Court File and Parties

COURT FILE NO.: CV-12-459660 DATE: 20170502 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Dr. Amir Gholami, Plaintiff – and – The Hospital for Sick Children, Dr. Bruce Macpherson, and Dr. Mark Crawford, Defendants

COUNSEL: Chris Foulon, for the Plaintiff Robert Weir, William D.T. Carter and Bethan Dinning, for the Defendants

HEARD: February 13-17, 2017

Reasons for Judgment

POLLAK J.

[1] This is an action for damages for wrongful dismissal, breach of contract, unlawful interference with economic relations, defamation, misfeasance in public office and negligent and/or intentional misrepresentations, among other torts. The plaintiff also seeks moral and punitive damages.

Background

[2] The Plaintiff, Dr. Gholami, received his Doctor of Medicine in 2004 and completed his residency in anaesthesiology in June of 2009, followed by a one year pediatric/pediatric cardiac anaesthesiology fellowship in the United States.

[3] Dr. Gholami wanted to practice in Ontario. He applied for a restricted license under a licensing process called “Pathway 4”, with the goal of obtaining a full license to practice in Ontario. Pathway 4 was established by the College of Physicians and Surgeons of Ontario ("CPSO") for physicians who are board-certified in their field in the United States.

[4] Physicians who follow the Pathway 4 process must complete a one year period of supervision in Ontario. After one year of supervision, a physician assigned by the CPSO will perform a one day on-site visit and evaluation. After a successful evaluation, the limited license becomes a permanent unrestricted license to practice in Ontario. The physician and his supervisor are subject to a number of conditions.

[5] For example, the supervisor is required to provide a number of written undertakings to the CPSO. As stated at para. 12 of the Plaintiff’s Fresh as Amended Statement of Claim, one of these undertakings is: “The supervising physician will agree to submit reports to the College every six months about [the applicant’s] performance and to notify the College immediately if the supervising physician has any concern regarding [the applicant’s] knowledge, skill, judgment or attitude.

[6] Additionally, as stated at para. 11 of the Fresh as Amended Statement of Claim, an applicant’s certificate will automatically expire if:

(a) the supervisor notifies CPSO of any concerns regarding the physician’s knowledge, skill, judgment or attitude, does not provide the required reports to CPSO by the due date or if the reports are unsatisfactory in form or content; and

(b) the supervisor is no longer able or willing to continue to supervise the candidate’s practice.

[7] Dr. Gholami obtained a Certificate of Registration (“Certificate”) under the Pathway 4 process and was appointed as an “associate staff” in the anaesthesiology department at the Hospital for Sick Children (“Sick Kids”). His supervisor was Dr. Macpherson.

[8] Sick Kids and Dr. Gholami entered into a contract dated June 30, 2010 (the “Agreement”). The contract was effective for a one-year term, and stated that “Dr. Gholami’s appointment is conditional upon him obtaining an ‘appropriate Certificate of Registration’ from CPSO”. The contract also stated that “SickKids will make ‘every effort’ to integrate Dr. Gholami into its ‘subgroup of cardiac anesthesiologists’”.

[9] Dr. Gholami’s Certificate was also subject to the following:

(a) He would practice anaesthesiology at Sick Kids under the supervision of Dr. Macpherson;

(b) The Certificate would expire if his supervisor notified CPSO of any concerns regarding his “knowledge, skill, judgment or attitudes” or if his supervisor was no longer able or willing to supervise his practice or if the CPSO found the on-site product practice assessment report to be unsatisfactory.

Dr. Gholami’s Pleadings

[10] Dr. Gholami pleads that his employment with Sick Kids was terminated without cause and without reasonable notice and had a “foreseeable catastrophic impact” on his ability to get comparable employment and ended his ability to practice medicine in Ontario. This termination damaged his reputation in his chosen field which also severely impacted his academic and research career.

[11] He submits that the representations and inducements made by representatives of Sick Kids, including Dr. Crawford, to encourage him to join Sick Kids, caused him to turn down other offers of employment which therefore entitle him to an extended reasonable notice period at common law.

