Kadiri v. Southlake Regional Health Centre, 2015 ONSC 621

NEWMARKET COURT FILE NO.: CV-12-109181-00

DATE: 20150127

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Yahaya Kadiri

Plaintiff

– and –

Southlake Regional Health Centre, Nancy Merrow, Robert Smyth, Michael Sullivan, Lee Ellis Heinrich, Ira Bloom and Giles Cruickshanks

Defendant

Paul Harte and Guiseppe Michelucci, for the Plaintiff

William D.T. Carter and Lee Lenkinski, for the Defendants

HEARD: October 30, 2014

RULING ON MOTION FOR SUMMARYJUDGMENT

gilmore J.:

Overview

[1] This is the defendants’ motion for summary judgment. The defendants seek to dismiss the plaintiff, Yahaya Kadiri’s (“Dr. Kadiri’s”), claim against the defendants, Bloom and Cruickshanks, on the grounds that the claim is statute barred pursuant to the Limitations Act, S.O. 2002, C. 24 (“LA”).

[2] The defendants also seek to dismiss Dr. Kadiri’s claim on the grounds it is statute barred under s.4 of the LA because Dr. Kadiri knew all of the material facts, the tortfeasors and the damages he had suffered by April/May 2008, but did not issue his claim until 2012.

[3] Alternatively, these defendants seek to stay Dr. Kadiri’s claim against the remaining defendants on the grounds that he has not exhausted the statutory appeal process available to him under the Public Hospitals Act (“PHA”) and that this action must be reviewed by the Healthcare Professions Appeal and Review Board (“HPARB”) before any damages claim can be pursued.

[4] Dr. Kadiri opposes the motion. He submits that during the PHA process no decision was made that was open to appeal under the PHA and, in any event, Dr. Kadiri need not appeal a final decision which was in his favour.

[5] With respect to any of Dr. Kadiri’s claims made prior to two years before the issuing of the claim, Dr. Kadiri submits that it was not legally appropriate for him to bring his claim prior to the conclusion of the PHA process in January 2011. In the alternative, Dr. Kadiri submits that the defendants’ actions formed part of a continuous course of deliberate conduct and the limitation period is therefore calculated from the point where such conduct ended, which was in January of 2011 when he resumed his previous duties.

Background Facts

[6] The plaintiff, Dr. Kadiri, is a physician specializing in anesthesiology. He has been granted privileges under the PHA at Southlake Regional Health Centre from 1979 to the present date.

[7] The defendant, Nancy Merrow (“Dr. Merrow”), was the Chief of Staff and Chair of the Medical Advisory Committee (“MAC”) at the Hospital from July 1, 2004 to October 31, 2013.

[8] The defendant, Robert Smyth (“Dr. Smyth”), was Chief of Anesthesiology at Southlake from January 2008 to July 2010. The defendant, Michael Sullivan (“Dr. Sullivan”), was the leader of Southlake’s surgical program from January 2008 to January 2012. The defendant, Lee Heinrich (“Dr. Heinrich”), was the Deputy Chief of Anesthesiology at Southlake from January 2008 to July 2010 and Chief of Anesthesiology from July 2010 to present. These defendants and Dr. Merrow are collectively referred to as the “Hospital defendants.”

[9] The defendants, Ira Bloom (“Dr. Bloom”) and Giles Cruickshanks (“Dr. Cruickshanks”) are anesthesiologists with privileges at Southlake in the Department of Anesthesiology. They did not, nor do they now, hold any administrative position at the Hospital.

[10] Physicians are granted privileges at a hospital pursuant to the PHA, the hospital Board of Directors (“the Board”), the by-laws of the hospital and the rules and regulations of the medical staff of the hospital. These make up the governing framework of the hospital. Physicians are granted privileges for a period of one year. Dr. Kadiri’s privileges were renewed each year since he started at the Hospital in 1979.

[11] The MAC is a special committee of the Hospital established under section 35 of the PHA. The MAC assists the Hospital in determining privileges and, among other duties, makes recommendations to the Board concerning the dismissal suspension or restriction of privileges.

