CITATION: Kadri v Windsor Regional Hospital, 2022 ONSC 4016
DIVISIONAL COURT FILE NO.: 620/21
DATE: 20220718
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Lederer, McCarthy, Davies JJ.
BETWEEN:
DR. ALBERT KADRI Appellant
– and –
WINDSOR REGIONAL HOSPITAL Respondent
Scott Hutchison, Kelsey Flanagan and Brandon Chung, for the Appellant
Paula Trattner, Aislinn Reid and Isabelle Crew, for the Respondent
HEARD BY VIDEO: May 12, 2022
Lederer J.
Introduction
[1] This case concerns the relationship of doctors and the hospitals that, through the granting of “privileges”, recognize a physician as a member of the professional staff and provide access to the physician’s patients where he or she deems it necessary to advance the treatment they require.
[2] Dr. Albert Kadri is a physician. He specializes in nephrology which concerns the study, diagnosis and treatment of kidney diseases. Dr. Albert Kadri was granted privileges at the Windsor Regional Hospital (the “Respondent”) in 1998 and at the Hotel-Dieu Grace Hospital, also located in the city of Windsor, during 1999. By 2010, he had become the Chief of Medicine, Chief of Cardiology, and the Medical Director of the Renal Program at the Hotel-Dieu Grace Hospital, positions he held until 2013. The word “renal” is an adjective meaning “relating to the kidneys.” At the same time, Dr. Albert Kadri assisted in the strategic direction and implementation of renal care in Ontario. He was Regional Medical Lead for the Ontario Renal Network. The Ontario Renal Network is an agency created by the Ontario Government. It leads the organization, management and funding for the delivery of kidney care services in this province.[^1]
[3] A new approach to the treatment of patients preparing for dialysis was developed and implemented. Dr. Albert Kadri actively resisted complying with this new “Model of Care” and continued to treat his patients based on the pre-existing model. The Windsor Regional Hospital found the actions of Dr. Albert Kadri to be disruptive and contrary to policy he was required to follow as a member of the hospital’s professional staff. It determined that his privileges should be revoked. This determination was the subject of administrative proceedings ending with an appeal to Health Professions Appeal and Review Board. It confirmed the decision revoking the privileges of Dr. Albert Kadri. It is that decision which is the subject of this appeal.
Background
[4] In 2013, the services offered by the Windsor Regional Hospital and the Hotel-Dieu Grace Hospital were “realigned”. The Windsor Regional Hospital assumed governance and operation of all acute services including the “Renal Program”. Following realignment, Dr. Albert Kadri became the Chief of Medicine and the Medical Director of the Renal Program at the Windsor Regional Hospital.[^2] In April 2015, a new Vice President for the Renal Program was appointed. She was concerned about the overall performance of the program. She asked the Ontario Renal Network to recommend people to conduct an external review of the program, to identify issues affecting its performance and to provide advice on how those identified issues could be remediated. In June 2015, the Ontario Renal Network identified the two reviewers who were asked to undertake a review. At about that time, Dr. Albert Kadri resigned as the Windsor Regional Hospital’s Chief of Medicine and as the Medical Director of the Renal Program.[^3]
[5] The external review was undertaken during October 2015 and its report delivered in November 2015.[^4] Among the goals for the review was:
To assess the model of care and role clarification including nursing, physicians, biomedical management and allied health considering:
• The appropriate resources required to operate a service in a sustainable high quality manner.
• Operational improvements required to ensure the delivery of quality care.[^5]
[Emphasis added]
[6] I pause to note that in his submissions counsel for Dr. Albert Kadri attempted to distinguish between the role played by doctors and the contribution of hospitals to the health care system in Ontario. As put by counsel, doctors look after patients and hospitals provide infrastructure used by doctors to provide their patients with the care the doctor prescribes and provides. As the noted goal of the External Review demonstrates, this perspective is too narrow. The hospital is intrinsically involved in the identification of the programs and treatments that are available and respond to the needs of its patients. To put it simply, when the doctor does not have the requisite expertise, is not available or is otherwise engaged, the hospital and its staff are expected to respond to those needs.
[7] In this case, as a result of the External Review, the “model of care” for particular patients, those patients preparing for and transitioning to dialysis, was changed. Dr. Albert Kadri was unhappy with those changes and his perception of their purpose. It is his response to those changes that led to the loss of privileges he seeks, through this appeal, to set aside.
The External Review
[8] The External Review conducted a “census” of patients utilizing the “provincially funded CKD [chronic kidney disease] program business units [as] reported by [Windsor Regional Hospital] management”[^6], and considered some of the cost implications. The External Review expresses concern over the entry of patients into the program offered by the Windsor Regional Hospital:
… as primary gatekeepers to the Ontario Investigation funded CKD program, the nephrologists to a large extent govern patient flow through the business units. As the WRH CKD program is operating far below benchmarks in home modality utilization, it is logical to scrutinize the nephrologists’ practice in how patient flow and patient preparation for dialysis is taking place in the current state.[^7]
[9] In the course of undertaking the study, the two reviewers interviewed two of the three nephrologists practicing in the city of Windsor at the time. The External Review Report noted that:
One nephrologist does not utilize the ORN/WRH funded high risk multidisciplinary CKD clinic. The other two nephrologists refer patients to this clinic although we could elicit no standardized process for referral criteria, scheduling full team patient care meetings (including nephrologist), standard operating procedures, or other best practices for interprofessional care.[^8]
[10] The External Review Report does not indicate which of the three nephrologists was not interviewed and which of them did not refer patients to the clinic operated by the Windsor Regional Hospital. The general tenor of the history leading to this appeal suggests that it was Dr. Albert Kadri who was not interviewed and clearly indicates it was Dr. Albert Kadri who did not refer patients to the hospital’s clinic. The External Review Report outlined a:
Summary of Issues leading to potential suboptimal or inefficient care:
Difficulty in cohesively recruiting nephrologists due in part to inequitable billing practices and lack of strategic unity among current nephrologists
Underutilization of home dialysis modalities
Underutilization of ORN funded multidisciplinary CKD clinic
Fragmentation of care as patients transition from nephrologist office, to high risk multidisciplinary CKD clinic to dialysis
Lack of clinical/operational standards and guidelines
Inappropriate resourcing of key nursing roles to meet demands of high quality care environment [^9]
[11] The External Review Report concluded that:
The nephrologist group at WRH has recently demonstrated a lack of ability to serve as gatekeepers to this large comprehensive CKD program in delivering integrated, efficient care.[^10]
Even with the nephrologists who currently refer to this program, care is fragmented and not collaborative. Many models for this type of clinic exist but the model currently in use has a high incidence of sub optimal starts and low utilization of a home of modalities. For a multitude of reasons, morale within the clinic is low and it is significantly underutilized.[^11]
[12] The External Review Report noted:
The 2012 Kidney Disease Improving Global Outcomes strongly suggested that patients with high risk progressive CKD should be managed in a multidisciplinary care setting (Grade 2B) including access to dietary counseling, education on renal replacement therapy modalities, transplant options, vascular access surgery and ethical, psychological and social care.[^12]
[13] The External Review Report made recommendations directed to restructuring the Model of Care to respond to these concerns and incorporate a multidisciplinary care approach:
There are clear guidelines in support of multidisciplinary high risk CKD care for this patient group in improving dialysis outcomes, quality of care parameters and home modality utilization. Not utilizing this valuable resource that is well-funded by the ORN is not consistent with the standard of care.[^13]
[14] From this foundation the External Review Report recommended, among other things:[^14]
Patients admitted to the WRH dialysis program must be seen by the WRH multidisciplinary clinic team.
Multidisciplinary High Risk CKD clinics must be reorganized to reflect best practice in collaborative, interprofessional care including direct participation by nephrologists in this program.[^15]
The response to the External Review Report
[15] Dr. Albert Kadri responded to the Report in a letter dated January 16, 2016. He was appreciative of the work that had been done and commended the hospital for the review that had been undertaken:
Let me begin by confirming my commitment to the principle that first and foremost the needs of patients suffering from chronic kidney disease must be met in this region and those needs must be paramount in the current review of the Chronic Kidney Disease Program. I commend the Hospital for considering the needs of chronic kidney disease patients and in conducting “an external review to guide internal processes and quality improvement efforts”.[^16]
[16] Dr. Albert Kadri was and remains an adherent of a different model of care, referred to as “community-based care.” Consistent with this approach Dr. Albert Kadri operated a renal care clinic separate from the one at the Windsor Regional Hospital. It provided treatment to patients transitioning to dialysis (“pre-dialysis care and patient education”).[^17] Dialysis was only available at the hospital. He expressed concern over the External Review Report directing all pre-dialysis care to the program at the Windsor Regional Hospital:
It is concerning that, on reading the external review report, there is the strong suggestion that Hospital-based care and community-based care may be seen as an “either/or” as opposed to a beneficial marriage of service delivery options in the best interests of patients. This is particularly concerning as the discussions in the report appear to be framed in terms of “market share”, potentials in respect of cost savings and improved patient experiences with an implicit suggestion that any community-based model would somehow impede or impair rather than be able to co-exist with Hospital-based services.[^18]
[17] In short, Dr. Albert Kadri refused to support the Report’s recommendations. He stated that he would attend personally on “his own patients” contrary to the Model of Care.[^19]
[18] The Public Hospitals Act[^20] mandates that all public hospitals have a “medical advisory committee”:
Medical advisory committee
35 (1) Every board shall establish a medical advisory committee composed of such elected and appointed members of the medical staff as are prescribed by the regulations.
Duties
(2) The medical advisory committee shall consider and make recommendations to the board respecting any matter referred to it under section 37 and perform such other duties as are assigned to it by or under this or any other Act or by the board.[^21]
[19] The By-law of the Windsor Regional Hospital provides further information as to the role of its Medical Advisory Committee:
Rules and Regulations
The Board or the Medical Advisory Committee and, where appropriate, a Department or Service, with the approval of the Medical Advisory Committee, may make Rules and Regulations, as well as corresponding Policies and procedures, as deemed necessary to supervise the patient care and safety provided by the Professional Staff to ensure workplace safety, and to ensure that the behaviour of the members of the Professional Staff is consistent with the mission, vision, and strategic plan of the Corporation, the Public Hospitals Act, and the By-Law.[^22]
[20] Further to its responsibilities the Medical Advisory Committee met on February 16, 2016. The minutes of that meeting reveal that the Medical Advisory Committee considered the External Review Report. The minutes note that “[s]everal members felt that because WRH is responsible for dialysis, it should be mandated that the patients follow through the pre-dialysis clinic at the WRH and that it be enforced that the nephrologists follow through this process as well[^23] [Emphasis added]. I take this to demonstrate that the Medical Advisory Committee took into account the concern over others providing “pre-dialysis care” and determined it was preferable to follow the recommendation of the External Review Report that these services be provided only through the hospital where the dialysis would take place. The Medical Advisory Committee endorsed the recommendations of the External Review Report. It resolved that “it is required that [patients] be admitted to the WRH’s High Risk Multidisciplinary CKD Clinic and to send an ‘internal Memorandum’ to the nephrologists”.[^24] This would have included Dr. Albert Kadri.
[21] Ultimately the responsibility for the management of a public hospital rests with its Board of Directors:
Every hospital shall be governed by and managed by a board.[^25]
[22] At its meeting of March 3, 2016, the Board of Directors of the Windsor Regional Hospital took up the External Review Report and the endorsement of that Report by the Medical Advisory Committee. It considered and adopted a resolution supporting the Report and the sending of a memorandum to the nephrologists.[^26]
[23] It was still another year before the new Model of Care, centered on the clinic in and operated by the Windsor Regional Hospital, was approved and implemented. In the meantime, the education and work necessary to develop the new Model of Care moved forward:
Following from the external review, several different centres were contacted to learn their process which assisted in forming a model of care for WRH. This proposed Model of Care was reviewed with the clinical team and will ensure nephrologist recruitment to the community as well as benefit all nephrologists equitably.[^27]
[24] At first, Dr. Albert Kadri accepted the decision that had been made and on February 22, 2016 indicated, through his counsel, his willingness “to fully comply with the program policy” that nursing staff contact the on-call, as opposed to the community-based, nephrologist.[^28] On March 4, 2016 the “internal memorandum” as directed by the Medical Advisory Committee and confirmed by the Board of Directors was sent to the three nephrologists, including Dr. Albert Kadri.[^29] It repeats the general thrust of the External Review Report, in particular the recommendation that “patients admitted to the WRH dialysis program must be seen by the WRH multidisciplinary clinic team” also identified as the “Pre-Dialysis Clinic”. At a March 9, 2016 meeting with the Director-Mental Health & Regional Renal Program, Windsor Regional Hospital (Jonathan Foster), the Vice-President of Renal Services (Monica Staley-Liang), the Chief of Medicine (Dr. Wassim Saad) and the President and CEO of the Windsor Regional Hospital (David Musyj), Dr. Albert Kadri confirmed that he “would be a team player and do everything possible to support the Renal Program, as recommended in the Report.[^30] Dr. Albert Kadri did not comply. Rather he insisted on carrying on as he had before. Contrary to the “Internal Memorandum” and the External Review Report he insisted on attending personally to patients he considered “his own”. He refused to accede to the approach mandated by the endorsement of the External Review Report. He saw it as the hospital dictating how he was to practice medicine:
[T]o dictate how physicians practice medicine is offside. To say, “you will practice medicine this way whether you feel you can do it or not”, that’s offside.[^31]
[J]ust because [the Windsor Reginal Hospital has] a certain opinion of how medicine should be practiced, it doesn’t mean that physicians necessarily have to practice medicine according to the way the hospital wants them to. And that’s why there was a challenge at that time of this implementation of the model of care.[^32]
The new Model of Care is approved and implemented
[25] Despite this concern, on January 17, 2017, the Medical Advisory Committee approved the new Model of Care.[^33] The Board of Directors did so on February 2, 2017.[^34] In the weeks that followed senior representatives of the Windsor Regional Hospital sent memoranda to the three nephrologists then engaged in Windsor advising that the Medical Advisory Committee had accepted and endorsed the new Model of Care[^35], that it would be “formally implemented” effective March 6, 2017[^36] and, thereafter, that it had been implemented on that day[^37]. Each of these Memoranda includes some explanation of aspects of the Model of Care:
• identified who will be the nephrologist on call,
• that rounds will have standard schedules with multidisciplinary support,
• that the nephrologist on call will be “the Most Responsible Physician” who will be the nephologist with whom the members of the Renal Program Team are, in the normal course, expected to conduct rounds and whose orders they are to implement.
[26] These memoranda do not, as the factum filed on behalf Dr. Albert Kadri suggests “repeatedly demand the nephrologists’ strict compliance with the terms of the Model of Care”.[^38] Certainly, there is an implicit expectation that these doctors will follow what had become the established policy of the Windsor Regional Hospital. There is nothing, in the record, that suggests that the other two nephrologists shared Dr. Albert Kadri’s concern. To the contrary they have, in the time since operated within the parameters set by the new Model of Care. As will become apparent later in these reasons, they had reason to accept that the new Model of Care responded to concerns they expressed in the context of the External Review, particularly with regard to billing practices. It was only Dr. Albert Kadri who refused to accept the change.
