Court File and Parties

CITATION: Talwar v. Grand River Hospital et al., 2024 ONSC 1523

DIVISIONAL COURT FILE NO.: 096/24

DATE: 20240313

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: MANOJ TALWAR, Applicant

AND:

GRAND RIVER HOSPITAL BOARD OF DIRECTORS, ST. MARY’S GENERAL HOSPITAL BOARD OF TRUSTEES and HEALTH PROFESSIONS APPEAL AND REVIEW BOARD, Respondents

BEFORE: D.L. Corbett J.

COUNSEL: Dr Talwar, self-represented Plaintiff / Responding Party

Simon A. Clements and Christian Breukelman, for the Defendants / Moving Parties

HEARD by ZOOM: In Writing, In Chambers

Endorsement

D.L. Corbett J.:

[1] This court directed the Registrar to issue a notice pursuant to r. 2.1 that the court was considering dismissing or staying Dr Talwar’s most recent application for judicial review, issued January 24, 2024, in respect to various directions given by the HPARB about the conduct of matters pending before the Board. The following explanation for the r. 2.1 direction was provided to the parties:

Dr Talwar has commenced an application for judicial review dated January 29, 2024, seeking (among other things) (i) to challenge orders of the HPARB declining to hear Dr Talwar's stay motions prior to the respondents' motions to dismiss outstanding appeals, scheduled for June 12, 2024, (ii) setting aside an order of the HPARB declining to permit Dr Talwar to file certain materials in response to the respondents' pending dismissal motion, (iii) an order that Dr Talwar be permitted to file these materials in response to the respondents' dismissal motion, alternatively, (iv) an order that this court adjudicate Dr Talwar's stay motions currently pending before the HPARB; (v) an order staying the motion currently scheduled before the HPARB on June 12, 2024 pending this court's disposition of this application for judicial review.

It appears that all of the impugned HPARB orders are interlocutory and concern the order of proceedings before the HPARB and materials to be filed in those proceedings.

The Registrar is directed to send Dr Talwar notice pursuant to r.2.1 that the court is considering dismissing his application for judicial review as frivolous, vexatious and an abuse of process on the basis that it appears to be premature. The Divisional Court requires that proceedings below be concluded to a final order before it will entertain an application for judicial review, and this court departs from this principle only in exceptional circumstances. There appears to be no basis in the information provided that could establish exceptional circumstances.

Responding parties shall not respond to Dr Talwar's submissions in the respect to the r. 2.1 notice unless this court subsequently directs otherwise.

Proceedings before the HPARB are not stayed pending disposition by this court of the r. 2.1 issue.

[2] Dr Talwar advises that the Board conducted a case conference by telephone on February 12, 2024, following which the Board issued a case conference report dated February 16, 2024 that directed (among other things):

the Order of the Board dated September 27, 2023 is set aside and in its place the Board orders the following:

i) The Respondents’ motion dated June 8, 2023 to dismiss the Appellant’s appeals as listed in Appendix A hereto will be heard by way of videoconference on June 12, 2024 commencing at 10:00 a.m. The Appellant’s motion of April 4, 2023 as amended on May 25, 2023 and further amended on January 26, 2024, styled as “Fresh as Amended Answer of the Applicant (Appellant)-20PHA-0191, et al” will be heard concurrently as the Board may direct.

ii) ii) Cross-examination, if any, by the Appellant on the Affidavit delivered by the Respondents must be completed no later than February 21, 2024.

iii) The motion and amended motion brought by the Appellant dated April 4 and May 25, 2023 respectively will not be heard on June 12, 2024 but will be spoken to and dealt with thereafter as the Board may direct.

[3] Dr Talwar argues that the prior HPARB order, and the current order (as set out in the previous paragraph) is a “final order disguised as an interlocutory order” because the matters pending before the Board could finally dispose of Dr Talwar’s matters before the Board. He further argues that a final disposition could be rendered before he has a chance to argue before the Board that his matters should be stayed.

[4] Dr Talwar’s argument on this point is devoid of merit. Interlocutory case management directions are not final because they pertain to a motion that could result in a final order. The impugned directions in this application do not decide any substantive issues between the parties, and they are unambiguously interlocutory.

[5] The Board’s direction concerning the order of proceedings (the dismissal motion shall be heard in June; Dr Talwar’s stay motion shall not be heard in June but shall proceed as the June panel of the HPARB may direct) is simply a matter of the Board controlling its own process. Of course, if the Board dismisses the proceedings before it, any stay motion would be rendered moot. But that would be no injustice: if the proceedings should be dismissed on the merits, then of course there is no reason to stay those proceedings, rather than dismissing them.

[6] Dr Talwar cites two cases in support of his position that the HPARB’s scheduling directions are final. Neither case assists him. In Ball v. Donais, the Court of Appeal found that an order finally determining a limitations issue against a defendant “… subject to appeal therefrom, finally dispose[d] of the [limitations] issue raised by that defence….” In Nguyen v. City of Winnipeg, 2022 MBCA 33, the Manitoba Court of Appeal, in a case followed Ball v. Donais in a case it found to be indistinguishable from the Ontario precedent. The HPARB’s scheduling directions have not finally disposed of any substantive issues between the parties.

[7] If Dr Talwar is unsuccessful in his defence of the motion to dismiss, he will then have recourse to this court from those final decisions. The current application to review the Board’s case management directions is clearly premature, there are no exceptional circumstances that would lead this court to intervene, and this application must be dismissed for that reason: Ontario College of Art v. Ontario (Human Rights Commission) (1993), 11 OR (3d) 798 at 800 (Div. Ct.); Kahissay v. Intact Insurance, 2023 ONSC 3650 (Div. Ct.). If Dr Talwar is unsuccessful in his defence of the motion to dismiss, he will then have recourse to this court from those final decisions.

[8] I note that Dr Talwar seeks to stay the dismissal motions before the HPARB on the basis that his motion to review the decision of Broad J., dismissing proceedings in this court, should be decided before the stay motions are decided before the Board. It will be for the HPARB to decide the dismissal motions and the stay motions pending before it, of course. However, I would note that it would be inimical to the orderly process of administrative proceedings if those proceedings were to grind to a halt every time a litigant sought recourse in Divisional Court. No stay of the HPARB proceedings has been granted by this court.

[9] Finally, in my role as case management judge of Dr Talwar’s proceedings in the Superior Court of Justice and in the Divisional Court, I have granted Dr Talwar’s request to adjourn related civil proceedings pending decision on the motion to review Justice Broad’s order and the motion to dismiss the current HPARB proceedings. This order was granted, in part, on the premise that both the review motion in Divisional Court and the dismissal motion before the HPARB will proceed as currently scheduled in June 2024. I also indicated that if there is delay in those proceedings, the defendants in the civil proceedings may ask me to end the adjournment and to decide their outstanding motion to dismiss the civil proceedings.

“D.L. Corbett J.”

Released: March 13, 2024