Superior Court of Justice - Ontario

COURT FILE NO.: CV-19-8627

DATE: 2022-02-09

RE: Dinkar Shukla, Plaintiff

AND:

John Andrew Fenton, Christopher Antonio Bourdon, Mark Andrew Henderson and Health Sciences North incorporated as Hospital Regional de Sudbury Regional Hospital, Defendants

BEFORE: The Honourable Mr. Justice R.D. Gordon

COUNSEL: Paul Harte and Giuseppe Michelucci, Counsel for the Plaintiff F. Paul Morrison, Lisa Spiegel and Jordan Allison, Counsel for the Defendants

HEARD: January 12, 2022 via Zoom

ENDORSEMENT

Overview

[1] The plaintiff has brought this action claiming compensation for financial and reputational losses resulting from the alleged wrongful conduct of the defendants. His claims include breach of settlement, intimidation, intentional interference with economic relations, and misfeasance of public office. He also alleges that the defendants are in breach of the Personal Health Information Protection Act, 2004 S.O. 2004, c. 3, Sched. A (“PHIPA”) and seeks an order that they enforce and abide by hospital policy and statutory obligations under the legislation as they relate to the unauthorized access to confidential health information of his patients.

[2] The defendants ask that the plaintiff’s claim be struck on the basis that the court lacks jurisdiction to adjudicate on the matters raised and that the claim is res judicata, barred by issue estoppel and an abuse of process. In the alternative they ask that several paragraphs of the statement of claim be struck.

[3] The plaintiff asks that the defendants’ motion be dismissed and that his action be stayed pending final disposition of the Public Hospital’s Act proceedings initiated by the defendant hospital subsequent to this action and which are ongoing.

Factual Background

[4] The plaintiff is an interventional and general cardiologist who has served the region of northeastern Ontario at Health Sciences North (“HSN”), a hospital in Sudbury, for more than ten years. Historically, the plaintiff’s privileges at HSN have included the ability to perform transcatheter aortic valve implementation (“TAVI”), a medical procedure by which a heart valve in implanted through a minimally invasive catheter rather than by way of open-heart surgery. It is a complicated procedure that carries significant risks for the patient and is performed by a team of physicians typically including a cardiologist, cardiovascular surgeon and an anaesthetist. The team also includes a large number of supporting health professionals, including nurses and technicians.

[5] In 2017 and 2018, coincident with the granting of privileges to two new interventional cardiologists who became members of the hospital’s cardiology department and the TAVI team, problems began to arise among the physicians involved in TAVI. For reasons that I need not determine today, by the end of April 2018 there remained no cardiovascular surgeon with privileges as HSN willing to work with the plaintiff on TAVI with the result that he was effectively unable to perform the procedure. The plaintiff was understandably upset with this turn of events and perceived it as a material alteration to his hospital privileges. As framed by his counsel in a letter to counsel for HSN dated July 24, 2018: “The Chief of Staff unilaterally suspended my client’s TAVI privileges without complying with the Bylaws, the Medical Staff Rules and Regulations or the Public Hospitals Act and Regulations thereunder”.

[6] Counsel for HSN responded that the Chief of Staff had at no time unilaterally suspended the plaintiff’s privileges and that the plaintiff had agreed to take a voluntary leave from the program on May 10, 2018. She indicated that HSN would accept his continued voluntary agreement not to perform TAVI procedures pending a determination of the issue by HSN’s Medical Advisory Committee (“MAC”) failing which the Chief of Staff would take immediate action to formally suspend the plaintiff’s TAVI privileges in accordance with the bylaws. Counsel for the plaintiff replied that “…Dr., Shukla will remain off the TAVI schedule until the matter is dealt with by the MAC.”

[7] A special meeting of the MAC was held on October 30, 2018 to consider the plaintiff’s TAVI privileges and the following motion was passed:

That the Medical Advisory Committee directs that an external program review be undertaken by the Hospital, and that an external expert in communications be retained to attempt the rebuilding of the team. These processes will be undertaken as expeditiously as possible. Furthermore, the Medical Advisory Committee requests that Dr. Shukla be asked to continue his voluntary withdrawal of TAVI program privileges pending the completion of the above.

