Court File and Parties

Court File No.: CV-16-00551256 Date: 2016-05-03 Ontario Superior Court of Justice

Between: Dr. Agostino Pierro, Applicant – and – The Hospital for Sick Children, Respondent

Counsel: Brian Grosman, Q.C., Jason Beeho, & Peter A. Simm, for the Applicant, Moving Party Robert W. Weir, & Adam Guy, for the Respondent

Heard: April 28, 2016

Judge: S.A.Q. Akhtar J.

I. Factual Background and Overview

Introduction

[1] The applicant seeks an interlocutory injunction to prevent his employer, the Hospital for Sick Children, from suspending him from work so that it can conduct an investigation into allegations of misconduct involving the applicant. For the reasons set out below, the applicant’s argument fails and the request for an injunction is denied.

Background Facts

[2] The applicant, Dr. Agostino Pierro, is a renowned pediatric surgeon who has been employed as the Head of the Division of General and Thoracic Surgery (the “Division”) at the Hospital for Sick Children (the “Hospital”) since April 2013. In September 2013 he also became Director of the Training Program. The applicant reports to the Surgeon-in-Chief of the Hospital. During his tenure at the Hospital there have been two persons employed in that position: Dr. James Wright and Dr. Christopher Calderone.

[3] The Division’s responsibility is to care for children with a wide variety of congenital anomalies and various acquired diseases suffered by children. The applicant, as Director, had oversight of this important section. The applicant's position at the Hospital also gave him supervisory authority over a number of employees, including physicians and administrative staff. The unit works closely together as a team in order to maintain a high level of care quality and efficiency.

[4] In 2015, Dr. Wright and Dr. Calderone received a number of complaints alleging workplace misconduct by the applicant. The complaints were of a sufficiently serious nature to trigger an investigation. This initial inquiry was intended to take a broad approach and involve all members of Division. In January 2016, the Hospital's Vice-President of Human Resources, Susan O’Dowd, began the process by interviewing a number of employees with the avowed purpose of receiving information concerning disrespect “by anyone in the Division of General Surgery or whether [they] have observed others being disrespected or mistreated”. Ms. O’Dowd extended an invitation to the applicant to evaluate his concerns in this context.

[5] The investigation brought to light a large number of complaints about the applicant, which are listed in the respondent’s factum at paragraph 16:

(a) Throwing objects, in one case with such force that the object broke; (b) Screaming and yelling at administrative employees, staff surgeons, and nurses, both in person and over the phone; (c) Snapping at and embarrassing people in meetings, including questioning individuals’ integrity in a meeting setting in a hostile manner; (d) Needlessly reminding all parties in the room that he is the Division Head; (e) Calling people incompetent for not following his instructions despite being told that he is asking them to contravene Hospital policy; (f) Barging into peoples’ offices while they are in private meetings and wanting his needs attended to immediately; (g) Using sarcasm and a high level of impatience in discussions with staff in open settings, private meetings, and in any group meetings; (h) Threatening to fire staff in a very loud and threatening tone if they do not do certain things that he wants; and (i) Bullying more junior level staff to contravene Hospital practices.

[6] The investigative process was not without its difficulties. A number of the Division members expressed reluctance to participate due to fears of retaliation by the applicant. These employees felt that that their employment would be terminated by a hostile applicant once it was discovered that they had provided unfavourable comments. These employees were given assurances that their identities would not be disclosed.

[7] The applicant disputes that any of the complaints are genuine. In his view, the inquiry was precipitated by the appointment of Dr. Calderone as Surgeon-in-Chief on 22 January 2015. Dr. Calderone, according to the applicant, was intent on replacing him as Division Head. The applicant claims that, when he declined to step down from that role at Dr. Calderone’s request, Dr. Calderone’s behaviour became adversarial and antagonistic. The applicant alleges the existence of a “thinly veiled scheme” to ensure that he is driven out of the Hospital.

[8] On 11 February 2016, the applicant retained counsel who expressed concerns about the investigation and requested a copy of the draft report containing the findings. On 3 March 2016, the Hospital advised the applicant, through counsel, of the complaints concerning the applicant, but declined to identify the interviewees to ensure the process would continue without interference or retribution. The Hospital also advised that the applicant would be given an opportunity to respond to all of the allegations, and a meeting was arranged.

