Tenn-Lyn v. Trillium Health Partners, 2022 ONSC 6329

CITATION: Tenn-Lyn v. Trillium Health Partners, 2022 ONSC 6329

DIVISIONAL COURT FILE NO.: 581/20

DATE: 20221116

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

D.L. Corbett, Ryan Bell and Favreau JJ.

BETWEEN:

NICOLE TENN-LYN

Appellant

– and –

TRILLIUM HEALTH PARTNERS

Respondent

COUNSEL:

Michael B. Fraleigh and Jared B. Schwartz, for the Appellant

Anna L. Marrison and Laura M. Wagner, for The respondent

HEARD at Toronto (by videoconference):

November 18, 2021

REASONS FOR DECISION

D.L. Corbett J.

[1] This is an appeal from the decision of the Health Professions Review and Appeal Board (the “HPARB”), confirming a decision of the respondent Trillium’s Board of Directors to terminate the appellant’s hospital privileges (Tenn-Lyn v. Trillium Health Partners, 2020 ONHPARB 13209).

[2] The HPARB confirmed the respondent Board’s decision for three reasons (Decision, para. 161):

The Appellant’s failure to meet the criteria for reappointment by her inability to communicate, work with and relate to her colleagues, patients, patient family members in a cooperative and professional manner as required by the Hospital’s Code of Conduct, By-laws and policies;

The Appellant’s inability to collaborate with other staff in the ED [Emergency Department] which created a risk to patient safety and the delivery of patient care; and

The Appellant’s demonstrated failure to improve.

[3] The appellant raises three grounds of appeal in this court:

(i) Did the HPARB err in law by misapprehending the evidence?

(ii) Did the HPARB incorrectly apply the test in the Public Hospitals Act, RSO 1990, c. P.40 and Trillium By-Laws?

(iii) Did the HPARB err in law by failing to find that Trillium's reliance on Dr. Tenn-Lyn's compelled complaint against Dr. Everson constituted a prohibited reprisal under the Harassment Policy?

Jurisdiction and Standard of Review

[4] An appeal lies from the HPARB decision to this court on questions of law or fact or both: Public Hospitals Act, RSO 1990, c. P.40, s. 43(1).

[5] Since this is a statutory appeal, the “appellate standard” of review applies: Canada (Minister of Citizenship and Immigration) v. Vavilov, [2019] SCC 65, para. 37. As stated by this court in Quadrexx Hedge Capital Management Ltd v. Ontario Securities Commission, 2020 ONSC 4392 (Div. Ct.), paras. 77- 80:

[77] Where a ground of appeal raises an issue of law alone, the standard of review is correctness.

[78] Where the ground of appeal raises a question of fact, the appellate court must pay substantial deference to it. Here, the appellate court cannot set the decision aside simply because it views the evidence as showing a different probability from that found below. Before it may properly interfere, the appellate court must conclude that the submitted error amounts to a "palpable and overriding error". The word "palpable" means "clear to the mind or plain to see", and "overriding" means "determinative" in the sense that the error "affected the result". The Supreme Court [page736] has held that other formulations capture the same meaning as "palpable error": "clearly wrong", "unreasonable" or "unsupported by the evidence".

[79] Examples of palpable error include (a) findings made in the complete absence of evidence (this could also amount to an error in law); (b) findings made in conflict with accepted evidence; (c) findings based on a misapprehension of the evidence; (d) findings of fact, drawn from primary facts, that are a result of speculation rather than inference; and (e) findings of fact based on evidence that has no evidentiary value because it has been rejected by the trier of fact.

[80] Matters of mixed fact and law lie along a spectrum; where the error of the decision-maker can be traced to a clear error in principle, it may be characterized as an error of law and subjected to a standard of correctness; where the legal principle is not readily extricable, then the matter is subject to standard of palpable and overriding error. (References omitted)

The Decision Below

[6] The HPARB came to the following conclusions, based on the record before it:

The overwhelming evidence before the Appeal Board detailed above was of a significant volume of complaints against the Appellant demonstrating her inability to work with others in a cooperative and professional manner…. (Decision, para. 165)

Under cross-examination, the Appellant admitted that over 50 complaints had been made against her… over the course of ten years…. [T]he Appellant admitted to improperly handling stressful situations…. (Decision, para. 166)

