CITATION: Shukla v. Board of Directors, Health Sciences North, 2022 ONSC 7141
DIVISIONAL COURT FILE NO.: 444/22
DATE: 20221220
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: DR. DINKAR SHUKLA, Applicant
AND: BOARD OF DIRECTORS, HEALTH SCIENCES NORTH, Respondent
HEALTH PROFESSIONS APPEAL AND REVIEW BOARD, Respondent
BEFORE: Leiper J.
COUNSEL: Tracey Tremayne-Lloyd and Brooke Shekter for the Appellant
F. Paul Morrison, Lisa Spiegel and Amanda Perumal for the Respondent Board of Directors, Health Sciences North
David P. Jacobs for the Respondent HPARB
HEARD at Toronto: December 9, 2022
ENDORSEMENT
PART I – INTRODUCTION
[1] The Applicant, Dr. Shukla, moves for urgent interim relief to have his hospital privileges at Health Sciences North reinstated.
[2] Dr. Shukla is an interventional cardiologist and transcatheter aortic valve implanter. The “TAVI” procedure replaces a diseased heart valve without requiring cardiac surgery. He has been in practice in northeastern Ontario for 14 years. He has performed approximately 150 TAVI procedures. TAVI is a complicated procedure that carries significant risks for the patient. It requires a team of physicians typically including nurses, technicians, a cardiologist, an anaesthetist, and a cardiovascular surgeon.
[3] At the time of the events that led to these proceedings, Dr. Shukla had been a member of the active staff at Health Sciences North since 2008. In addition to his hospital practice, Shukla serves cardiac patients through his practice in the community.
[4] The evidence before the hospital board suggests that Dr. Shukla enjoyed a collaborative and professional relationship with other medical staff until two new transcatheter aortic valve implanters arrived in 2018. The TAVI procedure is specialized and there are limits on funding. In addition, to remain credentialed, physicians who are transcatheter aortic valve implanters must carry out a minimum number of these procedures annually. Against this backdrop, within a few months of two additional TAVI doctors arriving at the hospital, conflicts developed. Those conflicts mushroomed into four-plus years’ worth of medical-legal proceedings over questions of interpersonal conflict, patient care, fairness, hospital leadership, respect for colleagues, reputation, and professionalism, with inevitable costs to the hospital, their colleagues, and the community.
[5] The timeline of events leading to the formal hearing before the board is well set out in the materials. For the purposes of this motion, I begin with the hospital’s medical advisory committee (the Advisory Committee) notice of special meeting in 2020.
[6] On May 11, 2020, the hospital notified Dr. Shukla that its medical advisory committee was holding a special meeting to consider a motion to revoke his TAVI privileges and to revoke or not renew his remaining privileges at the hospital. On November 18, 2020, the advisory committee notified Dr. Shukla that:
The Medical Advisory Committee recommends to the Board of Directors that Dr. Dinkar Shukla’s appointment and privileges at Health Sciences North be immediately revoked and that his re-application for appointment and privileges at Health Sciences North for the years 2020 and 2021 be denied.
[7] As a result of the advisory committee recommendation to revoke Dr. Shukla’s privileges and to refuse to renew his 2020 and 2021 application for reappointment, the hospital board held hearings which began in January of 2021 and included 15 days of evidence and submissions and in March 2022, culminated in the board’s decision to revoke Dr. Shukla’s privileges and decline to renew his appointment.
[8] Dr. Shukla appealed to the Health Professions Appeal and Review Board (the “Appeal Board”). On May 2, 2022, the hospital board released a decision lifting the automatic stay provided for in s. 25(1) of the Statutory Powers Procedure Act on appeal to the Review Board.
[9] Dr. Shukla moved to the Appeal Board for a stay of the hospital’s decision revoking his privileges pending his appeal. On July 17, 2022, the Appeal Board issued its decision and declined to restore his hospital privileges.
[10] Dr. Shukla applied for judicial review of this decision. His appeal on the merits of the revocation before the Appeal Board is ongoing. That appeal is expected to continue at least into January of 2023. The judicial review hearing is scheduled for May 10, 2023.
[11] The issue here is whether Dr. Shukla has shown that he has met the modified RJR-MacDonald test entitling him to an order staying the revocation of his hospital privileges pending judicial review of the Appeal Board’s decision.
[12] For the following reasons I find that Dr. Shukla has not met the test for the relief he seeks.
PART II- ISSUES ON THE MOTION
[13] The issues on the motion are as follows:
a. Has the Applicant met the test for interim injunctive relief?
i. Does Dr. Shukla have a strong prima facie case?
ii. Has Dr. Shukla demonstrated that he would suffer irreparable harm if the order is not granted?
iii. What decision does the balance of convenience favour?
