COURT FILE NO.: CV-07-332604

DATE: 20120706

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Kulwant Buttar, Plaintiff / Moving Party

AND:

Hamilton Health Sciences Corporation and Christopher Fernandes, Defendants / Responding Parties

BEFORE: Justice E. P. Belobaba

COUNSEL: John J. Adair for Moving Party / Plaintiff

Melanie de Wit for Responding Parties / Defendants

HEARD: June 20, 2012

ENDORSEMENT

[ 1 ] When Ontario doctors lose hospital privileges, they are required to follow the review and appeal procedures set out in the Public Hospitals Act . [1] They cannot commence litigation. [2] The PHA provides a “comprehensive code” for the resolution of disputes about the revocation, suspension or alteration of hospital privileges. [3]

[ 2 ] Dr. Buttar argues in this motion that her action for constructive dismissal should be allowed to proceed despite the law as just stated. Reluctantly, and only because an essential point of evidence was not before the court, I agree.

[ 3 ] For the reasons that follow, Dr. Buttar’s motion to lift the stay and allow the action to proceed is granted.

Background

[ 4 ] Dr. Kulwant Buttar was an Emergency Room physician at the defendant hospital until she took a leave of absence in May of 2005. The essence of her complaint is that Dr. Christopher Fernandes, who was appointed head of the hospital’s Emergency Department in 2002, began to target her soon after his arrival because she was of South Asian descent. The plaintiff says that over the course of 2003 and 2004, Dr. Fernandes manipulated patient complaints data to make her look bad, accused her of professional incompetence, imposed training and upgrade requirements and, ultimately, a demeaning “double coverage” work schedule where she was required to work in the presence at least one other doctor. The plaintiff says her working environment became so intolerable and she became so upset and depressed that she was forced to take an extended leave of absence.

[ 5 ] Two years later, in May of 2007, Dr. Buttar commenced an action for constructive dismissal. Two years after that, in 2009, she applied for re-appointment. [4] Her application was denied by the hospital’s Medical Advisory Committee. Following the procedure set out in the PHA, Dr. Buttar appealed the denial to the hospital’s Board of Directors. The appeal was heard at the end of March and early April, 2011.

[ 6 ] By a Consent Order of this court dated May 10, 2011, the constructive dismissal action was stayed pending the outcome of the PHA appeal process. The court Order provided that a motion to lift the stay may be brought by either party on 30 days notice. The hospital Board released its decision on June 13, 2011 denying Dr. Buttar’s application for re-appointment. Dr. Buttar now asks in this motion that the stay be lifted so that her action for constructive dismissal can proceed.

[ 7 ] The defendants submit that the stay should not be lifted because the claim of constructive dismissal is, in essence, a claim of de facto revocation of her hospital privileges and as such should have been heard under the “comprehensive” procedures set out in the PHA and not now via a law suit. Dr. Buttar agrees that doctors complaining about the revocation of hospital privileges are required to pursue the statutory review process as set out in the PHA, but argues that these provisions do not apply in this case. Dr. Buttar submits that she could not have invoked the administrative appeal process in order to address her particular complaint. Her case, she says, doesn’t fit within, and is therefore not precluded by, the review and appeal provisions of the PHA.

Analysis

[ 8 ] The review and appeal procedures that provide the so-called “comprehensive code” are set out in ss. 41(1):

Reasons and appeal

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.

[ 9 ] As I read s. 41, it provides a review and appeal procedure in four broadly described situations:

(i) Under s. 41(1)(a) if the grievance is about a decision denying an application for appointment or reappointment;

(ii) Under the first part of s. 41(1)(b) if the grievance is about a decision revoking or suspending an appointment;

(iii) Under the second part of s. 41(1)(b) if the grievance is about a decision that was made “under s. 34” cancelling, suspending or substantially altering [the doctor’s] hospital privileges - (s. 34 deals with interventions to replace an attending physician in his or her treatment of a particular patient); and

(iv) Under the second part of s. 41(1)(b) if the grievance is about a decision that was made “under the bylaws” cancelling, suspending or substantially altering [the doctor’s] hospital privileges.