[27] Dr. Albert Kadri refused to accept the new Model of Care. On March 3, 2017, he wrote to Jonathan Foster, the Renal Program and Health Program Director at the Windsor Regional Hospital[^39] under the subject heading: “Model of Care/Monday, March 6, 2017”, that contrary to what the Model of Care prescribed, he would conduct himself as follows:
Commencing on Monday, March 6, however, I am implementing a change in the management of my practice. I will remain MRP [Most Responsible Physician] for my patients and that status will not change regardless of who is the on-call/service for nephrology. I will personally supervise the dialysis treatment for all my chronic dialysis patients regardless of the frequency, type or location of service for those patients, and I have notified Dr. Bagga and Dr. Callahan of my intentions to manage my practice in this way. All of the other services that are required and expected by chronic dialysis patients on an outpatient basis will continue to be dealt with by me as the patient’s MRP.
The staff should be made aware that I will be making my own rounds in order to supervise dialysis treatments of my patients however, that does not change the fact that should an issue be raised by one of my patients or should a staff member need instructions guidance or advice with respect to one of my outpatients in an immediate basis when I am not in the unit, they will follow the hospital policy of contacting the nephrologist on-call.[^40]
[28] On March 5, 2017 (the day before the new Model of Care was to be implemented) Dr. Albert Kadri followed up with this:
As you are aware, I will be rounding on all of my own patients as of tomorrow am. In the circumstances, I am kindly requesting the dialysis schedule for all of my patients for the week. If at all possible, I would appreciate receiving this list before the first shift in the am.[^41]
[29] These emails demonstrate a complete and abject refusal by Dr. Albert Kadri to accept what was, by the time they were sent, the established policy of the Windsor Regional Hospital.
Dr. Albert Kadri commences and abandons an appeal of the implementation of the new Model of Care
[30] On April 19, 2017, Dr. Albert Kadri requested a hearing before the Health Professions Appeal and Review Board pursuant to s. 41(1)(d) of the Public Hospitals Act, regarding the implementation of the Model of Care.[^42] Dr. Albert Kadri submitted that the Windsor Regional Hospital had implemented the Model of Care in bad faith.[^43] On the day the hearing was to commence, he sent an email notifying the Health Professions Appeal and Review Board that he no longer wished to proceed.[^44] In so doing he withdrew from a proceeding that would have allowed him to question the implementation of the Model of Care including the allegation that it had been implemented “in bad faith”. He thereby, accepted the new Model of Care as the properly established policy of the Windsor Regional Hospital,
The Revocation of the privileges of Dr. Albert Kadri
The Hospital commences proceedings in respect of the privileges of Dr. Albert Kadri
[31] The By-Law of the Windsor Regional Hospital makes clear the obligation of doctors to comply with its policies:
19.02 Individual Duties and Responsibilities
Each member of the Professional Staff has individual responsibility to the Corporation, the Board, Chief Executive Officer and Chief of Staff to:
(a) an insure a high professional standard of care is provided to patients under their care that is consistent with sound healthcare resources utilization practices;
(b) practice medicine of the highest professional and ethical practice standards within the limits of the Privileges provided;
(c) …
(d) …
(e) recognize the authority of the Heads of Service, Department Chief, Program Medical Directors, the Chief of Staff, the Medical Advisory Committee, Chief Executive Officer, and that the Board;
(f) comply with the Public Hospitals Act, the By-Law, the Rules and Regulations and the corporation’s mission, vision and strategic plan;
… [^45]
[Emphasis added]
[32] In the days following the implementation of the new Model of Care, Dr. Albert Kadri failed to act within its terms and followed through on the behaviour referred to in his emails to Jonathan Foster dated March 3, 2017 and March 5, 2017. He continued rounds and made orders for dialysis patients he saw as being “his” patients. Not surprisingly the Windsor Regional Hospital was not prepared to accept this refusal to comply with its policies and direction. On March 10, 2017, its counsel wrote to counsel then acting for Dr. Albert Kadri. The letter refers to itself as: NOTICE OF INITIATION OF NON-IMMEDIATE MID-TERM ACTION PURSUANT TO SECTION 16 OF THE WRH’S BY-LAW. Section 16 of the By-Law provides the circumstances that may give rise to, and the process that is to be followed, where, part way into a term through which hospital privileges have been extended, there is reason for concern about the actions of a member of the Windsor Regional Hospital’s Professional Staff:
16.01 Initiation of Non-Immediate Mid-term Action
(a) Mid-term action may be initiated wherever the Professional Staff member is alleged to have engaged in, made or exhibited acts, statements, demeanor, behaviours or professional conduct, either within or outside of the healthcare facilities, and the same:
(i) exposes, or is reasonably likely to expose patients or employees or any other persons in the Corporation to harm or injury; or
(ii) is, or is reasonably likely to be, detrimental to patient safety or to the delivery of quality patient care within the Corporation; or
(iii) is reasonably likely to be detrimental to hospital operations and; or
(iv) is, or is reasonably likely to constitute Disruptive Behavior/ Unprofessional Behaviour; or
(v) results in the imposition of sanctions by the College; or
(vi) is contrary to the By-Law, Rules and Regulations, the Public Hospitals Act, or any other relevant law of Canada or Ontario.
[33] When the hospital takes action during the term of a physician’s privileges, section 16(d) of the By-Law requires that an interview is to be arranged with the party involved. The letter sent to counsel for Dr. Albert Kadri explained the concerns:
As you know, the Hospital formally implemented the Model of Care-Renal Program (the “Model of Care”) on March 6, 2017. Dr. Kadri has not been cooperating with the Model of Care and has unilaterally changed the supervision of dialysis treatments for his outpatient population as of that date. Throughout this week, Dr. Kadri has been rounding on “his” patients and providing orders despite not being the Nephrologist on-call. He has been providing orders when it is not necessary to do so (some of which are parallel/some of which are contradictory to those of the Nephrologist on-call). Further, he has been providing those orders in various ways and in an inconsistent manner (presumably to accommodate his own schedule and what is most convenient to him).
Understandably, it is challenging for Renal Program Staff to track these “orders” in order [to] bring them to the attention of the Nephrologist on-call as required by the Model of Care.
The Model of Care recommended a change in billing practices by the other Nephrologists-two of the three Nephrologists have agreed to this change and they are billing in accordance with the Schedule of Benefits. Dr. Kadri’s reaction to the billing change by making a unilateral change in practice is totally contrary to historical practice in the Renal Program. Dr. Kadri’s efforts to disrupt the Model of Care are not driven by his wish to improve the delivery of patient care or in the best interests of the Hospital or his patients but by personal financial considerations.
Dr. Kadri has been repeatedly advised that any orders or conduct by him that has the potential to confuse Nursing Staff and/or impact on the quality of care provided at WRH and/or may expose patients to harm may result in immediate mid-term action.
Dr. Kadri’s conduct since March 6th has caused confusion, stress and distraction for all Renal Program Staff, including the Nephrologist on-call. He is diverting Renal Program Staff’s time away from patient care. He has been attempting to bully the other Nephrologists by threatening to report them to the College of Physicians and Surgeons of Ontario if they don’t conform and accommodate his unilateral change in practice. His conduct has also caused confusion for patients.
Dr. Kadri’s conduct is contrary to the direction of the Medical Advisory Committee and the Board of Directors.[^46]
[34] Counsel for the Windsor Regional Hospital set March 22, 2017 at 5:30 as the date and time for the required interview with Dr. Albert Kadri, understanding that his counsel would be present, and explained that if Dr. Albert Kadri issued any further orders in contravention of the Model of Care, he would be suspended “on an immediate mid-term basis”.[^47] Dr. Kadri did not attend the interview.[^48]
The Medical Advisory Committee
[35] On December 14, 2017 senior staff at the Windsor Regional Hospital prepared a memorandum addressed to the Medical Advisory Committee.[^49] The concerns that led to the initiation of the Mid-Term Action had been on-going and escalating. The memorandum refers to them as “multi-faceted”. The memorandum was prepared to support consideration of a request to the Medical Advisory Committee for mid-term action. The request was to be brought forward at the regularly scheduled meeting of the Medical Advisory Committee to be held on Tuesday, December 19, 2017. Dr. Albert Kadri had made his application for reappointment for the 2017/2018 credentialing year. It had been deferred. The consideration of the information obtained in the non-immediate mid-term action process was being considered as part of that application. The issue was not to be discussed in detail at the upcoming meeting. The only question was to determine if the situation merited further consideration. The memorandum reviewed the history and the disruption caused by the actions of Dr. Albert Kadri to the proper implementation of the Model of Care. Two concerns were noted that have not yet been referred to in these reasons. The first was an audit of Dr. Albert Kadri’s connection with a charitable foundation, the “Care for Kidneys Foundation”, he operated. The concern was whether funds received by the charity should have been directed to either the Hotel-Dieu Grace Hospital or the Windsor Regional Hospital. Neither the foundation nor Dr. Albert Kadri took part in the audit but, the Memorandum says it had “unearthed a number of concerning facts”. The second of the additional issues dealt with the recruitment and treatment, by Dr. Albert Kadri, of Dr. Syed Obaid Amin. This nephrologist had been recruited by Dr. Albert Kadri unilaterally. Dr. Albert Kadri had no authority to recruit physicians who would then look to, or expect to, receive privileges at the Windsor General Hospital. The doctor did apply despite being told that all the positions in nephrology had been filled. The authors of the memorandum felt they had “reasonable grounds to believe that Dr. Kadri manipulated Dr. A Syed Obaid Amin and encouraged disruption by him, at the Hospital, in order to further undermine the Model of Care, including having Dr. Syed Obaid Amin submit his application for privileges.”[^50] The letter documenting the offer to Dr. Syed Obaid Amin and his acceptance was written on Windsor Regional Hospital letterhead. It was signed by Dr. Albert Kadri as “Medical Director Renal Program, Windsor Regional Hospital; Chief of Medicine, Windsor Regional Hospital”. As reported in the memorandum, the Windsor Regional Hospital had “never provided Dr. Kadri with authorization to offer Dr. Syed Obaid Amin a position at WRH; the Offer Letter was not signed by anybody else at the Hospital; and no one at the Hospital ever received or saw the offer letter until September 16, 2017.”[^51]
[36] On February 13, 2018, the Medical Advisory Committee held a Special Meeting to consider whether it should “make a recommendation to the Hospital’s Board of Directors (the “Board”) affecting Dr. Kadri’s privileges at the Hospital, including the dismissal, suspension or restriction of Dr. Kadri’s privileges.”[^52]
[37] Privileges are central to the ability of doctors, particularly specialists, to practice medicine. A physician cannot practice at a hospital or admit patients without hospital privileges. A physician does not have a right to hospital privileges, a doctor has to apply for consideration as to whether she or he will be granted privileges. The Public Hospitals Act establishes the framework for the granting, alteration and renewal of physician privileges at a hospital:
…through the PHA structure, the physician remains accountable to the hospital (e.g. to a Chief or Head of physician’s department, the MAC and the hospital’s Board of Directors) for compliance with a hospital’s quality of care requirements, by-laws, policies and rules of conduct.[^53]
[38] Under the s. 37(3) of the Public Hospital’s Act the granting of privileges can only be for a term that does not exceed one year. A physician has to reapply every year. Pursuant to s. 37(4) each application is to be considered by the Medical Advisory Committee. It makes a recommendation to the Board. The recommendation is to be in writing.
[39] The Medical Advisory Committee recommended that the privileges of Dr. Albert Kadri be revoked and that if the Board of Directors had not completed its consideration of the recommendation by May 31, 2018, the privileges of Dr. Albert Kadri be suspended as of June 1, 2018, on an “immediate mid-term basis”. The criteria for such a suspension are found in ss. 17.01(a) of the By-Law of the Windsor Regional Hospital:
Where the behaviour, performance or competence of a Professional Staff member exposes, or is reasonably likely to expose patient(s) or employees or other persons to harm or injury, either within or outside of the health care facilities, and immediate action must be taken to protect the patients or other persons, the Chief of Staff, or Department Chief, or his/her delegate, may immediately and temporarily suspend the Professional Staff members privileges…
[40] As it transpired the Board of Directors of the Windsor Regional Hospital had not completed its consideration of the recommendation of the Medical Advisory Committee by May 31, 2018 and on June 1, 2018 the privileges of Dr. Albert Kadri were suspended.[^54]
[41] On March 5, 2018, counsel for the Windsor Regional Hospital wrote to counsel who, at the time, was acting for Dr. Albert Kadri providing notice of the recommendation of the Medical Advisory Committee.[^55] The factum filed on behalf of Dr. Albert Kadri, in referencing this letter, suggests that the primary concern of the Medical Advisory Committee was the resistance of Dr. Albert Kadri to the Model of Care.[^56] Certainly, the letter expresses this concern but it deals with more than that:
• it expressed concern and frustration at what it referred to as “Dr. Kadri’s demonstrated history of delay tactics with respect to the process concerned with the investigation and treatment issues his actions raised.
• it expressed concern with the understanding that Dr. Albert Kadri had again, without authority recruited a new nephrologist and that this doctor would be “manipulated” by Dr. Albert Kadri as the Committee believed Dr. Syed Obaid Amin had been and that his recruitment would disrupt patients and staff and cause an unnecessary waste of resources. As perceived by the Medical Advisory Committee, Dr. Albert Kadri had behaved in an unethical manner, placing the career and reputation of Dr. Syed Obaid Amin at risk and that Dr. Albert Kadri was behaving in a similar manner with respect to the new, albeit unnamed recruit.
• it expressed concern with respect to the impact the disruptive behaviour within the Renal Program had on patient safety and the quality of care being provided. As the Medical Advisory Committee perceived it, Dr. Albert Kadri wished to maintain his privileges but to do so based on his “vision” of community-based care no matter how disruptive this would be to the Hospital’s renal program and its patients
• it expressed the concern that the billing practices adopted by Dr. Albert Kadri were inconsistent with those adopted as part of the Model of Care and were motivated by his own financial interests.
• it expressed the concern that Dr. Albert Kadri has misled pharmaceutical firms into believing they were providing funds to the hospital when the money, in fact, was delivered to his foundation and that Dr. Albert Kadri was in a conflict of interest as defined by the By-Law of the Windsor Regional Hospital and in breach of his collective duties and responsibilities as a member of the Professional Staff of the Windsor Regional Hospital
• it acknowledged the clinical skills of Dr. Albert Kadri but expressed the concern that this was being undermined by the lack of professionalism and judgment that he had been demonstrating since March 2016, and in particular since March 2017.
[42] What the letter demonstrates is the concern that the actions of Dr. Albert Kadri extended beyond a measured and appropriate response regarding a difference of philosophy to an aggressive and disruptive attack on an operational change which undermined the ability of the staff of the hospital to provide the care its patients required and deserved. I note that nowhere in the record is there any denial that the actions attributed to Dr. Albert Kadri took place and the further concern, raised in the letter, that he did not, as the Medical Advisory Committee saw it, exhibit any remorse or, as I read it, any understanding of the issues at stake:
With respect to the Model of Care, the MAC was concerned that Dr. Kadri offered the MAC no apologies nor any explanations for his unprofessional conduct (beyond his intransigence with respect to the 2009 Agreement). Given that the MAC, the Board, the External Review, the ORN and the Ministry of Health and Long-Term Care (the “Ministry”) have all indicated in some manner that they do not support Dr. Kadri’s “vision” of community-based CKD care and/or unprofessional conduct and/or his billing practices, the MAC found Dr. Kadri’s stubbornness to be alarming. The MAC was struck by Dr. Kadri’s total lack of remorse for his behaviour and the disruption that it is causing to the Renal Program.[^57]
Dr. Kadri evaded any questions or suggestions by the MAC that it would be reasonable to comply with the Model of Care and offered no remorse for his conduct.[^58]
[43] The Public Hospitals Act and the By-Law of the Windsor Regional Hospital both mandate that an applicant for privileges be notified of the recommendation made to the Board of Directors and that the notice advise the applicant that he or she is entitled to a hearing before the Board of Directors.[^59] The letter was the notice and it advised of the right to a hearing before the Board of Directors.
