Court File and Parties

COURT FILE NO.: DC-18-947-JR DATE: 20220419 SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: Manoj K. Talwar, Applicant AND: Grand River Hospital and St. Mary’s General Hospital, Respondents

BEFORE: Justice D.A. Broad

COUNSEL: Applicant – self-represented Henry Ngan, for the Respondents

HEARD: April 6, 2022

Endorsement

Background

(a) The applicant

[1] The applicant (“Dr. Talwar”) is a qualified physician licensed to practice medicine in the Province of Ontario. He is a Fellow of the Royal College of Physicians and Surgeons of Canada with his specialty certification in general surgery and cardiothoracic surgery. He has been on the medical staff of Grand River Hospital and St. Mary’s General Hospital in the Region of Waterloo since August 1998.

(b) Decision of the Hospital boards under review

[2] On June 13 2016 the Joint Medical Advisory Committee (the “MAC”) of Grand River Hospital and St. Mary’s General Hospital (the “hospitals”) passed a resolution recommending that Dr. Talwar’s privileges at the hospitals not be renewed. On October 19, 2017 the panel of the Board of Directors of the hospitals (the “hospital boards”) accepted the recommendation of the MAC that Dr. Talwar’s hospital privileges not be renewed.

(c) Subsequent procedural history

[3] On October 24, 2017 Dr. Talwar submitted a request for a hearing before the Health Professions Appeal and Review Board (“HPARB”) pursuant to s. 41(1)(d) of the Public Hospitals Act, R.S.O. 1990, 1990, c. P.40 (the “PHA”) in order to appeal the decision of the hospital boards not to renew his hospital privileges. Dr. Talwar’s appeal in this respect was assigned file no. 17-PHA-0576 in the HPARB.

[4] S. 41 of the PHA provides as follows:

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. R.S.O. 1990, c. P.40, s. 41 (1) .

Procedure at hearing (2) Section 39 applies to a hearing before the Appeal Board in the same manner as if the party or member were an applicant entitled to a hearing before a board under section 37. R.S.O. 1990, c. P.40, s. 41 (2) .

Parties (3) The board and person mentioned in subsection (1) and such other persons as the Appeal Board may specify are parties to proceedings before the Appeal Board under this section. R.S.O. 1990, c. P.40, s. 41 (3) .

Recording of evidence (4) Oral evidence taken before the Appeal Board at a hearing shall be recorded and, if so required, copies of a transcript thereof shall be furnished upon the same terms as in the Superior Court of Justice. R.S.O. 1990, c. P.40, s. 41 (4) ; 2006, c. 19 , Sched. C, s. 1 (1).

Powers of Appeal Board (5) After a hearing, the Appeal Board may by order confirm the decision appealed from or direct the board or other person or body making the decision appealed from to take such action as the Appeal Board considers ought to be taken in accordance with this Act, the regulations and the by-laws, and for such purposes may substitute its opinion for that of the board, person or body making the decision appealed from. R.S.O. 1990, c. P.40, s. 41 (5) .

Referral of matters to professional organization for report (6) The Appeal Board may at any time during a hearing and prior to rendering a decision refer any matter to any professional organization for the purpose of obtaining expert assistance or a formal report. R.S.O. 1990, c. P.40, s. 41 (6) .

[5] By Notice of Application issued March 20, 2018 Dr. Talwar applied to the Divisional Court for judicial review of the decision of the hospital boards dated October 19, 2017 accepting the recommendation of the MAC that his hospital privileges not be renewed. In the prayer for relief in his Notice of Application Dr. Talwar sought, inter alia, an order of certiorari setting aside the decision of the hospital boards and in the alternative, an order of mandamus setting aside the decision and referring the matter back to the hospital boards for a rehearing. The prayer for relief also sought an order for an interlocutory, interim and/or permanent injunction restraining the HRARB under the PHA until a decision has been rendered on the application for judicial review by the Divisional Court.

[6] Dr. Talwar brought a motion before the HPARB seeking, inter alia, an order that his appeal before the HPARB be held in abeyance pending the decision of the Divisional Court on his application for judicial review of the decision of the hospital boards. By Decision and Reasons on Motion issued May 14, 2018 the HPARB denied Dr. Talwar’s request for a stay of the HPARB proceeding.