… [I]t is not an answer for physicians to justify their poor behaviour by blaming the other party especially where that physician is responsible for managing a busy [Emergency Department]…. (Decision, para. 167)

The CPSO report concluded that the appellant’s pattern of communications “interfere with her ability to function well with others to the extent that this could also interfere with quality care delivery” (Decision, para. 172)

… Dr Morra testified… that he believed the Appellant to be a “clear and present risk to patient safety as well as the work environment.” (Decision, para. 172)

… the ICRC decision describing the Appellant’s behaviour as meeting the College definition of a “disruptive physician” also cautioned that the Appellant’s words and actions have sometimes interfered with her ability to function well with others to the extent that this could also interfere with quality health care. (Decision, para. 173)

The Appeal Board was particularly troubled about several complaints concerning conduct of the Appellant which jeopardized patient care… (Decision, para. 176)

The evidence before the Appeal Board documented the many unsuccessful attempts by [University Health Network], the ICRC, the Appellant’s communications coach as well as the administrators at Trillium as the Appellant failed to improve her behaviour over the course of her career. (Decision, para. 178)

Her failure undermined efforts at teamwork in Trillium’s [Emergency Department] and jeopardized the delivery of quality patient care. (Decision, para. 178)

[T]he Appeal Board is very concerned about the allegations made by the Appellant about Dr Everson’s behaviour at [University Health Network] in 2007 or 2008…. [T]he alleged incidents did not occur. (Decision, para. 179)

The Appeal Board concludes that the relationship of trust between the Appellant and Trillium’s administration has irretrievably broken down and cannot be regained. (Decision, para. 183)

[7] The HPARB’s conclusions, summarized above, turn on findings of fact. These factual findings are firmly grounded in the evidence before the HPARB. For the reasons that follow, I would dismiss the appeal.

Issue #1 – Did the HPARB Misapprehend Evidence?

[8] The Appellant’s first argument has five aspects. She argues:

(a) the HPARB's credibility analysis was flawed and unreasonable;

(b) the HPARB's analysis of relevant, contradictory evidence was unreasonable;

(c) the HPARB unreasonably applied a different standard of scrutiny to Dr. Tenn-Lyn's evidence;

(d) the HPARB improperly reversed the burden of proof; and

(e) the HPARB unreasonably found that Trillium met the burden of proving its case on a balance of probabilities.[^1]

I will address each of these in turn.

(a) Credibility Analysis

[9] The appellant submits that “in many ways, this was a classic credibility case”. I do not agree. This was not a case where the core issue turns on competing versions of the facts offered by the only two witnesses with personal knowledge. This is not a “he said / she said” case. This is a “she said / they said” case.

[10] The HPARB hearing in this case lasted 12 days. There were numerous witnesses who testified to many situations where the appellant’s conduct gave rise to serious concerns. The appellant’s apparent strategy at the HPARB, and again on this appeal, fundamentally misconceived her situation. On the overwhelming evidence before the HPARB, the appellant has serious professionalism issues related to her relations with others in the workplace. These issues have a long history including a prior discipline history (Tenn-Lyn v. Medical Advisory Committee, University Health Network, 2016 ONHPARB 80391). Realistically and objectively, the issue for the Board of Directors and the HPARB was not whether these concerns are genuine, but whether the situation had deteriorated to such an extent, and the pattern continued unremedied for so long, that the Board was justified in making the decision that it did.

[11] In response, to generalize, the appellant has taken the position that her colleagues – her many colleagues – who have complained about her – have been lying, that they are the ones responsible for the problems, and that her superiors are acting in reprisal against her. Given the overwhelming evidence to the contrary, this was a failing strategy and one with the likely result of making the appellant seem to lack insight into her problems.

[12] Nevertheless, even though this was far from a “classic credibility contest” as argued by the appellant, the HPARB gave detailed reasons as to why it preferred the evidence of the respondent’s witnesses over the evidence of the appellant. These findings are firmly grounded in the record.

[13] On this appeal the appellant invites us to undertake a granular review of the entire record of this case to reach different conclusions on questions of credibility. I have reviewed the entire record with care. That is not my view. Like the Board, I consider the evidence to be overwhelming that the appellant’s treatment of others has been seriously disruptive in the workplace. But further, this court is not as well placed as the Board to make findings of credibility and to weigh the entirety of the evidence. That is not this court’s role on appeal.

