Court File and Parties

CITATION: Kadri v. Windsor Regional Hospital, 2019 ONSC 5427 COURT FILE NO.: 42/19 DATE: 2019-09-20 SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: Albert Kadri, Applicant AND: Windsor Regional Hospital and Health Professions Appeal and Review Board, Respondents

BEFORE: Justice R. Raikes

COUNSEL: Raymond Colautti, Counsel for the Applicant Paula Trattner and Sarah McLeod, Counsel, for the Respondent, Windsor Regional Hospital David P. Jacobs, Counsel for the Respondent, Health Professions Appeal and Review Board

HEARD: September 12, 2019

ENDORSEMENT

Nature of Motions

[1] The applicant has brought an application for judicial review of a decision of the Health Professions Appeal and Review Board (hereafter “HPARB”) that dismissed a motion brought by the applicant to remove counsel for WRH on the basis of an alleged conflict of interest.

[2] The respondent, WRH, moves for an order quashing the application for judicial review as premature.

[3] The applicant has brought a motion seeking directions as to whether the judicial review application should proceed as an appeal and for corollary relief, including a stay of the pending appeal to HPARB. The respondents oppose the request to convert the application for judicial review to an appeal and the requested stay.

[4] I pause at the outset to note that Ms. Trattner argued the motions before me on behalf of the Hospital. She explained that a senior associate from her firm was to argue but could not for personal reasons. This was raised at a case conference before Howard J. on September 4, 2019. On consent of Dr. Kadri, Justice Howard endorsed that Ms. Trattner may argue the motions on behalf of WRH notwithstanding that she swore an affidavit on the conflict motion to HPARB.

Facts

a. The Hospital

[5] The respondent, Windsor Regional Hospital (“WRH”), is a public hospital in Ontario; as such, it is governed by the Public Hospitals Act, R.S.O., c. P. 40.

[6] Public hospitals are required to establish a medical advisory committee (“MAC”) whose role is, inter alia, to make recommendations to the hospital board concerning an application by a physician for appointment or reappointment to the medical staff of the hospital or for a change in his or her hospital privileges. The hospital board has the discretion to appoint physicians to the medical staff of the hospital, to determine the hospital privileges attached to those appointments, to revoke or suspend the appointment of a physician to the medical staff, and to refuse to reappoint a physician to the medical staff: ss. 35-37, Public Hospitals Act.

[7] The respondent, HPARB, is an administrative tribunal and quasi-judicial adjudicative tribunal that conducts appeals and performs duties assigned to it under the Public Hospitals Act and other legislation.

[8] One of the functions carried out by HPARB deals with hospital appointments and hospital privileges pursuant to the Public Hospitals Act. Pursuant to sections 39 and 41(2)-(5) of the Public Hospitals Act, a physician may appeal any decision by a hospital board suspending his or her appointment to the medical staff under section 34 or the by-laws, or cancelling, suspending or substantially altering his or her hospital privileges. An appeal before the HPARB is a hearing de novo.

[9] The HPARB is required to conduct a hearing and has a wide discretion regarding the orders that it may make after a hearing. The HPARB may substitute its opinion for that of the hospital board making the decision appealed from: ss. 39, 41(2)-(5), Public Hospitals Act.

[10] Section 43(1) of the Public Hospitals Act states:

Any party to proceedings before the Appeal Board may appeal from its decision to the Divisional Court in accordance with the rules of court.

b. Counsel

[11] Paula Trattner is a lawyer in the Osler, Hoskin & Harcourt LLP firm (hereafter “Osler”). That firm has acted for WRH on various matters since 2006. Ms. Trattner has acted for WRH since 2009. Most of the work done by her for WRH has dealt with physician related issues including Professional Staff/Medical Staff processes and proceedings pursuant to WRH’s by-law and the Public Hospitals Act.

[12] Ms. Trattner and the Osler firm were retained by WRH with respect to Dr. Kadri on February 22, 2016.

c. Dr. Kadri

[13] Dr. Kadri is a nephrologist. He has held privileges at WRH since 1998. He was Chief of Medicine, Medical Director of the Renal Program and a member of the WRH MAC. He resigned those positions in 2015 for family reasons.