PART III – THE LEGISLATIVE FRAMEWORK
[14] The legislative background is important to include as background to Dr. Shukla’s argument that he has a strong prima facie case, because he submits that since the Appeal Board failed to interpret the provisions of the Public Hospitals Act, R.S.O. 1990, c. P.4 correctly, it determines his motion for a stay of the decision that revoked his privileges pending a final decision on the appeal. The processes for public hospital appointments and appeals from those decisions are legislated in Ontario.
[15] The PHA gives hospital boards the power to appoint physicians to the medical staff and determine what privileges will be attached to that appointment: See PHA s. 36. Privileges set out the scope of a physician’s ability to use the hospital’s resources to care for their patients within the hospital: See Kadiri v. Southlake Regional Health Centre, 2015 ONCA 847, 343 O.A.C 186 at para. 11. Hospitals pass by-laws pursuant to the PHA that include procedures for carrying out these responsibilities: See PHA s. 12.
[16] According to the PHA and its regulations, medical advisory committees first consider physician applications for appointments and privileges and then make recommendations to the hospital board. These recommendations may include making, renewing, suspending, restricting, or revoking physician appointments and privileges: See PHA s. 37; R.R.O. 1990 Reg. 965, s. 7(2)(a)(iv); Kadiri at para. 12.
[17] A physician may request reasons in writing for a recommendation by the medical advisory committee and seek a hearing before the board: s. 37(7). Where the physician applies for a hearing under s. 37(7) and has applied for reappointment, their appointment is “deemed” to continue until the appointment is granted. Where the physician is served with notice that the board refuses to grant reappointment, appointment is “deemed” to continue until the time for notice of a hearing to the Appeal Board has expired or if a hearing is required, until the time that the Appeal Board has rendered a decision.
[18] Where a physician considers themself aggrieved by any decision under s. 34 of the PHA or the hospital by-laws which “cancels, suspends, or substantially alters” their hospital privileges, s. 41 of the PHA gives that physician a right to written reasons of that decision, and a hearing before the Appeal Board. The Appeal Board is constituted under the Ministry of Health and Long-Term Care Appeal and Review Boards Act, 1998, S.O. 1998, c. 18, Sch. H.: See Kadiri at para. 14.
[19] Section 41(5) of the PHA provides that after the Appeal Board holds a hearing, it may confirm the decision appealed from or direct the board (or other decisionmaker) to take such action as the Appeal Board considers ought to be taken. The Appeal Board may also substitute its opinion for that of the board or decisionmaker.
[20] The Court of Appeal for Ontario confirmed that the PHA provides a legislative framework for a “comprehensive code under which the hospital determines privileges for a member of staff.” Beiko v. Hotel Dieu Hospital St. Catharines, 2007 ONCA 860 at para. 4.
[21] In this case, Schedule A to the hospital by-law for Health Science North has several types of procedures related to the questions of appointment, reappointment, suspension, or revocation of privileges which can be summarized as follows:
a. S. 15.6—Mandates the Board to appoint professional staff (physicians) for one-year appointments, but where there is a reappointment application during the year the appointment shall continue within one year.
b. S. 15.7—Provides for circumstances where there are performance, conduct or competence concerns by a professional staff member, and mandates the Board to revoke, suspend, restrict or “otherwise deal with the privileges of the member.” Two sets of procedures exist within s. 15.7, one for emergency responses to risk of harm, and the second for “non-immediate mid-term action.”
c. Schedule A to the by-law—sets out procedures for three scenarios: regular applications for appointment and reappointment, responses to an immediate need to suspend privileges mid-term in an emergency situation, and third, a non-immediate mid-term action.
[22] The Preamble to Schedule A of the by-law provides (after describing the three types of procedure) that
It should be noted that a member’s appointment and/or privileges shall continue throughout the review or investigation of circumstances relating to reappointment and until all appeals consistent with the Public Hospitals Act are completed.
PART IV - ANALYSIS OF THE ISSUES
i. Does Dr. Shukla have a strong prima facie case?
[23] The first branch of the modified RJR-MacDonald test, found in R. v. Canadian Broadcasting Corp., 2018 SCC 5, [2018] 1 S.C.R. 196 at para. 15 [“CBC”] is a strong prima facie case. The burden is on the Applicant to show a case of such merit, on the law and on the evidence, that it is very likely to succeed at trial”: CBC at para. 15. In CBC, the Supreme Court modified the former “serious issue to be tried” standard in cases where a mandatory interlocutory injunction is sought, in part because such an order directs the respondent to undertake a positive course of action, such restoring the status quo, pending the proceeding to obtain the restorative relief sought.
[24] The Health Board submits that Dr. Shukla cannot establish the necessary degree of merit, in part because it is a premature application, made mid-appeal hearing, but also because it is likely to be moot, given that the judicial review will likely post-date the hearing of the Appeal Board. The Health Board also submits that the interpretation of the legislative framework, as applied to the question of Dr. Shukla’s entitlement to ongoing privileges, does not display any legal error.
