CITATION: Talwar v. Grand River Hospital St. Mary’s General Hospital, 2024 ONSC 3392
DIVISIONAL COURT FILE NO.: 115/22
DATE: 20240605
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: DR. Manoj K. Talwar, Applicant
AND:
Grand River Hospital, St. Mary’s general hospital, Respondents
BEFORE: Sachs, Hebner and Davies JJ.
COUNSEL: Self – Represented Applicant
Henry Ngan, for the Respondents
HEARD at Hamilton: June 5, 2024
ENDORSEMENT
SACHS, J (ORALLY):
[1] Dr. Talwar was a surgeon at Grand River Hospital and St. Mary’s General Hospital (the “Hospitals”). On June 13, 2016, the Hospitals’ Medical Advisory Committee (“MAC”) recommended that Dr, Talwar’s appointment to the medical staff not be renewed. Dr. Talwar sought a hearing before the Hospital Boards of Directors and Trustees (the “Hospital Boards”). On October 19, 2017, the Hospital Boards accepted the MAC’s recommendation and declined to renew Dr. Talwar’s hospital appointments.
[2] On March 18, 2018, Dr. Talwar issued a judicial review application in relation to the Hospital Boards’ decision (“Application”).
[3] Dr. Talwar also appealed the Hospital Boards’ decision to the Health Professions Review and Appeal Board (“HPARB”). On March 17, 2020, after a full hearing on the merits held over 11 days during which 31 witnesses testified, the HPARB confirmed the Hospital Boards’ decision not to renew Dr. Talwar’s hospital appointments.
[4] On March 19, 2020, Dr. Talwar appealed the HPARB decision to the Divisional Court. On June 28, 2022, the Divisional Court dismissed Dr. Talwar’s appeal. Dr. Talwar sought leave to appeal the Divisional Court’s decision to the Court of Appeal, which was denied on January 25, 2023.
[5] The Hospitals brought a motion to quash the Application, which was heard by Broad J. (the “motion judge”) on April 6, 2022. By this time the HPARB had made its decision; the Divisional Court had not.
[6] On April 19, 2022, the motion judge released his decision quashing the Application. In doing so he found that permitting Dr. Talwar to proceed with the Application “would offend the principle discouraging fragmentation of the administrative process. It would also represent a collateral attack on the PHA [Public Hospitals Act, R.S.O. 1990, C.P. 40] process.”
[7] Dr. Talwar now seeks to set aside the motion judge’s decision pursuant to s. 21(5) of the Courts of Justice Act.
[8] The test on this motion was set out by the Divisional Court in Guillaume v. Barney Rivers Investments Inc., 2022 ONSC 1123 at para. 4:
The test on such a review is well established in this court: a motion to vary is not a hearing de novo. This court will only interfere if it is established that the motion judge made an error of law or a palpable and overriding error of fact. Where a motion judge is exercising discretion, this court will not interfere unless a moving party shows that the impugned decision is “so clearly wrong that it amounts to an injustice” or the motion judge “gives no or insufficient weight to relevant considerations.”
[9] For the reasons that follow, we find that this test has not been met. First, it is worth noting that the Application was premature as Dr. Talwar’s administrative remedies had not been exhausted when it was commenced. Second, to the extent that the Application raises procedural fairness issues regarding the process that led to the Hospital Boards’ decision, those defects were “cured” when the HPARB held a full de novo hearing to determine the issue. Third, when pressed on the question of what remedy he is seeking in the Application, Dr. Talwar indicated that he wished the Divisional Court to recognize that he had been the victim of an abuse of process and that, as a result, the Respondent Hospitals should be ordered to allow him to practice medicine at their hospitals in some fashion. This remedy is inconsistent with the Divisional Court’s decision in the appeal from the HPARB decision. Thus, the motion judge was correct when he found that the Application represents a collateral attack on the process that has already occurred. As such, the Application is an abuse of process as it is aimed at producing an inconsistent result, which would bring the administration of justice into disrepute.
[10] For these reasons, the motion to set aside is dismissed. An award of substantial indemnity costs against Dr. Talwar is not appropriate. Further, the issues were straightforward. Therefore, the Respondents are awarded their costs, fixed in the amount of $7500.00 all inclusive.
Sachs J.
Hebner J.
Davies J.
Date of Reasons for Judgment: June 5, 2024
Date of Release: June 14, 2024
CITATION: Talwar v. Grand River Hospital St. Mary’s General Hospital, 2024 ONSC 3392
DIVISIONAL COURT FILE NO.: 115/22
DATE: 20240605
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SACHS, HEBNER, DAVIES JJ.
BETWEEN:
DR. Manoj K. Talwar
Applicant
– and –
Grand River Hospital, St. Mary’s general hospital
Respondents
ORAL REASONS FOR DECISION
SACHS J.
Date of Reasons for Judgment: June 5, 2024
Date of Release: June 14, 2024