[8] Shortly thereafter, the plaintiff agreed to remain on a voluntary leave of absence from the TAVI program for six weeks. The hospital concurred, with provision that the plaintiff revisit his position at the end of six weeks when it was expected the communication/team building exercise would be complete. Six weeks later the plaintiff made it clear he was no longer voluntarily on leave from the TAVI program; however, it remained that there was no cardiac surgeon willing to work with him.

[9] In these circumstances, Dr. Shukla determined that he would bring an injunction application before the Superior Court of Justice seeking declaratory and injunctive relief aimed at ensuring HSN would provide him the resources necessary and typically employed in the practice of interventional cardiology, including the performance of TAVI procedures. In particular, he alleged that the Chief of Staff and the Chief of Cardiology at HSN had not directed the cardiac surgeons or otherwise provided a cardiac surgeon to assist him in performing TAVI procedures. The application was settled by minutes of settlement dated April 17, 2019. The minutes provided that Dr. Shukla would be given access to the same resources made available to other credentialed TAVI operators with the sole exception of the cardiac surgeon assistance required in the Cath Lab, which would be provided by Dr. Al-Atassi at Dr. Shukla’s expense and subject to Dr. Al-Atassi’s schedule. The minutes further provided that HSN would aim for reintegration of Dr. Shukla to the TAVI team by October 31, 2019. Lastly, the minutes provided that Dr. Shukla would instruct his lawyer to consent to an order dismissing the application and would make payment to HSN of $45,000 for legal costs incurred in defending the application, payable within one year in quarterly payments. That order was issued on May 24, 2019 by Poupore J.

[10] Dr. Al-Atassi is a cardiac surgeon in Ottawa who, it was believed, had agreed to work with the plaintiff performing TAVI in Sudbury, subject to being granted privileges at HSN. Those privileges were promptly granted.

[11] Unfortunately, by the end of May it became clear that Dr. Al-Atassi was unwilling to participate in TAVI at HSN as had been anticipated. The TAVI cardiac surgeons at HSN remained unwilling to work with the plaintiff and indicated their view that his re-integration to the team was futile.

[12] From the plaintiff’s perspective, by failing to make Dr. Al-Atassi available and abandoning his re-integration to the team, HSN was in breach of the minutes of settlement. Accordingly, he refused to make any payment of costs to HSN and brought this action on August 16, 2019.

[13] On May 11, 2020 the plaintiff was advised that a Special Meeting of the MAC would be held to consider his privileges at HSN. He was advised that the recommendation of the Chief of Staff and Chief of Department would be that his TAVI privileges be revoked and that his remaining privileges at the hospital also be revoked or not renewed. Following the conclusion of the MAC’s special meeting in November of 2020 those recommendations were in fact made to the Board of Directors of HSN. Dr. Shukla, as was his right under the Public Hospital Act and Bylaws, requested a hearing before the Board of Directors of HSN. That hearing is ongoing.

Analysis

The Issue of Jurisdiction

The Framework Governing Decisions That Cancel, Suspend or Substantially Alter Privileges

[14] In Kadiri v. Southlake Regional Health Centre, 2015 ONCA 847, the Ontario Court of Appeal provided a useful summary of the framework governing decisions that cancel, suspend or substantially alter a physician’s privileges at a hospital. It explained that section 36 of the PHA vests in the board of the hospital the power to appoint physicians to its medical staff, to determine the hospital privileges to be attached to the appointment of a member of the staff, and to revoke or suspend the appointment of a member of the medical staff.

[15] As noted in Rosenhek v. Windsor Regional Hospital, 2010 ONCA, “privileges” define the scope of a physician’s ability to use the hospital’s resources to care for his or her patients. “Hospital Privileges” has been defined to “comprise a bundle of rights of a physician to carry out professional practice in the hospital. Those rights include some degree of access to the material and human resources of the hospital including hospital beds for the physician’s patients (if the privileges include the right to admit patients), operating rooms (if the physician is a surgeon), diagnostic equipment, examining rooms, interns, residents, lab technicians and nursing staff.” [See Abramson v. Medical Advisory Committee (North York General Hospital), 2011 93929 (ON HPARB)].