[12] Dr. Kadiri’s claims $3.5 million in general and special damages and $150,000 for each of punitive and aggravated damages. He claims that the defendants’ deliberate and repeated actions or omissions between April 23, 2008 and January 4, 2011 affected his ability to exercise his hospital privileges and earn an income and it damaged his professional reputation. The claim is pled as the torts of bad faith, misfeasance in public office, unlawful intimidation in public office, conspiracy and intentional interference with economic relations.

[13] Dr. Merrow was the only defendant to file an affidavit. The defendants did not cross-examine Dr. Kadiri on his lengthy 126 page affidavit. The defendants’ view was that cross-examination was not necessary as the dispute in this case relates to the legal effect of the facts and not the facts themselves. Dr. Kadiri’s position is that his evidence on this motion is unchallenged and it is therefore open to the court to make any necessary findings based on his affidavit and extensive documentary references.

The April 11, 2008 Incident and the Investigation

[14] The claim arises from an incident where Dr. Kadiri left the operating room (“OR”) on April 11, 2008 during a knee replacement procedure. He did not advise staff that he was leaving or why. He turned off the inhaled agent before he left. The OR nurse was required to lie across the patient who began coughing and bucking as he arose from sedation. Another anesthetist was called to attend on an urgent basis and assist the patient to emerge from sedation in a controlled manner. The patient was not harmed. While this court does not need to decide if Kadiri’s actions were wrongful or justified, they caused the process under the PHA to be initiated and that process is in issue in this motion.

[15] Dr. Smyth reported this incident to Dr. Merrow. As Chief of Staff, Dr. Merrow was accountable to the Board, served as chair of the MAC and was responsible for the supervision of the professional care provided by members of the medical staff. This included the investigation of matters of concern to her as Chief of Staff and the receipt of reports in relation to such investigations.

[16] In her capacity as Chief of Staff, Dr. Merrow initiated a process under the hospital’s by-law 12.1, known as the Privileges Process. The Privileges Process is a process under the PHA. Dr. Merrow determined that the incident involving Dr. Kadiri on April 11, 2008 should be investigated and that Dr. Smyth, as Chief of Anesthesiology at the time, should undertake the investigation.

[17] On April 23, 2008, Dr. Kadiri agreed to voluntarily take time away from the OR and his on-call duties pending the completion of Dr. Smyth’s investigation. During Dr. Smyth’s investigation, Dr. Kadiri worked full time at the Anesthetic Assessment Clinic (“AAC”) and performed pre-anesthetic patient evaluations.

[18] On April 28, 2008, Dr. Smyth’s written report of the incident (the “Smyth Report”) was provided to Dr. Merrow. On April 30, 2008, Dr. Merrow wrote to Dr. Kadiri enclosing Dr. Smyth’s report. In that correspondence, Dr. Kadiri was asked to extend his voluntary leave until May 9, 2008, pending a consultation between Dr. Merrow, Dr. Smyth and the Hospital CEO to determine whether further action was required. While the report did not recommend any alteration of Dr. Kadiri’s privileges, it indicated a concern about the lack of vigilance in leaving a patient under anesthetic unattended in the OR and requested a meeting with Drs. Merrow and Kadiri to discuss the issue.

[19] On May 2, 2008, Dr. Merrow advised Dr. Kadiri by letter that she would call a meeting of the sub-committee of the MAC to receive Dr. Smyth’s report as the Hospital’s CEO was away and she wanted to avoid further delay. Dr. Kadiri’s position is that this was an “illegal committee” as it did not accord with Hospital by-law 12.1.1(11), which required that the Smyth Report be reviewed by the Hospital CEO, Chief of Department, Program Medical Director and Chief of Staff to determine if further action was necessary. The meeting of the alleged “illegal” sub-committee took place on May 6, 2008.

