CITATION: Talwar v. Grand River Hospital, 2022 ONSC 3822

DIVISIONAL COURT FILE NO.: DC-21-98

DATE: 20220628

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Dambrot, Stewart and King JJ.

BETWEEN:

Manoj K. Talwar

Applicant

– and –

Grand River Hospital and St. Mary’s General Hospital

Respondents

Manoj K. Talwar, self-represented

Henry Ngan and Patrick J. Hawkins, for the Respondents

HEARD at Hamilton via teleconference: February 2, 2022

REASONS FOR DECISION

Stewart J.

Nature of the Appeal

[1] Manoj K. Talwar (“Dr. Talwar”) appeals from a decision dated March 17, 2020 of the Health Professions Appeal and Review Board (the “HPARB”) which confirmed the October 17, 2017 decision of the Board of Directors of the Grand River Hospital and Board of Trustees of St. Mary’s Hospital (the “Hospital Boards”) not to renew Dr. Talwar’s hospital privileges at those hospitals.

[2] Dr. Talwar seeks an order directing the Hospital Boards to grant his application for re-appointment to the medical staff. Dr. Talwar asserts that his alleged lack of collegiality and other concerns raised relating to his surgical practice do not provide a sufficient basis for any denial of hospital privileges to him.

[3] In the alternative, Dr. Talwar seeks an order remitting his appeal back to the HPARB for a new hearing.

[4] The Hospital Boards submit that there is no merit to Dr. Talwar’s appeal and ask that it be dismissed.

Background

[5] Dr. Talwar is a fellow of the Royal College of Physicians and Surgeons of Canada with specialty certifications in general surgery and cardiothoracic surgery.

[6] Pursuant to the Public Hospitals Act (the “PHA”), the Hospital Boards are responsible for appointing physicians to the professional staff, upon the recommendation of the Medical Advisory Committee and in accordance with its Professional Staff By-laws. Those By-laws set the standards for what is required of its professional staff members. Section 6.1 of the By-laws prescribes that an applicant for medical privileges to the professional staff must have a demonstrated ability to work and communicate with, and relate to, others in a co-operative, collegial and professional manner and must meet an appropriate standard of ethical conduct and behaviour. Section 2.6 of the Code of Conduct governing profession staff provides that disruptive conduct and inappropriate workplace behaviour may be grounds for suspension or termination of a contract, or for cancellation, suspension, restriction, or non-renewal of privileges.

[7] In 1998, Dr. Talwar was appointed to the medical staff of Grand River Hospital and St. Mary’s General Hospital.

[8] All members of the medical staff of public hospitals must reapply for reappointment annually. On each annual reappointment, staff members are entitled to attend a meeting with the Medical Advisory Committee at which re-appointment is being considered and may request a hearing before the Hospital Boards with respect to any Medical Advisory Committee recommendation. If a member chooses to do so, a decision before the Hospital Boards may be further appealed to the HPARB.

[9] In 2000, concerns were raised by Dr. Talwar’s colleagues regarding his behaviour and his alleged inability to maintain collegial relationships. These concerns persisted over time such that in 2004 a peer review of Dr. Talwar was performed by Dr. Brian Taylor. Dr. Taylor concluded that Dr. Talwar had obtained some necessary insight into both his technical and interpersonal mistakes and had taken steps to try to correct them.

[10] As a result of further expressions of concern by colleagues about Dr. Talwar between 2005 and 2008, Dr. Lorne Martin was engaged to conduct a review of Dr. Talwar’s practice. The results of that review prompted the Medical Advisory Committee to recommend in 2009 that Dr. Talwar’s reappointment to staff be approved, but subject to certain terms and conditions. These conditions included receipt by Dr. Talwar of ongoing counselling. Notice was provided to Dr. Talwar at that time that any further disruptive behaviour would not be tolerated and would result in a recommendation by the Medical Advisory Committee that his appointment and privileges should be revoked.