[25] Dr. Shukla submits his case meets the first part of the test because the Appeal Board was bound to restore his privileges, given that ss. 39(3), and s. 41 of the PHA provide as follows:
s. 39 (3) Where, within the time prescribed therefor, a member has applied for reappointment, his or her appointment shall be deemed to continue…
(a) until the reappointment is granted; or
(b) where he or she is served with notice that the board refuses to grant the reappointment, until the time for giving notice requiring a hearing by the Appeal Board has expired and, where a hearing is required, until the decision of the Appeal Board has become final.
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. R.S.O. 1990, c. P.40, s. 41 (1).
Procedure at hearing
(2) Section 39 applies to a hearing before the Appeal Board in the same manner as if the party or member were an Applicant entitled to a hearing before a board under section 37. R.S.O. 1990, c. P.40, s. 41 (2).
[26] Dr. Shukla submits that the language of the PHA plainly mandates that Dr. Shukla was seeking reappointment when the medical advisory committee gave him notice of its intention to consider revoking his hospital privileges. As a physician seeking reappointment, s. 41(1) of the PHA and the Preamble to Schedule A of the by-law (above) both provide for appointments to be deemed to continue during the review of circumstances related to appointment/reappointment. In the case of the legislation, appointment “shall be deemed to continue . . . until the decision of the Appeal Board becomes final.” Dr. Shukla submits that further, the hospital board took no steps to override the provisions of the Statutory Powers Procedure Act, s. 25 which provide for an automatic stay pending appeal unless certain steps are taken:
[27] These arguments were put before the hospital board and the Appeal Board. In its analysis rejecting the interpretation urged by Dr. Shukla, the appeal board wrote:
The Appellant’s counsel submits that section 39(3) applies to the Appellant because he is a party who applied for reappointment. He was also a member of the medical staff. Counsel further submits that section 39 also applies to proceedings before this Appeal Board. Essentially, counsel argues that since section 39 applies to section 41, as a member of the hospital staff, the Appellant therefore continues to have his hospital privileges and appointment fully intact pending his appeal to the Appeal Board.
Counsel for the Respondent submits that there is a difference between the situation where the Hospital board fails to reappoint a member and where it revokes a member’s privileges midterm. She submits that there must be some meaning to the fact that section 36(c) of the PHA provides the Hospital Board with authority to both revoke or suspend the appointment of, or refuse to reappoint, a member of the medical staff.
The Respondent’s counsel argues that the public purpose mandate obliges the Hospital Board to ensure that where warranted, it may take steps to ensure the protection of the public on an interim basis. She further submits that the PHA must be interpreted through a public policy lens and that to accept the Appellant’s argument would be to render meaningless the provisions that allow a Hospital Board to order a midterm revocation of a member’s privileges.
The Appeal Board does not agree with the Appellant’s interpretation of those relevant sections of the PHA. As noted in Toussaint:
Section 64(1) of the Legislation Act, 2006, S.O. 2006, c. 21, Sched. F provides that “[a]n Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects.”
The Appeal Board finds that a fair reading of section 39(3) dictates that it applies only to that which it refers, i.e., Continuation of appointment pending reappointment. That it does not apply to a midterm revocation of the members privileges is in keeping with a Hospital Board’s mandate regarding protection of the public and accordingly, “ensures the attainment of its objects.” While most of the provisions of section 39 apply to all hearings before the Appeal Board, including those in connection with a revocation or a suspension, section 39(3) is limited to hearings in connection with a reappointment. This distinction does not appear elsewhere in section 39.
[28] The Appeal Board fully considered the argument on the interpretation of these provisions. On the face of the language used in the PHA, and in review of the appeal board’s analysis, I find that Dr. Shukla has not established a prima facie case. The record, the notices, and the proceedings are consistently framed as applications to revoke privileges for non-immediate concerns, rather than as proceedings to not grant reappointment. There are separate privileges and processes for these different types of decision-making, both legislatively and in the hospital by-law.
[29] The hospital board made other arguments that there is not a strong prima facie case on the basis that this application is premature, and it could be moot, given that by the time of the judicial review proceeding, the Appeal Board proceeding will be complete. If there was evidence of a serious error in the reasoning of appeal board in denying Dr. Shukla interlocutory relief, I disagree that this branch of the test should consider questions of prematurity and mootness. The test is not “a serious issue to be tried”, but a “strong prima facie case”. In my view, questions of prematurity and mootness are more appropriately addressed at the balance of convenience part of the test.
[30] Although it is not strictly necessary to consider the other two branches of the test, given this finding, for the sake of completeness I will consider the evidence and submissions in support of the balance of the modified RJR-MacDonald test.
ii. Has Dr. Shukla demonstrated that he will suffer irreparable harm?