The Board of Directors
[44] Dr. Albert Kadri requested a hearing by the Board of Directors of the Windsor Regional Hospital to consider the recommendation of the Medical Advisory Committee relating to his privileges. The hearing was conducted by a panel of three members of the Board of Directors. The hearing took place over six days, at the end of October and the beginning of November 2018, followed by written submissions received by the panel of the Board of Directors on November 12, 2018. Its decision was released on January 15, 2019. The Panel concluded that the recommendation of the Medical Advisory Committee should be adopted without revision or amendment. The Panel directed that Dr. Albert Kadri not be reappointed to the Professional Staff of the Windsor Regional Hospital for the 2017-2018 and 2018-2019 credentialing years.
[45] The decision of the Board of Directors included a review of the history and the role of the two competing approaches to renal care that are the catalyst for the issue that developed. The Decision notes that the new Model of Care was implemented with the full support of the leadership of the Windsor Regional Hospital, the Medical Advisory Committee and two of the three Nephrologists then practicing in the city of Windsor. Following the implementation of the Model of Care, two additional nephrologists joined the renal program and, as expressed by the panel of the Board of Directors, “seemed satisfied with the operation of the Renal program under the Model of Care”. Dr. Albert Kadri was the only nephrologist who was opposed to the new Model of Care. The panel noted that “[h]e resisted and challenged its development and implementation and has not been following the Hospital’s new Model of Care.”[^60] The Panel recognized that Dr. Albert Kadri has a different vision.[^61] He believed that such services would be better provided through a “community-based [chronic kidney disease] clinic.”[^62] The Panel of the Board of Directors recognized that as a non-expert or “lay” tribunal there were limits to its abilities. On that understanding it explained that it would not rule on “whether a community-based chronic kidney disease (CKD) clinic provides better or worse pre-dialysis care than a hospital-based multi-disciplinary chronic kidney disease (“MCKD”) Clinic:”[^63]
It is beyond the Panel’s expertise to determine which Model of Care is the most effective.[^64]
[46] Importantly, the panel noted that “Dr. Kadri made a formal request to the Health Professions Appeal and Review Board for a hearing to challenge the authority of the Hospital to implement the Model of Care” and that “[t]he appeal was later dropped.”[^65] This was the request that had been made by Dr. Albert Kadri on April 19, 2017 for a hearing concerning the implementation of the Model of Care which he subsequently withdrew.
[47] The decision of the Panel centres on the behaviour and response of Dr. Albert Kadri to the new model and its implementation. The Panel explained that the Medical Advisory Committee “provided significant evidence that demonstrates that Dr. Kadri has consistently resisted, obstructed, undermined and disrupted the implementation and operation of the Renal Program under the new Model of Care.”[^66]
[48] The decision reviews the 24 Reasons the Medical Advisory Committee provided for the recommendation it had made. The decision outlines the position of the Medical Advisory Committee, the position of Dr. Albert Kadri and the Panel’s conclusion with respect to each of those issues. These conclusions are replete with findings that demonstrate concern for the actions of Dr. Albert Kadri:
• “The Panel concludes… that on a balance of probabilities Dr. Kadri used tactics of intimidation and bullying to threaten other physicians, Renal Team members, and Hospital Administration.”[^67]
• “The Panel found that although Dr. Kadri repeatedly stated that he would be a ‘team player’ and ‘work with the Renal Program’, he was instead developing his own community-based CKD model for delivery of renal care and thwarting the vision adopted by the hospital”[^68]
• “The Panel found that Dr. Kadri did not meet the individual Professional Staff duties and responsibilities as set out in section 19.02 of the By-Law.”[^69]
• “The Panel agrees with the MAC that Dr. Kadri’s actions are, and are reasonably likely to be, detrimental to the delivery of quality patient care within the Hospital. Dr. Kadri has exhibited on numerous occasions, disruptive and unprofessional behaviour.”[^70]
• The Panel noted “Dr Kadri’s determination /stubbornness in holding this position leads the Panel to find that reappointing Dr. Kadri with conditions would indeed be ‘futile’ as the MAC has asserted. Certainly, any condition that Dr. Khadri comply with the Model of Care would be difficult to reconcile with the evidence at the Hearing.”[^71]
• “It appears that Dr. Kadri is not motivated to find a common ground on which to mediate his differences with the hospital in delivering the Model of Care. Dr. Kadri has demonstrated reluctance to participate in and comply with the systems put in place for the Renal Program. He has not demonstrated any effort to remediate the situation, but rather has chosen to exacerbate tensions. It appears that given Dr. Kadri’s history of non-compliance and disruption, the Hospital Administration does not trust he will comply with the Model of Care in the future.”[^72]
• “Evidence at the Hearing established that Dr. Kadri has reneged on his promises to comply with the Model of Care. Placing a condition on Dr. Kadri’s privileges that he comply with the Model of Care would indeed be ‘futile’, as the MAC has suggested.”[^73]
• “It is concerning to the Panel that Dr. Kadri does not support the Model of Care, but in the same breath believes it is important to work as a team. He also stated that there are benefits to working as a team, but he still does not refer his patients to the MCKD Clinic.”[^74]
• The Panel “concluded that Dr. Kadri has been disruptive and is negatively impacting the quality of care at the Hospital. Dr. Kadri’s dispute over the implementation of changes to the Model of Care has clouded his professional judgment. Dr. Kadri clearly had numerous opportunities to work constructively with the Renal Program but he chose not to do so.”[^75]
• “The Panel found that, despite stating a willingness to work with the program, Dr. Kadri demonstrated a consistent pattern of behaviour to resist, obstruct, disrupt and undermine the Model of Care. This behaviour existed before and after MAC approval of the Model of Care.”[^76]
• “The Panel accepted that Dr. Kadri cares deeply for the well-being of his patients. The Panel also understood Dr. Kadri’s strong concern for changes in the Model of Care. However, Dr. Kadri has not made a genuine effort to sit down as a professional and work towards a resolution of his concerns. The Panel concluded that sending a misleading video to the Ministry of Health was unprofessional and misguided.”[^77]
• “Despite several attempts by administration and legal counsel to stop this from happening, Dr. Kadri insisted he was correct. The billing problem stopped once Dr. Kadri was suspended and OHIP was notified of that suspension.”[^78]
• “There is reason to believe that Dr. Kadri directed or encouraged Dr. Amin to provide orders to the Renal Program, despite Dr. Amin not having privileges. This was disruptive to Renal Program function, and a risk to patient safety. Furthermore, the concern that Dr. Kadri was recruiting a second nephrologist, similar to Dr. Amin, represented an additional risk regarding potential Renal Program disruption and patient safety.[^79]
• “Dr. Kadri through various actions has not demonstrated support for the Hospital’s Renal Program and its Model of Care. He has systematically sabotaged efforts to collaborate and follow the guidelines of the program. As such he has made efforts to criticize the Hospital’s programs and staff. He has publicly accused the Hospital Administration and staff of putting patients in harm’s way because of the Model of Care.”[^80]
• “The Panel found that there is considerable evidence that Dr. Kadri has bullied and/or manipulated his colleagues, including Dr. Bagga and Dr. Callaghan.”[^81]
• “In the Panel’s view, the evidence at the Hearing provided numerous examples of bullying and manipulation by Dr. Kadri to multiple individuals in the Renal Program before and since the 2013 hospital Realignment.”[^82]
• “Dr. Kadri had an onus to uphold physician’s duties and responsibilities outlined in the By-Law. It was his responsibility to uphold the highest professional conduct, collegiality and respect of others. In that respect he has failed. His disruptive behavior impacts staff morale and patient care. That is a significant failure…”[^83]
• “The Panel found that Dr. Kadri failed to act in a professional manner in his interactions with the Renal Program Team members. His actions were disruptive and unprofessional.[^84]
• “It is clear to the Panel that Dr. Kadri has sabotaged his relationship with Hospital staff and administration through a series of disruptive behaviours, bullying and has not performed his duties in a professional manner.”[^85]
[49] In his submissions to this Court, on this appeal, counsel for Dr. Albert Kadri asked how it was possible to decide this case without considering the merits of the two approaches to renal care. The answer to this question is not hard to find. It was not the issue on which the decision to refuse the renewal of the privileges of Dr. Albert Kadri was made. The By-Law of the Windsor Regional Hospital demonstrates the obligation of those who hold privileges at the hospital to recognize the authority of the senior officials at the hospital, to abide by its By-Law, Rules and Regulations and the corporation’s mission, vision and strategic plan (see s. 19.02 of the By-Law quoted at para. [29] herein). When it came to accepting the new Model of Care, Dr. Albert Kadri did neither. To the contrary he worked openly and vociferously against its implementation, to the detriment of the hospital and the efforts of its staff to work within the framework that had been set to benefit and help its patients. He was insistent that he be allowed to do things his way. His efforts were directed to undermining and disrupting the Renal Program. What is being asserted on behalf of Dr. Albert Kadri is that on the basis of what is alleged to have been a principled disagreement with the approach to the treatment of patients being prepared for dialysis, Dr. Albert Kadri should be permitted to maintain his privileges at the Windsor Regional Hospital where, given the absence of any expression of understanding or remorse, there is every indication he would have continued to disrupt the program. No proper health care system could run on the basis that where a doctor does not agree with hospital policy, he or she is free to act on his or her view of how things should be done. To refer back to an observation made earlier in these reasons, this is not, as counsel for Dr. Albert Kadri have it, a circumstance where the hospital provides infrastructure so physicians can do whatever they believe is appropriate. It is to be a collaborative and cooperative effort to provide treatment to patients.
The Health Professions Appeal and Review Board
[50] Dr. Albert Kadri did not accept the decision of the Board of Directors of the Windsor Regional Hospital. He continued the battle by appealing the decision to the Health Professions Appeal and Review Board.[^86] That Board has the authority to confirm the decision appealed from or to direct the authority from whom the appeal is taken (in this case the Board of Directors of the Windsor Regional Hospital) to take such action as the Health Professions Appeal and Review Board considers ought to be taken in accordance with the Public Hospitals Act, the regulations and the by-laws. The Review Board is empowered to substitute its opinion for that of the Board of Directors, or other person or body making the decision appealed from.[^87]
[51] The Health Professions Appeal and Review Board conducted a hearing which began on November 21, 2019 and sat for 37 days ending on January 21, 2021. In excess of 50 witnesses were called, video recordings of patients were provided and “several thousand pages of documentary evidence” received. Its Decision and Reasons were released on June 29, 2021 with what is referred to as the Final Decision and Reasons of HPARB (Corrected Typographical Errors in Previous Version) being delivered on July 6, 2021.
[52] The decision of the Health Professions Appeal and Review Board reviewed the history and context of the treatment of renal disease in the city of Windsor. It discussed the pre-existing circumstances, the realignment of the Hotel-Dieu Grace and Windsor Regional hospitals, the undertaking of the External Review, the development and implementation of the new Model of Care, the response of Dr. Albert Kadri to the change and the process undertaken that ended with his loss of privileges at the Windsor Regional Hospital.
[53] The Health Professions Appeal and Review Board found that the behaviour, actions and conduct of Dr. Albert Kadri justified the revoking and suspension of his privileges and that as a result of that behaviour and those actions and conduct, he did not meet the qualifications and criterial for reappointment to the Professional Staff of the Windsor Regional Hospital.[^88] The Review Board also found that, based on the actions and conduct of Dr. Albert Kadri, if his privileges were reinstated “there is no likelihood that he would comply with the Model of Care for the Renal Program”.[^89]
This Appeal
[54] It is the decision of the Health Professions Appeal and Review Board that is the subject of the appeal to this Court.[^90] The power of the Court in these circumstances is broad:
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.[^91]
[55] The parties agree that, as established by Canada (Minister of Citizenship and Immigration) v. Vavilov[^92] where the legislature has provided for an appeal from an administrative decision the reviewing court is to apply the appellate standard of review described in Housen v. Nikolaisen[^93]: questions of law attract the standard of correctness and questions of fact are reviewed on the standard of palpable and overriding error. Questions of mixed fact and law are said to fall on a spectrum that runs between the two stated standards of review. Where such questions fall on the spectrum depends on the circumstances of the case. Those that are particular to their facts, and thus not likely to have any continuing importance (no precedential value) tend to the palpable and overriding error end of the spectrum. Those that have continuing importance (precedential value) tend to the correctness end.[^94]
[56] The factum filed and the submission made on behalf of Dr. Albert Kadri raise three issues:
That the reasons provided by the Health Professions Appeal and Review Board were insufficient to support the risk of harm to patients and the revocation of the privileges of Dr. Albert Kadri.
That the Health Professions Appeal and Review Board misapprehended the evidence of bad faith conduct by the Windsor Regional Hospital in its developing and implementing the new Model of Care.
That the Health Professions Appeal and Review Board failed to consider whether a revocation of privileges to defeat an ethical objection could constitute bad faith.
[57] I begin by observing that in order to determine the sufficiency of reasons it is important to identify and understand the issue or issues those reasons are required to respond to. With this in mind, for the moment, I set aside the first of the three issues.
[58] I turn to the third of the three issues. On its face it suggests that the difference of view as to the preferred model of care (the hospital-based clinic as opposed to the community-based approach espoused by Dr. Albert Kadri) is an ethical difference and that as such the failure to renew the privileges of Dr. Albert Kadri, in the face of that difference, could demonstrate bad faith on the part of the hospital. This raises the problem to which I have already referred. It clothes the difference as an ethical difference and on that basis excuses the action and conduct of Dr. Albert Kadri. It proposes that the Windsor Regional Hospital could have acted in bad faith when it failed to allow Dr. Albert Kadri to continue on, acting as he had, to the detriment of the Hospital and its staff and their efforts to respond to patients in need of dialysis. I repeat no health care system could run on the basis that where a doctor does not agree with hospital policy, he or she is free to act on his or her own view, ethical or otherwise, of how things should be done. It is worthwhile remembering that the none of the other nephrologists, those present at the time or those that have arrived since, are objecting to the new Model of Care. On this issue Dr. Albert Kadri stands alone. Even if this is viewed as an ethical judgment it does not matter. Dr. Albert Kadri’s conduct was disruptive and contrary to the policy and approach of the Windsor Regional Hospital. If he could not work within the boundaries set by the Windsor Regional Hospital, Dr. Albert Kadri’s option was to go elsewhere, not to force his views on others and undermine the efforts of the Windsor Regional Hospital and its staff.