[16] Section 37 of the PHA provides for a hospital’s medical advisory committee which receives applications from physicians concerning their appointments and privileges and makes recommendations on these applications to the board. It may also make recommendations to the board concerning the dismissal, suspension or restrictions of the hospital privileges of any member of the medical staff.

[17] Insofar as it applies to this action, s. 41(1)(b) of the PHA provides that a member of the medical staff of a hospital who considers himself or herself aggrieved by any decision made under the hospital’s bylaws cancelling, suspending or substantially altering his or her hospital privileges, is entitled to a hearing before the Health Professions Appeal and Review Board (“HPARB”). The HPARB is constituted under the Ministry of Health and Long-Term Care Appeal and Reviews Board Act, 1998 and conducts hearings and reviews assigned to it under the PHA and other legislation.

[18] HSN has a “Credentialed Professional Staff By-Law” to regulate the affairs of Professional Staff of the hospital. Professional Staff includes physicians appointed by the Board of Directors and who are granted specific privileges to practice medicine in the hospital. Appointments of physicians to the Professional Staff of the hospital are valid for a period of one year. The by-law provides the process for revoking, suspending or restricting the hospital privileges of a member of the Professional Staff. When action is taken during the mid-term of a physician’s appointment there is provision in the by-law for immediate and non-immediate action. Non-immediate action contemplates the consideration of the physician’s privileges at a special meeting of the Medical Advisory Committee called for that purpose. At that meeting the MAC determines what, if any, recommendation is to be made to the Board.

[19] The PHA is a complete and comprehensive code governing the determination of privileges for members of a hospital’s professional staff and before beginning a civil proceeding the PHA process must be exhausted [See Beiko v. Hotel Dieu Hospital, 2007 ONCA 860 and Kadiri v. Southlake Regional Health Centre, 2015 ONCA 847]. Accordingly, if a decision with respect to a physician’s privileges is made under a hospital’s bylaws cancelling, suspending or substantially altering his or her privileges, that decision must be appealed to the HPARB before it is actionable by the physician.

Was There A Decision Made Within the Meaning of s. 41(1)(b) of the PHA?

[20] When the plaintiff began this action there was no Board decision to cancel, suspend or substantially alter his privileges. Similarly, there was no resolution or recommendation from the MAC to do so. However, that does not end the inquiry.

[21] In Kadiri the Ontario Court of Appeal referenced Baranick v. Queensway Carleton Hospital, 2009 88687 (Ont. HPARB) as establishing HPARB’s broad view of its jurisdiction to hear privilege disputes: “…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 privileges.” The question, therefore, is not whether the decision was made via a formal board resolution or recommendation by the MAC, but whether there was a wrongful suspension of privileges.

[22] Following the MAC decision issued October 30, 2018 Dr. Shukla agreed to voluntarily refrain from participating in TAVI procedures for six weeks. Thereafter, he indicated to the defendants repeatedly that his absence from the procedure was no longer voluntary but rather the result of the failure of the defendants to provide the necessary resources to allow him to participate. Indeed, this was the very basis of the injunction application he brought. If Dr. Shukla’s privileges included the right to the resources necessary to participate in the TAVI procedure, and if those resources are alleged to have been withheld by the defendants, it seems to me clear that what is alleged is a de facto suspension of privileges. The question was whether that de facto suspension was wrongful. That question triggered the jurisdiction of HPARB and required Dr. Shukla to exhaust the remedies available to him under the PHA and the hospital’s bylaws before bringing legal action.

Did Dr. Shukla Exhaust the Remedies Available to Him Under the Bylaw and PHA?

[23] Dr. Shukla argues that he is not required to bring an appeal to HPARB in this case because he elected to comply with the decision made by the MAC. He argues Kadiri stands for the proposition that a physician is not required to avail himself or herself of an appeal if he or she is content to comply with the decision in question. He says he agreed to a voluntary withdrawal from the TAVI team as requested by the MAC and did everything required of him to attempt the rebuilding of the TAVI team as contemplated in the MAC motion. Having complied with the MAC motion and there being no formal suspension of his privileges, he argues there is nothing to appeal.