[11] In 2012, a further review of several of Dr. Talwar’s cases was commissioned to be conducted by Dr. Faiz Daudi. Dr. Daudi was of the opinion that Dr. Talwar had fallen below an acceptable standard of care in one of the cases reviewed and also expressed concerns about Dr. Talwar’s interpersonal relationships with his surgical colleagues. Dr. Daudi recommended that Dr. Talwar be required to practise within a more rigidly structured environment and be subject to enhanced vigilance.

[12] In January 2013, Dr. Talwar attended at a hearing before the Hospital Boards to decide whether he should be granted privileges for three additional hospital clinics, a request that did not enjoy the support of the Medical Advisory Committee. The Hospital Boards granted Dr. Talwar’s request for access to the Colonoscopy Clinic but denied his request for privileges at the other two clinics which required a greater degree of collaboration and collegiality.

[13] In 2014, further clinical cases were identified that raised potential quality of care issues with respect to Dr. Talwar’s general surgery practice. Dr. Talwar was then asked to voluntarily refrain from exercising his surgical privileges while Dr. Daudi conducted another review of his practice. As a result of his review of these identified cases, Dr. Daudi was of the opinion that Dr. Talwar’s surgical management fell below the standard of care in one case, raised significant concerns in a second and demonstrated issues with his conduct in a third. Dr. Daudi also noted that Dr. Talwar had demonstrated difficulty with planning his surgeries, and displayed worrisome discrepancies between his charting and that of the other surgeons in his group. Dr. Daudi recommended that Dr. Talwar only be permitted to resume his surgical practice under supervision.

[14] Dr. Christopher Cobourne, an expert engaged by Dr. Talwar to review his cases, provided an opinion that Dr. Talwar had met the expected standard of care in each of the subject cases under review. After considering this and the other available evidence, the Medical Advisory Committee considered that the concerns raised by Dr. Talwar’s colleagues and Dr. Daudi were nevertheless significant enough that appropriate action must be taken.

[15] In 2015, the Medical Advisory Committee proposed a four-month supervisory model to allow Dr. Talwar to resume his surgical duties. Dr. Talwar refused to accept this supervisory model.

[16] Beginning in 2016 Dr. Talwar made various complaints to the College of Physicians and Surgeons of Ontario, and the Ontario Labour Relations Board about several of his surgical colleagues, hospital administration, and staff.

[17] On June 13, 2016 the Medical Advisory Committee held a meeting to consider whether Dr. Talwar’s privileges should be renewed. On June 15, 2016 the Medical Advisory Committee recommended that Dr. Talwar’s privileges not be renewed.

[18] Dr. Talwar requested a hearing before the Hospital Boards as he was entitled to do. Following the hearing over several days during the first half of 2017 in a decision dated October 17, 2017 the Hospital Boards accepted the recommendation of the Medical Advisory Committee that Dr. Talwar’s privileges not be renewed.

[19] In their decision the Hospital Boards found that Dr. Talwar “has exhibited a pattern of unacceptable behaviour, escalating over time, which has resulted in a situation which jeopardizes the Hospitals’ ability to deliver safe and high quality care to its patients, and compromises the Hospitals’ responsibility to provide an appropriate and acceptable work environment for its professional staff.” The Hospital Boards further found that there had been a complete breakdown in the relationship between Dr. Talwar and his colleagues, the administration, and staff such that it would not be possible for him to continue practicing there even in a limited role.

[20] Dr. Talwar then requested an appeal of the Hospital Boards’ decision to the HPARB. The HPARB’s powers on appeal from the Board of a hospital are set out in subsection 41(5) of the PHA:

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.

[21] The hearing before the HPARB took place over 11 days between July 16, 2018 and February 20, 2019. The Hospital Boards provided evidence from 14 witnesses, including some of Dr. Talwar’s surgical colleagues, nurses and members of the administrative staff of the Hospitals. Dr. Talwar called 16 witnesses to give evidence on his behalf, but did not himself testify at the hearing. Similarly, Dr. Cobourne was not called to give evidence on Dr. Talwar’s behalf, nor was any other independent expert witness called by him.