[59] An ethical difference speaks to, or at least includes, a consideration of moral principle. To attribute the difference in this case to moral principle you have to conclude that one of the two Models of Care is right and the other one is wrong. To my mind, this is not an ethical judgment; it’s a choice of operating procedure for the delivery of treatment to patients in a particular circumstance, the preparation for dialysis. Ethical or otherwise the issue, in this case, is not the choice of model of care made by the hospital, the means of its selection or implementation. The issue is the behaviour of Dr. Albert Kadri and whether it justified the revocation of his privileges.
[60] This takes me to the second of the three issues, namely that the Health Professions Appeal and Review Board misapprehended the evidence of bad faith on the part of the Windsor Regional Hospital. This time going back to the process of investigating, considering, developing and implementing the new Model of Care. The submission is based on the idea that process of developing and implementing the Model of Care was directed, not to improving treatment, but to undermining the practice of Dr. Albert Kadri and his relationship with the other nephrologists practicing in the city of Windsor at the time. The idea appears to be that with what is alleged to have been the true foundation for the change in the Model of Care revealed, the actions of Dr. Albert Kadri would be justified and his right to renew his privileges demonstrated. The implication of this understanding is that a party affected by a change in policy, who worked to disrupt its implementation can, when negatively affected, attack the process adopting the change on the basis that it was improperly directed. That party can then go on to criticize the resulting change as the product of bad faith and on that basis justify the disruption and maintain his or her benefits of association with the institution making the change.
[61] This is not the way the development, designing and implementation new policies or approaches to treatment should proceed. Inevitably, there will be change. If there are concerns with the substance of the change or method by which it was developed and adopted, there is provision for an appeal and hearing before the Health Professions Review and Appeal Board. As has already been noted Dr. Albert Kadri sought a hearing by the Health Professions Appeal and Review Board relying on s. 41(1)(b) of the Public Hospitals Act (see: fn. 86 herein). The purpose of such a hearing would have been to challenge the implementation of the new Model of Care. Dr. Albert Kadri abandoned that request. The Health Professions Appeal and Review Board reported on this in its Decision:
On April 19, 2017, the Appellant requested a hearing before the Appeal Board, pursuant to section 41 (1) of the PHA, regarding the Respondent’s implementation of the Model of Care for the Renal Program. In his Grounds of Appeal, the Appellant submitted that the Respondent had implemented the Model of Care for the Renal Program in bad faith.[^95]
[62] This is the hearing that Dr. Albert Kadri “dropped.”[^96] This being so, Dr. Albert Kadri cannot now resuscitate an opportunity to question the process of developing and implementing the new Model of Care under the guise of justifying the inappropriate behaviour that marked his response to the decision that was made and the implementation of the new Model of Care that followed from it. Both the Panel of the Board of Directors and the Health Professions Appeal and Review Board dealt with the issues before them in a fashion consistent with this understanding.
[63] The Panel of the Board of Directors, as a “lay” tribunal recognized there were limits to its expertise and that, as such, it was unable to determine which, if either, of the models of care was preferable. On this basis it did not consider the development or implementation of the new Model of Care.
[64] The Health Professions Appeal and Review Board, in the decision now under appeal, noted that, part way through its hearing, it had been asked by the Windsor Regional Hospital to make a ruling as to the relevance of evidence concerning the development and implementation of the new Model of Care:
Following a mid-hearing motion, the Appeal Board ruled that it did not have the authority or jurisdiction to overrule or modify the Model of Care for the Renal Program or to direct the Respondent to change the Model of Care for the Renal Program. The Appeal Board is not required to determine whether the Respondent’s Model of Care for the Renal Program is superior or inferior to the model of care in other hospitals or to the model of care preferred by the Appellant in coming to a conclusion as to the propriety of the actions of the Respondent with respect to the Appellant’s privileges.[^97]
[65] In it ruling the Review Board had explained the issue it was to decide:
The principal issue for the Appeal Board is to decide if the appellant’s conduct is as set out by the MAC’s recommendations so that the patient’s safety may be adversely affected.
Whether or not the respondent’s implementation of its model of care in 2017 altered the appellant’s privileges is simply not before us.
Regarding the appellant’s submission that the decision to suspend and not renew his privileges was made in bad faith, this will remain an issue for the Board.
As a result of the Board’s ruling on the model of care, evidence called by the parties reflecting on the relative benefits and disadvantages of the respondent’s model of care compared to the other models of care, including that preferred by the appellant or his patients, will be of little or no relevance and will be limited by the Board.[^98]
[66] As it stands, the submissions made by counsel as to the efficacy of the development and implementation of the new model of care, or for that matter whether its promulgation was undertaken in bad faith represents a collateral attack on that process. The time to question that process (without in any way that accepting there is any merit to what was submitted to this Court) was in respect of the appeal made in response to the memoranda of March 5, 2107 and March 10, 2017 that was “dropped” or abandoned.
[67] In the face of the absence of much if any denial by Dr. Albert Kadri that the activities and behaviour which mark his response to the new Model of Care took place, it is difficult to see how his loss of privileges could be attached to bad faith in those who decided they should not be renewed. I point out that the attribution of conduct to Dr. Albert Kadri are findings of fact and, as such could only be set aside in the face of palpable and overriding error. There is none. On its face, behaviour directed at, having the object of, or effecting the disruption and undermining of established hospital policy by a physician, (a member of its Professional Staff) must be enough to withdraw his or her privileges. Pursuant to s. 19.02 of the By-Law of the Windsor Regional Hospital, Dr. Albert Kadri, as a member of its Professional Staff was obliged to adhere to its “rules, regulations, vision and strategic plan”. Surely, this has to be accepted as fundamental to a physician’s association with any hospital, especially when he or she does not agree. Without consistent acceptance of its rules and policies such a facility could not operate much less to the best advantage of its patients. This Court is left with the proposition that there was bad faith in the decision not to renew the privileges of Dr. Albert Kadri and that the presence of that bad faith was enough to set to the side or excuse the conduct of Dr. Albert Kadri such that his privileges should be restored or a new hearing ordered.[^99]
The allegation of bad faith
[68] In the event that it is wrong to dispense with the allegation of bad faith as a collateral attack on the development and implementation of the new Model of Care, I proceed on to consider the substance of the allegation of the presence of bad faith in the adoption of the new Model of Care.
[69] What conduct is demonstrative of “bad faith”? It has been outlined as “conduct involving ‘malicious intent’ or that ‘exceeds the limits of discretion reasonably exercised’”.[^100] What is it that is said, on behalf of Dr. Albert Kadri, to demonstrate this intent or failed exercise of discretion?
[70] Counsel for Dr. Albert Kadri submits this was evident from the very beginning. He points to the External Review Report and to the following statement which appears under the heading that is the statement of the third recommendation made by the report, “Patients admitted to the WRH dialysis program must be seen by the WRH multidisciplinary clinic team”:
It would be well within the mandate of the WRH program to decide to no longer accept referrals to the dialysis program for patients intentionally not referred to this program for whatever reason by individual nephrologists. Failure to comply with this directive should result in suspension of nephrologist privileges from the WRH CKD program on the basis of unwillingness to follow best practices affecting clinically relevant patient care outcomes and overall programmatic functioning.[^101]
[71] Counsel went on to point out that this statement was repeated in the memorandum delivering a copy of the External Review Report to each of the three nephrologists that were, at the time, practicing in the city of Windsor. Dr. Albert Kadri was one of the three. The memorandum directs the nephrologists to the relevant pages in the report, focuses on the Windsor Regional Hospital’s (“WRH”) High Risk Multidisciplinary CKD clinic and quotes the third recommendation as it appears above. As counsel for Dr. Albert Kadri noted, the memorandum states:
The Reviewers conclude that it would be well within the mandate of the WRH program to decide to no longer accept referrals to the dialysis program for patients intentionally not referred to this program for whatever reason by individual nephrologists.
The Reviewer’s recommendations are consistent with the ORN’s requirements for delivery of integrated, efficient and high-quality care through multidisciplinary CKD clinics.
Therefore, effective April 1, 2016 all Nephrologists who hold privileges at WRH must refer all WRH patients who require pre-dialysis care at a CKD Clinic to the WRH CKD Clinic. Failure to do so will result in the initiation of a By-Law process which in turn could result in the suspension, restriction or revocation of privileges at WRH.[^102]
[72] Where in these documents is the “malicious intent” or “unreasonable exercise of discretion” that reveals the revocation of the privileges of Dr. Albert Kadri as undertaken in bad faith? There isn’t any. In the External Review Report the quotation referred to by counsel for Dr. Albert Kadri is preceded, in the same paragraph by:
It is not sustainable to maintain duplicate of multidisciplinary high risk CKD clinics in a program of this size. There are clear guidelines in support of multidisciplinary CKD care for this patient group in improving dialysis outcomes, quality of care parameters and home modality utilization. Not utilizing this valuable resource that is well-funded by the ORN is not consistent with the standard of care.[^103]
[73] This is a clear and succinct statement as to the purpose of the recommendation that all patients treated by dialysis at the Windsor Regional Hospital must be seen by its multidisciplinary clinic team (recommendation 3). The statement that follows, raising the prospect of revocation of privileges where the recommendation (if adopted) was not followed, is nothing more than an indication of how the recommendation could be enforced. As understood by the Health Professions Appeal and Review Board, these sentences were included in the External Review Report “[i]n an effort to emphasize the importance of the [Multidisciplinary Chronic Kidney Disease] clinic to the Renal Program.”[^104]
[74] The memorandum does nothing other than direct the three nephrologists to the recommendation and the suggested enforcement. It adds the statement in the quotation above that the recommendation is consistent with the Ontario Renal Network’s (the funder’s) requirements. There is nothing malicious about this. It does not represent the exercise of any discretion. For that you need an actual circumstance to which the discretion is applied. In order to see the decision to revoke the privileges of Dr. Albert Kadri as founded in malicious intent or as an unreasonable exercise of discretion one would have to set aside all of his unfortunate conduct and see this as directed at him from the outset. There is nothing in the evidence or facts, as found, that would raise much less sustain such an idea.
[75] I have not as yet made mention of what was referred to throughout the hearing as the “2009 Agreement”. It is central to the allegation of bad faith made on behalf Dr. Albert Kadri. In 2009 the three nephrologists practicing in the city of Windsor (Drs. Amit Bagga, Wayne Callaghan and Albert Kadri) entered into an agreement said to delineate “the terms of their working partnership”.[^105] Essentially, it organized the practices of the three participants. It outlined the selection of which of the three would be the “Chief of Nephrology and Medical Director of Dialysis” and how the physician responsible for the treatment of any given patient was to be identified. It was the doctor so identified who was credited as the billing physician, regardless of which of them did the work being accounted for. The Windsor Regional Hospital was not a party to this contract. The factum filed on behalf of Dr. Albert Kadri proposes this was entirely appropriate:
The agreement was made between the nephrologists and governed the relationship between their practices, in respect of which the Respondent – rightly – had no input.[^106]
[76] It is difficult to understand how the hospital can be said to have no interest in an agreement pursuant to which the decision as to who will be the Director of Dialysis is made, when the required equipment is located at, and the treatment is provided, in the hospital.[^107] This difficulty is made evident by the fourth recommendation in the External Review Report which states “Multidisciplinary High Risk CKD clinics must be reorganized to reflect best practice in collaborative, interprofessional care including direct participation by nephrologists in this program.” The discussion of this recommendation begins:
Even with the nephrologists who currently refer to this program, care is fragmented and not collaborative.[^108]
[77] Even so, on behalf of Dr. Albert Kadri, it was also submitted that the Health Professions Appeal and Review Board “failed to apprehend the insidious relationship between the implementation of the Model of Care and the 2009 Agreement” and “ignored the reality that the Model of Care was designed to obstruct the 2009 Agreement”.[^109] This hyperbolic language is not sustained by the evidence and findings of fact that were made. The factum goes on to assert that the hospital went so far as to take steps “to undermine [the 2009 Agreement] or to induce Dr. Bagga or Dr. Callaghan to breach it (i.e., by mandating certain billing and recruitment practices).”[^110] This impugns the actions of these doctors in accepting the change in circumstances where they have no opportunity to take part and respond. There is no finding or evidence that suggests that anything improper was undertaken by the hospital to induce, persuade or in any other way act to convince the two nephrologists to accept the new billing practice put in place through the new Model of Care. The allegation ignores the fact established by the External Review that the two doctors regarded the pre-existing billing arrangement as inappropriate:
A concern was raised by two of the nephrologists (AB/WC) on potential inequitable billing practices within the group. The nephrologist most responsible when a patient initiates dialysis continues to bill for that patient’s chronic dialysis for the duration they are on the program. Therefore, despite the fact that workload is shared equally among all three nephrologists for the chronic dialysis population, nephrologists caring for more CKD patients will ultimately receive a greater proportion of the clinical dialysis billings which account for the majority of a nephrologists’ compensation [sic] with no associated overhead costs.[^111]
[78] At the same time, this allegation fails to account for the advice sought from the Ministry of Health and Long-Term Care as to the propriety of the billing as put in place through the new Model of Care and as it existed pursuant to the 2009 Agreement. By letter dated January 20, 2017, David Musyj, the President and CEO of the Windsor Regional Hospital wrote to the Ministry seeking an opinion regarding what “may be viewed by some of the Nephrologists at the Windsor Regional Hospital (“WRH”) as a contentious change in billing practices” that the hospital was mandating. The letter outlined the issue:
One of the changes made is the introduction of the Model of Care – Renal Program (the “Model of Care”). The principles of the Model of Care include a collaborative and inter-professional team approach across all Program areas and our patients are to be considered patients of the Program and not being proprietary to a specific Nephrologist’s private practice.
With this in mind, among other things the Model of Care distinguishes between the patients’ Most Responsible Physician [sic] (“MRP”) who sees the patient in their private office and manages their CKD issues from the Nephrologist who is on-call at the Hospital during a patient’s dialysis and manages those concerns. The Model of Care requires that the MRP for all In-Centre and Satellite Dialysis Patients will be the Nephrologist on-call who will bill for the work done – essentially that any concerns with hemodialysis patients would be handled by the on-call Nephrologist and the service provided by that on-call Nephrologist during a patient’s dialysis would be billed by that Neurologist [sic].
In the context of introducing and reinforcing the Model of Care to WRH Nephrologists, it has come to our attention that this requirement was contrary to a “practice agreement” (that we understand was focused on billing) that the Nephrologists have apparently had in place since January 2009. That “agreement” was that the patient’s MRP Nephrologist who manage their CKD in their office would bill the patient’s dialysis visit even when they were not the on-call Nephrologist and did not actually see the patient during the visit.[^112]
[79] On January 25, 2017 the Ministry of Health and Long-Term Care responded. It supported billing and payment pursuant to the new Model of Care and indicated that similar claims under the 2009 agreement would not be accepted by OHIP:
In accordance with the Schedule, the physician claiming payment for an insured service must perform the insured service, otherwise the service is not payable. In the case of the Chronic Dialysis Team Fee this is the physician most responsible for the day-to-day care of the patient undergoing dialysis.
The Ministry of Health and Long-Term Care does not approve or otherwise intervene in private agreements between physicians and/or hospitals. However, what you have described as ‘Model of Care’ appears to be describing circumstances where the on-call Nephrologist would meet the definition of MRP and as such the Insured services provided by that on-call Nephrologist (specifically Chronic Dialysis Team Fee) during a patient’s dialysis would be billed to OHIP by that Neurologist [sic]. If this is the case, then this is consistent with the Schedule: i.e. the on-call nephrologist is the MRP for that week.