[7] Dr. Talwar brought another motion before the HPARB again seeking, inter alia, an order that his appeal be held in abeyance pending decision of the Divisional Court on his application for judicial review on the ground that he was provided with inadequate legal representation before the hospital boards. He also sought dismissal of his appeal on the ground that it was moot and because the hospitals were unable or unwilling to entertain any supervisory models that would allow him to resume his surgical practice. By Decision and Reasons on Motion issued July 12 2018 Dr. Talwar’s motions for a stay and for dismissal of his appeal were dismissed.

[8] Dr. Talwar then brought a motion in this proceeding seeking an interim and/or permanent stay restraining the HPARB from proceeding with his appeal under the PHA in file no. 17-PHA-0576 until a decision was rendered on his application for judicial review. At the time of the hearing of the motion on October 10 2018 the HPARB hearing of Dr. Talwar’s appeal had already commenced and evidence had been led over four hearing days in July, 2018.

[9] By Endorsement released October 16 2018 I dismissed Dr. Talwar’s motion for a stay of his appeal to the HPARB.

[10] The HPARB proceeding continued and seven additional hearing dates were held (for a total of 11) concluding on February 20, 2019. A total of 31 witnesses testified, including 16 witnesses called by Dr. Talwar, although he did not testify himself.

[11] By Decision and Reasons issued March 17 2020 the HPARB dismissed Dr. Talwar’s appeal of the decision of the Hospital boards to accept the recommendation of the MAC that his hospital privileges not be renewed.

[12] On March 19 2020 Dr. Talwar served a Notice of Appeal from the decision of the HPARB to the Divisional Court and the matter was assigned file no. DC-373-20.

[13] On January 13 2021 I conducted a Case Management Conference in this proceeding in which counsel for the Hospitals confirmed their intention to bring a motion to dismiss the present application for judicial review on the ground that the application is moot, an abuse of process and a collateral attack. A timetable was set on consent for the exchange of materials for the Hospitals’ proposed motion.

[14] On February 2 2022 the hearing of Dr. Talwar’s appeal in DC-373-20 proceeded before a three-judge panel of the Divisional Court, following which the panel took the decision under reserve. The panel’s decision in DC-373-20 has not yet been released.

Nature of the Motion

[15] On the motion before the court the hospitals seek an order dismissing the current application for judicial review for being moot, vexatious, an abuse of process, and a collateral attack on the decision of the HPARB which dismissed Dr. Talwar’s appeal from the decision of the hospital boards in file 17-PHA-0576. The stated grounds set forth in the hospitals’ Notice of Motion include the following:

(a) Dr. Talwar’s conduct through numerous proceedings listed in the notice of motion, including this application, demonstrate an intention to re-litigate the issues that were considered and disposed of by the HPARB decision in file 17-PHA-0576; (b) The application has been rendered moot by virtue of the HPARB’s decision in 17-PHA-0576 which is presently pending before the Divisional Court on appeal; (c) The application is frivolous, vexatious and an abuse of process; (d) There are no considerations in the application which necessitate or warrant a re-litigation of the issues currently pending review by the Divisional Court; and (e) A dismissal of the present application will serve the most just, expeditious and least expensive determination of the proceeding on its merits.

[16] Dr. Talwar opposes the hospitals’ motion.

Disposition

[17] At the conclusion of submissions I endorsed that, for reasons to follow, the hospitals’ motion is allowed and Dr. Talwar’s application for judicial review is quashed.

[18] The following are those reasons.

Jurisdiction

[19] S. 21(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43 provides that a motion in the Divisional Court shall be heard and determined by one judge, unless otherwise provided by the rules of court.

[20] In the case of Keewatin v. Ontario (Minister of Natural Resources), [2003] O.J. No. 2937 (Div Ct.) Then, J., sitting as a single judge of the Divisional Court, held that a motions judge in Divisional Court has an inherent discretion to quash an application for judicial review if the circumstances warrant this action.

[21] For the reasons set forth below I have determined that the circumstances are such that the exercise of my inherent jurisdiction to quash the application is warranted.

Position of the hospitals

[22] The hospitals took the position that the court should quash the present application for judicial review, arguing that to permit it to proceed would not only run counter to the established jurisprudence supporting the principle that all avenues of statutory relief should be exhausted before recourse is taken to the court, but would also create a serious risk of a collateral attack on the PHA process.