[9] Shortly before its meeting with the applicant, the Hospital received a written statement from Helene Dubois, the Administrative Manager of the Division, who was also the applicant’s assistant. Ms. Dubois added credence to the allegations regarding the applicant through her day-to-day workings with him and appeared to corroborate the criticisms noted above.

[10] On 9 March 2016, Ms. O’Dowd interviewed the applicant in the presence of counsel, with Dr. Calderone and the Hospital's lawyer also in attendance.

[11] Subsequently, the applicant and the Hospital communicated throughout the process, including discussing whether he was being “sacked” and his assertion that a conspiracy, with Ms. Dubois as one of its members, was afoot to remove him from his position as Division Head. The Hospital sought to allay any fears that the applicant had been terminated from his position, emphasising that the applicant would continue to keep his privileges with respect to medical appointments.

[12] However, as a result of the initial inquiry, the Hospital concluded that an independent investigation was required to resolve the conflicting positions set out by the applicant and his detractors. The applicant was informed of this decision when presented with a copy of Ms. O’Dowd’s final assessment report and was asked to cooperate with the investigation.

[13] As part of the investigative process, the Hospital took the decision to suspend the applicant both from his administrative and leadership roles as Division Head. The reason for doing so was to allow any independent investigation to gather evidence fairly and freely without accusations of interference. Ms. Dubois was also to be suspended from her role as administrative manager for the Division for the same reasons.

The Terms of the Suspension

[14] The Hospital informed the applicant that he would receive full pay and continue his clinical, research and teaching roles during the period of suspension. The intention was to isolate the applicant from the complainants in the Division. As part of this process, (a) the applicant’s office would move to a separate part of the divisional unit and (b) he would have no access to his former office until the completion of the investigation, which was estimated to take three to four weeks. The Hospital re-iterated that the applicant would continue to treat patients and that his clinical, research and educational practice would be unaffected.

[15] Although the Hospital signalled its intention to implement the suspension, it has delayed doing so pending the outcome of this motion.

[16] Consequently, the applicant filed an appeal to the Health and Professions Appeal and Review Board pursuant to the Public Hospitals Act, R.S.O. 1990, c. P.40, seeking to set aside the decision to suspend his privileges.

The Position of the Parties

[17] The applicant takes the position that any suspension is completely unnecessary. He claims that once news of the suspension spreads, his reputation in the medical world will suffer irreparable damage because it will be inferred that he is guilty of misconduct. He denies the allegations and asks for an interlocutory injunction pending the outcome of an outstanding motion which alleges that the hospital has no jurisdiction to suspend him.

[18] The Hospital submits that the applicant’s temporary suspension is necessary to permit an independent and untainted investigation to take place. The suspension also seeks to protect patient safety by ensuring the avoidance of conflict within the Division. The Hospital further argues that the terms of the suspension are minimal and that no damage to the applicant’s reputation would occur as a result of the suspension itself.

II. Should the Injunction Be Granted?

Legal Principles

[19] There is no dispute about the test for granting an interlocutory injunction. In RJR-MacDonald Inc. v. Canada (A.G.), [1994] 1 S.C.R. 311, 111 D.L.R. (4th) 385, the Supreme Court of Canada outlined three criteria to be met before granting an interlocutory injunction, at para. 48:

1. Is there a serious question to be tried on the merits of the case?
2. Would the applicant suffer irreparable harm that cannot be compensated by damages if the application is refused?
3. Which party will suffer the greater harm from the granting or refusal of the remedy pending a decision on the merits?

Is There a Serious Question to be Tried?

(a) Is the Injunction Mandatory or Prohibitory?

[20] There is some dispute as to whether the injunction sought is mandatory or prohibitory. In the former instance, an injunction forces a party to perform a positive act; in the latter, the moving party is seeking to restrain or prevent a party from committing an action. The distinction is relevant because of the different tests that are applied for each at the first stage of the RJR test. In the case of mandatory injunctions, a party must go beyond establishing a serious issue to be tried, and is under an obligation to provide proof of strong prima facie case: Sharma v. London Life Insurance Co., [2005] O.J. No. 3266, at para. 28.

