Lowry, for the Respondent
Paula A. Trattner, for the Board of Directors
HEARD at Toronto: December 3, 2009
janet wilson J.: (Orally)
The Application
[1] In this application for judicial review, Dr. Khan requests an order quashing the Motion Decision of the Scarborough Hospital Executive Committee of the Board of Directors, dated September 17, 2009 (“the Board Motion Decision”). Dr. Khan initiated the motion, seeking to vacate the recommendations of the Medical Advisory Committee (“MAC”) dated May 6 and September 26, 2008 (“the MAC Recommendations”). The MAC recommended that the applicant’s privileges at the Scarborough General Hospital (“the Hospital”) be terminated as a result of a history of disruptive conduct culminating in an email sent to Hospital staff on March 31, 2008. This email was the “straw that broke the camel’s back”. It was sent contrary to Dr. Khan’s agreement, confirmed in a memo dated April 23, 2007, with the Hospital to continue to advocate for change but that “he would ensure that his communication and dissent are respectful and not hurtful”.
[2] There is no issue with respect to Dr. Khan’s competence as a physician. The issues raised concern his disruptive conduct in the context of the Hospital environment. The email outlines salaries, including the salary of Dr. Jackson who held the position of Chief of Medical Staff at the Hospital.
The Arguments Raised
[3] The applicant raises several arguments:
(i) The MAC had no jurisdiction to reconsider or alter its original decision to recommend the continuation of Dr. Khan’s privileges as a result of the March 31, 2008 email.
(ii) The Board had no jurisdiction to proceed with either the Board Motion Decision or a hearing on whether or not to accept the MAC Recommendations. The applicant argues that the attendance and reporting by Dr. Jackson at a meeting of the Board of Directors on October 8, 2008 breached s. 39(4) of the Public Hospitals Act, R.S.O. 1990, c. P.40 (“PHA”), which is also reflected in By-law 17.04(h) of the Hospital, and hence the Board lost its jurisdiction.
[4] These arguments with respect to jurisdiction were raised for the first time before this Court and were not specifically considered by the Board in the Board Motion Decision.
[5] The applicant also reasserts in argument today that Dr. Jackson’s continued involvement in the process raises a reasonable apprehension of bias and hence the MAC should be required to reconvene and begin again the process of considering Dr. Khan’s conduct and whether his hospital privileges should be renewed.
[6] Counsel on behalf of the Hospital disputes these arguments. The Hospital asserts that it is premature and inappropriate for this Court to exercise its discretion to judicially review the Board Motion Decision.
[7] The applicant has a statutory right to a full hearing de novo before an impartial tribunal. If the Board decision accepts the recommendation of the MAC and Dr. Khan’s privileges are not renewed, the applicant has a right of appeal to the Health Professions Appeal and Review Board (“HPARB”). The PHA provides that the format for this appeal is a hearing de novo. Dr. Khan’s privileges are deemed to continue until the decision of the HPARB becomes final. The applicant then has a broad right of appeal to this Court from a decision of the HPARB.
Standard of Review
[8] Neither party addressed the issue of standard of review, but it is not in dispute that where a Tribunal’s decision is attacked on the basis of a denial of nature justice, it is not necessary for the Court to engage in an assessment of the standard of review: see Gismondi v. Ontario (Human Rights Commission) (2003), 2003 21371 (ON SCDC), 169 O.A.C. 62 at para. 16 (Div. Ct.).
[9] Natural justice includes the right to a decision untainted by bias or the reasonable apprehension of bias. The question is whether a reasonably 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 p. 394; McCormack v. Toronto (City) Police Service (2005), 2005 44399 (ON SCDC), 205 O.A.C. 18 (Div. Ct.) at paras. 19-20.
[10] The Board Motion Decision was made preliminary to an anticipated hearing by the Board to determine whether it would follow the MAC Recommendations to suspend the applicant’s privileges at the Hospital.