[20] Dr. Kadiri submits that the committee that reviewed the Smyth Report was made up of a group of individuals personally selected by Dr. Merrow. In the minutes of that meeting (prepared by Dr. Merrow) she indicated that the sub-committee would recommend to the MAC that the matter be considered a lapse in judgment and that Dr. Kadiri’s agreement not to provide services in the OR, birthing unit or on call, continue. Dr. Kadiri submits that he never agreed to extend his voluntary leave beyond the date the Smyth Report was filed on April 28, 2008. The defendants submit that Dr. Kadiri did not respond to Dr. Merrow’s letters of April 30 and May 2, 2008.

[21] On May 5, 2008, Dr. Kadiri wrote a letter to Dr. Merrow in which he explained the incident as one of acute urinary urgency. He apologized and made reference to his recognition of the need to adhere to the expected standard of practice for anesthetists and that he responded inappropriately to the situation.

[22] The MAC considered the April 11, 2008 incident in a meeting held on May 12, 2008. The MAC recommended that Dr. Kadiri be referred for a medical and psychological assessment by an external consultant service and the MAC should receive a report thereafter.

[23] Dr. Kadiri’s position is that the May 12, 2008 MAC meeting failed to follow key provisions of the governing framework by, among other things, failing to allow him to present relevant information, including his letter of apology and the Smyth report, by allowing Dr. Merrow to chair the meeting when her own recommendation was being considered, and allowing the Minutes of the “illegal” sub-committee to be placed before the MAC.

[24] On May 14, 2008, Dr. Merrow wrote to Dr. Kadiri to report on the May 12, 2008 MAC meeting. Part of the report indicated a requirement that Dr. Kadiri submit to a neuropsychological assessment. Dr. Merrow conceded in her cross-examination prior to the motion that in fact the MAC never recommended a neuropsychological assessment. The recommendation was for a psychological assessment. Her evidence was that she was well aware of the difference between the two types of assessments.

[25] On May 16, 2008, Dr. Merrow received a letter from Dr. Kadiri’s lawyer. This letter included a previous letter, dated May 8, 2008, which Dr. Merrow states had never been delivered to her. These letters object to the investigation process and put the Hospital on notice about Dr. Kadiri’s concerns including his possible claim for damages for lost income.

[26] On May 21, 2008, the Hospital received a report from Dr. Kadiri’s urologist indicating he had been diagnosed with prostatitis which was the cause for the April 11, 2008 incident. The report set out that it was safe for Dr. Kadiri to return to work.

[27] On May 23, 2008, Dr. Kadiri’s medical report was considered (with his consent) by the same MAC sub-committee which Dr. Kadiri refers to as the “illegal” sub-committee. The sub-committee was not satisfied that the documentation provided by Dr. Kadiri was sufficient to change their position with respect to a finding that there had been a lapse of judgment. Later that day, Dr. Kadiri was advised both by Dr. Merrow and the Hospital’s lawyer, that he had to submit to a neuropsychological assessment and that if he did not agree to remain out of the OR and on-call duties, his privileges would be suspended. Dr. Kadiri refers to this as the “illegal threat.”

[28] Dr. Kadiri agreed to undergo the assessment and remain out of the OR and on-call duties. His view was that he had no choice as he was the sole breadwinner in his family. During the assessment process, Dr. Kadiri was offered a position in the AAC at $1,400 per day. He declined that offer.

[29] On June 19, 2008, Dr. Kadiri’s lawyer wrote to the Hospital again reiterating his concerns about procedural fairness and due process and putting them on notice of a potential claim for his loss of income from April 23, 2008.

[30] At the end of July 2008, Dr. Kadiri’s lawyer wrote to the Hospital requesting they reconsider their position given that testing showed the likelihood that Dr. Kadiri had prostate cancer. The Hospital refused and indicated the possibility of a suspension of Dr. Kadiri’s privileges if he did not cooperate.

[31] The assessment process was prolonged for various reasons, but on June 3, 2009, Dr. Kadiri’s lawyer wrote to the Hospital requesting a specially convened meeting of the MAC to deal with the completed assessment report. The MAC met on June 15, 2009 to consider various assessments provided by Dr. Kadiri. Given the starkly different content of the assessments, the MAC recommended that a third assessment be prepared. While Dr. Kadiri did not object to a third assessment, his counsel wrote to the Hospital’s counsel on June 24, 2009 to advise that Dr. Kadiri’s absence from OR work and his relegation to limited clinic work was not voluntary.