[14] I conclude that the Board’s credibility findings are amply grounded in the record and provide no basis for this court to intervene.

(b) Analysis of Relevant Contradictory Evidence

[15] The appellant’s argument on this point seems to be that the HPARB did not review in its reasons each piece of evidence before it and that, in the result, it has failed to justify its findings. I do not agree. In respect to each of the examples given by the appellant in her factum and in oral argument, the answer is found in the Board’s credibility findings and its overall assessment of each of the incidents. The points raised by the appellant were not examples of uncontradicted evidence that is inconsistent with the Board’s findings or competing findings by the Board that are inconsistent. Rather, it is an argument that the Board failed to address each and every detail of the evidence and to explain why the Board did not accept each and every detail of the appellant’s version of events. The Board has no obligation to provide such reasons.

[16] I would describe the Board’s reasons as thorough. They provide a reasoned analysis of why the Board made its core factual findings, and credibility findings that ground the factual findings it made. Taken as a whole, the reasons provide a compelling account of its core findings, and an objective reader would understand fully why the Board concluded as it did.

(c) Differential Scrutiny of Testimony

[17] The appellant argues the HPARB applied greater scrutiny to her evidence than to the evidence of witnesses for the respondent. The HPARB was more critical of the appellant’s evidence than of the evidence of other witnesses, but the intensity of scrutiny is not the same thing as the intensity of criticism. When the Decision is looked at as a whole, it is clear that the HPARB put its mind directly to the task before it: to decide what happened on a balance of probabilities.

[18] The HPARB did explain, in detail, why it did not accept the evidence of the appellant on certain key issues. This was an aspect of the Board’s credibility finding and if it had not provided the level of detail it did to explaining its finding, it could have left itself open to criticism for failing to give adequate reasons for that finding. Further, there were numerous witnesses for the respondent. The Board was not required to engage in an atomistic credibility assessment for each conflict in the evidence once it had explained why it did not find the appellant’s evidence credible. Naturally the appellant’s evidence will have been scrutinized more than the evidence of other witnesses, because the range of her testimony engaged all of the issues before the tribunal, and the evidence of any one of the respondent’s witnesses addressed only some of the factual issues.

[19] I am satisfied that the HPARB scrutinized the entirety of the evidence before it and did not scrutinize the appellant’s evidence differently than the evidence of other witnesses.

(d) The Burden of Proof

[20] This was a de novo hearing before the HPARB in respect to the respondent Board’s decision. The respondent bore the burden of proof, on a balance of probabilities. Unlike criminal cases decided on proof beyond a reasonable doubt, cases decided on a balance of probabilities seldom turn on the onus of proof. The onus does come into play, however, where there is an absence of evidence on a particular point, or where the evidence on two sides of a point is equally compelling. Where, as in this case, there is a mass of evidence on virtually every contested point, the HPARB’s task is to decide what probably happened. That is what the Board did in this case.

[21] On appeal, the appellant was unable to point to a single factual determination made by the Board for which there was no evidence. There were some findings based on the oral testimony of a single witness, without corroboration. But that is not “no evidence”. The Board is entitled to accept the evidence of a witness without corroboration if it finds that evidence credible.

[22] By the end of two weeks of evidence, Trillium had presented a mass of evidence that was more than sufficient to ground findings against the appellant. It is thus no surprise that final argument would have focused on whether the evidence tendered by the appellant was sufficient to tilt the balance of probabilities. This focus, on the practical question facing the Board at the end of the evidence, does not lead to a finding that the onus has been reversed.

(e) Decision Reasonable on the Merits

[23] The HPARB heard oral evidence from five nurses, four members of the administration, the former Chief of Staff at the University Health Network, and two independent investigators. The HPARB considered written records going back to 2011 and found roughly fifty incidents of concerning behaviour. It found a pattern of blaming others, making unfounded allegations against others, failing to address the serious shortcomings in the appellant’s own professionalism, all in the context of significant efforts made by the respondent to raise issues with the appellant and support her in rectifying her unprofessional behaviour.