[14] In April 2017, Dr. Kadri initiated an appeal to the HPARB pursuant to section 41(1) of the Public Hospitals Act concerning WRH’s decision to implement a new model of care at the WRH Renal Program. Ms. Trattner acted as counsel to WRH for that appeal. No concerns were raised by Dr. Kadri concerning Ms. Trattner’s representation of WRH in respect of that appeal.

[15] Dr. Kadri eventually withdrew the model of care appeal in December 2017.

d. MAC Recommendation

[16] The same month, WRH sent a memo to Dr. Kadri indicating that it was considering the dismissal, suspension or restriction of Dr. Kadri’s hospital privileges for behaviour that it characterized as likely to constitute “Disruptive Behaviour”, a term found in the WRH by-law.

[17] On February 13, 2018, the WRH Medical Advisory Committee (“WRH MAC”) had a special meeting at which it considered Dr. Kadri’s application for Active Staff privileges. In a letter dated March 5, 2018, the WRH MAC recommended to the WRH Board of Directors that Dr. Kadri’s application for active staff privileges for the 2017/18 and/or the 2018/19 credentialing year be refused/denied, and that his hospital privileges be revoked and suspended on an immediate mid-term basis on June 1, 2018 if the Board had not yet completed its consideration of that recommendation by May 31, 2018.

e. WRH Board Hearing

[18] Dr. Kadri sought a hearing before the WRH Board of Directors pursuant to the Public Hospitals Act, R.S.O. 1990, c. P 40, s. 37(7). That hearing was initially scheduled to be held in May 2018 but was adjourned at Dr. Kadri’s request because he had retained new counsel. The hearing took place between October 30, 2018 and November 6, 2018.

[19] One day before the scheduled commencement of the hearing, counsel for Dr. Kadri wrote to Ms. Trattner and the WRH Board of Directors to assert that Ms. Trattner was in a conflict of interest and should be removed as counsel for WRH in the WRH Board hearing.

[20] At the commencement of the hearing, Dr. Kadri moved for an order that Ms. Trattner be removed as counsel for WRH MAC on the basis of the alleged conflict of interest. Ms. Trattner affirmed an affidavit in response to that motion. The WRH Board of Directors then heard viva voce evidence from Ms. Trattner and Dr. Kadri.

[21] After oral submissions, the Board reserved its ruling on that motion. With the consent of the parties, the hearing on the merits started. On October 31, the second day of the scheduled hearing, the Board released its ruling and reasons on the conflict motion. The Board declined to remove Ms. Trattner as counsel.

[22] Dr. Kadri did not seek judicial review of that ruling and the hearing before the WRH Board continued to completion with Ms. Trattner as counsel for WRH.

[23] On January 15, 2019, the Board of Directors adopted the WRH MAC recommendation and directed that Dr. Kadri not be reappointed to the WRH professional staff for the 2017/18 and 2018/19 credentialing years. The Board also directed that Dr. Kadri’s suspension continue until all rights of appeal under the Public Hospitals Act were exhausted.

f. Appeal to HPARB

[24] On January 18, 2019, Dr. Kadri served a notice of appeal to have the issue of his revocation of hospital privileges heard by HPARB pursuant to s. 41(1) of the Public Hospitals Act. The notice of appeal was served, inter alia, on Osler.

[25] The grounds of appeal were served March 20, 2019 in a separate document which is 85 pages in length. The grounds outline Dr. Kadri’s argument for the appeal in considerable detail. The stated grounds include a section headed “Reasonable Apprehension of Bias/Breach of Natural Justice”. In that section, Dr. Kadri asserted, inter alia, that:

“ii) Counsel for the MAC, Paula Trattner, was engaged in a conflict of interest in that she had previously acted for the MAC when Dr. Kadri was Chief of Medicine and in that capacity had given legal advice to Dr. Kadri. Dr. Kadri brought a motion to exclude her participation as counsel, which was denied.”

g. Civil Action

[26] In the meantime, in January 2018, Dr. Kadri commenced a civil action against the Hospital, various executives at the Hospital including its CEO, and doctors. Dr. Kadri amended his statement of claim in the civil action on November 23, 2018. He alleged in his pleading that the WRH and individual named defendants were seeking revocation of his hospital privileges in bad faith in order to force him to discontinue his patient care model. He further alleged that WRH was seeking to change its billing practices so as to allow it to strip away properly billed OHIP billings and move those billings to WRH.