[32] The final assessment of Dr. Kadiri took considerable time to prepare due to disagreements about the terms of reference. It was finally provided to the Hospital on May 18, 2010 and was considered at a special meeting of the MAC on July 20, 2010. The MAC recommended that Dr. Kadiri be reintegrated into practice following a period of clinical retraining, a probationary period of observation on his return and a formal written reprimand. Dr. Kadiri returned to full practice in January 2011, pursuant to the recommendation of the MAC and subsequent to the required period of retraining.

Drs. Bloom and Cruickshanks

[33] Dr. Kadiri alleges that Drs. Bloom and Cruickshanks acted in concert to restrict his ability to exercise his privileges in an unfettered manner and that they interfered with his economic relationship with his patients. More specifically, Dr. Kadiri alleges that when Drs. Bloom and Cruickshanks learned of the restrictions to Dr. Kadiri’s practice following the April 11, 2008 incident, they did everything possible to force Dr. Kadiri out of the hospital and the practice.

[34] In support of these allegations, Dr. Kadiri points to a series of emails exchanged between Drs. Bloom and Cruickshanks between July 2006 and September 2008, in which, among other things, they plotted to restrict his income and suggested that the OR be closed to put pressure on the hospital to revoke his privileges. Dr. Kadiri found out about these emails when copies were delivered to his office anonymously.

SUMMARY JUDGMENT

[35] The defendants move for summary judgment under Rule 20 of the Rules of Civil Procedure. The test for summary judgment is ever evolving. The most recent refinement of the test is articulated in the Hyrniak v. Mauldin[^1], in which the court considered the efficacy of summary judgment motions in the following context:

…the conventional trial no longer reflects the modern reality and needs to be readjusted. A proper balance requires simplified and proportionate procedures for adjudication, and impacts the role of counsel and judges. This balance must recognize that a process can be fair and just, without the expense and delay of a trial, and that alternative models of adjudication are no less legitimate than the conventional trial.

[36] Not all cases will lend themselves to the model set out in Hyrniak, but where a fair and just result can be achieved on a motion for summary judgment and serves the goals of timeliness, affordability and proportionality, the court should consider this as a viable alternative to the regular trial process.

[37] This case lends itself to the summary judgment process, as will be seen below. The results of this motion will assist to refine and delineate the remaining issues for trial.

THE ISSUES

Are any of the Plaintiff’s Claims Barred Pursuant to the Limitations Act?

Drs. Bloom and Cruickshanks

[38] As Drs. Bloom and Cruickshanks were not part of the “Southlake Group” the claims against them should be considered separately.

[39] It is clear from paragraph 132 of Dr. Kadiri’s affidavit that he received the package containing the emails in the fall of 2008. No further emails have been received nor did either of these doctors swear an affidavit in defence of this motion. Dr. Kadiri suggests that the court may therefore infer that their conspiratorial conduct continued after August 2008 and that the claim not be dismissed against them.

[40] Section 4 of the LA, sets out the two year limitation period which would apply to Dr. Kadiri’s claims against all of the defendants. Section 5 of that same Act relates to when a claim is “discovered”:

5.(1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and,

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a). 2002, c. 24, Sched. B, s. 5 (1).

[41] It is clear that the claim against Drs. Bloom and Cruickshanks was discovered in the fall of 2008 when the email package was delivered to Dr. Kadiri. The question to be considered, therefore, is whether the alleged conspiracy continued, such that the claim against these doctors is not statute barred.

[42] The only evidence that the impugned acts of Drs. Bloom and Cruickshanks continued is that contained at paragraph 367 of the Dr. Kadiri’s affidavit in which he states:

I have no reason to believe that both Cruickshanks and Bloom did not continue their efforts to reduce my income and force me from the hospital until I returned to full duties in January 2011.

