CITATION: Tenn-Lyn v. Mackenzie Health, 2024 ONSC 36

DIVISIONAL COURT FILE NO.: 098/23

DATE: 20240116

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

ACJ McWatt, Sachs & Abrams JJ.

BETWEEN:

NICOLE TENN-LYN

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

Appellant

– and –

MACKENZIE HEALTH

Marrison, Anna L.;Wagner, Laura M. and Webster, Heather, Counsel for the Respondent

Respondent

HEARD at Toronto: December 7, 2023 (Full Day) by Video Conference

ACJ MCWATT

JUDGMENT

[1] Nicole Tenn-Lyn (the “Appellant”) was an emergency room physician at Mackenzie Health (the “Respondent”/” the Hospital”). She is appealing a decision by the Health Professional Appeal and Review Board (“HPARB”), dated January 16, 2023. In that ruling, the HPARB confirmed decisions by the Mackenzie Health Board of Directors that the Appellant’s applications for re-appointment for the 2016/2017 and 2017/2018 credentialing years should not be renewed; that the Appellant’s privileges be revoked effective October 10, 2019; and that the Appellant’s application for re-appointment to the Courtesy Staff at the Hospital should not be approved.

[2] The Appellant argues that the HPARB misapprehended the evidence and in doing so made palpable and overriding errors. The Appellant asks for an order that the decision not to reappoint her to the hospital’s medical staff for the 2016/2017 and 2017/2018 credentialing years be set aside and the appointments granted; that the decision to revoke her privileges effective October 10, 2019 be set aside; and that the decision of January 14, 2020 not to reappoint her to the Hospital’s Courtesy staff be set aside, and the appointment granted.

[3] The Respondent argues that the HPARB did not commit any palpable and overriding errors, and that the Appellant is attempting to reargue the case here that was before the Appeal Board. The Hospital submits that the evidence before the HPARB and its findings of fact ought to be afforded a high degree of deference. The appeal should be dismissed.

BACKGROUND

[4] The Appellant graduated with a medical degree from McMaster University in 2000. In 2005, she completed her residency training in emergency medicine at the University of Toronto and became a fellow of the Royal College of Physicians and Surgeons of Canada. At various points in her career, the Appellant practiced medicine in the University Health Network (“UHN”), Trillium Health Partners, and Mackenzie Health.

[5] The Appellant joined Mackenzie Health’s medical staff in 2005 and continued there until 2019. Each year, between 2005 and 2015, the Appellant applied for, and received, re-appointment as a member of the Hospital’s medical staff. However, her applications for re-appointment for the 2016/2017 and 2017/2018 credentialing years were placed in abeyance pending the results of an ongoing College of Physicians and Surgeons Ontario (“CPSO”) Registrar’s investigation pursuant to s. 75(1)(a) of the Health Professions Procedural Code being Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 regarding communication issues with patients and staff.

[6] In November 2009, the then Chief of the emergency department of the Hospital first discussed a pattern of complaints that had emerged against her with the Appellant. She acknowledged the complaints and agreed to seek professional help from a doctor.

[7] In March 2010, the Appellant attended the Clinician Patient Communication to Enhance Health Outcomes course rather than obtaining professional help from a doctor. She explained that the course was helpful and that it provided her with an opportunity to work through her challenges regarding her communication skills.

[8] Two complaints about the Appellant’s communications were received in 2011. The first was from a patient and the second from a volunteer at the Hospital. The Appellant maintained that she had conducted herself appropriately in both circumstances.

[9] In 2012, the Chief of Staff of the Hospital’s emergency department at the time had a meeting with the Appellant to discuss the ‘numerous’ complaints against her by both patients and staff. The Appellant conceded that she had problems with communication and agreed to take another course entitled “1:1 Communications”, which was offered by a professor. She attended a few sessions but did not complete the course because she felt the professor’s advice was not objective.

[10] In April 2013, the Hospital received a complaint against the Appellant from the wife of a patient. The complainant reported that the Appellant had spoken to her in a rude manner when she asked for an update on her husband’s situation. Dr. Tenn-Lyn acknowledged that her communications had contributed to the complaint.