[12] He claims that the Defendants knew that the withdrawal of Dr. Macpherson as his supervisor (without warning, due process or the consideration of reasonable alternatives) would cause immediate expiration of his Certificate, prohibiting him from practicing in Ontario.

[13] He pleads that the Defendants had an implied contractual duty to perform their obligations reasonably and honestly and not capriciously or arbitrarily.

[14] Dr. Gholami pleads that the Defendants could have and should have stopped the expiration of his Certificate. They should have given him the opportunity to address the claims made against him before Dr. Macpherson submitted a damaging letter to the CPSO or should have tried to place Dr. Gholami with another supervisor. His employment, pursuant to the Agreement, was terminated before the end of its term without notice.

[15] He claims damages against Sick Kids for wrongful dismissal in the amount of $1,500,000.

[16] As Dr. Gholami was unable to get alternate employment in Ontario, he was not able to close on a house transaction and incurred costs associated with relocating.

[17] He submits that Sick Kids had a duty of care to him because it knew that he needed a supervisor as a condition of his Certificate and that it breached this duty when it allowed Dr. Macpherson to resign as his supervisor. He claims $3,000,000 in damages for this cause of action.

[18] Dr. Gholami pleads that he suffered mental distress as a result of the actions of the Defendants. Dr. Gholami testified that he was not able to sleep, and suffered migraine headaches as a result of the severe stress and anxiety. There is no medical evidence to support this claim. He claims that he is therefore also entitled to moral damages against Sick Kids in the amount of $500,000.

[19] Further, Dr. Gholami pleads that his employment with Sick Kids was terminated in a high-handed, capricious and arbitrary manner, which justifies judicial condemnation in the form of punitive damages of $500,000. He pleads that Sick Kids permitted “petty departmental politics and egos to harm his career”.

The Defendants’ Pleadings and Evidence

[20] The Defendants deny that Dr. Gholami is entitled to any damages for wrongful dismissal, breach of contract, breach of the duty of good faith in contractual performance, unlawful interference with economic relations, negligent misrepresentation, inducing breach of contract, civil conspiracy, defamation, interference with contractual relations, and/or misfeasance in public office. The Defendants further deny that they engaged in any conduct to justify moral damages and/or punitive damages.

[21] The Defendants submit that Dr. Gholami was “a/an dependent/independent” contractor of Sick Kids. They do not allege just cause for his dismissal.

[22] Their defence is that they did not have any intention to injure him and did not interfere with his economic interests by illegal or unlawful means, and did not cause him any economic loss. They plead that they acted in accordance with their duties to Sick Kids and their obligations under the “Pathway 4” process of the CPSO. They plead that they acted at all times reasonably, honestly and in good faith and fulfilled their contractual obligations to Dr. Gholami. The Defendants deny that in terminating Dr. Gholami's appointment at Sick Kids they undermined his contractual interests. The Defendants deny that the termination of Dr. Gholami's appointment at Sick Kids had a "catastrophic impact" on his career.

[23] Drs. Macpherson and Crawford testified that they had no intentions of causing Sick Kids to breach the Agreement with Dr. Gholami and they both denied that the Agreement was breached. The Agreement was conditional on Dr. Gholami having the appropriate Certificate which he knew would expire if Dr. Macpherson reported any concerns regarding Dr. Gholami’s “knowledge, skill, judgment or attitude” or if he told CPSO that he was no longer able or willing to continue to act as his supervisor. They rely on evidence of Dr. Gholami’s unwillingness to make efforts to change his behaviour after concerns were raised with him, by various senior physicians, about complaints from members of the cardiac sub-group. They testified that their actions were reasonable in all of the circumstances and motivated by the legitimate interests of Sick Kids. In contrast, Dr. Gholami gave evidence that he was never at fault and that the complaining members of the cardiac group were unreasonably difficult to deal with.