[22] In its decision dated March 17, 2020, the HPARB denied the appeal and confirmed the decision of the Hospital Boards not to renew Dr. Talwar’s hospital privileges.

[23] On March 20, 2020, Dr. Talwar’s hospital privileges were suspended. Dr. Talwar has appealed that suspension in separate proceedings.

[24] On his present appeal to this Court, Dr. Talwar appeals the HPARB’s decision of March 17, 2020.

Jurisdiction

[25] This Court has jurisdiction to hear and decide this appeal pursuant to s. 43 of the PHA, which provides that an appeal lies to the Divisional Court from a decision of the HPARB in respect of an application for appointment or reappointment to the medical staff of a hospital. In particular, subsection 43(3) provides as follows:

An appeal under this section may be made on questions of law or fact or both and the court may exercise all the powers of the appeal Board and for such purpose the court may substitute its opinion for that of the Appeal Board or board or other person or body authorized to make the decision appealed from, or the court may refer the matter back to the Appeal Board for rehearing, in whole or in part, in accordance with such directions as the court considers proper.

Standard of Review

[26] There is no dispute as to applicable standard of review. Where legislation provides for a statutory right of appeal, the appellate standards of review set out in Housen v. Nikolaisen, 2002 SCC 33 apply. The standard of review on questions of law is correctness, and the standard of review on questions of fact and questions of mixed fact and law is palpable and overriding error (see: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65).

[27] To the extent any issue of denial of procedural fairness is raised, there is no strict standard of review. Each aspect of any alleged denial or defect may be assessed in relation to its significance in relation to its context and in light of all relevant circumstances of the case.

Motions by Dr. Talwar to amend his Notice of Appeal and to Adduce Fresh Evidence

[28] On December 30, 2021 Dr. Talwar brought a motion for leave to amend his Notice of Appeal to include a request for a stay of all proceedings with reinstatement of all his hospital privileges on the basis of abuse of process and administrative delay. This motion was brought just one day before the deadline for the Respondents to file their materials responding to this appeal.

[29] On January 21, 2022 Dr. Talwar brought an additional motion for leave to adduce fresh evidence on this appeal relating primarily to his arguments of abuse of process and delay.

[30] Dr. Talwar offered no explanation for his delay in bringing forward this additional ground of appeal or fresh evidence other than a reference to recent case law which he believes would assist him: Law Society of Saskatchewan v. Peter V. Abrametz.

[31] The timeline and deadlines involved in this process were well known to all parties. Dr. Talwar was represented by legal counsel at the outset of this appeal and remained represented by counsel for more than a year after his appeal was brought. In our view no satisfactory justification has been offered for his delay in bringing these motions – over 21 months from the delivery of the Notice of Appeal – nor were the issues raised at the initial case conference.

[32] We consider that it would be unfair to the Hospital Boards and not in the interests of justice to allow Dr. Talwar to amend his Notice of Appeal at this late stage in the process.

[33] Accordingly, the motions are dismissed.

Positions of the Parties

[34] Dr. Talwar’s principal arguments on this appeal are that the HPARB should not have confirmed the decision of the Hospital Boards and that it failed to provide an adequate analysis and reasons for so doing. Dr. Talwar also submits that he was denied natural justice and procedural fairness throughout this dispute.

[35] Dr. Talwar submits that the HPARB relied on evidence that was “historic and impermissibly anecdotal.” Dr. Talwar submits that there was no evidence of any instance in which Dr. Talwar failed to work in a cooperative, collegial and professional manner subsequent to Dr. Martin’s 2009 report.

[36] Dr. Talwar also submits that there was no evidence that Dr. Talwar had failed to meet appropriate standards of ethical conduct and behaviour, and there was no evidence that he had been guilty of unacceptable behaviour. Dr. Talwar further argues that, although the HPARB made reference to his failure to testify, it should also have made reference to the evidence favourable to him and failed to do so.