[21] I disagree with the Hospital’s assertion that this is a mandatory injunction. The applicant’s motion seeks the retention of the status quo whilst the investigation proceeds, i.e. it requests that the Hospital is prevented or restrained from implementing the applicant’s suspension. As a result of that finding, I conclude that the applicant need only establish that there is a serious question to be tried and that there is no requirement to demonstrate a strong case: Abuzour v. Heydary, 2015 ONCA 249, 126 O.R. (3d) 101.

(b) Is there a Serious Question?

[22] The “serious question” threshold is a low one. However, if the injunction has the effect of amounting to a final determination of the action, a more extensive review of the merits of the case is required: RJR, at para. 59. A decision to grant or dismiss an interlocutory injunction in the circumstances of this case would amount to an endgame for the applicant, as the investigation and, by extension, the suspension, would be concluded by the time he could bring his outstanding action for relief. Moreover, the outstanding action – seeking a permanent injunction against the Hospital – would be decided on the same principles.

[23] The applicant alleges the serious issue in this case to be the Hospital’s breach of his employment contract. He submits that the Hospital has no contractual power to suspend and its doing so amounts to constructive dismissal. The applicant points to Palumbo v. Research Capital Corp. (2004), 72 O.R. (3d) 241 (C.A.), where the court found that a demotion in an employee’s status constituted a fundamental change to his contract which amounted to constructive dismissal. The applicant contends that the Hospital’s actions – threatening suspension and replacing him with an interim Division Head – are the equivalent of a demotion.

[24] The Hospital argues that the suspension, of itself, does not equal demotion, and that an employer would have the power to suspend in circumstances where an investigation into misconduct was launched. In response, the applicant relies on the Supreme Court of Canada decision in Potter v. New Brunswick (Legal Aid Services Commission), 2015 SCC 10, [2015] 1 S.C.R. 500, as authority that the power to suspend must be explicitly stated. In that case, Wagner J., writing for the court, found that in the absence of an express provision permitting suspension, an implied authority had to exist in order to avoid the employee successfully claiming constructive dismissal. The court found that no such implied power existed. The applicant cites several paragraphs from the Potter decision to support his position and submits that, like Potter, the applicant’s employment contract has no explicit clause permitting suspension.

[25] Prior to Potter, the Supreme Court of Canada examined the issue of implied authority to order administrative suspensions in Cabiakman c. Industrielle Alliance, cie d’assurance sur la vie, 2004 SCC 55, [2004] 3 S.C.R. 195. Writing for a unanimous court, LeBel and Fish JJ. explained administrative suspensions in the context of misconduct in the following way, at para. 62:

This residual power to suspend for administrative reasons because of acts of which the employee has been accused is an integral part of any contract of employment, but it is limited and must be exercised in accordance with the following requirements: (1) the action taken must be necessary to protect legitimate business interests; (2) the employer must be guided by good faith and the duty to act fairly in deciding to impose an administrative suspension; (3) the temporary interruption of the employee's performance of the work must be imposed for a relatively short period that is or can be fixed, or else it would be little different from a resiliation or dismissal pure and simple; and (4) the suspension must, other than in exceptional circumstances that do not apply here, be with pay. [Emphasis added]

[26] Cabiakman was acknowledged in Potter by Wagner J., who distinguished the case by observing, at para. 69:

Second, this case does not concern an administrative suspension for reasons unrelated to the employee's conduct. In Cabiakman, this Court drew a distinction, albeit in the civil law context, between extrinsic and intrinsic factors that might support a finding that an administrative suspension is justified (para. 33). Some possible extrinsic factors are financial difficulties, a shortage of work, technological change or reorganization of the business, but no such factors are alleged in the case at bar. Rather, the decision to suspend Mr. Potter was based on intrinsic factors in that it related to the actions of Mr. Potter himself. [Emphasis added]

[27] It seems clear that, pursuant to Cabiakman and Potter, an implied power to suspend due to allegations of misconduct is always a part of a contract of employment.