[11] The applicant sought a stay before this Court of the Board proceedings. On October 1, 2009, Swinton J. ordered that the Board may proceed with the hearing which was scheduled for October 2009, but that the decision of the Board could not be released until after this emergency application for judicial review of the Board Motion Decision takes place. She refused to order the stay of the Board hearing in accordance with her written reasons. The Board hearing has now taken place and the Board is now prepared to release its reasons.
Remedies Sought
[12] The Hospital wishes to conclude this long outstanding matter in accordance with the applicable stipulated statutory procedure. If Dr. Khan is not happy with the Board decision, he may appeal to the HPARB. Counsel for the Hospital argues that there has been so much “water under the bridge” in this community hospital. Practically speaking, it may be totally unworkable to start all over again as suggested by the applicant. The applicant may well allege that everyone on the Board may be tainted, as everyone on the Board was at the meeting on October 8, 2008. Proceeding to the HPARB, which is the independent tribunal involving no one from the Hospital, is both the preferred and most practical remedy in all of the circumstances.
[13] The applicant seeks to have the issue of his hospital privileges reconsidered by the MAC without the involvement of Dr. Jackson. If it is not possible to find an untainted Board, and depending on the MAC recommendation, counsel for the applicant suggests that he would be agreeable to binding arbitration.
Analysis and Conclusion
Issue 1: Did the MAC have jurisdiction to reconsider its original recommendation prior to the recommendation being considered by the Board?
[14] The Hospital By-law Number 2 confirms both the procedure for the initial appointment of an individual to the medical staff, as well as the procedure for the annual reappointment to medical staff. Counsel for the applicant argues that as there is no express provision for reconsideration of a MAC recommendation made pursuant to the By-law, the MAC in this case was without jurisdiction to reconsider its initial recommendation after it became aware of the offending email.
[15] This argument has no merit. The By-law provides an overall procedure and structure to allow consistency and fairness. The By-law does not specify how, when and how many times the MAC may meet. There is nothing in the By-law precluding the MAC from reconsidering its initial recommendation based upon fresh evidence before the Board considers the matter.
Issue 2: Did Dr. Jackson’s comments at the Board of Directors meeting on October 8, 2008 breach the provisions of s. 39(4) of the PHA, or By-law 17.04(h) of the Hospital?
[16] On October 8, 2007, at a Board of Directors meeting for the hospital, Dr. Jackson reported the MAC Recommendation to not reappoint Dr. Khan to the members of the Board. The Minutes of the meeting confirm that “Members of the Board of Directors who are aware of the issues involved in this matter must be removed from the hearing”. The note that is objected to by the applicant and founds his new argument with respect to jurisdiction is as follows, “Dr. Steve Jackson is quite confident that the process followed to date has been diligent.”
[17] As the applicant challenged the MAC process and procedure, applicant's counsel argue that this comment breaches s. 39(4) of the PHA.
[18] Section 39(4) of the PHA confirms that a Board member conducting a hearing shall not have taken part in any investigation or communication in relation to the subject matter of the hearing. That section provides:
Members of the board holding a hearing shall not have taken part in any investigation or consideration of the subject-matter before the hearing and shall not communicate directly or indirectly in relation to the subject-matter of the hearing with any person or with any party or representative of a party except upon notice to and opportunity for all parties to participate, but the board may seek legal advice from an advisor independent to the parties and in such case the nature of the advice should be made known to the parties in order that they may make submissions as to the law. [Emphasis added.]
[19] The mirror provision is found in the Hospital By-Law 17.04(h).
[20] The applicant argues that this communication by Dr. Jackson on October 8, 2008 to the Board of Directors, which included the three members appointed to constitute the Board, taints the procedure resulting in the Board having no jurisdiction ab initio. Counsel refers to the decision of the Federal Court in Shubenacadie Indian Band v. Canada (Human Rights Commission) (T.D.), 1997 6370 (FC), [1998] 2 F.C. 198 (T.D.) at paras. 39-40, aff’d (2000) 2000 15308 (FCA), 187 D.L.R. (4th) 741 (F.C.A.).