[27] Ms. Trattner and Osler were retained to defend the civil action. Dr. Kadri brought a motion for an order removing Ms. Trattner as counsel representing WRH and the other named defendants in the action. On March 15, 2019, the motion and the action were stayed pending the HPARB hearing under the Public Hospitals Act.

h. HPARB Motion to Remove Trattner and Osler

[28] Shortly before the stay was granted and on March 5, 2019, counsel for Dr. Kadri wrote an email to the HPARB to alert the HPARB that he was bringing a motion to remove Ms. Trattner as counsel of record for WRH on the HPARB appeal on the basis of an alleged conflict of interest.

[29] Counsel for Dr. Kadri advised the HPARB that the motion was “a procedural matter that will no doubt affect the HPARB Hearing”. The motion materials were not delivered at that point. The email came to Ms. Trattner’s attention on March 28, 2019.

[30] Dr. Kadri filed his conflict motion on April 18, 2019. The HPARB scheduled the conflict motion to be argued on June 26, 2019. Dr. Kadri and Ms. Trattner were cross-examined on their respective affidavits on the motion on May 30, 2019.

[31] As mentioned, one of the grounds of appeal to HPARB advanced by Dr. Kadri involves whether Ms. Trattner was in a conflict of interest when she acted on the initial WRH Board hearing. The same facts inform the motion that she not be permitted at appear before HPARB.

[32] In his affidavit sworn April 30, 2019, Dr. Kadri sets out the basis for the conflict of interest by Ms. Trattner. At para. 14, Dr. Kadri deposed:

14. While I was Chief of Medicine at the Ouellette Campus, I had occasion, due to my participation in the MAC and its Executive Committee, to become involved in proceedings before the MAC on the following matters involving the potential revocation of physicians’ hospital privileges:

• Prior to 2015, then as Chief of Medicine for Windsor Regional Hospital and as member of the MAC and its Executive Committee, I instructed Ms. Trattner as Counsel for the MAC with respect to the restriction of privileges of Dr. R.. Dr. R. was a member of my department at the hospital, and MAC was considering restricting Dr. R.’s privileges in the ICU, much in the same manner, as I shall set out below, that MAC later sought to restrict or eliminate my privileges in the Renal Unit. In that capacity, I provided instructions to Counsel for the MAC, Ms. Trattner, related to physician hospital privileges as well as my own views on same. Specifically, I recall discussing how difficult it would be for a physician to lose his hospital privileges, and used myself as an example to the effect that I would be unable to carry on my usual medical practice if those privileges were removed or severely constrained. I participated in a full MAC hearing with respect to Dr. R.’s privileges and worked closely alongside Ms. Trattner, including a meeting that went until 2 AM. I was directed by Ms. Trattner not to speak to Dr. R. or his lawyers but to refer them to her, or to seek her advice before communicating with them.

• Prior to 2015, I engaged with Ms. Trattner in multiple meetings and teleconferences (approximately 15 in number) with regards to Dr. A.K.’s reapplication for hospital privileges. The issue before MAC at the time was whether or not to grant him privileges on a reapplication when he had been absent for a prolonged period of time. Throughout these numerous meetings, I again expressed my views to Ms. Trattner, as I had done in the R. case, regarding hospital privileges and the rights of physicians within the hospital setting, and how important they were to physicians who carried on a private practice in the community. Ms. Trattner was told my views about allowing Dr. K. to be re-integrated into the gastroenterology division after a prolonged absence despite an over [sic] opposition by a group of doctors in that Division who did not want him back.

[I have used initials for the doctors’ names for privacy reasons.]

[33] Additional evidence was provided by Dr. Kadri concerning a third doctor, Dr. R.W. which I need not recite.

[34] In the same affidavit, Dr. Kadri referred to a dinner that he attended with his wife in February 2015 that was hosted and paid for by Ms. Trattner. Other members of the MAC were present. At para. 22, he deposed:

22. The dinner was paid for by Ms. Trattner on behalf of her firm. My wife and I sat directly across from Ms. Trattner and Dr. Ing, throughout the entire dinner. During the course of dinner, the discussions touched upon, including but not limited to: my involvement in the community (i.e. the Care for Kidneys Foundation), my personal life, my role as Chief of Medicine and how I juggled it with clinical and on-call responsibilities. Looking back on this meeting, I now believe I was being “pumped” for information about my personal circumstances in this regard.