[31] Irreparable harm seeks to discover “whether a refusal to grant relief could so adversely affect the Applicants’ own interests that the harm could not be remedied if the eventual decision on the merits does not accord with the result of the interlocutory application”: See RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 at para. 63. Irreparable harm refers to the nature of the harm, not the magnitude. The nature of the harm must be such that it cannot be quantified in monetary terms or cannot be cured: RJR-MacDonald at para. 64.
[32] Dr. Shukla argues that irreparable harm comes from the inability to use highly technical, difficult, and life-saving skills or lose those skills. Further, given the public notice of his suspension on the CPSO website, and his absence from the hospital at which he formerly practised, his reputation within the community is damaged, which is a recognized from of harm.
[33] In response, the hospital board submits that Dr. Shukla can repair the “harm” of his loss of privileges: his certificate of registration with the CPSO is active, and there are pathways to retraining in his areas of technical skill. He is also able to apply for privileges at other hospitals. In this case, Dr. Shukla is not relying on harm to his livelihood from the inability to practice and has continued to care for patients in the community.
[34] In Watts v. Clinton Public Hospital (2005), 206 A.C.W.S. (3d) 830, a senior physician without any community practice was able to establish irreparable harm to his reputation and ability to practice attendant on the revocation of his hospital privileges, which the court reinstated. In Sazant v. College of Physicians & Surgeons (Ontario), 2011 CarswellOnt 15914, the Court of Appeal declined to find irreparable harm despite financial consequences and acknowledged psychological impacts of the revocation of privileges.
[35] I accept that Dr. Shukla would suffer ongoing harm in the form of loss of reputation, loss of skills, and the cost and inconvenience associated with retraining or re-establishing a hospital practice. However, on balance, I cannot conclude that such harm is “irreparable.” I am satisfied, given his years of experience, his record and education, as well as the professional supports available to his profession, that he could remedy the impact of his loss of privileges at this single hospital pending the outcome of either the appeal to the Appeal Board on the merits or, if it comes first, by way of judicial review of the interlocutory decision of the Appeal Board.
iii. What decision does the balance of convenience favour?
[36] The balance of convenience weighs the interests of Dr. Shukla against those of the public. Dr. Shukla submits that the balance of convenience favours restoring his privileges because this case is not about competence. Rather, Dr. Shukla was a senior member of a six-member interventional cardiologist team at Health Sciences North, where his skills can serve the community at a time where healthcare in Ontario is stretched. Dr. Shukla continued to work in the hospital throughout the lengthy hearing before the hospital board. The emergency procedures could have been invoked if there were issues of risk to patients or competence.
[37] Health Sciences North does not agree. It submits that after the hearing, the hospital board found that Dr. Shukla’s misconduct was related to the conflicts among the TAVI team, and that “Dr. Shukla chose to mislead patients, colleagues and other doctors, rather than work honestly and collaboratively. This behaviour undermined his colleagues and put patient care and safety at risk.”
[38] The process and basis for these findings will be considered at the ongoing appeal before the Appeal Board, which is ongoing but not complete. Pending that decision, I cannot conclude for the purposes of this motion that patient care and risk are not in issue. The hospital board found that patient care and safety was put at risk, given the strength and cohesiveness required in highly specialized, high risk team environments such as the one to which Dr. Shukla formerly belonged. However, there is also Dr. Shukla’s prior record for collegiality, professionalism, and his competence and skill in interventional cardiology and TAVI procedures. It may well be that the findings and catalyst for these proceedings relate more to a combination of situational factors, unlikely to be replicated. However, that is not my decision to make.
[39] At this stage, I must consider the weakness of the case concerning the Appeal Board’s interpretation of the legislation and decision to deny a stay of the revocation. While I accept there is some evidence of harm to reputation, loss of skills, and professional interruption and inconvenience, there is no evidence of “irreparable” harm. I consider the existing record and the reasons of the hospital board as to collaboration and link to patient safety. Dr. Shukla has rights of appeal, before the appeal board, and following that hearing. His case is likely to be completed before the judicial review on this interlocutory decision is argued. In that sense, while not a true case of prematurity, there is every likelihood that he will have an opportunity for a ruling on all of the evidence and a complete record on the underlying issues.
[40] I find that the balance of convenience does not merit granting a stay of the revocation of Dr. Shukla’s privileges.
PART V – CONCLUSION AND COSTS
[41] The motion is dismissed.
[42] Costs are not being sought for or against the Appeal Board. As between Dr. Shukla and Health Sciences North, given the hospital’s success on this motion, costs are ordered to be paid by Dr. Shukla to Health Sciences North in the sum of $45,000.
Leiper J.
Date: December 20, 2022