In the case of an arrangement where a physician is not the MRP (such as what is described in the “practice agreement” where the patient’s office Nephrologist who is not providing on-call or actual care during dialysis would submit the claims to OHIP for Chronic Team Dialysis), such claims would not be eligible for payment by OHIP as an insured service. However, any physician may claim payment for medically necessary insured services he or she provides that are excluded from Chronic Team Dialysis Fee.[^113]
[80] There is nothing that supports the change in billing practice as an attack on the 2009 Agreement much less one that was “insidious” or one designed to obstruct that agreement. This is confirmed by the understanding that neither the individuals, nor the immediate employees and officers of the Windsor Regional Hospital, were aware of the 2009 Agreement until some time close to the writing of the letter to the Ministry of Health and Long-Term Care on January 20, 2017:
WRH was not aware of this “practice agreement” until recently and it is not our position that we are certainly not bound by it. We intend to ensure that the Model of Care is implemented by our Nephrologists at WRH. [^114]
[81] This is to say that the Windsor Regional Hospital did not know about the 2009 Agreement until:
• 14 months after the external review was conducted during October 2015,
• 13 months after the delivery of the External Review Report during November 2015,
• 11 months after the endorsement of the External Review Report by the Medical Advisory Committee on February 16, 2016,
• 10 months after the acceptance, by the Board of Directors, of the subsequent recommendation of the Medical Advisory Committee on March 3, 2016,
• at about the same time as the Medical Advisory Committee approved the new Model of Care on January 17, 2017,
• just before the Board of Directors did the same on February 2, 2017 and
• two months before to new Model of Care was implemented on March 6, 2017.
[82] This being so it is not possible that the change in billing brought about through this process was the result of “malicious intent” or an “unreasonable exercise discretion” such that it was a bad faith effort to undermine the 2009 Agreement. Even if it was, it was not part of the rationale for the decision to revoke the privileges of Dr. Albert Kadri. That decision was the result of his conduct, conduct that undermined and was disruptive of the implementation of the new Model of Care. As it is the Health Professions Appeal and Review Board found that the new Model of Care was implemented “with the good faith intention of following the recommendations of the External Review Report”.[^115] This is a finding of fact. It is not the subject of any error, much less one that is palpable and overriding.
[83] Interestingly, the Board of Directors and the Health Professions Appeal and Review Board see this concern with the change in billing practices quite differently. It is here that the concern with the motivation of Dr. Albert Kadri in objecting to the new Model of Care arises.
[84] The decision of the Board of Directors noted that the new Model of Care defined the MRP (Most Responsible Physician) as the nephrologist who is on-call, and it is the on-call nephrologist who would make the CDTF (Chronic Disease Team Fee) billing. The decision observed that Dr. Albert Kadri continued to abide by the MRP definition found in the 2009 Agreement, that is the nephrologist providing ongoing care to the patient. The two approaches are incompatible. Dr. Kadri had established a large practice. The decision of the Board of Directors repeats that, during the course of the hearing, it was “repeatedly estimated” that the patients for whom he provided primary care represent approximately 50% of the renal patient population, to the following effect:
Referral of all of Dr. Kadri’s patients to the hospital-based MCKD Clinic, [Multidiscipline Chronic Kidney Disease] and revising the Hospital’s MRP definition and associated billing to OHIP, could have a significant impact on Dr. Kadri’s practice and revenue stream. Consequently, adherence to the new Model of Care had a much larger impact on him and that his colleagues.[^116]
[85] The Board of Directors determined that:
Given that approximately 50% of the renal patients are part of Dr. Kadri’s practice, there is a very strong financial incentive for Dr.Kadri to insist on maintaining the 2009 Agreement’s terms.[^117]
[86] In making this point the Board of Directors referred back to the perspective of the Medical Advisory Committee:
…the MAC maintained that Dr. Kadri developed his community-based CKLD clinic, and would not move off of the 2009 Agreement, because, by design, it provided the opportunity to control and financially benefit from delivery of renal services within the entire community. The MAC explained how there was a significant financial incentive for Dr. Kadri to resist, protest, disrupt and oppose the Model of Care.[^118]
[87] The Board of Directors concluded:
… that financial considerations have played an important role in Dr. Kadri’s opposition to the Model of Care, his ongoing disruptive behaviour, and his unwillingness to compromise.[^119]
[88] The Health Professions Appeal and Review Board considered the same issue:
Under the new Model of Care for the Renal Program, the requirement that patients admitted to the dialysis program must be seen in the MCKD clinic, would have a further adverse financial impact on the Appellant who had been caring for and billing OHIP for his patients in his own CKD clinic.[^120]
[89] It found that rather than accept this change and what would have been the expected result, Dr. Albert Kadri continued to bill for work done for patients he saw as his, by other of the nephrologists which was to their detriment and inconsistent with the new Model of Care:
The Appellant was the only one of the five nephrologists providing on-call services for the Renal Program who did not have his CDTF billings rejected because another practitioner had already billed them.
All four of the other nephrologists continued to have their CDTF billings rejected until the Appellant’s privileges at the Respondent hospital were suspended on June 1, 2018 and he was no longer eligible to claim the CDTF. Since the Appellant’s suspension, there have been no further incidents of the CDTF billings of any of the remaining nephrologists being rejected by OHIP.[^121]
[90] The Health Professions Appeal and Review Board found:
… on the balance of probabilities, that the Appellant converted the CDTF billings of his fellow nephrologists to his own benefit, contrary to the terms of the Model of Care for the Renal Program.[^122]
[91] Understood as the Board of Directors and the Health Professions Appeal and Review Board saw the issue of billing practice, it was not the Hospital that acted with malicious intent, it was Dr. Albert Kadri who acted in a manner, he has to have known, would detrimentally affect the colleagues he worked with:
At this Hearing, the Appellant again refused to directly admit or deny that he billed the CDTF; however, he made the following statements, in an effort to justify his right to do so:
• it was “unheard of” that a physician, i.e., Dr. Walters, would come into a community and take over billing for another physician’s long-time patients, without first speaking to the physician for those patients;
• it does not matter what the hospital says. The hospital has no mandate to dictate how physicians are to bill OHIP;
• allowing Dr. Walters to bill the CDTF for his patients was, essentially, the Respondent trying to “poach my patients”;
• Dr. Salisbury, who, on behalf of OHIP, gave the Respondent the opinion that the on-call nephrologists were entitled to bill the CDTF was incorrect.[^123]
[92] This does nothing to advance the proposition that bad faith infected the decision to revoke the privileges of Dr. Albert Kadri. What these statements do is to confirm Dr. Albert Kadri’s complete unwillingness to abide by the new Model of Care which had been established as policy of the Windsor Regional Hospital:
Dr. Kadri argues that he is entitled to bill when not on-call because he believes that he is the MRP for his private patients. Dr. Kadri in fact has been accused, and the evidence suggests, that he has ‘stolen’ from several colleagues. When questioned about this at the Special MAC Meeting - he was asked whether it is appropriate to get paid and take remuneration away from someone for work he did not do – Dr. Kadri claimed that “the answer is complicated, if you look at historically”.[^124]
[93] There is a second element to the financial implications as put by counsel of behalf on Dr. Albert Kadri. It was submitted that the true purpose behind the development and implementation of the new Model of Care was an effort by the Windsor Regional Hospital to take over and “harvest” the available billings. In support of this allegation counsel referred to the “Review of Regional Renal Dialysis Plan for the Erie St. Clair LHIN” dated June 22, 2015[^125]. This was about the time the new Vice President for the Renal Program received the recommendation from the Ontario Renal Network as to who could conduct an external review. This document was included with the initial package of information sent to the reviewers.[^126] At heading 1.2 “Current Volumes and Associated Funding”, it sets some general information concerning the volume of the services provided against the monetary value of the capacity available. The total number of patients “slightly exceeded ministry funded volumes”. Specific programs (Home Hemodialysis, Home PD numbers, General Nephology) were identified as under utilized. In the submissions made on behalf of Dr. Albert Kadri particular reference was made to the following paragraph:
Currently we have 85 patients in our pre-dialysis multidisciplinary clinic. This volume as a proportion of dialysis patients in our region puts us in the worst percentile group in the province. If we were to perform at provincial average the revenue increase would be $375,000. If we were to be performing in the top percentiles this income would exceed $1 million dollars.[^127]
[94] The External Review Report reviews five goals set by the “Terms of Reference for the External Review”. The third of these goals was to recommend the location for pre-dialysis, home dialysis and transition units in relation to promoting a culture of wellness, proximity of essential clinical supports for these services and technology enablement and integration. The discussion in the report referencing this goal notes:
Home dialysis including peritoneal dialysis and hemodialysis currently represents approximately 16% of total patients in the Windsor CKD program. Provincial standards indicate that about 40% of the prevalent patients should be on a home dialysis modality. Growth in home dialysis was recognized by staff and physicians as a challenge during the reviews. Several reasons were indicated including lack of or late or lack of patient referral by one nephrologist to the hospital CKD program over the last two years. As a result, the hospital experiences; a) low funding volumes for nephrology visits, b) low funding volumes for pre-dialysis clinic visit, and c) higher rates of sub optimal starts. Program data indicates that more than 30% of new patients to the program each month experienced sub optimal starts. Sub optimal starts reduces the chances of patients transitioning through an expected pathway to a home dialysis modality in addition to other adverse health outcomes.[^128]
[95] From these two statements, the first from the Review of Regional Renal Dialysis Plan for the Erie St. Clair LHIN and the second from the External Review Report counsel extrapolates the proposition that the external review and everything that followed was driven by a desire to take over the revenue available through the provision of renal care and, in particular, from the clinic operated by Dr. Albert Kadri.
[96] I point out that this is detached from the revocation of the privileges of Dr. Albert Kadri. The allegation is pertinent to the rationale, supposed by Dr. Albert Kadri, for the development and implementation of the new Model of Care. It could have been raised within the appeal that was “dropped”. To rely on this proposition would be to further this appeal as a collateral attack on the new Model of Care. It fails to accept that the basis for the refusal to renew the privileges of Dr. Albert Kadri was his disruptive response to what, when he abandoned his earlier appeal, he recognized as a properly established policy of the Windsor Regional Hospital.
[97] Regardless, the idea that the desire to “harvest” the available billings was the catalyst for everything that followed ignores what else these two documents say. The Review of Regional Renal Dialysis Plan for the Erie St. Clair LHIN contains much more than the reference to revenue that might be available. It provided a capacity overview for locations operated by the Renal Program. It provided basic information concerning building plans at one of the sites and states questions to be considered with respect to what services should be provided at some of the locations. It sets the broad objective for the external review:
The purpose of this review is [to] identify what the future state of ESC Regional Renal Program will be in terms of location, capacity and the service mix within those locations.[^129]
[98] The document goes on to provide some initial information concerning regional capacity to provide renal care; building plans at one of the applicable locations; the number of hemodialysis stations to be incorporated into “the new hospital build”, information directed to confirming the overall number of hemodialysis stations, the location for the pre-dialysis and home programs; the determination of the location of IV Iron treatments and additional considerations for future expansion and required staffing.
[99] The fact that costs associated with the then current under utilization of the renal program are referred to does not make those costs the underlying driver of the external review, the development of the new model of care or the inclusion, within that model of care, of the direction of all dialysis patients to the hospital’s Multidisciplinary Chronic Kidney Disease Clinic for pre-dialysis treatment. It would be surprising if the cost implications for the program were not referenced.
[100] Costs and income are not mentioned in the Terms of Reference for the External Review. The Scope of Review is described as:
Scope of Review
The review of the Windsor Regional Renal Program will a two phased review.
Phase 1 will include interviews of individuals and teams within the program as well as environmental scans of various renal sites.
Phase 2 can generally be conceived of as a consultation regarding the implementation of Phase 1 recommendations. Further details of Phase 2 can be discussed at the conclusion of Phase 1.
Dr. Komenda and Jill Campbell will be asked to consider and assess:
Options for physical locations of service
Capacity assessment of required hemodialysis stations
Location of pre-dialysis, home dialysis and transition units
Confirmation of locations for IV iron treatments
Assessment of model of care and role clarification including nursing, physicians, biomed, management, and allied health.[^130]
[101] The External Review Report discusses each of these five “goals”. The statement from the discussion of the third goal does not concentrate on, or say anything much more about “pre-dialysis clinic visits” or the Multidisciplinary Chronic Kidney Disease Clinic than what is referred to in the noted quotation. In the discussion of this “goal”, the External Review Report concentrates on “home dialysis”:
Interviewees all voiced the importance for the program to grow home modalities and all felt a sense of commitment that home dialysis was appropriate for eligible patients in the program. However, there was a sense that nephrologist referral practices were not supportive of a “home first” culture. While the pre-dialysis had dedicated staff nurses to manage care, the same could not be said for home dialysis. The program has attempted to integrate home peritoneal and home hemodialysis by cross-training staff but not all staff have training skills for both modalities and this has caused some tension particularly with shared responsibilities for on-call after hours and on weekends. Even though the home PD and home HD training is adjacent in the current location, there is a lack of integrated care. Of major concern was the requirement that nurses in the home dialysis to float to other areas during staff shortages/sick calls. An assigned nurse for unexpected “drop-in” patients was discussed and felt to be a need so that training nurses can focus on patient training and education needs.[^131]
[Emphasis added]
[102] The only references to the cost of providing renal care are peripheral, are not central to the review and are separate from any concern over the billings received by the clinic operated by Dr. Albert Kadri. For example:
A briefing note prepared in January 2014 (correspondence Dino Villata, June 2015) outlined potential cost avoidance of $600,000 by closing the McDougall satellite and relocating services to the new dialysis facility at the Bell building adjacent to WHD.[^132]
Funding for nocturnal hemodialysis takes into account additional costs and centers receive almost $30,000 more for annualized nocturnal hemodialysis patients than annualized conventional hemodialysis patients[^133]
There are clear costs savings with improved home modality uptake with reported costs of PD of 30,000 dollars per year, HD 40-50,000 dollars per year and Facility based HD over 80,000 dollars per year.[^134]
[103] This is demonstrative of what I take to be a fundamental difficulty with this appeal. At the outset, relying on comments found in the External Review Report, two assertions are made. The first that, in order to compel compliance with the new Model of Care, the External Review Report included a threat to revoke the privileges of any doctor that did not comply with the changes being made and secondly that the true purpose of the development and implementation of the new Model of Care was for the Windsor Regional Hospital to take over all the available billing to be made on account of the treatment of chronic kidney disease. These being the foundation of the changes that were made it is alleged that they were made in bad faith. The proof of this is taken to be the fact that the privileges of Dr. Albert Kadri were revoked and the revenue redirected to the Multidisciplinary Chronic Kidney Disease Clinic at the hospital by requiring that all patients who were to receive dialysis at the hospital were required to attend at the hospital clinic to receive the treatment in preparation for dialysis (pre-dialysis treatment).