[24] The Defendants also testified that no misrepresentations were made to Dr. Gholami. He knew the conditions of his Certificate and he knew the conditions of his Agreement with Sick Kids. They testified that he was not given any assurances of long-term, secure or stable work at Sick Kids and they did not induce him to work at Sick Kids. Further, they denied that he was encouraged to buy a house in Toronto. I accept their evidence on this point.

[25] The evidence of the Defendants was that Dr. Macpherson had a duty to report his concerns about Dr. Gholami’s “knowledge, skill, judgment or attitudes” to CPSO. They also gave evidence to support the argument that he was entitled to decide that he was no longer willing to supervise Dr. Gholami and was required to report this to CPSO.

[26] The Defendants testified that their communications with CPSO were truthful and professional. They also submitted that their comments to the CPSO were expressions of opinion, and were fair comment, based on facts, which were true in substance, made in good faith and without malice.

[27] The Defendants further plead that the communications complained of by the Plaintiff were made on an occasion of privilege. The Defendants plead and testified that they had an obligation to inform CPSO about any concerns regarding Dr. Gholami's "knowledge, skill, judgment and attitude", and to inform CPSO if Dr. Macpherson was no longer able or willing to supervise Dr. Gholami. CPSO had a corresponding obligation to receive such information. The Pathway 4 process is designed to ensure that foreign-trained physicians have the requisite knowledge, skill, judgment and attitude before they are allowed to practice in Ontario on a permanent basis.

[28] The Defendants also deny that Dr. Macpherson was a public office holder by virtue of his position of CPSO Supervisor. He cannot be liable for the tort of misfeasance in public office.

[29] I agree with this submission.

[30] The Defendants also submit that they have treated Dr. Gholami in a professional, responsible, and fair manner. Dr. Gholami received considerable assistance from Sick Kids in his search for alternative work after leaving Sick Kids. The Defendants provided verbal and written references for Dr. Gholami and told him about job opportunities in Ontario.

[31] The Defendants further deny that Dr. Crawford's communications with representatives from Mercy Hospital amounted to unlawful interference with contractual relations or were defamatory. The Defendants plead that Dr. Crawford's communications with Mercy Hospital were truthful. The words complained of were expressions of opinion and fair comment, based on facts, which were true in substance, and made in good faith and without malice.

[32] In the alternative, it is submitted that those communications were subject to the defence of qualified privilege. I also agree with these submissions.

Analysis

[33] The Defendants emphasize that this action is a breach of contract case.

[34] Dr. Gholami did not exercise his rights under the Public Hospitals Act, R.S.O. 1990, c. P.40 (“PHA”). The Defendants submit that he can pursue his remedies in contract and in tort but that he cannot, in this action, claim a remedy for a lack of natural justice.

[35] When his medical staff appointment was terminated and his privileges negatively affected, Dr. Gholami's legal right to complain is provided for in section 41 of the PHA:

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,

(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.

[36] Dr. Gholami’s main argument in this action is that his right to practice in Ontario should not be interfered with because of a failure to “fit in”. He argues that he should have had an opportunity to respond to the allegations made against him and that this failure by Sick Kids is a denial of natural justice. Dr. Gholami relies on the case of Rosenhek v. Windsor Regional Hospital, 2007 CarswellOnt 6946 (ONSC) at para.14 - 19, submitting that the principles set out in that case are directly applicable to his claims in this action. Failing to allow a physician to respond to allegations that would result in revocation of privileges is a denial of natural justice.

[37] However, Dr. Gholami did not exercise these rights under the PHA. There was no evidence on why Dr. Gholami did not exercise these rights. The Defendants submit that he can pursue his civil remedies in contract and in tort but cannot ask for a remedy for a lack of natural justice. I agree with these submissions and find that the principles outlined in the jurisprudence relied on by Dr. Gholami are inapplicable to this case.