[23] The hospitals pointed out that the application at bar was commenced by the applicant while the PHA process before the HPARB was already under way. Following a lengthy de novo appeal hearing involving extensive viva voce evidence from multiple witnesses, the HRARB upheld the decision of the Hospital boards not to renew the applicant’s hospital privileges. The applicant further appealed the HPARB’s decision to the Divisional Court, whose decision is currently under reserve. The hospitals submitted that, by pursuing the current application for judicial review of the hospital boards’ decision not to renew his privileges, the applicant now seeks a second opportunity to argue the very same issues, relying on an affidavit containing numerous unproven allegations. They stated that this is clearly an abuse of process and should not be countenanced by the court.

[24] Moreover, the hospitals submitted that there are no “exceptional circumstances” which would warrant judicial interference in the statutory decision-making process under the PHA, pointing to jurisprudence holding that the bar for establishing exceptional circumstances is very high. The hospitals stated that none of the procedural issues pertaining to the hearing before the hospital boards raised by Dr. Talwar constitute exceptional circumstances warranting judicial interference at this late stage.

[25] The hospitals took the position that all issues raised in the application at bar ultimately relate back to Dr. Talwar’s interpersonal and behavioural issues at the hospitals, and have been, or could have been, raised and addressed in the proceedings that have already taken place pursuant to the PHA. With the Divisional Court set to render its decision on the merits pertaining to the non-renewal of Dr. Talwar’s privileges, there is no basis to continue with the current application for judicial review.

[26] In the event that the court is not prepared to quash the application at this time, the hospitals asserted that, at the very least, this application should be stayed pending final disposition of the PHA process.

Position of the applicant

[27] While acknowledging that a panel of the hospital boards approved the recommendation of the MAC not to renew his hospital privileges on the grounds of competence and collegiality, Dr. Talwar submitted that the panel failed to render decisions on what he characterized as his appeals of the restriction on his active general surgery privileges on June 5, 2014, his surgical assist privileges in the fall of 2015, and his surgical assist and on-call privileges in the cardiac program in the fall of 2015. He stated that the panel also failed to render a decision on his request to resume his active general surgery and surgical assist practice pursuant to s. 39(3) of the PHA.

[28] Dr. Talwar submitted that neither the hospital boards nor the Divisional Court addressed the immediate restriction of his active general surgery and surgical assist privileges, and his appeals on these issues remain undecided.

[29] Dr. Talwar denied that the current application for judicial review is improper, vexatious or unnecessary. Nor does it represent a collateral attack on the statutory decision-making process under the PHA or an abuse of process, since no final decisions have been rendered pursuant to the PHA on the other matters relating to restrictions on his hospital privileges which he cited.

Discussion

[30] I accept the hospitals’ submission that the jurisprudence is clear that, absent exceptional circumstances, parties cannot proceed to the court system until the administrative process has run its course (see C.B. Powell Ltd. v Canada (Border Services Agency), 2010 FCA 61 at paras. 30-33, Ontario College of Art v Ontario (Human Rights Commission) (1993), 11 O.R. (3d) 798 (Div. Ct.) at para. 6, and Major League Baseball v. Cardinal, 2018 ONSC 714 (Div. Ct.) at paras 26-27).

[31] The foregoing principle has been applied in the context of disputes pursuant to the PHA relating to a physician’s hospital appointment (see Khan v Scarborough Hospital, 2009 CarswellOnt 6001 (Div. Ct., per Swinton, J.) at para. 15) and Khan v Scarborough General Hospital, [2009] O.J. No. 5437 (Div. Ct. per J. Wilson, J.) at paras. 27-31).

[32] In my view, to permit the application for judicial review of the hospital boards’ decision to not renew Dr. Talwar’s privileges to proceed in circumstances where the decision has been appealed though a lengthy de novo hearing in the HPARB and further appealed to the Divisional Court would offend the principle discouraging fragmentation of the administrative process. It would also represent a collateral attack on the PHA process.

[33] I am unable to accept Dr. Talwar’s position that the application for judicial review should be permitted to proceed on the basis that his appeals respecting the restrictions of his hospital privileges in 2014 and 2015 have not been disposed of.