[35] Dr. Kadri also deposed to work done with another lawyer at Osler with respect to a Governance Renewal matter for a different Windsor hospital. In the course of that work, he disclosed to the lawyer his views on professional staff by-laws, disruptive behaviour and circumstances that could lead to revocation of a physician’s privileges. He indicated that his views regarding physician privilege were entangled with his own personal habits, beliefs, personal faults and foibles.

[36] Evidence was filed by Ms. Trattner in response to Dr. Kadri’s affidavits. In her affidavit, she disputed his characterization of the role that he played, from whom she received her instructions (Dr. Ing), and the extent of his involvement in those matters. Further, she deposed that she had had no communications with the lawyer who acted on the Governance Renewal matter. She disputed any suggested effort to “pump” Dr. Kadri for information at the dinner. She also had no recollection of the alleged discussions with him about how hospital privileges or their loss would affect his practice.

[37] The conflict motion was heard by HPARB sitting as a panel of three including a designated vice-chair on June 26, 2019. Both Dr. Kadri and WRH were represented by counsel. The same panel will hear the appeal.

[38] At the conclusion of oral argument, the motion was dismissed with written reasons to follow. Those reasons were released July 15, 2019. The written reasons did not come to the attention of Dr. Kadri’s counsel until later.

[39] In its Reasons on the conflict motion, the panel found that the applicant was never a client of Osler. The reasons further indicate that Ms. Trattner took instructions from Dr. Ing, Chief of Staff and Chair of the MAC, not Dr. Kadri. The Board found that any information the applicant may have provided to Osler in connection with the prior matters had not been demonstrated to be relevant to the present proceeding before the Board nor had it been demonstrated that there was any reasonable risk that any information may have been provided that could be used to the prejudice of the applicant.

[40] In his factum on the motions before me, Dr. Kadri asserts that the panel applied the wrong legal test in that it failed to consider whether Dr. Kadri was a “near client” and failed to apply the loyalty principle (see para. 70 of Factum).

i. Balance of HPARB Hearing

[41] On July 2, 2019, before the conflict reasons were released, Dr. Kadri’s counsel sent an email to the HPARB and Osler “further to the interlocutory matter held before HPARB last week” seeking availability for a scheduling conference to schedule the hearing of the appeal.

[42] Dr. Kadri had previously agreed to permit Ms. Trattner to take steps on behalf of WRH in the context of the appeal pending the hearing of the conflict motion.

[43] On August 8, 2019, a case conference was held via telephone to set the hearing dates for the appeal from the decision of the WRH Board of Directors to the HPARB. The appeal is scheduled to commence October 21, 2019. Twenty days have been set aside in October, November and December for the appeal to HPARB. The HPARB also set dates for pre-hearing steps including the filing of expert reports.

j. Judicial Review Application

[44] On August 13, 2019, Dr. Kadri’s then counsel, Mr. Schacter, issued an application for judicial review of the decision dismissing the motion to remove Ms. Trattner as counsel of record for WRH on the appeal to the HPARB.

[45] Counsel for WRH wrote to Dr. Kadri’s counsel on August 15 and again on August 19, 2019 to advise that the application for judicial review did not result in a stay of the HPARB appeal and that there is no statutory stay in respect of a judicial review application.

[46] On August 20, 2019, Dr. Kadri’s current counsel purported to serve a Notice of Appeal of the conflict motion decision pursuant to section 43 of the Public Hospitals Act. By then, Dr. Kadri was beyond the 30 day appeal period by five days. Dr. Kadri’s counsel requested that WRH consent to late filing of the Notice of Appeal.

[47] In the same letter, counsel took the position that by service of the Notice of Appeal, the HPARB appeal was stayed pending a determination by the Divisional Court.

[48] Ms. Trattner responded on August 21 that she would not consent to the late filing of the Notice of Appeal because “Dr. Kadri’s right to a review of the decision is not an appeal pursuant to section 43 of the Hospitals Act.” It is the respondents’ position that the conflict decision by HPARB is an interlocutory order. Section 43 of the Public Hospitals Act permits appeals only of final orders.