[11] In an annual performance review in 2014, the Appellant was told that she needed to improve her interpersonal skills and her communications with patients, families, and the nursing staff.

[12] On August 19, 2015, the Inquiries, Complaints and Reports Committee (“ICRC”) of the College of Physicians and Surgeons of Ontario (“CPSO”) released its decision arising from a s. 75 investigation initiated at the UHN in 2014 concerning the Appellant’s conduct and actions there. The ICRC required the Appellant to be cautioned in person with respect to poor behavior in the workplace. She was also required to undertake a specified continuing education remedial program, including coaching on communications, collaboration, and professionalism with an instructor satisfactory to the CPSO.

[13] In her 2015 and 2016 annual performance reviews, the Appellant was told that she needed to work on her communication skills. The Hospital was notified that the CPSO had appointed investigators under s. 75(1)(a) of the Health Professions Procedural Code to determine if the Appellant had committed an act of professional misconduct or was incompetent.

[14] The Appeal Board also denied the Appellant’s appeal by confirming the UHN Board of Trustee’s decision to revoke her privileges at that hospital.

[15] In a letter, dated January 27, 2017, the Hospital, advised the Appellant that its Hospital’s Medical Advisory Committee (“MAC”) had recommended placement of her 2017 application for re-appointment in abeyance pending the outcome of the CPSO investigation. In the same year, her annual performance review, nonetheless, set out that the Appellant’s communications with patients and staff had met expectations.

[16] However, the Hospital was still receiving complaints about the Appellant. In its reasons, dated September 26, 2018, The Hospital’s MAC reported that ten complaints had been made concerning Dr. Tenn-Lyn between December 17, 2017 and July 6, 2018. More complaints were received after September 26, 2018.

[17] An investigator was retained by the Hospital in May 2019 to investigate a complaint made by the Appellant concerning the conduct of another staff member. The investigator concluded that the Appellant had made a false and inaccurate complaint and the Appellant’s actions had been contrary to the Hospital’s Code of Conduct.

[18] Further complaints were made against the Appellant by staff and patients on June 21, 2019, June 30, 2019, July 22, 2019, and August 30, 2019.

[19] On July 12, 2019, the Hospital Board released its decision affirming the MAC’s recommendation to deny the Appellant’s application for re-appointment for 2016/2017 and 2017/2018.

[20] On September 13, 2019, the Hospital received notice of the August 14, 2019, decision of the CPSO’s second s. 75 investigation regarding the Appellant’s conduct at Trillium Health Partners.

[21] On September 26, 2019, the emergency department’s Chief of Staff recommended that the Appellant’s privileges be revoked immediately. These recommendations were adopted by the Hospital’s MAC on October 10, 2019.

[22] The Appellant applied for re-appointment to the Hospital after this decision. On January 28, 2020, the MAC recommended that the Appellant’s application for re-appointment to practice and membership to Courtesy Staff at the Hospital should be denied.

[23] The Appeal Board released its decision regarding the proceedings dealing with Trillium Health Partners. It denied the Appellant’s appeal and confirmed the decision of the Trillium Health Partners Board to revoke the Appellant’s privileges.

[24] On March 26, 2021, the McKenzie Hospital Board released its reasons for decision confirming the recommendations of its MAC to revoke the Appellant’s privileges as of October 10, 2019, and to refuse her application for re-appointment to Courtesy Staff.

Procedural History

Decision of the Hospital Board – July 12, 2019

[25] Pursuant to a recommendation from its MAC, the Hospital Board found the Appellant should not be re-appointed to the Hospital’s professional staff in the Emergency Department of Medicine, and that her privileges should be revoked. In coming to that decision, the Hospital Board considered the Appellant’s performance at the Hospital, including several complaints made against her by patients involving sarcastic comments and failure to appropriately de-escalate tense situations with patients, complaints made by colleagues and challenges for ineffectively communicating with other co-workers. The Hospital Board also considered the Appellant’s Facebook posts in a private group for emergency physicians in which she was critical of patients and the Hospital administration.