[34] It is important to note that Dr. Talwar brought numerous appeals to the HPARB in relation to decisions which he has stated imposed restrictions on his hospital privileges.

[35] On September 23 2020 the HPARB held a hearing in reference to a motion brought by the Hospitals to dismiss those various appeals on the basis that they were moot, vexatious or an abuse of process, or in the alternative, for a stay of the proceedings pending the outcome of the appeal in file 373-20 in the Divisional Court (re HPARB file 17-PHA-0576).

[36] At para. 41 of its Decision on the motion dated November 24 2020 the HPARB stated “the issues in each of the additional appeals [i.e. in reference to restrictions on Dr. Talwar’s privileges] are intertwined with the issues related to the renewal of the Applicant’s [i.e. Dr. Talwar] privileges. These same issues were before the Appeal Board in 17-PHA-0576 and are now before the Divisional Court.” The HPARB ultimately determined that that it was not appropriate to quash the additional appeals as requested by the hospitals but found that it was appropriate to stay them pending the final determination of the appeal of 17-PHA-0576 (the appeal from which is currently under reserve in the Divisional Court).

[37] Thus, Dr. Talwar’s complaints respecting restrictions on his privileges imposed in 2014 and 2015 were brought or could have been brought before the HPARB as part of his appeal from the decision of the hospital boards not to renew his privileges on October 19 2017, given that they were intertwined with that appeal.

[38] Moreover, the relief sought by Dr. Talwar in the Notice of Application in this proceeding is restricted to judicial review of the October 19 2017 decision of the Hospital boards not to renew his privileges. Judicial review was not sought in relation to earlier decisions of hospital decision-makers to restrict his privileges in 2014 and 2015. When this was pointed out by the Court during submissions Dr. Talwar orally sought leave to amend his Notice of Application to include claims for judicial review in relation to those earlier decisions. Following submissions from the parties I denied Dr. Talwar’s request for leave to amend the application with reasons to follow. The following are those reasons.

[39] In my view, granting leave to Dr. Talwar to amend his application to include claims for judicial review of the additional decisions which restricted his privileges would only lead to further fragmentation of the administrative process under the PHA. As noted above, Dr. Talwar appealed these earlier decisions to the HPARB. Those appeals remain pending, having been stayed pending the final disposition of the appeal of 17-PHA-0576, which is currently under reserve in the Divisional Court. Adding those additional appeals to the application at bar would only facilitate further fragmentation and a collateral attack on the process already underway under the PHA in relation to those appeals.

[40] I find that, in all of the circumstances, it is not appropriate that the application at bar be simply stayed, but rather it is appropriate that it be quashed. Upon final determination of the appeal of the hospital boards’ decision not to renew Dr. Talwar’s privileges in HPARB file 17-PHA-0576 (currently under reserve in the Divisional Court), court oversight of that decision will be exhausted. There is no basis to maintain the present application for judicial review in relation to it.

Costs

[41] At the conclusion of submissions, I invited counsel for the hospitals Mr. Ngan and Dr. Talwar to address the issue of costs.

[42] I am not satisfied that an award of substantial indemnity costs against Dr. Talwar is warranted as urged by Mr. Ngan. Although Dr. Talwar’s approach to the litigation may be characterized as ill-advised, I am not satisfied that he engaged in inappropriate behaviour in relation to the litigation that calls for sanction by the court by an award of substantial indemnity costs.

[43] The usual rule in civil litigation is that costs follow the event, and that rule should not be departed from except for very good reasons (see Gonawati v. Teitsson, [2002] CarswellOnt 1007 (Ont. C.A.) and Macfie v. Cater, [1920] O.J. No. 71 (Ont. H.C.) at para 28). I am not persuaded that very good reasons have been shown to deny the Hospitals’ claim for costs, as the successful parties. Specifically, I do not accept Dr. Talwar’s submission that the Hospitals should be denied costs on the basis that they are publicly funded institutions.

[44] After adjusting the Hospitals’ claim for partial indemnity costs to account for the fact that the motion hearing was shorter than anticipated, it is ordered that the applicant Dr. Talwar pay costs to the respondents Grand River Hospital and St. Mary’s General Hospital on a partial indemnity basis in the sum of $12,450 inclusive of fees, disbursements and HST. This amount is to be paid within 30 days hereof.

D.A. Broad Date: April 19, 2022