[43] This court’s view is that one cannot base a claim on a continued but unsubstantiated belief. While there does not seem to be any doubt that the emails contain serious and disparaging commentary, the claim against these doctors has been made more than two years after the date of the last email (September 2008). I respectfully disagree with Dr. Kadiri’s position that the court should infer that such conduct continued after September 2008. Dr. Kadiri could have summonsed Drs. Bloom and Cruickshanks to confirm the very inference he is asking the court to make. He chose not to do so.

[44] The claims against Drs. Bloom and Cruickshanks must therefore be dismissed as they were not pursued within two years of September 2008 and there is therefore no genuine issue for trial.

The Hospital Defendants

[45] The Hospital defendants submit that all relevant facts related to the discoverability of Dr. Kadiri’s claim were known to him by the end of 2008. Letters sent to the Hospital by Dr. Kadiri’s counsel on May 8, May 15 and June 19, 2008 clearly put the hospital on notice with respect to a potential claim for damages related to income loss and an alleged loss of privileges.

[46] The Hospital defendants submit that the relevant limitation period began to run by June 19, 2008, at the latest, when the material elements of the claim were known to Dr. Kadiri. He is not permitted to wait until the full extent of his damages are known (such as when he returned to full practice in January 2011) but must have commenced his claim within two years of knowledge of “some damage” and the identity of those who caused the damage.

[47] The Hospital defendants rely on Hamilton (City) v. Metcalfe & Mansfield Capital Corporation[^2] for the proposition that neither the extent nor the type of damage need be known to trigger the running of the limitation period. Otherwise, claims would be issued outside the limitation period while plaintiffs waited for the full extent of the damages to be crystallized.

[48] Dr. Kadiri argues that the defendants readily concede that the MAC process unfolded between April 2008 and January 2011. During this time the process remained under the governing framework of the PHA. Dr. Kadiri was required to follow the statutory process before commencing his tort action and he did so. Under section 5(1)(iv) of the LA, the person must know that a proceeding would be an “appropriate” means to seek a remedy having regard to the nature of the injury, loss or damage. It only became legally appropriate for Dr. Kadiri to bring his claim after the PHA process came to an end.

[49] I find that that it is contradictory for the defendants to submit that Dr. Kadiri must exhaust the statutory process before he can bring a civil claim, and at the same time insist he is statute barred from bringing his tort claim because he went through the hospital statutory process as required. This is different from the Hamilton v. Metcalfe case cited by the defendants. In that case, the City of Hamilton was not required to go through any statutory process before bringing its claim. While discoverability was raised by the defendants, it cannot be considered in isolation and outside of the PHA process to which Dr. Kadiri was subject.

[50] I agree with Dr. Kadiri that, had he brought his civil claim, the defendants would no doubt have taken steps requesting a stay or dismissal while the statutory process was still underway.

[51] As well, it appears that this process was unduly long and unusual, given the requirement that Dr. Kadiri undergo three separate assessments. In doing so, he was following recommendations made by the MAC as required by the PHA statutory scheme.

[52] Finally, I agree with Dr. Kadiri’s counsel that initiating this action in the midst of the PHA process at the hospital had the potential to affect the decision of the MAC, especially given what Dr. Kadiri’s describes as illegal sub-committees and threats to which he was subject in April and May 2008.

[53] According to s. 5(1)(iv) of the LA, the limitation period only begins to run when a party knows that a proceeding would be an “appropriate” means to seek to remedy to the loss or injury. According to the Ontario Court of Appeal in Markel Insurance Co. of Canada v. ING Insurance Co. of Canada[^3] the word “appropriate” must mean legally appropriate. In U-PAK Disposal v. Municipality of Durham[^4] a master applied the concept of “legally appropriate” in the context of an ongoing tender process. In that case, the parties, in bringing an action involving allegations of a breach by-laws and abuse of office, argued that the limitation period did not begin to run until after the tender process had come to an end. The master allowed the motion finding that bringing a claim regarding the tender process would not be “legally appropriate” until after the tender process had come to an end. Chiappetta J. upheld the decision of the Master:

In my view, the Master correctly concluded there is a potentially successful argument to be made by the prospective plaintiffs that their claims were not legally appropriate until the whole tender process expired because a claim during the process would legally disqualify them from continuing to participate in the very process that may upon its completion form the foundation of the claim. If this argument were accepted, the proposed plaintiffs could not have had a viable claim as of October 2010 because the “appropriate means” element of discoverability had not yet crystallized.