[26] The Hospital Board also considered the testimony of several nurses, including that of nurse Dimech, who worked with the Appellant throughout her time at the Hospital. Nurse Dimech testified about two incidents that the Hospital Board found demonstrative of the Appellant’s inability to effectively communicate. In both incidents, the Hospital Board found that the Appellant’s treatment of acute care nurses represented a failure to “pick up cues from colleagues and understand the perspective of others.”

[27] In addition to the complaints, the Hospital Board considered the Appellant’s unwillingness to accept responsibility for her actions.

[28] Dr. Tenn-Lyn appealed this decision to the HPARB and continued to work in the emergency department at the Hospital pending the outcome.

Decision of the Hospital Board – March 26, 2021

[29] Based on a further MAC recommendation, the Hospital Board also directed that the Appellant’s medical staff privileges be revoked effective October 10, 2019, and that her application for re-appointment to Courtesy Staff at the Hospital is not approved.

[30] This decision was based on a further seven complaints of communication issues made against the Appellant between July and October 2019, the Appellant’s failure to improve her communication and interpersonal skills after taking mandated courses designed for that purpose, and evidence presented to the Hospital Board that nurses tried to change shifts when they knew that the Appellant would be working with them. This desire of nursing staff to avoid the Appellant created a concern that staff could delay informing her of mistakes or could fail to provide updates on important issues due to their negative interactions with her.

[31] The evidence showed that the Appellant made derogatory statements about staff under her breath, had outbursts at patients and their family members who interrupted her, made derogatory statements about patients within their earshot, and entered orders into the computer system after she was questioned by patients’ family members or nurses as to whether the order had been entered. The Hospital Board also found that these interpersonal and communication issues extended to failing to make appropriate referrals if the Appellant did not get along with the physician receiving the referral.

[32] Despite there not being a single instance where the Appellant’s communication or interpersonal skills actually put patient safety at risk, the Hospital Board found that, based on her pattern of communication difficulties, interpersonal conflict, and complaints, the Appellant’s conduct and performance were reasonably likely to expose patients to harm or injury, and were reasonably likely to be detrimental to patient safety or to the delivery of quality patient care within the Hospital or impact negatively on the Hospital’s operations.

[33] The Appellant also appealed this decision to the HPARB.

HPARB’s Decision – January 16, 2023

[34] The HPARB heard both the July 12, 2019, and March 26, 2021, appeals together. It denied the appeals and confirmed the decisions of the Hospital Board that the Appellant’s applications for re-appointment for the credentialing years 2016/2017 and 2017/2018 not be renewed, to revoke her privileges effective October 10, 2019, and to not approve her application for re-appointment to Courtesy Staff at the Hospital.

[35] In coming to its decision, the HPARB considered the Appellant’s interpersonal skills with patients, families, and nurses, her communication issues with nurses at the Hospital which impacted patient care and posed a risk for patient safety, as well as two previous s. 75 investigations against her regarding her conduct and actions at the UHN and Trillium Health Partners. The HPARB noted the striking similarities between the complaints in these proceedings and the Appellant’s conduct in other hospitals.

[36] The HPARB found that the Appellant lacked insight and consistently failed to improve her communication skills. It found that, despite the Appellant taking numerous courses on achieving effective communication, she had not done everything possible to avoid the behavior that could lead to further complaints.

ISSUES

[37] Did the HPARB err in law by misapprehending the evidence before it?

COURT’S JURISDICTION

[38] The Divisional Court has jurisdiction over this appeal pursuant to s. 43(1) of the Public Hospitals Act, R.S.O. 1990, c. P.40 (“PHA”).

STANDARD OF REVIEW

[39] The parties agree that appellate standards of review apply here. Questions of law are reviewable on a correctness standard. Questions of fact and questions of mixed fact and law from which the legal principle is not readily extricable are reviewable on a standard of palpable and overriding error.[^1]

An error “is palpable if it is plainly seen and if all the evidence need not be reconsidered in order to identify it” and it “is overriding if it has affected the result”.[^2] A palpable error is “clearly wrong” or “unsupported by the evidence”.[^3]

ANALYSIS

[40] The Appellant argues that the HPARB erred in law by misapprehending the evidence before it. She takes the position that significant evidence was ignored, including inconsistencies and clear exaggerations in the Hospital’s case.