[37] Dr. Talwar maintains that he did not testify at the HPARB hearing because he “was concerned that he would not be believed and that anything he said would be used against him” and that there was still an abundant amount of evidence to support his position without his testimony.

[38] The Hospital Boards submit that disruptive physician behaviour has been found in many cases to constitute a ground to refuse or revoke physician privileges. There was ample evidence of this problem in Dr. Talwar’s case which was one that had been of long-standing concern. The Medical Advisory Committee, the Hospital Boards and the HPARB were permitted to consider the physician’s past conduct in considering renewal of his hospital privileges (see: Gupta v. William Osler Health System, 2017 ONSC 1294).

[39] The Hospital Boards argue that the evidence of a lengthy history of problems in Dr. Talwar’s case was laid out carefully in the decision of the HPARB and was both detailed and compelling. It provided the basis for a conclusion by the HPARB that a complete and ongoing lack of trust and collegiality had been created by Dr. Talwar’s longstanding behaviour. This evidence was described in detail in the HPARB decision and provided an ample factual basis for the complete and ongoing lack of trust and collegiality created by Dr. Talwar’s longstanding behaviour. This evidence included that of two experts witnesses who had conducted reviews of Dr. Talwar’s practice, plus multiple physicians and others who had worked with him at the Hospitals.

[40] The Hospital Boards also submit that there were no palpable and overriding errors made by the HPARB in considering and accepting evidence and making findings of fact based on that evidence. The totality of the evidence supports the conclusion that Dr. Talwar’s longstanding pattern of disruptive behaviour and inability to maintain collegial relationships puts patients at risk and disqualified him from being reappointed to the medical staff.

[41] The Hospital Boards further submit that Dr. Talwar’s critiques of the HPARB’s factual findings fall well short of the palpable and overriding error standard that is required for appellate intervention. The reasons for the decision of the HPARB demonstrate that the totality of the evidence was considered before reaching a decision. No palpable and overriding error was made that would warrant interference.

[42] Finally, the Hospital Boards submit that the HPARB appropriately found that Dr. Talwar’s allegations of unfair treatment by colleagues or unfairness in the hearing process were unsupported by the evidence.

Discussion

[43] A physician’s ability to maintain collegial and professional relationships is a key component of patient safety and is a sufficient basis for non-renewal or termination of appointment (see: Rosenhek v. Windsor Regional Hospital). In deciding to confirm the Hospital Boards’ decision that Dr. Talwar’s appointment ought not to be renewed, the HPARB made a number of factual findings that are owed deference by this Court (see: Canada (Minister of Citizenship and Immigration) v. Vavilov, supra).

[44] Following its review of the evidence tendered at the hearing, the HPARB agreed with Dr. Talwar that it had not been demonstrated satisfactorily that Dr. Talwar’s clinical skills or his decision-making and judgment in clinical matters were such as to warrant the non-renewal of his hospital privileges.

[45] However, the HPARB found that Dr. Talwar’s conduct and behaviour over a prolonged period of time demonstrated an inability or refusal on his part to relate to and interact with his general surgery colleagues and with hospital administration in an appropriate manner. Dr. Talwar’s conduct led to complete breakdown in the necessary trust and confidence that must exist among a group of physician colleagues in order to have a functioning working relationship and deliver effective patient care.

[46] With respect to this conclusion, the HPARB found that the evidence at the hearing established that:

• Beginning in or about 2004, there were concerns about the Dr. Talwar’s conduct and his interactions with his colleagues;

• Dr. Lorne Martin conducted a review of the Dr. Talwar’s conduct and found that:

a) Dr. Talwar had been non-cooperative with the hospital’s attempts to organize clinical services and has been unable to see beyond his own narrow self-advocacy;

b) In most cases, Dr. Talwar personalized his response to the hospital official involved;

c) Dr. Talwar conducted himself in such a way as to create an atmosphere of fear and intimidation;

d) Dr. Talwar’s conduct, including his lack of cooperation with his surgical peers, adversely affected the ability of GRH to provide surgical services to the community;

e) Dr. Talwar’s behaviour, including his lack of cooperation and poor communications, have adversely affected his ability to deliver safe and high-quality medical care; and

f) Dr. Talwar’s inability to maintain civil interactions with nursing staff has compromised his ability to provide safe and high-quality patient care.