[54] The current case in analogous in that commencing a separate legal proceeding in the midst of the PHA process could have the potential to affect the decision of the MAC and prejudice the outcome. Therefore, commencing an action would not be “legally appropriate” until this process had come to a conclusion.

[55] Further, I accept that Dr. Kadiri was required to go through and exhaust the statutory PHA process prior to commencing an action in court. According to the Ontario Court of Appeal’s decision in Beiko v. Hotel Dieu Hospital St. Catharines[^5], when dealing with a hospital privilege issue, the party must first proceed by way of the statutory route before commencing an action in damages. Therefore, an action in damages would not be “legally appropriate” until Dr. Kadiri had exhausted the statutory process, which was not completed until he had resumed his duties in January of 2011.

[56] There is also a possibility that the limitation period might began to run on July 20, 2010 when the MAC recommended that Dr. Kadiri be permitted to return to his former duties subsequent to a period of retraining. Since the MAC had reached a final decision, the PHA process had run its course, and it would now be a “legally appropriate” time for Dr. Kadiri to bring his civil action. However, since Dr. Kadiri filed his statement of claim on April 26, 2012, he would still be within the two year limitation period even if the period began running at this earlier date.

[57] Given all of the above, I find that Dr. Kadiri completed the statutory process within the Hospital as required and only then was he in a position to know that it would be “legally appropriate” to make a claim for damages. As such, I find that the issuance of the claim in April 26, 2012 was within two years of January 2011, or even the earlier date of July 20, 2010. As such, the Hospital defendants’ claim in that regard is dismissed.

[58] If I am wrong about the conclusions above I find, in the alternative, that the limitation period had not been triggered because the alleged acts and omissions of the hospital defendants constitute a continuing cause of action.

[59] As a result of the actions of the defendants, which the plaintiff alleges included repeated and continued threats, Dr. Kadiri’s privileges were restricted. The threat by Dr. Merrow that she would suspend Dr. Kadiri’s privileges if he did not cooperate continued throughout the PHA process. This is evidenced by repeated letters to Dr. Kadiri, including a lawyer’s letter written as late as June 26, 2009, where an offer is made to proceed with the “formal by-law process” (referring to the process of mid-term suspension) should Dr. Kadiri not be satisfied with the current process.

[60] These actions constituted a “continuing cause of action” which continued at least up to the point of the MAC decision to conditionally reinstitute his privileges on July 20, 2010.

SHOULD THE ACTION BE STAYED PENDING REVIEW BY HPARB?

[61] There is no dispute that the PHA provides a comprehensive framework by which a hospital grants privileges and adjudicates disputes related to privileges. Any physician who is aggrieved by a decision relating to the suspension or revocation of their appointment or the cancellation, suspension or alteration of their privileges in entitled to a hearing before the HPARB with a further right of appeal to Divisional Court.

[62] The defendants submit that Dr. Kadiri was required to exhaust the statutory appeal process available to him under the HPARB before making a claim in damages. Issues related to the alleged wrongful restriction of his privileges are precisely what the HPARB is mandated to adjudicate on.

[63] In Beiko v. Hotel Dieu Hospital St. Catharines[^6], the court determined that the process under the PHA was a comprehensive code meant to deal with the issues of hospital privileges. The court cannot usurp the statutory scheme prior to the statutory route being entirely exhausted. Thus, the defendants argue that Dr. Kadiri’s attempt to pursue damages for a wrongful restriction of his privileges is exactly what the Court of Appeal confirmed was not permissible in Beiko.

[64] The defendants submit that it was open to Dr. Kadiri to seek a meeting of the MAC, followed by a hearing before the Hospital Board and then an appeal to HPARB. Dr. Kadiri had the opportunity to use this process to complain that there had been a de facto revocation or an alteration of his privileges. He chose not to do so. As such, his civil action should be stayed pending an appeal to the HPARB.