ANALYSIS

a. Prematurity of Judicial Review

[49] In the oft cited Federal Court of Appeal decision in C.B. Powell Ltd. v. Canada, 2010 FCA 61, 2010 CarswellNat 391, Justice Stratas provides a succinct and helpful summary of the law concerning judicial non-interference with ongoing administrative processes at paras. 30-33:

33. The normal rule is that parties can proceed to the court system only after all adequate remedial recourses in the administrative process have been exhausted. The importance of this rule in Canadian administrative Law is well-demonstrated by the large number of decisions of the Supreme Court of Canada on point: Harelkin v. University of Regina, 1979 18 (SCC), [1979] 2 S.C.R. 561 (S.C.C.); Canadian Pacific Ltd. v. Matsqui Indian Band, 1995 145 (SCC), [1995] 1 S.C.R. 3 (S.C.C.); Weber v. Ontario Hydro, 1995 108 (SCC), [1995] 2 S.C.R. 929 (S.C.C.); R. v. Consolidated Maybrun Mines Ltd., 1998 820 (SCC), [1998] 1 S.C.R. 706 (S.C.C.) at paragraphs 38 – 43; Regina Police Ass’n v. Regina (City) Police Commissioners, [2000] 1 S.C.R. 360, 2000 SCC 14 (S.C.C.) at paragraphs 31 and 34; Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460, 2001 SCC 44 (S.C.C.) at paragraphs 14 – 15, 58 and 74; Goudie v. Ottawa (City), [2003] 1 S.C.R. 141, 2003 SCC 14 (S.C.C.); Vaughan v. R., [2005] 1 S.C.R. 146, 2005 SCC 11 (S.C.C.) at paragraphs 1 – 2; Okwuobi c. Lester B. Pearson (Commision scolaire), [2005] 1 S.C.R. 257, 2005 SCC 16 (S.C.C.) at paragraph 38 – 55; Canada (House of Commons) v. Vaid, [2005] 1 S.C.R. 667, 2005 SCC 30 (S.C.C.) at paragraph 96.

34. Administrative law judgments and textbooks describe this rule in many ways: the doctrine of exhaustion, the doctrine of adequate alternative remedies, the doctrine against fragmentation or bifurcation of administrative proceedings, the rule against interlocutory judicial reviews and the objection against premature judicial reviews. All of these express the same concept: absent exceptional circumstances, parties cannot proceed to the court system until the administrative process has run its course. This means that, absent exceptional circumstances, those who are dissatisfied with some matter arising in the ongoing administrative process must pursue all effective remedies that are available within that process; only when the administrative process has finished or when the administrative process affords no effective remedy can they proceed to court. Put another way, absent exceptional circumstances, courts should not interfere with ongoing administrative processes until after they are completed, or until the available, effective remedies are exhausted. [Italics added]

35. This prevents fragmentation of the administrative process and piecemeal court proceedings, eliminates the large costs and delays associated with premature forays to court and avoids the waste associated with hearing an interlocutory judicial review when the applicant for judicial review may succeed at the end of the administrative process anyway: see, e.g., Consolidated Mayburn, supra at paragraph 38; Greater Moncton international Airport Authority v. P.S.A.C., 2008 FCA 68 (F.C.A.) at paragraph 1; Ontario College of Art v. Ontario (Human Rights Commission) (1992), 1993 3430 (ON SCDC), 99 D.L.R. (4th) 738 (Ont. Div. Ct.). Further, only at the end of the administrative process will a reviewing court have all of the administrative decision- maker’s findings; these findings may be suffused with expertise, legitimate policy judgments and valuable regulatory experience: see, e.g., Consolidated Mayburn, supra at paragraph 43; Delmas v. Vancouver Stock Exchange (1994), 1994 3350 (BC SC), 119 D.L.R. (4th) 136 (B.C. S.C.), aff’d (1995), 1995 1305 (BC CA), 130 D.L.R. (4th) 461 (B.C. C.A.); Jafine v. College of Veterinarians (Ontario) (1991), 5 O.R. (3d) for 39 (Ont. Gen. Div.). Finally, this approach is consistent with and supports the concept of judicial respect for administrative decision-makers who, like judges, have decision-making responsibilities to discharge: New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190 (S.C.C.) at paragraph 48.