[41] She alleges the HPARB misapprehended the following evidence:

(a) When considering the testimony of the number of complaints made against her, the HPARB failed to consider evidence which suggested that the Hospital did not actually know how many complaints there were, but, instead, was satisfied with a general sense or perception that she had the most complaints in the department.

(b) The HPARB failed to consider the “plethora of evidence of racist, sexist, rude, unprofessional, uncollaborative communications” made by others in the department over the years, and solely focused on her behavior.

(c) The HPARB failed to consider the evidence presented by her in favor of her good behavior and communication skills. She called five (5) witnesses who provided testimony about her professionalism, strong communication skills, ethics, work ethic, and positive bedside manner.

(d) In its decision, the HPARB made no attempt to address the credibility and reliability of the Hospital’s evidence. Instead, it briefly stated the broad legal principles of credibility and reliability, used one example of a complaint, and then concluded that she was not credible while the Hospital’s witnesses were.

[42] The Appellant further argues that the HPARB’s decision does not include an analysis of the criteria for non-renewal, and for the higher standard of revocation in the Mackenzie Health Professional Staff by-law. More specifically, she asserts that the decision fails to explain or justify why, based on the evidence, the Appellant was “suddenly in 2019 ‘reasonably likely to be detrimental to patient safety or delivery of quality patient care.’”

[43] The key question before HPARB was whether, considering the PHA, the regulations, and Mackenzie Health’s By-Laws (the “By-Laws”) and policies, the Hospital’s decisions were justified.

[44] The evidence overwhelmingly established they were.

[45] Here are the reasons why the appeal should be dismissed.

[46] Neither party disputes the fact that communication and teamwork between physicians and health professionals in a hospital setting is necessary for the delivery of safe healthcare.

[47] HPARB heard from six nurses who had worked with Dr. Tenn-Lyn at the Hospital who testified about how her conduct made her unapproachable. The Board agreed with the previous finding by the Hospital that this fact impacted patient care and created risk to patient safety. The nurses presented versions of events that were consistent with contemporaneous documentation filed as evidence at the hearing.

[48] Hospital boards appoint physicians to the medical staff and may revoke or suspend their appointments pursuant to a recommendation of the Medical Advisory Committee and the Hospital’s By-law.[^4]

[49] Under the PHA, physician appointments are for a one-year term.[^5] A hospital’s by-laws establish the specific requirements and procedures for physicians to apply annually for reappointment to the medical staff and their associated requests for privileges. The Hospital’s Professional Staff By-Law sets out the criteria for reappointment, including:

• the applicant has conducted himself or herself in compliance with the By-law, the Hospital’s values, Rules and Regulations, and Policies;[^6]

• the applicant must have a demonstrated ability to work and communicate with, and relate to, others in a co-operative, collegial and professional manner;[^7] and

• the applicant must have a demonstrated ability to communicate with, and relate appropriately to, patients and patients’ relatives and/or substitute decision makers.[^8]

[50] Section 5.2 of the By-law provides that the Board may, at any time, revoke or suspend any Professional Staff member’s appointment. Section 5.4 provides that the CEO, Chief of Staff, or Chief of a Department, may recommend to the MAC that any member’s privileges be restricted, suspended or revoked, where in their opinion the member’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 or the Hospital; or

(d) fails to comply with the Hospital’s by-laws, Rules and Regulations, or Policies, the Public Hospitals Act or any relevant law.[^9]

[51] Section 5.3 further provides that the CEO, the Chief of Staff, or the Chief of a Department may temporarily restrict or suspend any Professional Staff member’s privileges on an immediate basis where in their opinion the member’s conduct, performance or competence (a) exposes or is reasonably likely to expose any patient, health care provider, employee or another person at the Hospital to harm or injury; or (b) is or is reasonably likely to be detrimental to patient safety or to the delivery of quality patient care within the Hospital, and immediate action must be taken to protect patients, healthcare providers, employees or any other person at the Hospital from harm or injury.