[104] This jump from cause to effect is made without any acknowledgement, or accounting of what happened in between. There is no consideration of the other explanations of how and for what reason the new Model of Care was developed, approved and implemented or why the decision to revoke the privileges of Dr. Albert Kadri was made and supported by the Board of Directors and the Health Professions Appeal and Review Board. This is despite the fact that there is little, if any denial by Dr. Albert Kadri of the actions he took that these decision makers found were disruptive to the workings of the Windsor Regional Hospital and which undermined the effort of other staff members to service its patients.
[105] Counsel for Dr. Albert Kadri submits that his client was always and only motivated by concern for his patients and delivering them the best care. Dr. Albert Kadri does not deny his disruptive behaviour but takes the position that this conduct should not bear any weight because there is no evidence of any specific harm to any specific patient. This is a false premise. It is based on the understanding that the only patients of concern were his patients. There is no acknowledgement that his unfortunate behaviour could have and did have an impact on other patients that were the responsibility of the hospital. There is no account taken of the impact his conduct had on other members of the staff that could have and did affect their ability to serve other patients. The Health Professions Appeal and Review Board made note of the effect of conflict between staff members on care for patients and in doing so relied on the following quotation:
In my view, the Hospital is obliged to ensure that its employees can work together in the most harmonious environment possible. Disruption and conflict amongst its employees can only adversely affect the care of patients. Any internal investigation into bullying and harassment, once those allegations are raised, is not only desirable but, in many senses, obligatory.[^135]
[106] The Health Professions Appeal and Review Board noted that inappropriate behaviour by a physician can lead to a revocation of his or her privileges:
At a certain stage in troubled and disruptive relations between Hospital administration and staff, and a physician, it is fair to say that a breakdown has occurred such that renewal of privileges would not be able to restore the trust required for the Hospital to effectively manage the physician and the quality of patient care and safety.[^136]
[107] There was evidence that the conduct and behaviour of Dr. Albert Kadri was such that it would, by its nature, be disruptive of the efforts to implement the new Model of Care and of a type that Dr. Albert Kadri, as a senior and experienced member of the professional staff, would have known would be disruptive. This would support a finding that these actions were intended to undermine the efforts of the Windsor Regional Hospital and its staff.
[108] Dr. Albert Kadri was the only one of the nephrologists then practicing in the city of Windsor not to accept and comply with the new Model of Care. Instead, he asked for and expected his dialysis patients to be treated differently, pursuant to different protocols than the other patients. He continued to attend the patients he regarded as “his own.” Contrary to the new Model of Care, he sought to remain the “most responsible physician” for his patients “regardless of who was on-call” and “regardless of the frequency, type or location of service for those patients.” He knew this different treatment would require that the staff be notified that he would be the physician seeing these patients on his “own rounds”. Even so he required that should one of these patients require assistance when he was unavailable the staff should seek the guidance from the nephrologist who was on-call (see: fn. 40 herein). In order to proceed in this way Dr. Albert Kadri required a schedule of the treatments to be received by the patients he considered to be his own, separate from the others who were dealt with pursuant to the new Model of Care (see: fn. 41 herein). On March 6, 2017, the day the new Model of Care was implemented Dr. Albert Kadri “unilaterally changed the supervision of dialysis treatment for his outpatient population”. As he indicated he would, Dr. Albert Kadri, on rounds, saw those he considered “his” patients” and contrary to the Model of Care made orders in respect of their care despite not being the nephrologist on-call (see: fn. 46 herein). Some of these contradicted the orders made by the doctor who was on-call. Some were presented, as the hospital saw it, “in various ways” and in “an inconsistent manner”[^137]. The Health Professions Appeal and Review Board found that Dr. Albert Kadri provided orders in an inconsistent manner and that these orders were disruptive to the safe operation of the Multidisciplinary Chronic Kidney Disease clinic and caused confusion, stress and distraction for the Renal Program.[^138] Nonetheless, Dr. Albert Kadri expected the staff to respond to those orders. Dr Albert Kadri used intimidation and threats to bully other physicians, Renal Team members and the administration of the Windsor Regional Hospital.[^139] Dr. Albert Kadri systematically sabotaged efforts to collaborate and follow the guidelines of the Renal Program.[^140] Dr. Albert Kadri recruited two new nephrologists without any authority to do so and encouraged one of them, Dr. Syed Obaid Amin, to apply for privileges at the Windsor Regional Hospital when he knew or ought to have known that the available positions had been filled. Dr. Albert Kadri, understanding that the approach to billing had changed, but rather than accept and act pursuant to the new system, declared the acceptance of the new approach by the Ministry of Health and Long Term Care as “incorrect” (see: fn. 123, fourth bullet, herein), and, then, billed in a fashion that denied payment as prescribed by the new Model of Care to those who had done the work and billed for it under the new system.
[109] On this foundation it is difficult to see how these efforts would not be detrimental to the implementation of the new Model of Care and to the patients they served. The letter written by counsel for the Windsor Regional Hospital to counsel, then, acting for Dr. Albert Kadri dated March 10, 2017 pointed out:
Dr. Kadri’s conduct since March 6th has caused confusion, stress and distraction for all Renal Program Staff, including the Nephrologist on-call. He is diverting Renal Program Staff’s time away from patient care. He has been attempting to bully the other Nephrologists by threatening to report them to the College of Physicians and Surgeons of Ontario if they don’t conform and accommodate his unilateral change in practice. His conduct has also caused confusion for patients.[^141]
[110] The Panel of the Board of Director’s agreed with the Medical Advisory Committee:
…that Dr. Kadri’s actions are, and are reasonably likely to be, detrimental to the delivery of quality patient care within the Hospital. Dr, Kadri has exhibited on numerous occasions, disruptive and unprofessional behaviour.[^142]
[111] The Health Professions Appeal and Review Board made findings as to effect of the actions, statements, behaviour and conduct of Dr. Albert Kadri, among them, that he:
• created confusion, stress, and distraction amongst the staff of the Renal Program;
• created stress and confusion amongst patients of the Renal Program;
• required those in positions of leadership at the Respondent hospital to divert time from their duties, including patient care, to respond to the Appellant’s conduct and behaviour;
• created toxic relationships with his nephrologist colleagues;
• amounted to unprofessional and disruptive conduct.[^143]
[112] These are findings of fact made by each of these decision makers. They are entitled to deference. The conduct and behaviour of Dr. Albert Kadri was detrimental to the operation of the renal care program at the Windsor Regional Hospital, its administration, its staff and its patients.
[113] The decision of the Health Professions Appeal and Review Board reports that the Windsor Regional Hospital acknowledged that all the patients of Dr. Albert Kadri proposed to be called to give evidence:
• believed him to be a good doctor,
• wanted to be cared for by him,
• were not pleased to be contacted by the hospital regarding their attendance at the Multidisciplinary Chronic Kidney Disease Clinic, and
• placed importance on patient autonomy and choice.[^144]
[114] Even with this acknowledgment, twenty-five patients testified, and video testimonials of others were presented in evidence, at the hearing. It does not matter how many patients of Dr. Albert Kadri indicated their faith in his care. Their concern is circumscribed. It reflects on the care they received. They have no responsibility for, or understanding of, the impact the conduct of Dr. Albert Kadri had on other patients, on the staff, for the renal program as a whole and, for that matter, whether the treatment they would have received under the new Model of Care would have been as good or perhaps even superior.
[115] Dr. Wassim Saad, the Chief of Medicine, at the hearing before the Health Professions Appeal and Review Board was asked what would happen if the privileges Dr. Albert Kadri were reinstated:
In a word, a catastrophe. It would be, it would be a disaster. If his privileges were reinstated, I can tell you, and you can ask them directly, Dr. Walters and Dr. Patel would leave. I don't know what Dr. Bagga and Dr. Callaghan would do. We would not be able to recruit; we would not be able to implement our model of care… it would be absolutely devastating. We would be decimated from a nephrology perspective, and I think it would take forever to recover from that.[^145]
[116] Dr. Albert Kadri acted in a fashion that was inconsistent with, and contrary to, s. 17.01 of the By-Law of the Windsor Regional Hospital which outlines the criteria for suspension of a member of the professional Staff (see: para. [40] herein). It is the actions, the conduct and behaviour of Dr. Albert Kadri in response to the new Model of Care which were the cause of his loss of privileges. The loss of his privileges was not the result of a new Model of Care or approach to billing having been designed to, or in anticipation of, his privileges being revoked. There is no evidence that supports the allegation of bad faith in the revocation of those privileges. To borrow from Shakespeare, Dr. Albert Kadri was hoist by “his own petard”[^146], that is to say, by his own conduct. The measure of the commitment of Dr. Albert Kadri to that behaviour and his apparent failure to understand the breadth of its impact is caught by the following:
The Appeal Board also finds, based on the Appellant’s actions, statements, and conduct, that in the event his privileges were reinstated, there is no likelihood that he would comply with the Model of Care for the Renal Program.[^147]
[Emphasis added]
Sufficiency of the Reasons of the Health Professions Appeal and Review Board
[117] I return to the first of the three issues raised on behalf of Dr. Albert Kadri: the submission that the reasons delivered by the Health Professions Appeal and Review Board were insufficient. I repeat that in determining the sufficiency of reasons it is important to identify and understand the issue or issues that those reasons are required to respond to. In this case, as determined by the Health Profession Appeal and Review Board, any issue concerning the efficacy of the process that resulted in the new Model of Care is not relevant to the determination that the privileges of Dr. Albert Kadri were to be revoked. As has already been said the opportunity to question that process was determined when the appeal made in response to the memoranda of March 5, 2107 and March 10, 2017 was abandoned. The effort to raise those issues here was a collateral attack on a decision that was to have been appealed at the time that appeal was made, that is March 2017. The Health Profession Appeal and Review Board determined that:
The Appeal Board is not required to determine whether the Respondent’s Model of Care for the Renal Program is superior or inferior to the model of care in other hospitals or to the model of care preferred by the Appellant in coming to a conclusion as to the propriety of the actions of the Respondent with respect to the Appellant’s privileges.[^148]
[118] Nonetheless, it noted the submission made on behalf of Dr. Albert Kadri, that “[t]he Model of Care is the bad faith” and stated its disagreement:
The implementation of the Model of Care for the Renal Program followed the external review, which was initiated after advice from the ORN that there were concerning issues with the metrics of the Respondent’s Renal Program. The steps taken by the Respondent to implement the Model of Care for the Renal Program have been detailed in this decision and were, in the opinion of the Appeal Board, taken with the good faith intention of following the recommendations of the external review Report.[^149]
[119] It does not matter whether there are or are not sufficient reasons in the decision of the Health Professions and Appeal Board to support this conclusion. It is not central to and will not change the determination of the issue at hand, being the propriety of revocation of the privileges of Dr. Albert Kadri. The issue is whether the reasons provide sufficient indication of the evidence relied on to support the rationale for the revocation of the privileges of Dr. Albert Kadri. In this case, this would be whether there is sufficient demonstration that his conduct and behaviour had disrupted and undermined the Renal Program to the detriment of the staff, its efforts to provide appropriate treatment to those patients and caused harm to those patients.
[120] There is a second limitation to the significance of the concern as to whether the reasons provided were sufficient. Earlier in these reasons it was observed that the Court, on an appeal such as this, is empowered to substitute its opinion for that of the Health Professions Appeal and Review Board.[^150] Accordingly, if the reasons given are insufficient but the Court finds that there is, in the evidence, enough information on which a proper decision can be based, it is free to make that decision. This being so, it would be open to this Court, with proper reasons, to find, regardless of the sufficiency of the reasons of the Health Professions Appeal and Review Board, that there was good reason to deny the renewal of, or to revoke, the privileges of Dr. Albert Kadri. The authorization of the Court to substitute its own opinion is underscored by a proposition found in Canada (Minister of Citizenship and Immigration) v. Vavilov.[^151] In that case, it is recognized that while, as a general rule, matters will be remitted to the designated administrative decision maker, there may be situations where it is better for the Court to act immediately and substitute it own opinion:
Declining to remit a matter to the decision maker may be appropriate where it becomes evident to the court, in the course of its review, that a particular outcome is inevitable and that remitting the case would therefore serve no useful purpose.[^152]
[121] As I see it, a review of what has been considered herein reveals that there is evidence that demonstrates that Dr. Albert Kadri acted to disrupt and undermine the implementation and operation of renal care being carried out pursuant to the new Model of Care. This evidence is sufficient to explain, support and justify the revocation of the privileges of Dr. Albert Kadri at the Windsor Regional Hospital as a breach of s. 17.01 of the By-Law of that Hospital.
[122] If required I would find that it is appropriate for the Court to substitute its opinion for that of the Health Professions Appeal and Review Board because, absent sufficient reasons in the decision of the Health Professions Appeal and Review Board, there is more than enough evidence for the Court to make its own finding and substitute its view for that of the Board. In any case, the answer is inevitable. There is no evidence that would reasonably support a finding of bad faith in the determination that the privileges of Dr. Albert Kadri be revoked. His privileges were revoked because of his own disruptive behaviour that was contrary to s. 17.01(a) of the By-law of the Windsor Regional Hospital. There would be no purpose in returning this case to the Health Professions Appeal and Review Board. Again, it would be open to the Court to confirm the decision of the Health Professions Appeal and Review Board and substitute, an opinion of its own, leading to the determination that the revocation of privileges be sustained. As it is there is no need for this. The reasons as provided by the Health Professions Appeal and Review Board were sufficient.