• In 2012 and 2014 Dr. Daudi, in addition to finding concerns about Dr. Talwar’s clinical skills, noted that Dr. Talwar seemed to be an “outlier with respect to cohort surgeons”. He stated that Dr. Talwar seems to have very little insight into his standing amongst colleagues and the general hospital community. He rejected Dr. Talwar’s view that he was deliberately targeted;

• Beginning in 2016, Dr. Talwar made a number of unfounded complaints to the CPSO and the HRTO concerning certain of his colleagues and hospital administration;

• Dr. Talwar’s surgical colleagues including Dr. Paun, Dr. Maurice, Dr. Leclerc, Dr. Saunders and Dr. Kilmurry all testified as to their lack of trust in Dr. Talwar and their belief that it would be difficult, if not, impossible for Dr. Talwar to return to the general surgery group;

• The Hospitals’ administrators, Mr. Shilton and Mr. Maxwell, testified as to the efforts to remediate Dr. Talwar’s behaviour, including through the supervisory model as recommended by Dr. Daudi and adopted by the MAC but rejected by Dr. Talwar; and

• The Hospitals’ administrators as well as other witnesses stated that it was not feasible to allow Dr. Talwar retain privileges only for the purpose of working in the colonoscopy clinic.

[47] These findings by the HPARB and its reasons therefor are comprehensively detailed in its decision and amply supported by the record of the proceedings before it.

[48] It was also noted that Dr. Talwar chose not to testify at the hearing and therefore much of the evidence against him remained unchallenged by sworn testimony from him. The evidence of the witnesses called by Dr. Talwar did not directly challenge the evidence in this regard, as most of those witnesses had no intimate knowledge of the concerns and were not directly involved.

[49] Accordingly, no palpable and overriding error has been identified and therefore there is no basis upon which interference by this Court in the conclusion of the HPARB would be warranted.

[50] Throughout his dispute with his colleagues and the Hospital Boards Dr. Talwar was afforded every opportunity to address the complaints made about him and to remedy and improve his relationships with his colleagues. He took advantage of all rights available to him to provide his response and was treated with fairness and courtesy at all times. Indeed, the short supervisory period offered to Dr. Talwar but resisted by him, was designed principally to address interpersonal concerns and was made in a good faith effort to resolve these problems.

[51] Similarly, before the HPARB, Dr. Talwar was provided with a full opportunity to present evidence and argue his case. The fact that he did not succeed does not render the process unfair. We see no denial of procedural fairness or natural justice that would justify any interference with, or reversal of, the result.

Conclusion

[52] For these reasons, this appeal is dismissed.

Costs

[53] At the conclusion of the hearing of this appeal we invited and heard submissions on costs from the parties. The Hospital Boards were successful in responding to the appeal and, in our view, are entitled to costs. Having considered all of the features of the proceedings and the arguments raised, we consider that the amount of $20,000.00, inclusive of all disbursements and applicable taxes, is a fair and reasonable amount to award the Hospital Boards for costs of the appeal. That amount shall be paid to them by Dr. Talwar within 30 days of the date of this decision.

Stewart J.

I agree _______________________________

Dambrot J.

I agree _______________________________

King J.

Released: June 28, 2022

CITATION: Talwar v. Grand River Hospital, 2022 ONSC 3822

DIVISIONAL COURT FILE NO.: DC-21-98

DATE: 20220628

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Dambrot, Stewart and King JJ.

BETWEEN:

Manoj K. Talwar

Applicant

– and –

Grand River Hospital and St. Mary’s General Hospital

Respondents

REASONS FOR DECISION

Released: June 28, 2022