[24] The evidence of the nurses (as an example), was supported by contemporaneous documentary records, was internally consistent, and provided evidence of a pattern of behaviour by the appellant. The appellant provided diametrically opposed versions of these same events, presented to rationalize her own inappropriate conduct. The evidence of administrators was supported by contemporaneous meeting minutes, which were provided to the appellant, and which (save for one exception) were not contested by the appellant at the time. At the hearing, the appellant’s evidence was inconsistent with the written record and the evidence of the administrators.

[25] The HPARB’s conclusions – that there was a demonstrated unremedied pattern of misconduct going back to 2011 – and that the misconduct was so serious as to compromise patient care – were available on the evidence.

Conclusion

[26] I would not give effect to the appellant’s first ground of appeal.

Issue #2 – Did the HPARB incorrectly apply the test in the Public Hospitals Act and in Trillium’s By-Laws?

[27] Hospital Boards appoint physicians to the medical staff of hospitals and may revoke or suspend such appointments pursuant to (i) a recommendation of the hospital’s Medical Advisory Committee (“MAC”) and (ii) the hospital’s By-laws: Public Hospitals Act, RSO 1990, c. P.40, ss. 12, 35-43; Hospital Management Regulation, RRO 1990, Reg. 965, ss. 4(1), 7(1) and 7(2).

[28] Trillium’s By-law and its Professional Staff Credentialling Policy (the “Policy”) set standards required of professional staff members. The By-law, s. 4.3, states that: “[o]nly applicants who meet the qualifications and satisfy the criteria set out in this By-law and the [Policy] are eligible to be re-appointed to the Professional Staff.” Section 2.6 of the Policy sets out criteria for annual reappointment eligibility:

A willingness to participate in the discharge of staff obligations appropriate to membership group, including without limitation a demonstrated ability to communicate, work with, and relate to members of Administrative staff, Medical/Professional and Hospital staff, patients and patients’ families in a co-operative and professional manner.

[29] Section 5.4 of the By-law provides that the hospital CEO or Chief of Staff may recommend to the MAC that a physician’s privileges be suspended, restricted or revoked on a non-immediate basis where in their opinion the physician’s “conduct, performance or competence”:

(a) fails to meet or comply with the criteria for annual reappointment; or

(b) exposes or is reasonably likely to expose any patient, health care provider, employee or any other person at the Hospital to harm or injury; or

(c) is or is reasonably likely to be, detrimental to patient safety or to the delivery of quality patient care within the Hospital or impact negatively on the operations of the Hospital; or

(d) fails to comply with the Hospital’s by-laws, Rules and Regulations, or Policies, the Public Hospitals Act or any other relevant law.

[30] A physician may appeal an adverse decision of the MAC to the hospital’s Board. An adverse decision of the Board may be appealed to the HPARB: Public Hospitals Act, RSO 1990, c. P.40, s. 41. After a hearing, the HPARB

… 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. Public Hospitals Act, RSO 1990, c. P.40, s. 41(5).

[31] The appellant argues that the HPARB failed to apply the proper test for suspension or revocation of hospital privileges. Her argument rests on this court’s decision in Gupta v. William Osler Health System, 2017 ONSC 1294 (Div. Ct.). First, she argues that, as in Gupta, patient care was not implicated in the findings of unprofessional conduct leading to revocation. Second, she argues that the facts of her case do not meet the “so egregious” test in Gupta, where unprofessional conduct does not implicate standards of patient care.

[32] This argument cannot succeed on either premise. First, the HPARB found that the appellant’s unprofessional conduct presented a concern for ongoing patient care. This clear finding by the HPARB was amply supported by the evidence. Thus, this case is not comparable to Gupta.

[33] Second, in Gupta, the misconduct concerned behaviour towards one particular staff member in respect to whom the physician had developed an obsessive and destructive attachment. The misconduct did not impugn patient care directly, and the physician argued that this factor (among others) was a basis on which the revocation of his privileges ought to be set aside. It was in this context that the court found as follows (at paras. 55 and 56):

For these reasons, the Appellant's argument that the test before the Appeal Board is "forward looking" and focused on whether the physician still presents "a legitimate concern for patient or staff safety" is fundamentally flawed. It would mean that, no matter how serious or egregious the past misconduct was, no mid-term action could be taken by the MAC and the Hospital Board to begin the process for revocation of a physician’s privileges for past egregious misconduct where there is no ongoing concern for patient and staff safety.