[ 10 ] It is important to understand that the first two categories which focus on the denial, revocation or suspension of appointments to the medical staff of a hospital are also about hospital privileges. [5] In other words, all four categories are concerned with one or more of the following: the denial, revocation, cancellation, suspension or substantial alteration of hospital privileges. Hence, the proposition in Beiko that the PHA provides a ‘comprehensive code’ for the resolution of disputes about the revocation, suspension or substantial alteration of hospital privileges. [6]

[ 11 ] The triggering event is a “decision” that results in a grievance. The “decision” also starts the clock running – the aggrieved doctor is entitled under ss. 41(1)(c) and (d) to ask for written reasons within 7 days of the impugned decision and to request an appeal within 7 days of receiving the written reasons.

[ 12 ] In my view, there are only two plausible bases for Dr. Buttar’s grievance, both under s. 41(1)(b): that Dr. Fernandes made a decision that resulted in a de facto revocation of her hospital privileges, under the first part of s. 41(1)(b); or that Dr. Fernandes made a decision that substantially altered Dr. Buttar’s hospital privileges, under the second part of s. 41(1)(b).

[ 13 ] I will consider each in turn.

(1) De facto revocation of hospital privileges

[ 14 ] The defendants say that because the action claims constructive dismissal and because Dr. Buttar says she was “forced” to take a leave of absence, that what happened here was a de facto revocation of her hospital privileges and thus the PHA review and appeal procedures should have been followed.

[ 15 ] There are a number of difficulties with this submission: no such decision was ever made; Dr. Buttar was “ granted a leave of absence” [7] in May, 2005 - she did not resign or walk out; and she could have returned as an Emergency Room physician whenever she felt ready to do so (provided of course that it was within the one-year appointment period). Indeed, there is no evidence to the contrary.

[ 16 ] Further, Dr. Buttar’s grievance stemmed from a series of decisions culminating in the “double coverage” requirement that proved to be particularly humiliating and caused her to take the leave of absence. Even if one were to focus only on the decision imposing the “double coverage” work schedule, one would be hard pressed to characterize this as a de facto revocation of all of her hospital privileges. The more accurate and more sensible characterization would be to view the imposition of the “double coverage” requirement as a ‘substantial alteration’ of her hospital privileges. I will return to this point.

[ 17 ] Another way to assess whether the de facto revocation argument succeeds is to ask whether Dr. Buttar could have engaged the PHA in May of 2005 when she decided to take a leave of absence or even before that date? Let’s assume that as she was becoming more and more upset by Dr. Fernandes’ decisions about retraining or double-coverage, she took a moment to read the appeal procedures set out in s. 41. Would she have reasonably concluded at the time that all of her hospital privileges were being revoked? Clearly not. She was, to be sure, upset and depressed but it was months later, after reviewing the events and obtaining legal advice, that she came to view what had happened, at least from her perspective, as a constructive dismissal, and perhaps as a de facto revocation of her hospital privileges.

[ 18 ] In my view, it would be unfair and unrealistic to expect Dr. Buttar to have this legal insight in May, 2005 (or earlier) and thus engage the appeal procedures of the PHA on the basis of de facto revocation. Some cases of constructive dismissal may well constitute a de facto revocation of all hospital privileges that should have been recognized and acted on at the time and within the 7-day notice periods as set out in s. 41, but this is not one of them. [8]

[ 19 ] The defendants’ submission that Dr. Buttar’s hospital privileges were de facto revoked in May, 2005 or earlier and thus fell within the “comprehensive code” of the PHA does not succeed.

(2) Substantial alteration of hospital privileges

[ 20 ] However, in May of 2005 or whenever the “double coverage” decision was implemented, a decision that was the culminating and most significant reason for the leave of absence, Dr. Buttar should have reasonably concluded that her hospital privileges were being substantially altered, or that at least a plausible argument could be made in this regard.

[ 21 ] Dr. Buttar could have engaged the PHA review and appeal process in 2005 when Dr. Fernandes imposed what she believed was a demeaning and humiliating “double coverage” work schedule. She could have demanded written reasons from Dr. Fernandes for any of his decisions that in her view substantially altered her hospital privileges, and particularly his “double coverage” decision, and she could have requested a hearing before the Appeal Board.