[123] In this case the decision being made was clear and unmistakable. The privileges of Dr. Albert Kadri were revoked:
For the reasons that follow, it is the decision of the Health Professions Appeal and Review Board (the Appeal Board) to deny the appeal and to confirm the decision of the Hospital Board that the Appellant shall not be appointed to the Professional Staff for the 2017/2018 and 2018/2019 credentialing years and further, the suspension of the Appellant’s privileges at WRH will continue pending the Appellant exhausting his rights of appeal under the PHA.[^153]
[124] It is readily apparent why the privileges of Dr. Albert Kadri were revoked:
The Appeal Board also finds that, because of the Appellant’s actions, behaviours, statements, and conduct, he does not meet the qualifications and criteria for reappointment to the Respondent’s Professional Staff as set out in sections 15.05 (b)and 19.02 of the hospital By-Law. [^154]
[125] The legal foundation for the revocation is demonstrated by a review of the By-Law of the Windsor Regional Hospital. The obligation of the Professional Staff to follow the policies of the Windsor Regional Hospital are set by s. 19.02 and at ss. 15.05 (Reappointment of Professional Staff), 16.01 (Initiation of Non-Immediate Mid-term Action) and 17.01 (Initiation of Immediate Mid-term Action), each of which express concern for the quality of care provided to patients. Under the last two of these provisions, action is authorized where patients are exposed to the risk of harm by, among other things, the behaviour of a member of the Professional Staff.[^155] All of these provisions are referred to and relied on in the decision of the Health Professions Appeal and Review Board.[^156]
[126] The evidence heard by, and findings made by the Health Professions Appeal and Review Board, which support the decision to revoke the privileges of Dr. Albert Kadri are manifest. Under the heading: “The Appellant resists and disrupts the implementation of the Model of Care for the Renal Program” the Health Professions Appeal and Review Board noted and found that:
• having on more than one occasion agreed to fully comply with the program policy and do everything possible to support the Renal Program as recommended in the External Review Report, Dr. Albert Kadri backed away from his promise to cooperate and refused to engage in the implementation of the Model of Care for the Renal Program.[^157]
• Dr. Albert Kadri, although invited to all meetings and discussions regarding the recommendations in the External Review Report, withdrew from all consultation and planning opportunities with the two other nephrologists in the Renal Program Team. In a breach of section 19.02 of the By-law of the Windsor Regional Hospital, he stopped attending Department meetings.[^158]
• Dr. Albert Kadri refused to support the requirement that the nephrologists share equally in the Chronic Disease Team Fee (CDTF), based on their on-call responsibilities.[^159]
• Dr. Albert Kadri stated he would “round” or attend personally on what, he referred to as, his own patients contrary to both the Model of Care and historical practice.[^160]
• though requested to do so by representatives of the Windsor Regional Hospital, Dr. Albert Kadri failed to engage with the other two nephrologists to develop an operational plan consistent with the External Review Report.[^161]
• though requested to do so by the Chief of Staff of the Windsor Regional Hospital, Dr. Albert Kadri failed to engage with the other two nephrologists to find a solution to the conflict between the 2009 Agreement and the new Model of Care.[^162]
• on May 8, 2016, Dr. Albert Kadri sent an email to the Chief of Medicine (Dr. Wassim Saad) and to the Chief of the Staff (Dr. Gary Ing) alleging problems with the External Review Report without identifying the problems he saw or providing suggestions for their solution.[^163]
• on September 6, 2016, Dr. Albert Kadri emailed the Director of the Renal Program stating that he was not in agreement with referring patients to the Multidisciplinary Chronic Kidney Disease clinic but did not explain his concern. Having been reminded of his obligation to do so and having been threatened, on September 11, 2016, with mid-term action against him under the By-Law of the Windsor Regional Hospital he agreed to act under the obligation to make these referrals but later refused to do so.[^164]
• during November 2016, although he was no longer the Chief of Medicine or the Medical Director of the Renal Program, Dr. Albert Kadri advised the Windsor Regional Hospital that he had recruited two nephrologists to join the Renal Program. He indicated he had done so pursuant to the 2009 Agreement. He refused to provide the Windsor Regional Hospital with the names of the two nephrologists he had recruited.[^165]
• during December 2016, Dr. Albert Kadri began placing notes in patient charts, directing staff to call patients’ community-based nephrologists’ office to discuss or book appointments for any concerns or chronic management issues. The placement of these notes caused confusion amongst the Renal Program Team and required emails from both the Director-Mental Health & Regional Renal Program, (Jonathan Foster) and the Vice-President of Renal Services (Monica Staley-Liang) clarifying that the notes and orders from Dr. Albert Kadri were contrary to the new Model of Care.[^166]
• during January 2017, Dr. Albert Kadri continued to insist that a patient’s community-based nephrologist should be contacted regarding all chronic issues, contrary to the requirements of the new Model of Care.[^167]
• during February 2017, Dr. Albert Kadri again documented, in patient charts, that the community-based nephrologist was to be contacted for any chronic issues. This generated another email from the Director-Mental Health & Regional Renal Program (Jonathan Foster) and a letter from the President and CEO of the Windsor Regional Hospital (David Musyj), the Chief of the Staff (Dr. Gary Ing) and the Chief of Medicine (Dr. Wassim Saad) warning that if Dr. Albert Kadri continued in this behaviour, the Windsor Regional Hospital would be forced to take action under its By-Law.[^168]
• on March 3, 2017, Dr. Albert Kadri emailed the Director-Mental Health & Regional Renal Program (Jonathan Foster) stating that as of March 6, 2017 (the day the new Model of Care was implemented) he would remain the Most Responsible Physician (MRP) for his patients, regardless of the nephrologist on call. Following the implementation of the new Model of Care, Dr. Albert Kadri continued to “attend” patients directed to the Multidisciplinary Chronic Kidney Disease (MCKD) clinic from his office and provided orders for those patients. Some of those orders were parallel to those of the on-call nephrologist and some contradicted the orders of the on-call nephrologist. The Health Professions Appeal and Review Board found that these orders, as provided by Dr. Albert Kadri, were delivered in an inconsistent manner and that these orders were disruptive to the safe operation of the Multidisciplinary Chronic Kidney Disease (MCKD) clinic and caused confusion, stress, and distraction for the Renal Program Team, including the on-call nephrologists, so as to divert time and energy away from patient care. Dr. Albert Kadri continued to attend and make these orders.[^169]
• on March 9, 2017 Dr. Albert Kadri sent an email to the other two nephrologists, then practicing in the city of Windsor (Dr. Amit Bagga and Dr. Wayne Callaghan) threatening to complain of their “unprofessional conduct” to the College of Physicians and Surgeons if they continued to follow the terms of the new Model of Care.[^170]
• Dr. Albert Kadri refused to comply with the requirement of the new Model of Care that all patients who would eventually require dialysis at the Windsor Regional Hospital and who would require pre-dialysis care be referred to the Multidisciplinary Chronic Kidney Disease (MCKD) clinic.[^171]
[127] This evidence and these findings clearly support and explain the conclusion that the conduct and actions of Dr. Albert Kadri were disruptive and undermined the effort to implement the new Model of Care. The submissions made on behalf of Dr. Albert Kadri contest that this is sufficient to found the determination that his privileges should be revoked. The factum filed on his behalf asks which of the “actions, statements, behaviour and conduct” created stress and confusion among the patients of the Renal program? I start by observing that while both section 16.01 of the By-Law of the Windsor Regional Hospital (Initiation of Non-Immediate Mid-term Action) and 17.01 (Initiation of Immediate Mid-term Action), authorize action where patients are exposed to the risk of harm as a result of the behaviour of a member of the Professional Staff and s. 15.05 (Re-appointment to the Professional Staff) includes a concern for patient care, there is no assurance that an absence of harm to patients ensures a renewal of a doctor’s privileges. The factum filed on behalf of Dr. Albert Kadri distinguishes between stress and confusion to patients and stress and confusion to the staff.[^172] The findings of the Health Professions Appeal and Review Board demonstrate the difficulties confronted by the staff as a result of the conduct of Dr. Albert Kadri. The undermining and disrupting the staff is enough to support a decision to refuse the renewal of a physician’s privileges.
[128] The presence of, or potential for, harm to patients from the behaviour of Dr. Albert Kadri is self-evident. Stress and confusion in the staff inherently put the patients at risk, not just the patients of Dr. Kadri but all the patients served by that staff. This is the natural connection made note of and referred to in the decision of the Health Profession Appeal and Review Board where it quotes Pierro v. The Hospital for Sick Children.[^173] As proposed on behalf Dr. Albert Kadri there would have to be evidence from a patient of stress or confusion particular to him or her traceable back to the conduct of Dr. Albert Kadri. The submissions made on behalf of Dr. Albert Kadri rely on Champoux v. Jefremova.[^174] The circumstances there were different. In that case a patient went to a hospital for treatment of an abscess. She was sent home. As a result, she suffered complications that were avoidable. She had to return to the hospital. She brought an action for malpractice. After a trial, the action was dismissed. A new trial was ordered. The trial judge having reviewed the evidence provided his conclusion without explaining how he analysed or understood the evidence in coming to his decision. That case dealt with a single patient, in a particular circumstance. What happened here is systemic. It involves disruption to a program and a resultant risk to all of its patients.
[129] In the factum filed on behalf of Dr. Albert Kadri, evidence he gave at the hearing before the Health Profession Appeal and Review Board is quoted:
[Y]ou’re telling me that as a qualified nephrologist, I’m not allowed to provide orders on patient--my own patients that I’ve been seeing for years and years? And so that seemed--that, that seemed overreaching and dictating that-- how I can practice in my private practice. Now, I agree that the hospital, if the nephrologist on-call is seeing a patient in a hospital, they can provide orders. And if they see an order of mine, they’re free to call me and discuss it with me. But if I see a patient in my office, imagine assessing them, making a clinical decision that they need something, but then not doing it. I imagine the ramifications of that, if something were to happen, adverse to that patient after they left my office.
… Like, how do you practice safely with a patient when you’re being told, don’t fax your assessments to say what you plan to do for a patient, and don’t provide any orders on people you’re actually assessing in your practice. If I don’t do that, and someone walked out of my office and has an adverse event. I’m responsible for that, not the nephrologist on-call.[^175]
[130] In the factum it is said that this was being placed before the Court to demonstrate that the Model of Care was itself risking harm to patients. The agreement or disagreement of Dr. Albert Kadri with the Model of Care is not an issue to be decided here. Understood in the context of this case, this quotation is not an expression of concern for the patient so much as it is a demand by Dr. Albert Kadri that he be permitted to maintain his privileges but be allowed to carry out his practice as he sees fit without regard for the impact on the staff, other patients in the program or his responsibility to adhere to the policies of the Windsor Regional Hospital and its dialysis program.
[131] The reasons provided by the Health Profession Appeal and Review Board were sufficient to explain the decision to refuse the renewal of the privileges of Dr. Albert Kadri.
Conclusion
[132] To go back to where these reasons began, this is not, as counsel for Dr Albert Kadri would have it, a circumstance where the hospital does nothing other than provide infrastructure so that a physician can carry out his or her practice as he or she decides without regard for the hospital’s broader role and responsibility. The system of providing health care is an integrated one, where the hospital, its staff and doctors work together to provide a high quality and hopefully efficient and economically feasible level of care. If a doctor is unable or unwilling to work within and respect the policies and programs properly approved and implemented by the hospital the choice is not to undermine the service being offered. It is to find another way or place to practice.
[133] For the reasons referred to herein the appeal is dismissed.
[134] As agreed by the parties, costs are to be paid by Dr. Albert Kadri to the Windsor Regional Hospital in the amount of $40,000
Lederer, J.
I agree _______________________________
McCarthy, J.
I agree _______________________________
Davies, J.
Released: July 18, 2022
CITATION: Kadri v Windsor Regional Hospital, 2022 ONSC 4016
DIVISIONAL COURT FILE NO.: 620/21
DATE: 20220718
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Lederer, McCarthy, Davies JJ
BETWEEN:
DR. ALBERT KADRI Appellant
– and –
WINDSOR REGIONAL HOSPITAL Respondent
REASONS FOR JUDGMENT
Lederer, J.
Released: July 18, 2022