36. Courts across Canada have enforced the general principle of non-interference with ongoing administrative processes vigourously. This is shown by the narrowness of the “exceptional circumstances” exception. Little need be said about this exception, as the parties in this appeal did not contend that there were any exceptional circumstances permitting early recourse to the courts. Suffice to say, the authorities show that very few circumstances qualify as “exceptional” and the threshold for exceptionality is high: see, generally, D.J.M. Brown and J.M. Evans, Juciical Review of Administrative Action in Canada (loose-leaf) (Toronto: Canvasback Publishing, 2007) at 3:2200, 3:2300 and 3:4000 and David J. Mullan, Administrative Law (Toronto: Irwin Law, 2001) at pages 485 – 494. Exceptional circumstances are best illustrated by the very few modern cases where courts have granted prohibition or injunction against administrative decision-makers before or during their proceedings. Concerns about procedural fairness or bias, the presence of an important legal or constitutional issue, or the fact that all parties have consented to early recourse to the courts are not exceptional circumstances allowing parties to bypass an administrative process, as long as that process allows the issues to be raised and an effective remedy to be granted: see Harelkin, supra; Okwuobi, supra at paragraphs 38 – 55; University of Toronto v. C.U.E.W., Local 2 (1988), 1988 4757 (ON SC), 52 D.L.R. (4th) 128 (Ont. Div. Ct.).…

[50] In Minty v. Lucas, 2014 ONSC 3169 (Div. Ct.), an application for judicial review was made of an interlocutory ruling by a coroner relating to the scope of cross-examination that would be permitted of two police officers to be called as witnesses at the inquest. A companion motion was brought before the corner seeking a ruling that if the cross-examination requested was permitted, counsel representing the officers at the inquest should be disqualified for conflict of interest. In light of the ruling made by the corner as to the scope of cross-examination permitted, he did not rule on the motion to disqualify counsel as it appeared to be moot.

[51] After carefully reviewing several cases dealing with the issue of prematurity of judicial review in the context of a coroner’s inquest, Dambrot J., for the panel, wrote at paras. 33 and 34:

33. In my view, it is preferable to limit early intervention not to jurisdictional error, but rather to exceptional circumstances, which generally arise where there has been or will be a “serious error in legal principle which produces an unfair inquest” (the Divisional Court judgment in People First), or “a fundamental failing of justice” (Sears Canada Inc. v. Davis Inquest). [Italics added.]

34. Applying this test, I have reached the conclusion that unlike Nishnawbe Aski Nation v. Eden and Smith v. Smith Inquest, this is not a case where there is any risk that if the ruling is left to stand, it would likely result in a fundamental failing of justice. Nor is it a case where it could be said that a serious error in legal principle was made which, if left to stand, produces an unfair inquest.

[52] At para 36, he concluded that:

… I can only think that the best time to evaluate whether or not an evidentiary ruling said to be made in error such as this one has occasioned an unfair inquest, or a fundamental failing of justice, is after the inquiry is completed, when there is a complete evidentiary record and the findings of the jury are known.

[53] In Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, the Court of Appeal held that para. 63 that even a breach of the rules of natural justice or a true question of jurisdiction is not sufficient to warrant automatic access to judicial review.

[54] In Cheng v Ontario Securities Commission, 2018 ONSC 2502 (Div. Ct.), Swinton J. quashed a judicial review application as premature involving a ruling that certain evidence in the possession of Staff was subject to solicitor client privilege. Swinton J. noted at para. 26 that “…there is no categorical approach to “exceptional circumstances” that would automatically allow early judicial review of a ruling on solicitor client privilege”.

[55] In Lourenco v. Hegedus, 2017 ONSC 3872 (Div. Ct.), the applicant was a police officer facing allegations of misconduct under the Police Services Act. The applicant moved to have the hearing officer recused on the grounds of reasonable apprehension of bias and lack of jurisdiction because of defects in the designation to hear the matter. Corbett J. wrote at paras. 6-8:

6. … It must be emphasized that early judicial review is the rare exception, not the rule, and will only be permitted in rare cases where the potential prejudice of the risk of repeating proceedings after review outweighs the prejudice to the general orderly processing of administrative proceedings without interruption until their conclusion. Analogies can be drawn to criminal prosecutions where it is very rare indeed for proceeding to be interrupted for judicial review or appeal prior to the conclusion of the proceeding. [Italics added.]

Bias Allegations

7. It is a very rare case in which this Court will interrupt proceedings on this basis. This allegation is easily made, can be made multiple times during the proceeding, and seldom succeeds. If interlocutory appeals or judicial reviews on this ground were permitted generally, proceedings would be at risk of interruption at the instance of one party with inevitable delays of months or years before resumption of proceedings, with consequent risk to the integrity of the trial process itself.