[52] The physician can request a Board hearing and the Board’s decision can be appealed to HPARB. HPARB’s authority is set out in section 41(1)(5) of the PHA: HPARB may confirm the Board decision where it was made in accordance with the PHA, the regulations, and the by-laws.[^10]

(a) HPARB Does Not Need to Address All of the Evidence Before It

[53] The Appellant suggests that HPARB misapprehended the evidence because it did not specifically address all the evidence before it. In particular, the Appellant alleges that HPARB did not consider the evidence about whether Dr. Tenn-Lyn had the most patient complaints in the emergency department and did not know the exact number of complaints against her.

[54] In fact, the HPARB accepted the Appellant’s analysis and calculation of colleague complaints for the 2017 annual performance review, but also made it clear in its decision that the Hospital’s case was not based on the number of patient complaints against her, or how that number compared to other physicians. Instead, it had considered the pattern of the Appellant’s behavior and miscommunication over her time at the Hospital.

[55] As set out by the Board, at paragraphs 78 and 79 of its decision, the evidence it heard supported Dr. Tenn-Lyn’s “long-standing pattern of interpersonal conflict and communication difficulties with her interactions with nurses and other hospital staff, as well as patients and family members”. Dr. Tenn-Lyn “repeatedly demonstrated an inability to communicate, work with and relate to her colleagues, patients and patients’ family members in a cooperative manner” and she “demonstrated lack of insight and failure to improve despite multiple attempts at remediation”.

[56] HPARB is not required to address all of the evidence in its reasons.[^11] This court considered this issue in Dr. Tenn-Lyn’s last appeal of the HPARB decision in her case against Trillium Health Partners, noting that HPARB has no obligation 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”.[^12] A decision maker not mentioning evidence “does not necessarily lead to a finding of palpable and overriding error”.[^13]

[57] The hearing before HPARB in this matter was about one issue - whether Dr. Tenn-Lyn met the criteria for reappointment and whether her conduct met the criteria for revocation pursuant to the By-laws.

[58] A determination of whether reasons fulfill their purpose and allow for effective appellate review can only be made by examining those reasons in the context of proceedings that gave rise to the reasons. The context includes the nature of the issues raised before the tribunal, the evidence adduced, and the submissions made. For example, in a one-issue case the adequacy of the reasons given will turn on the treatment of that issue in the reasons and not on the treatment of matters that were peripheral or unchallenged at trial but have been the focus of the appeal.[^14]

[59] The exact number of complaints was peripheral in this case.

(b) The HPARB Did Not Have to Address the Behavior of Others

[60] The Appellant argues that the HPARB did not address the evidence about unprofessional comments and communications by others at the Hospital. It did, in fact, make note of her submissions on this issue at paragraph 112 of its decision. At paragraph 105 of its reasons, the Board went so far as to opine that Dr. Tenn-Lyn did not fit in to a department “mostly staffed by male physicians, rife with chauvinism, crude humor, and locker room talk”. Nonetheless, the Board made it clear that the behavior of others at the Hospital was not relevant to the central issue that was before it, which was whether the Appellant met the criteria for reappointment or whether her conduct justified the revocation of her privileges.

[61] I agree with the Respondent’s position that Dr. Tenn-Lyn cannot now change that analysis by pointing her fingers at others. The HPARB was not required, more than it did, to address this evidence in its reasons.

(c) Failure of the Board to Consider the Appellant’s Witnesses

[62] The Appellant alleges that the HPARB failed to consider the evidence presented by her witnesses supporting her good behavior and communication skills. She called five witnesses who provided testimony about her professionalism, strong communication skills, ethics, work ethic and positive bedside manner. She points, specifically, to the decision’s lack of mention of the testimony of Susy Fraser or any reference to the evidence from other witnesses she called.

[63] Three of the witnesses Dr. Tenn-Lyn called to testify, Rachel Constantine, Susy Fraser, and Wendy Garcia, two of whom were registered nurses, worked with her at a COVID-19 vaccination centre following her departure from Mackenzie Health. A fourth, Brenda Tan, worked with Dr. Tenn-Lyn, briefly, years prior to the revocation of her privileges. The only witness Dr. Tenn- Lyn called who had worked with her in the Hospital’s emergency department was Nurse Musselman, who had not worked with her since 2013. None of these witnesses spoke to the issue of Dr. Tenn-Lyn’s professionalism in an emergency unit after 2014, nor could they refute the many complaints against her between 2014 and 2019.