[65] Dr. Kadiri argues that he could not have accessed an appeal under section 41 of the PHA because the facts did not conform to the requirements of section 41 of the PHA. That section sets out as follows:

…any…(b) member of the medical staff of a hospital who considers himself or herself aggrieved by any decision … under… the by-laws cancelling, suspending or substantially altering his or her hospital privileges…is entitled to…(d) a hearing before the Appeal Board…

[66] Dr. Kadiri submits there was no decision under the Hospital by-laws which cancelled, suspended or substantially altered his privileges. He therefore had no access to an appeal to the HPARB, as such an appeal would have required compliance with the elements of section 41 set out above. In fact, if Dr. Merrow had complied with the by-laws rather than obtaining compliance through illegal threats, there would have been a right of appeal under the Hospital by-laws. Dr. Kadiri had no reasonable option. Due to the illegal threats, any action he took would have been met by a suspension. Further, Dr. Merrow agreed in her cross-examination that the MAC never suspended, cancelled or altered Dr. Kadiri’s privileges[^7]. She also agreed that the intention was that Dr. Kadiri take time away from his on-call duties and the operating room until Dr. Smyth had completed his investigation of the incident[^8].

[67] Dr. Merrow conceded in cross examination that no recommendation had ever been made that Dr. Kadiri have a neuropsychological assessment. She was the one who insisted on this and was well aware of the difference between that form of assessment and a psychological assessment. The plaintiff submits that Dr. Merrow threatened illegal action to coerce Dr. Kadiri to continue to suspend his on-call and OR duties and then represented that he had volunteered to do so.

[68] Ultimately, the matter was disposed of under the PHA and Dr. Kadiri returned to practice in January 2011.

[69] It is clear that both the Hospital and Dr. Kadiri were obliged to follow through with the process under the governing framework. Dr. Kadiri properly put the hospital on notice that he objected to the process and intended to claim damages. Nonetheless, he followed through with the process as required.

[70] I agree with the Beiko decision that the PHA provides a comprehensive code for public law privilege disputes. However, that case also entertains the possibility of tort actions after the statutory process is complete[^9]. This is to ensure the statutory process does not become optional. Dr. Kadiri followed through with the statutory process.

[71] Having followed through with the process, the defendants insist Dr. Kadiri must appeal to the HPARB. But what is he to appeal? The matter within the Hospital was concluded in his favour. The HPARB can only confirm a decision related to privileges. No decision was ever made with respect to Dr. Kadiri’s privileges. Decisions were made in relation to Dr. Kadiri having a lapse in judgment and that he should undergo an assessment. I agree with Dr. Kadiri that it does not appear that any decision was ever made under s.41(b) of the PHA related to his privileges. Therefore, not only would it seem unrealistic to appeal a decision in one’s favour, the statutory basis for the appeal lacks foundation.

[72] The hospital defendants urge me to find that a “de facto” decision had been made to restrict Dr. Kadiri’s privileges, and point to the HPARB decision in Baranick v. Queensway Carleton Hospital[^10] where the Board assumed jurisdiction in similar circumstances. However, in considering Baranick, there are some key facts that distinguish it from the case at bar. In Baranick, the Board considered their jurisdiction under the first part of 41(b) which states:

…any (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…is entitled to …(d) a hearing before the board…

[73] Based this wording, the Board considered that a decision to suspend an “appointment” need not be done pursuant to the by-laws in order for the board to take jurisdiction. They further considered that, in practical terms, there was no distinction between a suspension of an appointment and the suspension of privileges. In that case, the Board concluded that Dr. Baranick’s appointment (or privileges) had been wrongfully suspended pending a psychiatric assessment when he was forced to take a sick leave:

The words appointment and privileges are often used interchangeably although there is a difference in that privileges are in effect the rights attached or granted to a physician’s appointment to the medical staff. The argument was made before us that the hospital had not made any decision under section 41 (1) (b) and in particular that it had not suspended Dr. Baranick pursuant to the by-laws but rather had done so “wrongfully”. In the Board’s view, to the extent that the Hospital may have failed to follow the requirements of the by­laws for a mid-term suspension, our jurisdiction is triggered under the Act in a situation where the question is whether there was either a wrongful suspension of the appointment or the wrongful suspension of the privileges. A temporary suspension of privileges or the temporary suspension of the appointment would be a distinction without much of a practical difference to the physician involved.