[21] Counsel for the Hospital argues that this assertion by Dr. Jackson, although perhaps in hindsight not wise or appropriate, is not determinative of the issue of jurisdiction and is not sufficient to taint the entire Board of Directors of the Hospital.
[22] I am inclined to agree with the position advanced by the Hospital. The comment is far from a clear case of flagrant breach of s. 39(4) of the PHA, which could found a successful basis for challenge at this point in time.
[23] I note that this argument is raised for the first time today. It appears to me to be a weak, although a possible argument. If this matter proceeds further, the expertise and knowledge of the HPARB will shed light upon whether such a comment by Dr. Jackson in its context constitutes a breach of s. 39(4) of the PHA, sufficient to challenge jurisdiction. There is significant benefit to having the HPARB consider the issue before it is considered by this Court.
[24] I conclude that it is far from clear that the comment by Dr. Jackson resulted in a loss of jurisdiction by the Board and hence this argument does not justify this Court intervening at this point in time.
Issue 3: Bias
[25] The applicant reiterates that the involvement of Dr. Jackson throughout creates a reasonable apprehension of bias. This issue was carefully considered in the Board Motion Decision. It concluded that there was no reasonable apprehension of bias. There is ample evidence to support this conclusion. The bias argument is weak as was confirmed by Swinton J. when she considered the issue of the stay.
[26] I conclude that the test for bias has not been met. I conclude that a reasonably informed person viewing the matter realistically and practically would think it is more likely than not that the decision-maker, whether consciously or unconsciously, would decide the matter fairly.
Issue 4: Is the applicant’s claim for judicial review premature given the applicant’s statutory right for a rehearing of the matters before the HPARB?
[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.
[28] The principle of completing all avenues of statutory relief before seeking judicial review has been specifically considered in the context of disputes about hospital privileges. The recent decision of Rosenhek v. Windsor Regional Hospital (2008), 2008 2614 (ON SCDC), 232 O.A.C. 325 (Div. Ct.) is similar to this case.
[29] Dr. Rosenhek’s privileges were not renewed due to various complaints raised by staff and patients primarily concerned with his conduct. Molloy J. confirmed that this Court does have jurisdiction to intervene in accordance with the decision of Re Haber and Medical Advisory Committee of the Wellesley Hospital et al. (1987), 1986 2766 (ON SC), 56 O.R. (2d) 553 (Div. Ct.), aff’d (1988), 1988 4714 (ON CA), 62 O.R. (2d) 756 (C.A.), leave to appeal to S.C.C. refused, 20780 (April 13, 1988). However, she concluded that it would be inappropriate for the Court to intervene for a variety of reasons. She stated at para 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.
[30] Similarly, in Beiko v. Hotel Dieu Hospital St. Catharines, [2007] O.J. No. 331 (S.C.) and 2007 ONCA 860 (C.A.), both the motion judge and the Court of Appeal confirmed that a physician disputing issues about privileges must exhaust his or her statutory remedies before proceeding in the courts. The Court of Appeal stated at para. 4 of its decision:
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 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.
[31] I accept the arguments of the Hospital that it is premature to consider the applicant’s request for judicial review. He must exhaust his statutory remedies before seeking relief from this Court. Unfortunately, Dr. Khan’s reputation may be affected along the way but this goes with the territory.
[32] For these reasons, the application for judicial review is dismissed.
Costs
[33] Costs fixed payable by the applicant to the respondent in the amount of $15,000.00, plus disbursements in the amount of $2,141.50.
JANET WILSON J.
Date of Reasons for Judgment: December 3, 2009
Date of Release: December 14, 2009
COURT FILE NO.: 445/09
DATE: 20091203
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
DR. AKBAR NAUMAN KHAN
Applicant
- and -
THE SCARBOROUGH GENERAL HOSPITAL
Respondent
ORAL REASONS FOR JUDGMENT
JANET WILSON J.
Date of Reasons for Judgment: December 3, 2009
Date of Release: December 14, 2009