[28] Applying the test to the case at bar, there is no doubt that, in the factual matrix presented to the court, all four limbs of the Cabiakman test are satisfied. The applicant’s suspension is being made to protect the proper functioning of one of its critical units; the terms of suspension endure for a relatively short period of time; the conditions are minimal and do not restrict the applicant’s clinical, research or teaching practice; the applicant will be fully compensated during the entire period of suspension. Finally, with respect to the good faith limb of the test, it must be remembered that the applicant is being suspended, in a very limited sense, so that an investigation into the applicant’s conduct may proceed without complaints of taint or illicit influence. No one could seriously dispute that the Hospital has attempted to act with fairness.

[29] For these reasons, I find that there is no serious issue to be tried in this case.

Would the Applicant Suffer Irreparable Harm?

[30] Whilst my finding that there is no serious issue to be tried in the case at bar is dispositive of this application, I turn to consider the remaining limbs of the RJR test for the sake of completeness.

[31] The applicant argues that his reputation will suffer irreparable harm if he is suspended. Reliance is placed on the affidavit evidence of Dr. David Wesson, Professor of Surgery at Baylor College of Medicine, and Dr. Sharfia Himidan, a staff pediatric surgeon in the Division of General and Thoracic Surgery at the Hospital for Sick Children. Both doctors indicate their belief that a contemplated suspension would destroy the applicant’s reputation and inhibit future career opportunities.

[32] I disagree. There is no doubt that the applicant’s reputation may well be harmed. The cause, however, would not be the fact of suspension, but the accusations of misconduct. If the allegations are found to be groundless, the applicant would be vindicated regardless of any suspension. Contrary to his submissions, I find that if the applicant is correct that the allegations lack any merit, it is in his best interest that the independent investigation be seen as beyond reproach and free from interference.

[33] At best, the applicant’s assertions are founded on speculation and do not constitute evidence of irreparable harm: Medtronic of Canada Ltd. v. Armstrong, [1999] O.J. No. 4860 (S.C.J.), at para. 38.

[34] If I am wrong on this point, I find that the applicant fails to satisfy the test that any irreparable harm suffered will not be compensated for by damages: RJR, at para. 64. If the applicant’s reputation is irrecoverably diminished, he will be able to recover substantial damages for this loss and there is no doubt that the Hospital would be in the position to pay: British Columbia (A.G.) v. Wale, [1986] B.C.J. No. 1395 (B.C.C.A.), at para 48.

Who Suffers the Greater Harm?

[35] Finally, I am of the view that the third limb of the RJR test favours the Hospital. There is minimal impairment to the applicant’s role in his employment at the Hospital. As has been repeated throughout these reasons, the aim of the suspension is to ensure that the investigation into allegations of misconduct is conducted as fairly and efficiently as possible. The findings will have a substantial impact on the workings of the Division and, in turn, on the treatment of patients.

[36] In my view, the Hospital is obliged to ensure that its employees can work together in the most harmonious environment possible. Disruption and conflict amongst its employees can only adversely affect the care of patients. Any internal investigation into bullying and harassment, once those allegations are raised, is not only desirable but, in many senses, obligatory.

[37] In juxtaposition, the hardship suffered by the applicant is negligible. It is in his interest that a fair and thorough investigation take place, a goal only achievable if he is insulated from the complainants during the period of investigation.

[38] In my view, based upon these considerations, the Hospital would suffer the greater hardship if the application were granted.

[39] For the reasons set out above, the application is dismissed.

Costs

[40] Fixing costs is a matter of discretion for a trial judge under s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. I am cognisant of the fact that Rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provides guidance to the court in exercising that discretion at the conclusion of proceedings. I am also aware of the general principle that costs should be fixed in an amount that is both fair and reasonable: Boucher v. Public Accountants Council (Ontario) (2004), 71 O.R. (3d) 291 (C.A.).

[41] This was a fairly straightforward case with very little factual dispute on the central issues.

[42] In the circumstances of this case, costs shall be fixed in the amount of $15,000.00 all inclusive. Those costs shall be paid by the applicant forthwith.

S.A.Q. Akhtar J. Released: May 3, 2016