[24] In Kadiri the court found that by the time Dr. Kadiri started his lawsuit in April 2012 he had resumed his full practice for more than a year and there was no decision in place – formal or de facto – that cancelled, suspended or substantially altered his hospital privileges. As noted above, the case before me is significantly different. When Dr. Shukla started this action there was a de facto suspension in place. Whether or not he complied with the MAC motion does not alter the fact that he was still unable to participate in TAVI procedures. When this action was started there remained a question of whether his privileges were wrongfully suspended. The route to have that issue addressed was with the HPARB.

[25] HSN also argued that the MAC motion in October of 2018 was not a final decision on the issue of Dr. Shukla’s TAVI privileges but rather a temporary determination with the issue to be returned to the MAC if the TAVI team rebuilding process was unsuccessful. HSN’s position is that the process under the PHA and bylaw had not run its course and it was therefore premature to bring this action. I agree that the MAC process had not run its full course. Counsel for the hospital sent a letter to counsel for the plaintiff the day following the MAC decision indicating: “While no recommendations were made in respect of your client’s privileges at this Special Meeting, the MAC requests that your client continue his voluntary undertaking not to engage in the TAVI program until the above has been completed and the MAC has reviewed reports arising from same.” In another letter to Dr. Shukla’s lawyer dated December 5, 2018 counsel for the hospital stated: “Your client has stated that he “won” at the MAC. In characterizing the result of the MAC in such a manner, he appears to fail to understand the purpose of the MAC’s motion. Indeed, the MAC did not make a recommendation to the Board that your client’s TAVI privileges by revoked, suspended or subject to conditions, in accordance with the by-laws and Public Hospitals Act. However, after being presented with information…the MAC determined that it needed more information, including information from an expert in communications after one was retained in an effort to attempt to engage the team building/repairing.”

[26] Counsel was effectively speaking for the MAC to indicate what was intended by the motion it passed. I am satisfied that no final determination had been made in respect of Dr. Shukla’s TAVI privileges and that the issue remained and remains outstanding. However, I would also observe that the MAC had not reconvened when this action was commenced and had given no notice of its intent to reconvene. It does not seem reasonable to me that the defendants can take advantage of the de facto suspension of the plaintiff’s TAVI privileges, not reconvene the MAC to consider the matter further and then argue that the plaintiff cannot bring this action because the MAC process remains incomplete.

[27] Accordingly, although my decision is that this action is premature, it is so because there was a de facto decision of the hospital administration entitling him to a hearing before the HPARB, not because the MAC process was incomplete.

The Appropriate Remedy

[28] The defendants seek the dismissal of Dr. Shukla’s claim because the court has no jurisdiction over it. However, this is not a case in which the court can never have jurisdiction. It is a case in which jurisdiction may come to exist depending upon the eventual disposition of the PHA proceedings.

[29] This matter is complicated by another MAC proceeding initiated after this claim was issued and which the plaintiff concedes must run its course before this action can proceed. It is further complicated by the plaintiff’s claim for damages resulting from the alleged breach of the settlement agreement which is entitled to proceed in any event.

[30] This action is not in its infancy and to strike it now only to have it initiated anew some time in the future is not the means by which to secure the just, most expeditious and least expensive determination of the issues. If, as a result of the PHA proceedings, it is determined that some or all of the plaintiff’s claims will fail or that the court does not have jurisdiction, the appropriate claims can then be struck or dismissed.

[31] In all the circumstances it is more appropriate to order a stay of these proceedings until the plaintiff has exhausted his available remedies under the PHA and the applicable hospital bylaw(s).

Is the Plaintiff’s Claim Res Judicata?

[32] The defendants ask that the plaintiff’s claim be struck based on the legal doctrine of res judicata under Rule 21.01(3)(d). When a party moves under this rule to strike pleadings on the basis of res judicata or abuse of process, it bears the onus of satisfying the court that it is plain and obvious that the claim cannot succeed. [See Dosen v. Meloche Monnex Financial Services Inc. (Security National Insurance Company), 2021 ONCA 141].