[38] Notwithstanding Dr. Gholami’s allegations, there was evidence that Drs. Crawford, Mayhew and Holtby had discussions with Dr. Gholami about complaints made by members of the sub-practice group regarding Dr. Gholami’s manner and attitude. In addition to these discussions, Drs. Crawford and Macpherson met with Dr. Gholami on May 12, 2011. Dr. Crawford told Dr. Gholami that he was concerned that Dr. Gholami had not integrated well into the cardiac sub-group. Drs. Crawford and Macpherson testified that Dr. Gholami’s response was argumentative and he denied that he had done anything wrong. Dr. Macpherson asked Dr. Gholami to stop doing cardiac cases for a while and to instead focus on general pediatric anaesthesiology cases. Dr. Crawford also suggested that Dr. Gholami make transfusion medicine his focus rather than cardiac anaesthesiology. Although Dr. Gholami immediately refused this suggestion, Dr. Crawford asked him to think about it. It should be noted that Dr. Gholami was contracted to be an associate in the anaesthesiology department, with no guarantee that he would be working on cardiac cases in that department. To the contrary, there is a specific provision in the Agreement between the parties that Sick Kids would make “every effort to integrate” Dr. Gholami in the cardiac group. The uncontradicted evidence was that Sick Kids was renowned for their excellent work and very high standards in the cardiac group. As well, the evidence was that the work performed by the cardiac group was very stressful and could have involved cases where babies were only a few days old.

[39] I accept the Defendants’ submissions and evidence that Sick Kids needed to ensure that any doctor performing work in the cardiac group would meet the Sick Kids standards and would perform well with the cardiac group “and in accordance with the Sick Kids way”. It was apparent from Dr. Gholami’s evidence that he felt that the members of the cardiac group and the department heads were unreasonable in wanting him to perform his duties in the “Sick Kids way”. Dr. Gholami felt that he was being micromanaged, that he performed his duties in a competent manner and that the complaints being made against him were entirely unreasonable.

[40] It was also clear from Dr. Gholami’s evidence that he interpreted the Agreement to guarantee that he would be performing work in the “cardiac group”.

[41] On the basis of the evidence heard at trial and the clear words of the Agreement, I find that this was a misguided and unreasonable interpretation placed by Dr. Gholami on the Agreement between the parties. It was also apparent from Dr. Gholami’s evidence that he thought that the emphasis Sick Kids placed on his ability to “integrate into the cardiac group” was unreasonable and unnecessary. Unfortunately, this belief and attitude influenced Dr. Gholami’s decision to refuse the offer made by Drs. Crawford and Macpherson at the May 21 meeting. It is apparent from the evidence that if Dr. Gholami had accepted this offer, Dr. Macpherson would not have felt that he was forced to resign as Dr. Gholami’s supervisor and that if necessary another more appropriate supervisor could have been found to replace Dr. Macpherson.

[42] All of the negative effects complained of in this Action by Dr. Gholami could have been either entirely avoided or greatly mitigated if Dr. Gholami had accepted the Sick Kids offer. It should be noted and emphasized that the Agreement between the parties only entitled Dr. Gholami to be an associate in the Sick Kids anaesthesiology department and did not guarantee that he would be working on cardiac cases. I find that Dr. Gholami had no legal right to refuse the offer made to him by Sick Kids on May 21, 2011.

[43] Further, I find that the damages he complained of are directly caused by his own actions.

[44] Dr. Gholami completed his Transfusion Medicine rotation and returned to Sick Kids on May 30, 2011. Notwithstanding the meeting on May 11, Dr. Gholami asked Dr. Crawford why he had not been put back on the cardiac cases schedule. When Dr. Crawford reminded him that he would not be scheduled to do cardiac cases, Dr. Gholami was very upset and again insisted on doing cardiac cases. After that conversation, Dr. Gholami told Dr. Crawford that he felt he was being forced out of the cardiac program and would be willing to look for work elsewhere with his support. Dr. Crawford agreed. In response, Dr. Gholami suggested that he would stay at Sick Kids until the Pathway 4 Assessment was complete, but that he would insist on performing cardiac cases until such time. Dr. Crawford did not agree to schedule him on cardiac cases.