[74] In the case at bar, there is no suggestion that Dr. Kadiri’s appointment or privileges as a whole were suspended during the relevant time. Dr. Kadiri was not forced to take a sick leave and refrain from all duties, but continued his work in the AAC (except during his voluntary sick leave). In fact, Dr. Kadiri’s appointment and privileges were renewed twice during the relevant timeframe, both in 2009 and again in 2010.

[75] In any case, I am hard pressed to find that Dr. Merrow made any “de facto” decision to restrict or limit Dr. Kadiri’s privileges. Not only was no decision made according to the by-laws, but no decision appears to have been made at all which Dr. Kadiri could appeal.

[76] Further, in Baranick, the Board found that the hospital had a good faith basis for instituting a mid-term procedure to suspend Dr. Baranick, although it did not answer the question as to whether there would have been sufficient grounds. Therefore, the threat was not just a threat, but a legitimate option for a doctor who may have wished to safeguard his reputation. In the current case, and according to the facts as provided, I cannot find any good faith basis for Dr. Merrow to have threatened to immediately suspend Dr. Kadiri’s privileges under ss.12.2.1(1) of the Hospital by-laws. According to this subsection, in order to immediately suspend a doctor, the Chief of Staff must find that the conduct of a doctor is “reasonably likely to expose a patient to harm or injury” and that “immediate action must be taken to protect the patients and no less restrictive measures can be taken.” Dr. Merrow conceded in cross-examination that she did not at any time feel that Dr. Kadiri’s practice in the AAC was reasonably likely to expose a patient to harm or injury, much less that a suspension would be required to protect the patients, and no less restrictive measures could be taken.

[77] Therefore, I find that there was no “de facto” decision to suspend Dr. Kadiri’s appointment which could have brought this matter under the board’s jurisdiction.

[78] Given all of the above, the defendants’ request for a stay pending an appeal to the HPARB is denied.

ORDERS

[79] The defendants shall have an order for partial summary judgment. The claim against the defendants, Dr. Bloom and Dr. Cruickshanks, is dismissed as statute barred pursuant to the LA.

[80] The balance of the defendants’ motion is dismissed as Dr. Kadiri’s claim is not statute barred pursuant to the LA, nor shall it be stayed pending an appeal to the HPARB. No such appeal is required.

[81] Discoveries to be completed and a pretrial date to be set prior to March 31, 2015.

[82] Given my involvement in this case, I am prepared to hear the trial on the remaining claims if that accords with my judicial schedule.

[83] If the parties cannot agree on costs, I will receive written submissions on a seven day turnaround, commencing with the moving party, followed by responding submissions, then reply submissions, if any, commencing fourteen days from the date of release of this endorsement. Cost submissions shall be no more than two pages in length, exclusive of any costs outline or offers to settle. All costs submissions shall be delivered via email through my assistant at jennifer.beattie@ontario.ca. If no submissions are received within thirty-five days from the date of release of this endorsement, the issue of costs will be deemed to have been settled as between the parties.

Justice C.A. Gilmore

Released: January 27, 2015

[^1]: 2014 SCC 7 at para. 28.

[^2]: 2012 ONCA 156 at para. 61.

[^3]: 2012 ONCA 218, 109 O.R. (3d) 652 at para. 34.

[^4]: 2014 ONSC 1103 at para. 15.

[^5]: 2007 ONCA 860.

[^6]: 2007 1912 (ONSC).

[^7]: Cross-examination of Dr. Merrow, September 12, 2014, para 178.

[^8]: Ibid at para 191.

[^9]: Supra at para 54.

[^10]: (2009) 88687 (Ont. HPARB).