8. In this case the record does not establish a strong likelihood that the allegations of reasonable apprehension of bias will succeed. I consider the prejudice to the general orderly processing of administrative proceedings far outweighs the prejudice from the risk that the 13 day disciplinary proceeding might have to be held again.

[56] In Certas Direct Insurance Co. v. Gonsalves, 2011 ONSC 3986 (Div. Ct.), the respondent was seeking accident benefits resulting from a motor vehicle accident. An arbitration was scheduled and a month before the commencement of the arbitration, the respondent delivered two new orthopedic opinions. The insurance company sought an adjournment in order to have the respondent attend for further orthopedic examination. The adjournment was given but the respondent appealed that to the director who overturned the adjournment. The Divisional Court found that the denial of the adjournment amounted to a serious breach of procedural fairness. It effectively denied the insurer the ability to obtain and put its evidence before the arbitrator. The court exercised its discretion and found that exceptional circumstances existed.

[57] In a case that is perhaps closest to the matter before me, the Divisional Court in College of Veterinarians of Ontario v. Mitelman, 2015 ONSC 484 found that exceptional circumstances existed where the College ordered counsel of record removed for a veterinarian facing discipline charges. In Mitelman, the lawyer had acted for a period of time for two veterinarians facing disciplinary charges. The other veterinarian obtained new counsel. The College, not the former client, brought a motion to remove counsel on the basis of an alleged conflict of interest arising from his prior representation of the other veterinarian.

[58] At para. 7, Nordheimer J. for the panel, wrote:

7. In my view, the procedural ruling in this case is one that would involve a breach of natural justice, and thus justify the intervention of this Court. It is a ruling that, if it stands, will visit a real unfairness on Dr. Mitelman by depriving him of the counsel of his choice. While counsel of choice is not an absolute entitlement, it must only be interfered with for very good cause. It will be self-evident that if the hearing proceeds, and an adverse finding is made against Dr. Mitelman, and the order removing Mr. Klug is found to have been wrongfully granted, the entire proceeding will have to be redone. However, even if Dr. Mitelman does not have an adverse finding made against him, there is a very real issue whether he should be required to run that risk without having the counsel that he wishes to act for him. Consequently, very real issues of fairness are raised. I do not view this application, therefore, as being premature.

[59] Thus, the general rule is that resort to the courts by way of judicial review of interlocutory, procedural or evidentiary rulings will only be permitted in rare cases where “exceptional circumstances” exist. The bar is very high. Assertions of bias, procedural unfairness, breach of natural justice and lack of jurisdiction do not give rise to an automatic right to judicial review.

[60] Dr. Kadri submits that I should find that exceptional circumstances exist here. HPARB applied the wrong legal test and came to the wrong conclusion as to Ms. Trattner’s continued representation of WRH before the Board. That decision is a matter of fundamental procedural fairness that impugns the entirety of the HPARB hearing. Like Mitelman, the procedural finding amounts to a breach of natural justice likely to necessitate the rehearing of the appeal to HPARB if the Hospital is ultimately successful on the appeal.

[61] If HPARB had found in favour of Dr. Kadri and removed Ms. Trattner and Osler as counsel for WRH, an application for judicial review brought by WRH would almost be on all fours with Mitelman. Dr. Kadri argues that this case is simply the flip side of the same coin. The outcome should follow the reasoning in Mitelman.

[62] WRH submits that exceptional circumstances are not present in this case. It argues that the conflict decision is correct on its face. The issue should be addressed, if necessary, once the outcome of the appeal to HPARB is known. The exceptional circumstances test has narrowed and this case is one where the administrative process should be allowed to play out to its conclusion.

[63] The issue here is whether the failure to remove Ms. Trattner and Osler as counsel for WRH amounts to exceptional circumstances to justify permitting the judicial review to proceed before final disposition of the appeal before HPARB.