[^1]: Dr. Albert Kadri v. Windsor Regional Hospital, 2021 57862 (ON HPARB) at para. 28 [^2]: Factum of the Appellant at paras. 8 and 9 (Caselines A7) [^3]: Dr. Albert Kadri v. Windsor Regional Hospital, supra (fn. 1) at paras. 23, 24, 34, 35, 36 [^4]: Ibid at para. 37 [^5]: Windsor Regional Hospital, Chronic Disease Program, External Review, October, 2015 at p. 20 (Caselines A509) [^6]: Ibid [^7]: Ibid at p. 21 (Caselines A510) [^8]: Ibid at p. 22 (Caselines A511) [^9]: Ibid at p. 23 (Caselines A512) [^10]: Ibid [^11]: Ibid at p. 24 (Caselines A513) [^12]: Ibid at p. 21 referring to 2012 Kidney Disease Improving Global Outcomes (KDIGO, 2012), p.115 (Caselines A510) [^13]: Ibid at p. 24 (Caselines A513) [^14]: Ibid at p. 25: The External Review Report also recommended the development of a Clinical Practice and Operational Standards Policies and Protocols guidance manual for the program and that consideration be given to restructuring nursing roles in the program to improve the care continuum and staff education (Caseline A514) [^15]: Ibid at p. 24 (Caselines A513) [^16]: Letter dated January 16, 2016 from Dr. Albert Kadri to Mr. Jonathan Foster, Director-Mental Health & Regional Renal Program, Windsor Regional Hospital at p. 1 (Caselines A524) [^17]: Factum of the Appellant at para. 10 (Caselines A7) [^18]: Letter dated January 16, 2016 from Dr. Albert Kadri to Mr. Jonathan Foster, Director-Mental Health & Regional Renal Program, Windsor Regional Hospital at p. 2 (Caselines A525) [^19]: Dr. Albert Kadri v. Windsor Regional Hospital, supra (fn. 1) at para. 58 [^20]: R.S.O. 1990 Ch. P. 40 [^21]: Ibid at s. 35: Section 37 referred to in s. 35(2) refers to applications by physicians for appointment or reappointment to any group of the medical staff of a hospital or for a change in hospital privileges. [^22]: By-Law of the Windsor Regional Hospital at s. 14.02 [^23]: Factum of the Appellant at para. 23 referring to Excerpts of the Minutes of the Meeting of the Windsor Regional Hospital Medical Advisory Committee (February 16, 2016) at p. 2 (Caselines A531) [^24]: Ibid [^25]: Hospital Management Regulation R.R.O. Reg. 965 at s. 2(1) [^26]: Minutes of the In-Camera Board of Directors meeting held on Thursday, March 03, 2016 at p. 1 (Caselines A534) [^27]: Minutes of the Meeting of the Windsor Regional Hospital Medical Advisory Committee (January 17, 2017) at p. 6 (Caselines A542) [^28]: Dr. Albert Kadri v. Windsor Regional Hospital, supra (fn. 1) at para. 54 [^29]: Windsor Regional Hospital, Internal Memorandum from Monica Staley and Dr. Wassim Saad, Chief, Department of Medicine to Dr. Amit Bagga, Dr. Wayne Callahan and Dr. Al Kadri, dated March 4, 2016 (Caselines A536) [^30]: Dr. Albert Kadri v. Windsor Regional Hospital, supra (fn. 1) at para. 55 [^31]: Testimony of Dr. Albert Kadri, January 19, 2021 at p. 161-162 (Caselines A 435-A436) [^32]: Testimony of Dr. Albert Kadri, January 18, 2021 at p. 166 (Caselines A437) [^33]: Minutes of the Meeting of the Windsor Regional Hospital Medical Advisory Committee (January 17, 2017) at pp. 5 and 6 (Caselines A541-A542) [^34]: Minutes of the In-Camera Board of Directors meeting held on Thursday February 2, 2017 at pp 5 and 6 (Caselines A551-A552) [^35]: Memorandum from Monica Staley and Dr. Wassim Saad to Drs. Albert Kadri, Wayne Callahan and Amit Bagga (January 18, 2017) (Caselines A543) [^36]: Memorandum from David Musyj, Dr. Gary Ing, Dr. Wassim Saad, Minica Staley and Jonathan Foster to Drs. Amit Bagga, Wayne Callagan and Albert Kadri (March 5, 2017 (Caselines A557) [^37]: Memorandum from David Musyj, Dr. Gary Ing, Dr. Wassim Saad, Monica Staley and Jonathan Foster to Drs. Amit Bagga, Wayne Callahan and Albert Kadri (March 10, 2017) (Caselines A502). [^38]: Factum of the Appellant at para. 30 [^39]: Jonathan Foster was also identified as the Regional Director for the Ontario Renal Network and Local Health Integration Network (Lhin). [^40]: Email from Dr. Albert Kadri to Jonathan Foster (March 3, 2017) (Caselines A555) [^41]: Email from Dr. Albert Kadri to Jonathan Foster (March 5, 2017) (Caselines A556) [^42]: Letter from Colin Johnston, Lenczner, Slaght to Ms. Sara van der Vliet, Registrar, Health Professions Appeal and Review Board (April 19, 2017) (Caselines A1593) [^43]: Memorandum to the Medical Advisory Committee of the Windsor Regional Hospital from Gary Ing, Chief of Staff, David Musyj, President & CEO and Dr. Wassim Saad, Chief, Department of Medicine (December 14, 2017) at para. 22 (Caselines A575) [^44]: Dr. Albert Kadri v. Windsor Regional Hospital, supra (fn. 1) at paras. 77-79 [^45]: By-Law of the Windsor Regional Hospital at s. 19.02 [^46]: Letter from Paula Trattner to Tracey Tremaine Lloyd (March 10, 2017 at pp. 2-3 (Caselines A560-A561) [^47]: Ibid at p. 3 (Caselines A561) [^48]: Memorandum to the Medical Advisory Committee of the Windsor Regional Hospital from Gary Ing, Chief of Staff with copies to David Musyj, President & CEO and Dr. Wassim Saad, Chief, Department of Medicine (December 14, 2017) at p. 1 (Caselines A564) [^49]: Ibid [^50]: Ibid at para. 32 (Caselines A578) [^51]: Ibid at para. 33 (Caselines A578) [^52]: Letter from Paula Trattner to Colin Johnston (March 5, 2018) (Caselines A587) [^53]: Rosenhek v. Windsor Regional Hospital, 2009 88685 (ON HPARB) at para. 11 [^54]: Factum of the Appellant at para. 35 [^55]: Letter from Paula Trattner to Colin Johnston (March 5, 2018) (Caselines A587) [^56]: Factum of the Appellant at para. 34 [^57]: Letter from Paula Trattner to Colin Johnston (March 5, 2018) at p. 12 (Caselines A598) [^58]: Ibid at p. 15 (para. 7) (Caselines A601) [^59]: Pubic Hospitals Act, supra (fn. 20) at s. 37(6) and (7)(b); and By-Law of the Windsor Regional Hospital at s. 16.03(h)(ii) [^60]: Dr. Albert Kadri v. Medical Advisory Committee, Windsor Regional Hospital: Decision and Reasons for Decision of the Windsor Regional Hospital Board of Directors (January 15, 2019) at para. 23 (Caselines A172) [^61]: Ibid at 26 (Caselines A173) [^62]: Ibid at paras. 38 (Caselines A175), 147 (Caselines A199), 162 (Caselines A202) and 178 (Caselines A205) [^63]: Ibid at para. 18 (Caselines A171) [^64]: Ibid at paras. 183 (Caselines A206) and 642 (Caselines A313) [^65]: Ibid at para. 60 (Caselines A179) [^66]: Ibid [^67]: Ibid at para 114 (Caselines A191) [^68]: Ibid at para. 186 (Caselines A207) [^69]: Ibid at para. 216 (Caselines A213) [^70]: Ibid at para. 229 (Caselines A217) [^71]: Ibid at para. 259 (Caselines A223) [^72]: Ibid at para. 282 (Caselines A228) [^73]: Ibid at para. 283 (Caselines A228) [^74]: Ibid at para. 288 (Caselines A230) [^75]: Ibid at para. 356 (Caselines A248) [^76]: Ibid at para. 367 (Caselines A252) [^77]: Ibid at para. 380 (Caselines A255) [^78]: Ibid at paras. 395 (Caselines A259 [^79]: Ibid at para. 416 (Caselines A266) [^80]: Ibid at para. 424 (Caselines A268) [^81]: Ibid at para. 467 (Caselines A280) [^82]: Ibid at para. 477 (Caselines A282) [^83]: Ibid at para. 480 (Caselines A282) [^84]: Ibid at para. 494 (Caselines A286) [^85]: Ibid at para. 518 (Caselines A292) [^86]: The Public Hospitals Act provides for such an appeal: s. 41(1) Any, (a) applicant for appointment or reappointment to the medical staff of a hospital who was a party to a proceeding before the board and who considers himself or herself aggrieved by a decision of the board not to appoint or not to reappoint him or her to the medical staff; or (b) member of the medical staff of a hospital who considers himself or herself aggrieved by any decision revoking or suspending his or her appointment to the medical staff or under section 34 or the by-laws cancelling, suspending or substantially altering his or her hospital privileges, is entitled to, (c) written reasons for the decision if a request is received by the board, person or body making the decision within seven days of the receipt by the applicant or member of a notice of the decision; and (d) a hearing before the Appeal Board if a written request is received by the Appeal Board and the board, person or body making the decision within seven days of the receipt by the applicant or member of the written reasons for the decision. [^87]: See the Public Hospitals Act s. 41(5) which states: 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. [^88]: Dr. Albert Kadri v. Windsor Regional Hospital, supra (fn. 1) at paras. 132 and 133 [^89]: Ibid at para. 134 [^90]: Section 43(1) of the Public Hospitals Act provides for this appeal: Any party to proceedings before the Appeal Board may appeal from its decision to the Divisional Court in accordance with the rules of court [^91]: Public Hospitals Act, supra (fn. 20) at s. 43(3) [^92]: 2019 SCC 65, 312 ACWS (3d) 460, [2019] SCJ No 65 (QL), [2019] CarswellNat 7883, 59 Admin LR (6th) 1 and 441 DLR (4th) 1 [^93]: 2002 SCC 33, [2002] 2 SCR 235, 112 ACWS (3d) 991, [2002] SCJ No 31 (QL) and 211 DLR (4th) 577 [^94]: Ibid at paras. 28 and 36 [^95]: Dr. Albert Kadri v. Windsor Regional Hospital, supra (fn. 1) at para. 77 [^96]: See fn. 65 herein [^97]: Dr. Albert Kadri v. Windsor Regional Hospital, supra (fn. 1) at para. 49 [^98]: Ruling: Dr. Albert Kadri v. Windsor Regional Hospital December 9, 2019, at pp. 2-3 (Caselines B1203-B1204) [^99]: Notice of Appeal at paras. 1, 2 and 3 (Caselines A61) [^100]: Noël v Société d’énergie de la Baie James, 2001 SCC 39 at para 52, [2001] 2 SCR 207. The case concerns the refusal of a union to proceed further, as the employee wished, in the face of a grievance that was dismissed and the employee’s attempt to proceed on his own. [^101]: Windsor Regional Hospital, Chronic Disease Program, External Review, October, 2015 at p. 24 (Caselines A513) [^102]: Windsor Regional Hospital, Internal Memorandum from Monica Staley and Dr. Wassim Saad, Chief, Department of Medicine to Dr. Amit Bagga, Dr. Wayne Callahan and Dr. Al Kadri, dated March 4, 2016 (Caselines A536) [^103]: Windsor Regional Hospital, Chronic Disease Program, External Review, October, 2015 at p. 24 (Caselines A513) [^104]: Dr. Albert Kadri v. Windsor Regional Hospital, supra (fn. 1) at para. 141 [^105]: Factum of the Appellant at para. 12 (Caselines A8) [^106]: Ibid at para. 15 (Caselines A9) [^107]: The quotation from the Factum goes on to say that “the record is replete with Respondent’s executives, namely, its CEO acknowledging this.” The specific evidence of this is said to be reviewed in greater detail at Part IV B, of the Factum. It isn’t. Paragraph 71 of the Factum found within Part IV B just repeats the statement: “Indeed the record before the HPARB was replete with examples of the Respondent recognizing its inability to alter the 2009 agreement”. No specific references are provided. The inability to make changes confirms that the hospital, as a non-party’ could not make changes. This is quite different from saying it should not be able to make changes. [^108]: Windsor Regional Hospital, Chronic Disease Program, External Review, October, 2015 at p. 24 (Caselines A513) [^109]: Factum of the Appellant at para. 71 [^110]: Ibid [^111]: Windsor Regional Hospital, Chronic Disease Program, External Review, October, 2015 at p. 22 (Caselines A511) The “AB/WC” noted refers to Dr. Amit Bagga and Dr. Wayne Callaghan. [^112]: Windsor Regional Hospital, Letter from David Musyj, President and CEO to Dr. Garry Salisbury, Senior Medical Advisor, Ministry of Health and Long-Term Care dated January 20, 2017 (Caselines A545-A546)) [^113]: Ministry of Health and Long-Term Care, Letter from Dr. Garry Salisbury, Senior Medical Advisor, Negotiations and Accountability Management Division, Health Services Branch to David Musyj President and CEO, Windsor Regional Hospital, dated January 25, 2017 (Caselines A547-A549) [^114]: Windsor Regional Hospital, Letter from David Musyj, President and CEO to Dr. Garry Salisbury, Senior Medical Advisor, Ministry of Health and Long-Term Care dated January 20, 2017 (Caselines A546)) [^115]: Dr. Albert Kadri v. Windsor Regional Hospital, supra (fn. 1) at para. 137 [^116]: Dr. Albert Kadri v. Medical Advisory Committee, Windsor Regional Hospital: Decision and Reasons for Decision of the Windsor Regional Hospital Board of Directors (January 15, 2019) at para. 42 (Caselines A175) [^117]: Ibid at para. 49 (Caselines A177) [^118]: Ibid at para. 57 (Caselines A179) [^119]: Ibid at para. 59 (Caselines A179) [^120]: Dr. Albert Kadri v. Windsor Regional Hospital, supra (fn. 1) at para. 46 [^121]: Ibid at paras. 99 and 100 [^122]: Ibid at para. 101 [^123]: Ibid at para. 97 [^124]: Dr. Albert Kadri v. Medical Advisory Committee, Windsor Regional Hospital: Decision and Reasons for Decision of the Windsor Regional Hospital Board of Directors (January 15, 2019) at para. 394 (Caselines A259) [^125]: Review of Regional Renal Dialysis Plan for the Erie St. Clair LHIN dated June 22, 2015 (Caselines A481) [^126]: Factum of the Appellant at para. 77 [^127]: Review of Regional Renal Dialysis Plan for the Erie St. Clair LHIN dated June 22, 2015 (Caselines A481) [^128]: Windsor Regional Hospital, Chronic Disease Program, External Review, October, 2015 at p. 17 (Caselines A506) [^129]: Review of Regional Renal Dialysis Plan for the Erie St. Clair LHIN dated June 22, 2015 (Caselines A482) [^130]: Terms of Reference, Review of the Windsor Regional Hospital Renal Program (Caselines A488) [^131]: Windsor Regional Hospital, Chronic Disease Program, External Review, October, 2015 at p. 17 (Caselines A506) [^132]: Ibid at p. 10 (Caselines A499): [^133]: Ibid at p. 15 (Caselines A504): [^134]: Ibid at p. 21 (Caselines A510) [^135]: Dr. Albert Kadri v. Windsor Regional Hospital, supra (fn. 1) at para. 129 quoting from Pierro v. The Hospital for Sick Children 2016 ONSC 2987 at para. 36 [^136]: Ibid at para. 130 quoting from Rosenhek v. Windsor Regional Hospital, 2009 88685 (ON HPARB) at para. 109 [^137]: This description of the Orders appears in the letter written by counsel for the Windsor Regional Hospital on March 10, 2017 to counsel then acting for Dr. Albert Kadri as demonstrated by: • Inputting orders directly into the electronic chart while rounding; • Providing verbal orders to Nursing Staff while rounding; • Documenting progress notes on his private office letterhead and having these printout at the Renal Unit printer without notice (some of these progress notes have ordered embedded within them) and; • Inputting orders remotely into the patient’s electronic medical record (Dr. Kadri has had some of these orders print out at the Renal Unit printer without notice) (Caselines A560) [^138]: Dr. Albert Kadri v. Windsor Regional Hospital, supra (fn. 1) at para. 68 [^139]: This point was made by the panel of the Board of Directors at para. 114 of its Decision and Reason for Decision (Caselines A191) relying “on the evidence” including Dr. Albert Kadri’s March 9, email to Dr. Bagga, with a copy having been sent to Dr. Callaghan. [^140]: In making this point the Board of Directors at para. 424 (Caselines A268) of its Decision and Reasons for Decision refers Dr. Albert Kadri having publically accused the Administration and staff of the Windsor Regional Hospital of putting patients “in harm’s way” because of the model of care in circumstances where there was no evidence to support these claims. [^141]: Letter from Paula A. Trattner to Tracey Tremayne-Lloyd dated March 10, 2017 at p. 2 (Caselines A560) [^142]: Dr. Albert Kadri v. Medical Advisory Committee, Windsor Regional Hospital: Decision and Reasons for Decision of the Windsor Regional Hospital Board of Directors (January 15, 2019) at para. 229 (Caselines A217) [^143]: Dr. Albert Kadri v. Windsor Regional Hospital, supra (fn. 1) at para. 131 [^144]: Ibid at paras. 50 and 51 [^145]: Ibid at para. 125 [^146]: William Shakespeare, Hamlet, Act 3, Scene 4 [^147]: Dr. Albert Kadri v. Windsor Regional Hospital, supra (fn. 1) at para. 134 [^148]: Ibid at para. 49 [^149]: Ibid at paras. 136 and 137 [^150]: See the Public Hospitals Act, supra (fn. 20) s. 43(3) which is quoted at fn. 90 herein. [^151]: Supra (fn. 92) herein [^152]: Canada (Minister of Citizenship and Immigration) v. Vavilov, supra (fn. 92) at para. 142 referencing: Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, 1994 114 (SCC), [1994] 1 S.C.R. 202, at pp. 228-30; Renaud v. Quebec (Commission des affaires sociales), 1999 642 (SCC), [1999] 3 S.C.R. 855; Groia v. Law Society of Upper Canada, 2018 SCC 27, [2018] 1 S.C.R. 772, at para. 161; Sharif v. Canada (Attorney General), 2018 FCA 205, 50 C.R. (7th) 1, at paras. 53-54; Maple Lodge Farms Ltd. v. Canadian Food Inspection Agency, 2017 FCA 45, 411 D.L.R. (4th) 175, at paras. 51-56 and 84; Gehl v. Canada (Attorney General), 2017 ONCA 319, at paras. 54 and 88 [^153]: Dr. Albert Kadri v. Windsor Regional Hospital, supra (fn. 1) at para. 2 [^154]: Ibid at para. 133 [^155]: Ibid (ss. 15.05, 16.01 and 17.01) (Caselines A49-A51) [^156]: Dr. Albert Kadri v. Windsor Regional Hospital, supra (fn. 1) at para. 123 (s. 15.05 (b)(v)), para. 115 (s. 16.01), para. 121 (s. 17.01(a)), and para. 122 (s. 19.02)). [^157]: Ibid at paras 54, 55 and 56 [^158]: Ibid at para. 57 [^159]: Ibid at para. 58 [^160]: Ibid [^161]: Ibid at para. 59 [^162]: Ibid [^163]: Ibid at para. 60 [^164]: Ibid at para. 61 [^165]: Ibid at para. 62 [^166]: Ibid at para. 63 [^167]: Ibid at para. 64 [^168]: Ibid at para. 65 [^169]: Ibid at paras. 66, 67 and 68 [^170]: Ibid at para. 69 [^171]: Ibid at para. 70 [^172]: Factum of the Appellant at paras. 54-56 [^173]: Dr. Albert Kadri v. Windsor Regional Hospital, supra (fn. 1) at para. 129 and see fn. 135 herein [^174]: 2021 ONCA 92 [^175]: Factum of the Appellant at para. 56 (Caselines A26-A26)