[45] Most of Dr. Gholami’s claims in this action require a finding by this Court of bad faith and intentional harm on the part of the Defendants. As I have mentioned above, the evidence has clearly shown that the parties had very different expectations of each other. Dr. Gholami was convinced that the Agreement he entered into guaranteed that he would have a position as an associate in the cardiac group in the anaesthesiology department. Sick Kids on the other hand, agreed only to the conditions set out in the Agreement which I have referred to above. I agree with the submissions of Sick Kids that there could not have been and should not have been a guarantee that Dr. Gholami be assigned to cardiac cases. There was extensive evidence with respect to the high standards and high quality of work performed by the Sick Kids cardiac group in very stressful cases. I cannot find any evidence of bad faith on the part of any of the Defendants. Rather, I find that having regard to the work performed by Sick Kids, they acted reasonably in insisting that Dr. Gholami be properly able to integrate into the cardiac group and that they did make every effort to integrate him into the group. Further, when such integration was not possible, they advised him he could still work as an associate in the anaesthesiology department, which was required by the Agreement.

[46] Dr. Gholami’s interpretation of his legal rights is clear in correspondence he sent to Dr. Crawford, threatening legal action against Sick Kids if he were not assigned to cases in the cardiac group. In this May 30, 2011 email, Dr. Gholami accused the Department of being obstructionist, defaming him personally and professionally, discriminating against him personally and professionally, intentionally misleading him, undermining his security and integrity, damaging his career, damaging him financially, damaging him and his family personally, bullying him, and gossiping about him. He threatened to "take all the actions available to [him]" to resolve the situation and warned that if Sick Kids didn't cooperate, the outcome would be "acrimonious" and "damaging".

[47] Dr. Gholami discussed this May 30 email with Dr. Larry Roy, the predecessor to Dr. Crawford as Anaesthesiologist-in-Chief at Sick Kids, before sending it. Dr. Roy told Dr. Gholami not to send the email under any circumstances because it would have negative consequences for him. Dr. Gholami ignored Dr. Roy's advice.

[48] I find that Sick Kids had no obligation to suggest or appoint an alternative Supervisor for Dr. Gholami. Further, in the circumstances, it was not possible to do so. He had poor relationships with the majority of his colleagues in the Cardiac Group, including the most senior members of the Cardiac Group, as well as Dr. Crawford, the Anaesthesiologist-in-Chief. The evidence supports my finding that his actions destroyed any prospect of building or re-building cohesive, collaborative, and/or productive relationships with his colleagues.

[49] I accept the evidence of Dr. Crawford that Dr. Gholami attempted to seriously undermine his relationship with Dr. Macpherson by telling him that Dr. Macpherson was not his ally, was working against his interests and by offering Dr. Crawford his own promise to instead be “his ally” in the department. The evidence was that Drs. Macpherson and Crawford had worked together for many years and had a very productive relationship.

[50] I agree with Sick Kids’ submissions that the jurisprudence relied on by Dr. Gholami regarding their good-faith arguments is inapplicable. Dr. Gholami could have taken other measures in order to maintain his ability to practice in Ontario. These measures have been referred to above.

[51] I accept and agree with all of arguments from Sick Kids, referred to above, with respect to the economic torts and allegations of defamation.

[52] I further find that Sick Kids did not breach its Agreement with Dr. Gholami as the Agreement could not be continued because Dr. Gholami lost his Certificate. On the basis of the evidence, it is my view that Sick Kids acted reasonably in the circumstances and did make reasonable attempts to assist Dr. Gholami and to mitigate his damages. Unfortunately, these attempts by Sick Kids were rejected by Dr. Gholami.

[53] For all of these reasons, I dismiss all of Dr. Gholami’s claims against the Defendants.

Costs

[54] If the parties are unable to agree on costs, they may make brief written submissions to me no longer than three pages in length. The Defendants’ submissions are to be delivered by 12:00 p.m. on May 12, 2017, and the Plaintiff’s submissions are to be delivered by 12:00 p.m. on 19, 2017. Any reply submissions are to be delivered by 12:00 p.m. on May 26, 2017.

Pollak J.

Released: May 2, 2017