COURT FILE NO.: DC-22-2734
DATE: 2022/10/27
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Dr. Balpreet Brar, Applicant (Responding Party on Motion)
AND
Queensway Carleton Hospital, Respondent (Moving Party on Motion)
BEFORE: Madam Justice Robyn M. Ryan Bell
COUNSEL: Karen Hamway, Graham Ragan, and Emily Bradley, for the Applicant (Responding Party on Motion)
Kirsten Crain and Paige Miltenburg, for the Respondent (Moving Party on Motion)
HEARD: October 26, 2022
ENDORSEMENT
Overview
[1] Following a hearing, the Board of the Queensway Carleton Hospital suspended Dr. Brar’s privileges and denied his application for a renewal of his privileges. Dr. Brar has appealed to the Health Professions Appeal and Review Board. He has also filed an application for judicial review. Dr. Brar’s motion for a stay of the Hospital Board’s decision pending the hearing of his application for judicial review in February 2023 is now scheduled to be heard on November 16, 2022.[^1]
[2] On his cross-examination, Dr. Brar refused to answer five questions and to produce documents relating to his professional revenues and personal income. The Hospital maintains that the questions and documents requested are relevant to the issues the court will have to determine on the stay motion, that is, is there irreparable harm and whether the balance of convenience favours a stay.
[3] Dr. Brar says that the questions refused and the documents requested are not relevant because he is not relying on any financial losses as a ground for his stay motion and he has not put any financial losses in issue in his notice of motion or his application.
[4] For the following reasons, I agree with Dr. Brar. The motion is dismissed.
The Facts
[5] In support of its position that the questions refused are relevant, the Hospital relies on paragraph 33 of Dr. Brar’s notice of motion for a stay. Paragraph 33 of Dr. Brar’s notice of motion states:
If the stay pending the hearing of the judicial review is not granted, Dr. Brar will suffer irreparable harm. This is essentially a “professional death sentence” for Dr. Brar and includes the loss of his reputation within the profession and community population and his privileges status at ARH [Arnprior Regional Health Hospital]. Dr. Brar will also be unlikely to recover any damages from QCH for its actions. If the stay is not granted, Dr. Brar and [sic] will never recover from the losses to his professional status and career that he is incurring during the material time. If Dr. Brar is ultimately successful at the HPARB or upon further appeal, unless he is returned to his elective practice at QCH pending these proceedings, despite his legal success, he will have lost the benefit of the years of work building his professional practice, skills and reputation.
[6] The Hospital places particular emphasis on Dr. Brar’s use of the phrase “professional death sentence” in paragraph 33 of his notice of motion.
[7] In support of his stay motion and his application, Dr. Brar has affirmed two affidavits. Dr. Brar does not refer to financial matters or financial losses in either affidavit. Dr. Brar does state that he has never chosen to make out-of-hospital endoscopy his full-time practice because he could not have the satisfaction of providing the continuing surgical care to his endoscopy cancer patients without hospital privileges. On cross-examination, in response to a question about “profitability”, Dr. Brar responded: “I have always chosen to incorporate a hospital-based practice. And I find profitable or self – personal satisfaction is not through endoscopy, so I would not say that that is profitable.”[^2]
[8] The questions refused on the cross-examination are:
• Q. 73: “Am I right that most of your income comes from your out-of-hospital endoscopy practice?”
• QQ. 86-89: “Doctor, in your Notice of Examination, we asked that you bring your OHIP billing statements. You receive statements from OHIP, I take it, on a monthly basis, saying what your revenues are from OHIP?”
And you know that we requested that you attend with those documents in your Notice of Examination…Did you bring those?
Why not?”
• Q. 93: “What do you get from Provis, then, by way of information about your revenues earned at Provis?”
• Q. 94: “Does Provis provide you with some kind of accounting in respect of the earnings that you have at that centre?”
• Q. 95: Doctor, do you agree that the Board decision of the Queensway Carleton Hospital is not causing you financial hardship?”
[9] The questions were refused on the basis of relevance.
Analysis
[10] Questions asked at cross-examination must be relevant to: (i) matters in issue in the proceeding for which the affidavit has been filed; (ii) matters put in issue by the deponent’s statements in the affidavit, even if those issues are irrelevant to the motion or the application; or (iii) the credibility and reliability of the deponent’s affidavit evidence: Ontario v. Rothmans Inc., at para. 143.[^3]
[11] The previous “semblance of relevance” test has been replaced with the stricter test of “relevance”: Sanctuary Ministries of Toronto v. Toronto (City), at para. 18.[^4] The key determination is whether an answer could be relied on by a trier of fact to determine an issue on the particular motion or application; “relevance and probative value are closely related factors in addressing refusals”: Sanctuary, at para. 19.
[12] The parties agree that the issues to be decided on the stay motion are; (i) whether the application raises a serious issue; (ii) whether the applicant will suffer irreparable harm if the stay is not granted; and (iii) whether the balance of convenience favours a stay: RJR-MacDonald Inc. v. Canada (Attorney General).[^5]
[13] The Hospital submits that questions regarding the financial impact of the Hospital Board’s decision on Dr. Brar are relevant to the second and third branches of the RJR-MacDonald test. The onus is on Dr. Brar to prove each element of the test: RJR-MacDonald.