[64] The evidence of Dr. Tenn-Lyn’s witnesses was not relevant to the issue before the HPARB and the fact that the HPARB did not specifically refer to this evidence does not give rise to a palpable and overriding error. Reliance by a decision-maker “on the evidence of some witnesses over others cannot on its own form the basis of a ‘reasoned belief that the trial judge must have forgotten, ignored, or misconceived the evidence in a way that affected his conclusion’”.[^15] Additionally, it is not our role, here, “to second guess the weight assigned to items of evidence” by the trier of fact.[^16]

(d) HPARB’s Credibility and Reliability Analysis was Appropriate

[65] The Appellant criticizes the HPARB for making no attempt to address the credibility and reliability of the Hospital’s evidence. Instead of analyzing the evidence, she submits, the Board briefly stated broad principles about credibility and reliability, used one example of a complaint in doing so, and then went on to conclude that the Appellant was not credible, but that the Hospital’s witnesses were credible.

[66] I find, however, that the HPARB’s credibility findings were based on an assessment of the way the witnesses testified and how their testimony fit with the totality of the evidence before it. The Board’s credibility findings are supported by the evidence and entitled to a high degree of deference.

[67] At paragraph 206 of its decision, the HPARB set out how it would assess the witnesses’ credibility and it outlined that such an assessment is informed by the Appeal Board’s “’view of the diverse ingredients it has perceived at trial. Combined with experience, logic and an intuitive sense of the matter.’” After setting out factors to consider, the HPARB also made appropriate findings about how the witnesses testified. It noted that the Appellant would be frequently argumentative and that she testified “’through the lens of an exaggerated sense of self interest, such that her answers did not have the ring of truth.’” In contrast, the HPARB found that the nurses called by the Hospital gave their evidence in a straightforward manner and consistent with documentation before it.

[68] In Vavilov, the Supreme Court noted that it “is trite law that the decision maker may assess and evaluate the evidence before it and that, absent exceptional circumstances, a reviewing court will not interfere with its factual findings”.[^17] The Supreme Court in R v. Gagnon also set out that a reviewing court should not interfere with a credibility assessment absent a palpable and overriding error given the challenges in articulating the “complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events”.[^18] In F.H. McDougall, the Court also set out that the trier of fact “should not consider the plaintiff’s evidence in isolation, but must look at the totality of the evidence to assess the impact of the inconsistencies in that evidence on questions of credibility and reliability pertaining to the core issue in the case”.[^19] Provided the trier of fact demonstrates “that they are alive to inconsistencies but accepts the evidence of the witness nevertheless, in the absence of a palpable and overriding error, there is no basis for appellate interference”.[^20]

[69] HPARB’s credibility findings are supported by the evidence. HPARB outlined the rationale for its preference for the evidence of the Hospital witnesses to that of Dr. Tenn-Lyn and its finding that Dr. Tenn-Lyn was not as credible. There is no basis for this Court to interfere.

(e) The HPARB Appropriately Analyzed the Criteria for Non-renewal and Revocation

[70] Finally, with respect to the Appellant’s argument that the HPARB failed to include an analysis of the by-law criteria for a non-renewal or revocation, paragraphs 74 and 214 of the decision did, indeed, consider the test set out in the PHA, the by-law, and the relevant case law to support the conclusion that Dr. Tenn-Lyn’s conduct met the criteria for an immediate revocation.

[71] The reasons sufficiently explained what was decided and why that decision was made.