[33] Res Judicata is a public policy doctrine providing that a final judgment on the merits by a court of competent jurisdiction is binding and determinative of the rights of the parties. There are two forms of estoppel that have emerged from this doctrine. The first is action estoppel, which bars a subsequent action in its entirety. The second is issue estoppel, which precludes re-litigation of constituent issues or material facts necessarily embraced in an earlier action or proceeding. [See Danyluk v Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 SCR 460].

[34] The defendants argue that the order of this court dismissing the injunction application brought by Dr. Shukla results in both issue estoppel and action estoppel such that this action must be struck.

[35] In my view, issue estoppel does not arise. A consent order may result in res judicata with respect to the causes of action dismissed by it, however because there has been no adjudication on the merits, issue estoppel does not apply. [See Lawyers’ Professional Indemnity Co, v, Geto Investments Ltd. 2001 27980 (ON SC), [2001] O.J. 2616; Catalyst Fund General Partner I Inc. v. Hollinger Inc., 2006 23918 (ON SC), [2006] O.J. 2818; Goodman & Co. v. KBSH Capital Management Inc., [2007] O.J. 3916].

[36] With respect to action estoppel the test to be met has four requirements: (1) There is a final decision of a court of competent jurisdiction in a prior action. This is conceded by the plaintiff in this instance. (2) The parties to the subsequent litigation were parties to, or in privy with the parties to the prior action. Again, this is conceded by the Plaintiff. (3) The cause of action in the prior action is not separate and distinct. (4) The basis of the cause of the action and the subsequent action was argued or could have been argued in the prior action if the parties had exercised reasonable diligence. [See Dosen, supra].

[37] It is not plain and obvious to me that the fourth requirement is satisfied. Many of the material facts in the action before me post-date the injunction application that was before the court in 2019 and accordingly could not, even with due diligence, have been argued at that time. In addition, Dr. Shukla’s interest when the injunction application was brought was in re-establishing his ability to conduct TAVI procedures on a go-forward basis, not being compensated for his inability to conduct them in the past. It is not clear that had the process resulting from the settlement of that litigation been successful, any action for damages would have been brought by him. It is not plain and obvious to me that the causes of action then and now are not separate and distinct.

[38] The defendant’s motion to strike the plaintiff’s claim based on res judicata is dismissed.

Is This Action An Abuse of Process?

[39] The defendants ask the court to strike the plaintiff’s claim as an abuse of process on the following bases: (1) Dr. Shukla is seeking to re-litigate issues that were or could have been raised in his application; and (2) He is in breach of two orders of the court.

[40] For largely the same reasons as set out above with respect to res judicata I am not persuaded that this action constitutes an abuse of process as re-litigating issues raised in his earlier application.

[41] With respect to the second ground, it is argued that Dr. Shukla’s failure to pay the costs provided for in the minutes of settlement and incorporated into the Order of Justice Poupore and his failure to attend for cross-examination in this action in accordance with a timetable ordered by me on December 6, 2019 render his claim an abuse of process.

[42] Dr. Shukla takes the view that HSN breached the terms of the minutes of settlement, thereby relieving him of the obligation to pay the costs that had been agreed upon. I note that the costs in question were a term not just of the minutes of settlement, but of the order of dismissal as well. That order had not been appealed or varied. It is my view that the costs are due and owing under the order, however I do not regard Dr. Shukla’s failure to pay as an affront to the court as much as misguided unwillingness to meet his obligation to the hospital. His failure to pay the costs do not, at this time, warrant dismissal of the action, however it would now be abundantly clear that he is obliged to pay the costs and he shall remit payment in full within 60 days failing which this action shall be dismissed.

[43] Although he also failed to appear for cross-examination on his affidavit there is a subsequent endorsement of the court indicating the defendants’ intention to proceed with the motion rather than incur the additional delay that would result from rescheduling. In my view it would not be in the interests of justice to dismiss the action for his failure to attend cross-examinations when those very cross-examinations were deemed by the defendants not to be essential to the progress of the action.