This flaw in the Appellant’s argument was demonstrated by the inability of counsel for the Appellant to provide an answer to a question from this Court as to what the Hospital Board could do, should a physician be charged criminally for stealing and trafficking in narcotics, where there was no evidence of safety concerns for patients or staff. To suggest that the Hospital Board could not hold a physician accountable for his misconduct and decide to revoke the privileges of the physician mid-term, after following the process set out in By-Law #2, is absurd.

[34] Gupta does not stand for the proposition that misconduct must meet a “so egregious” test to justify revocation if a concern is not demonstrated respecting patient care. It may be that the more removed the misconduct is from patient care, the more serious the conduct would have to be to justify revocation. But Gupta does not go even that far: it stands for the proposition that where it is established that past misconduct is egregious, it may be sufficient to justify revocation, even when there is no ongoing concern respecting patient care.

[35] In the case at bar the conduct took place in the workplace, was a longstanding pattern, was continuing, had not improved, and did implicate patient care. Gupta is of no assistance to the appellant. The HPARB did not err in its interpretation of the governing statutory and regulatory provisions or in its treatment of Gupta (see Decision, paras. 153-156, 160). I would not give effect to this ground of appeal.

Appeal Issue #3 – Did the HPARB Err on the Reprisal Issue?

[36] The HPARB accepted the evidence of Drs Everhsam and Chopra and did not accept the evidence of the appellant on the reprisal issue. This the HPARB was entitled to do, and it provided detailed reasons for its conclusions on these points.

[37] The appellant raised, in particular, conflicting evidence about communications between her and Dr Chopra in 2008 as an example where the appellant’s clear present recollection of events fit with contemporaneous documentary evidence, and ought to have been preferred to Dr Chopra’s evidence, which was not consistent with the paper record and less certain in the quality of its recollections. I see no merit in this argument.

[38] The appellant made serious allegations about Dr Eversham roughly ten years after the fact and claimed that she had raised these issues with Dr Chopra back in 2008. She produced a copy of an email that she said that she had sent to Dr Chopra at the time. Dr Chopra denied there had been any such report made to him, orally or by email. He acknowledged having no present recollection of particular events from ten years previously but testified that if such serious allegations had been made to him, he would have followed up on them, and he would remember them. The HPARB accepted this evidence and did not accept the appellant’s evidence to the contrary.

[39] On this appeal the appellant argues that the HPARB failed to explain why it accepted Dr Chopra’s evidence, in light of the email produced by the appellant, and the appellant’s clear and consistent testimony on the issue. The HPARB’s finding is clear and its reasoning for the finding is just as clear. The HPARB did not believe the appellant on this point and did not accept that the email had been received by Dr Chopra. Factfinding and findings of credibility are neither mathematical exercises, nor atomistic analyses. Rather, they require a finder of fact to assess the totality of the evidence and to draw conclusions that accord with common sense, the preponderance of evidence the tribunal finds to be reliable, and the facts that are not in dispute. That is what the HPARB did.

[40] It would have been open to the HPARB to make an express finding that the appellant was untruthful in her evidence respecting Dr Eversham. Such a finding was available on the record before the HPARB and seems implicit in the HPARB’s decision. In not making this express finding, the HPARB left open the possibility that the appellant was simply mistaken and misremembering past events from a decade earlier. With respect, this was an exercise in restraint by the HPARB, not a failure to engage in necessary analysis of conflicting evidence: the necessary finding – that the Board accepted Dr Chopra’s evidence – was made, and the record supports that finding. On the HPARB’s findings, Dr Chopra did not receive the appellant’s email, and thus there was no inconsistency for the HPARB to explain.

Disposition and Costs

[41] There is no basis for this court to interfere with the HPARB’s decision in any respect. The appeal is dismissed, with costs payable by the appellant to the respondent fixed at $30,000, inclusive.

D.L. Corbett J.

I agree:_______________________________

Ryan Bell J.

I agree:_______________________________

Favreau J.

Released: November 16, 2022

[^1]: The appellant’s original factum was delivered prior to the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, and thus the issues were couched in terms of “reasonableness” rather than “palpable and overriding error”. I have reviewed the appellant’s arguments through the lens of an appellate standard of review.