[ 22 ] Thus, but for one important evidentiary item, I would have dismissed this motion to lift the stay. I would not have allowed the action for constructive dismissal to continue. I would have found that Dr. Buttar’s hospital privileges had been substantially altered by the “double coverage” decision and thus her grievance fell within s. 41(1)(b) of the PHA.

[ 23 ] However, I am obliged to grant the motion and lift the say because counsel for the defendants was unable to show that the decision substantially altering Dr. Buttar’s hospital privileges, i.e. the decision to impose the “double coverage” work shift, was one that was made “under the bylaws” as required by the language in s. 41(1)(b). (Counsel agreed that this means “under the hospital’s bylaws.”)

[ 24 ] Unfortunately, the hospital’s bylaws were not before me. They were not filed with the motion record or placed into evidence. Nor did counsel for the defendants ask for an adjournment to supplement the record accordingly. [9]

[ 25 ] Counsel for the defendants expressed confidence that the hospital’s bylaws do provide for decision-making about professional competence issues and training and upgrade requirements, and, certainly, about the allocation of departmental work schedules and the imposition, where needed, of “double coverage” requirements. Counsel may well be right. But I cannot assume what is not in evidence. If the hospital bylaws are not before me, I cannot confirm that the decision that substantially altered Dr. Buttar’s hospital privileges was a decision that was made “under the bylaws.”

[ 26 ] I therefore cannot satisfy myself that Dr. Buttar could have engaged the s. 41 appeal procedures and is therefore precluded from pursuing her action. Hence, I must reluctantly grant the motion to lift the stay and allow the action for constructive dismissal to proceed .

Disposition

[ 27 ] The motion to lift the stay is granted. The action for constructive dismissal may proceed.

[ 28 ] If the parties cannot agree on costs, I will be pleased to receive a brief costs submission from the plaintiff within 14 days and a responding submission from the defendants within 10 days thereafter.

Belobaba J.

Date: July 6, 2012

[1] R.S.O. 1990, c. P.40 .

[2] Beiko v. Hotel Dieu Hospital, [2007] O.J. No. 331 (S.C.J.) , aff’d 2007 ONCA 860 , [2007] O.J. No. 4785 (C.A.)

[3] Ibid., at paras. 45 and 53 (S.C.J.)

[4] Section 37(2) of the PHA provides that “every physician appointed to the medical staff of a hospital shall be appointed for a period of not more than one year.” Dr. Buttar’s most recent one-year appointment would have expired, at the latest, sometime in 2006 and she would have had to apply for re-appointment – hence her application in 2009.

[5] See the Board’s written reasons of June 13, 2011 at para. 2: Dr. Buttar’s 2009 application for re-appointment as a full-time member of the Emergency Room staff was a request for the return of “full privileges.”

[6] Supra, note 3.

[7] See the Board’s written reasons of June 13, 2011 at para. 2.

[8] Counsel for the defendants relies on Salmon v. Rouge Valley Health , an unreported decision of Madam Justice Low released on October 26, 2010. In Salmon , the plaintiff-doctor’s complaint was that “the defendants caused a de facto revocation of his hospital O.R. privileges by intimidating him into resigning.” It appears from this brief, hand-written Endorsement that the aggrieved doctor realized at the time that his hospital privileges were effectively being revoked. I say this because Justice Low notes that the doctor’s appeal procedures under the PHA were not yet “exhausted.” The court’s decision to confine the doctor to the remedies under the PHA is therefore understandable. In my view, the Salmon decision does not assist the defendants.

[9] I note that this court’s reasons for decision in Beiko , supra, note 2, do not specifically refer to the defendant hospital’s bylaws. However, the bylaws must have been before the court and the court must have reviewed the bylaws and concluded that the alteration of the plaintiff’s O.R. privileges was a decision that was made “under the bylaws” as required by the language in s. 41(1)(b). Otherwise, “the comprehensive code” would not have applied.