[64] I am not satisfied that exceptional circumstances exist in this case for the following reasons:

a. The issue of the alleged conflict is one of several grounds of appeal from the decision of the Hospital Board to HPARB. It does not make sense to deal with that issue divorced from the ultimate determination of the remaining issues raised by the appeal;

b. The panel hearing the appeal on the merits of the Board’s decision can re-visit its ruling if, as the appeal hearing unfolds, the alleged conflict becomes manifest. HPARB has a very broad mandate and powers to conduct the appeal and control that process;

c. The merits of the judicial review are not so compelling as to lead me to conclude that the HPARB appeal will likely have to be redone if Dr. Kadri loses at HPARB; and

d. The overwhelming focus of the merits of the appeal to HPARB is a battle over patient care models, billing and the safety of patients. The prejudicial effect of loss of hospital privileges by any doctor, including Dr. Kadri, is obvious. The appeal to HPARB will examine the merits of the decision to not renew his credentials and hospital privileges, not the impact of that decision on him.

[65] Accordingly, I find that the judicial review application brought by Dr. Kadri is premature and should be quashed.

b. Right to Appeal

[66] As an alternative to judicial review, Dr. Kadri seeks to either convert the judicial review application to an appeal of HPARB’s conflict decision or extend the time for doing so. An appeal would provide an automatic stay of the HPARB hearing pending the outcome of the appeal.

[67] The case law is clear that an interlocutory ruling disqualifying counsel is not a final decision: Aptowitzer v. Ontario (1995), 1995 854 (ON CA), 26 O.R. (3d) 254, [1995] O.J. No. 3031 at page 3; Marrocco v. John Doe, 2014 ONSC 5663 at paras. 7 and 8; Minty v. Lucas, at paras 13 and 14. It is interlocutory in nature. It does not dispose of a substantive issue between the parties. In this case, the conflict ruling is not dispositive of the substantive merits of Dr. Kadri’s appeal to HPARB.

[68] The Divisional Court has repeatedly found that provisions in various statutes containing language substantially the same as section 43 of the Public Hospitals Act allows an appeal only from a final order of the tribunal: see Blew v. Ontario College of Teachers, [2016] O.J. No. 6465 (Div. Ct.) and the cases cited therein at paras. 6-13.

[69] In Butterworth v. College of Veterinarians of Ontario, a similar issue arose concerning a right of appeal under section 35 of the Veterinarians Act which permitted a party to appeal to the Divisional Court from a decision or order of the committee or board. At para. 6, McFarlane J. wrote:

It seems to me on a plain reading that s. 35 of the Act is directed more toward final decisions of the Board and/or Committee rather than to interlocutory decisions of those bodies. In view of the common law which generally prohibits appeals of interlocutory decisions, I think if the legislature’s intention had been for this section to apply to all decisions, including interlocutory ones, the section would need to say more. I conclude therefore that section 35 does not apply…

[70] Counsel for Dr. Kadri urges me to find that the “exceptional circumstances” exception applies to the general rule that such provisions permit appeal only from final orders. Given my finding above with respect to the presence of exceptional circumstances, it is unnecessary for me to determine that issue. The order in this case is interlocutory. There are no exceptional circumstances. No appeal lies at this stage.

[71] Therefore, I decline the applicant’s request that the judicial review be converted to an appeal or that the time for filing an appeal be extended. There is no point to an extension in the circumstances.

[72] The applicant also asked for a stay of the HPARB hearing pending the outcome of the judicial review application or appeal. To succeed on a motion to stay pending judicial review, the moving party must show that:

1. there is a serious question to be determined;

2. the applicants will suffer irreparable harm if the stay is denied; and

3. the balance of convenience favours making the stay order: Rew v. Association of Professional Engineers of Ontario (Discipline Committee), 2016 ONSC 4043 at para. 16; Butterworth v. College of Veterinarians of Ontario, [2001] O.J. No. 5265.

[73] Where the judicial review application is premature, the moving party cannot succeed on the first part of the test: Rew. The request to stay in this case is moot given that there is no appeal pending and the judicial review application has been quashed. The request for a stay is denied.

Conclusion

[74] I conclude as follows:

a. The application by Dr. Kadri for judicial review of the conflict decision of HPARB is hereby quashed.

b. The motion by Dr. Kadri seeking, inter alia, to convert the judicial review application to an appeal or to extend the time to appeal is dismissed.

c. The motion by Dr. Kadri to stay the HPARB appeal is dismissed.

[75] If the parties cannot agree on costs, they may make written submissions not exceeding three pages within 15 days hereof.

“Justice R. Raikes”

Justice R. Raikes

Date: September 20, 2019