[14] Dr. Brar does not allege financial harm in his affidavits filed in support of his motion and the application. He relies on the loss of professional satisfaction and reputation and his status at Arnprior Regional Health Hospital and the College of Physicians and Surgeons of Ontario, as distinct from financial loss.
[15] In The AGC & The Canadian Broadcasting Corp. et al,[^6] the court refused to order the production of documents because they were not relevant to CBC’s injunction application. As the court explained at para. 28:
CBC submits that CRA must prove there is a risk of harm necessitating a publication ban in order to be successful on its application. CBC seeks production of the CRA’s documentary evidence with respect to that harm. CRA does not allege harm to individual taxpayers in its application or in the evidence in support of the application. Its application is based on the doctrine of breach of confidence. It intends to argue systemic harm, not individual harm. In light of this, in my view, the documents sought by CBC are not relevant. On the hearing of the application, CBC can point to the lack of evidence of harm and rely on the onus on CRA to meet all of the requirements for an injunction. I am therefore not prepared to compel the production of documents in this respect.
[16] The reasoning of the court in CBC is apposite to this case. Dr. Brar does not allege financial harm and accordingly, the documents sought by the Hospital are not relevant. Dr. Brar bears the onus of establishing the requirements for a stay under the RJR-MacDonald test. On the stay motion, the Hospital can point to a lack of evidence and rely on Dr. Brar’s onus to meet the requirements for a stay. The Hospital is not required to prove that Dr. Brar is not suffering financial harm.
[17] The Hospital asserts that the words “professional death sentence” at paragraph 33 of Dr. Brar’s notice of motion raise the issue of financial loss. The Hospital also relies on Dr. Brar’s assertion, in the same paragraph, that he will be “unlikely to recover any damages from QCH for its actions.”
[18] In my view, this is not a fair reading of paragraph 33 of the notice of motion. Read as a whole, that paragraph specifically refers to Dr. Brar’s loss of reputation within the profession and community population and his privileges status at Arnprior Regional Health Hospital. The paragraph goes on to assert that Dr. Brar will “never recover from the losses to his professional status and career” and that unless he is returned to his elective practice at the Hospital pending these proceedings, “he will have lost the benefit of the years of work building his professional practice, skills and reputation.” Dr. Brar has not raised the issue of financial loss in the notice of motion, nor has he put his personal finances in issue.
[19] In my view, Carvalho v. British Columbia (Medical Services Commission),[^7] and Sazant v. College of Physicians & Surgeons (Ontario)[^8] are distinguishable from this case in that the actual harm alleged by the physicians in Carvalho and Sazant was financial loss.
[20] I agree with Dr. Brar that in addition to the information sought by the Hospital being irrelevant to the issue of irreparable harm to Dr. Brar, it is also irrelevant to determining the balance of convenience. In the context of a physician’s ability to practise, under this branch of the test, the rights of the physician must be balanced against the risk to the public of granting a stay: College of Physicians and Surgeons of Ontario v. Porter, at para. 13[^9]; Sazant v. College of Physicians and Surgeons of Ontario, at para. 7.[^10] I agree with Dr. Brar that his financial information will not assist the court in balancing the non-pecuniary harms he alleges if the stay is not granted against any harms to the public alleged by the Hospital if the stay is granted.
Disposition
[21] The Hospital’s motion to compel answers to the questions refused on Dr. Brar’s cross-examination is dismissed.
[22] As the successful party on the motion, Dr. Brar is entitled to his costs. The parties have provided me with their respective costs outlines. In my view, the partial indemnity costs claimed by Dr. Brar – in excess of $30,000 – are excessive for a motion of this nature. Having regard to Boucher v. Public Accountants Council for the Province of Ontario[^11] and the relevant r. 57.01 factors, I find that a fair and reasonable amount that should be paid by the Hospital to Dr. Brar is $10,000. This amount is to be paid to Dr. Brar within 30 days.
Madam Justice Robyn M. Ryan Bell
Date: October 27, 2022
COURT FILE NO.: DC-22-2734
DATE: 2022/10/27
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Dr. Balpreet Brar, Applicant (Responding Party on Motion)
AND
Queensway Carleton Hospital, Respondent (Moving Party on Motion)
BEFORE: Madam Justice Robyn M. Ryan Bell
COUNSEL: Karen Hamway, Graham Ragan, and Emily Bradley, for the Applicant (Responding Party on Motion)
Kirsten Crain and Paige Miltenburg, for the Respondent (Moving Party on Motion)
ENDORSEMENT
Justice Ryan Bell
Released: October 27, 2022
[^1]: The stay motion was adjourned to accommodate this motion. [^2]: Cross-examination of Dr. Brar, October 7, 2022, at Q. 90. [^3]: 2011 ONSC 2504, leave to appeal denied 2011 ONSC 3685 (Div. Ct.). [^4]: 2020 ONSC 4708. [^5]: 1994 CanLII 117 (SCC), [1994] 1 SCR 311. [^6]: 2016 ONSC 4938. [^7]: 2016 BCSC 1603. [^8]: 2011 ONCA Carswell 15914. [^9]: 2003 CanLII 13109 (ON SCDC). [^10]: 2009 CanLII 58074 (ON SCDC). [^11]: (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.).