[44] The defendants’ request that the plaintiff’s claim be struck as an abuse of process is dismissed.

The Defendants’ Motion to Strike Certain Paragraphs of the Claim

Paragraphs 111, 115, 121, 125, 133, 135 and 147

[45] Paragraphs 111, 115, 121, 125, 133, 135 and 147 refer to actions taken by Lisa Spiegel, HSN’s legal counsel. Ms. Spiegel is not a party to this action. There is no suggestion that she acted outside of her retainer with HSN. In the circumstances, I agree that identifying her and inferring that she acted independently of HSN rather than appropriately in her capacity as legal counsel amounts to an unfounded attack on her professional character. Accordingly, I agree that these paragraphs ought to be struck as scandalous, but with leave to amend within 60 days should the plaintiff wish to plead those same actions as having been taken by counsel for HSN as its agent.

[46] The remaining paragraphs are challenged by the defendants on the basis they disclose no reasonable cause of action. No evidence is admissible with respect to this aspect of the motion and the test is well-established: Assuming the facts alleged in the Statement of Claim are true, is it plain and obvious that the claim discloses no reasonable cause of action and is therefore certain to fail? [See Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 SCR 959].

Paragraphs 151-155

[47] The Plaintiffs argue that paragraphs 151-155 plead a proposed independent tort of “bad faith”, a cause of action that does not exist in Ontario and misfeasance in public office, which cannot succeed on the facts pleaded.

[48] Although I agree that a simple act of bad faith is not independently actionable, bad faith is an element of the tort of misfeasance in public office (See Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24) and may be pleaded as such. However, the Plaintiffs argue that no case has found a hospital Chief of Staff or Chief of Department to be a public officer within the meaning of the tort and accordingly this aspect of the plaintiff’s claim cannot succeed.

[49] It is not plain and obvious that this cause of action cannot succeed. The defendants cited no case in which a hospital Chief of Staff or Chief of Department was found not to be a public officer. The plaintiff has pleaded that they are public officers. The Chief of Staff is appointed pursuant to a regulation made under the PHA. That same regulation requires that bylaws be passed setting out procedures for the appointment by the Board of the Chief of Staff and Chiefs of Departments. The bylaw of HSN sets out the duties of the Chief of Staff and Chiefs of Departments. It is at least arguable that they fall under the definition of a public officer.

[50] Paragraphs 151-155 shall not be struck.

Paragraphs 156-159

[51] Paragraphs 156 -159 plead the tort of intentional interference with economic relations. This tort is available when a defendant commits an unlawful act against a third party and that act intentionally causes economic harm to the Plaintiff. The defendants argue that the claim does not plead facts in relation to a third party and therefor it is plain and obvious the claim cannot succeed.

[52] However, as the plaintiff points out, the Amended Statement of Claim pleads that the defendants intentionally and unlawfully threatened members of the Cardiology Department who, in turn, interfered with the plaintiff’s economic and professional relationship with his patients.

[53] Given the amended pleading it is not plain and obvious that this claim will fail.

Other

[54] In the defendants’ Responding/Reply Factum they raise, for the first time, an issue with the plaintiff’s Amended Statement of Claim seeking relief for alleged breaches of the Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Sched. A and ask that this part of his pleadings also be struck. Neither the defendants’ Notice of Motion or Amended Notice of Motion sought this relief. In the circumstances it is not properly before me for determination.

Conclusion

[55] Paragraphs 111, 115, 121, 125, 133, 135, and 147 of the Amended Statement of Claim are struck, with leave to amend within 60 days. At the expiry of 60 days, the plaintiff’s claim is stayed until such time as the plaintiff has exhausted the remedies available to him under the provisions of the PHA and the applicable hospital bylaws.

[56] The motions are otherwise dismissed. If the parties are unable to agree on costs, they may make written submissions to me, not to exceed five pages plus attachments each, within 45 days.

The Honourable Mr. Justice R.D. Gordon

Date: February 9, 2022