[72] In Law Society of Upper Canada v Neinstein, at para 6, the Ontario Court of Appeal decided that where there is a right of appeal from a decision, reasons must provide a sufficient window into the decision to allow meaningful appellate review to the extent contemplated by the permitted scope of the appeal. Reasons for a decision that describe both what is decided and why that decision was made are susceptible to effective appellate review. Whatever other shortcomings may exist in reasons that adequately explain the “what” and the “why”, those shortcomings will not render the reasons so inadequate as to justify appellate intervention on that basis.[^21]

[73] The HPARB confirmed the three decisions of the Hospital Board with respect to Dr. Tenn-Lyn’s privileges. The reasons set out why it reached that conclusion. They were:

(a) Dr. Tenn-Lyn failed to meet the criteria for re-appointment in her inability to communicate, work with and relate to her colleagues, patients, and patient’s family members in a cooperative and professional manner as required by the Hospital’s Code of Conduct, by-laws, and policies;

(b) “Dr. Tenn-Lyn was unable to collaborate with other staff in the ED which created a risk to patient safety and the delivery of patient care;

(c) Dr. Tenn-Lyn demonstrated a failure to improve;

(d) The evidence demonstrated that, having regard to the applicable provisions of the Hospital’s Professional Staff By-laws, Dr. Tenn-Lyn did not meet the criteria for annual re-appointment; and

(e) Dr. Tenn-Lyn’s failure to meet the criteria, as well as the real risk to patient safety and the delivery of quality patient care posed by her unprofessional behavior, all independently justify the immediate revocation of her privileges.

[74] The HPARB set out the By-law’s criteria for re-appointment in its decision when summarizing the Hospital Board’s first decision. It then considered these factors in its analysis under the headings it used and reasons provided under each of the Hospital’s decisions. The rationale for confirming the Hospital Board’s three decisions includes specific reference to the Appellant’s failure to meet the criteria for re-appointment, and that her behavior posed a risk to patient safety, meeting the requirement for immediate revocation.

[75] The HPARB was clearly alive to the criteria for appointment and revocation of privileges and made no error in its analysis.

ORDER

[76] The appeal is dismissed with costs payable to the Respondent, in the amount agreed to by the parties of $35,000.00, inclusive of HST and Disbursements.

ACJ McWatt J.

Sachs J.

Abrams J.

Released: January 16, 2024

[^1]: Canada (Ministry of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] at para 37. [^2]: Hydro-Quebec v Matta, 2020 SCC 37 at para 33. [^3]: Quadrexx Hedge Capital Management Ltd. v Ontario Securities Commission, 2020 [^4]: Public Hospitals Act, RSO 1990, c. P. 40, ss. 12, 35 – 43; Hospital Management Regulation, RRO 1990, Reg. 965, s 4(1), s. 7(1) and (2). [^5]: Public Hospitals Act, RSO 1990, c. P. 40, ss. 37(2). [^6]: Mackenzie Health Professional Staff By-Laws [By-law], s. 4.8 (1)(b). [^7]: To be eligible for reappointment, an applicant shall continue to meet the qualifications and criteria for appointment. By-law, s. 4.3(2)(b)(ii) [^8]: By-law, s. 4.3.(2)(b)(iii) [^9]: By-law, s. 5.4 [^10]: PHA, sections 41(1)(d) and 41(1)(5); Gupta v Williams Osler Health System, 2017 ONSC 1294 (Div Ct) at paras 41- 42 [Gupta]; HPARB Decision at paras 116 – 117. [^11]: Nfld and Labrador Nurses’ Union v Nfld and Labrador Treasury Board, 2011 SCC 62 at para 16. [^12]: Tenn-Lyn v Trillium Health Partners, 2022 ONSC 6329 at para 15. See also Caine v Ontario College of Teachers 2022 ONSC 2592 at para 51 citing R v Sheppard, 2002 SCC 26 at paras 33, 42, 53. [^13]: Mahjoub v Canada (Citizenship and Immigration), 2017 FCA 157 at para 66. [^14]: Law Society of Upper Canada v Neinstein, 2010 ONCA 193 at para 62. [^15]: Housen v Nikolaisen, 2002 SCC 33 at para 46. [^16]: Housen v Nikolaisen, ibid at para 23. [^17]: Vavilov at para 125. [^18]: R v Gagnon, 2006 SCC 17 at para 20. [^19]: F.H. v McDougall, 2008 SCC 53 at para 58. [^20]: Caine v Ontario College of Teachers, 2022 ONSC 2592 at para 62. [^21]: Law Society of Upper Canada v Neinstein, 2010 ONCA 193 at para 61.