CITATION: Sherwani v. Fargher, 2023 ONSC 20

COURT FILE NO.: CV-12-00466961-0000

DATE: 20230103

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Aamir Sherwani

Plaintiff

– and –

Terence Fargher, Donald Sanderson, and West Parry Sound Health Centre

Defendants

Aamir Sherwani, representing himself

Anne E. Posno, Brendan F. Morrison, and Solomiya Zakharchuk (student-at-law), for the defendant Terence Fargher

Lisa Spiegel and Tina Kaye, for the defendants Donald Sanderson and West Parry Sound Health Centre

HEARD: November 21, 22, 23, 24, 25, 28, 29, 30, and December 2, 2022

Robert Centa J.

Introduction

[1] In 2012, Dr. Aamir Sherwani sued the West Parry Sound Health Centre, Donald Sanderson, the hospital’s chief executive officer, and Dr. Terence Fargher, the hospital’s chief of staff, for defamation and misfeasance in public office. Dr. Sherwani’s claims emerge out of the hospital’s investigations into his surgical practice, which resulted in Dr. Sherwani no longer having privileges at the hospital.

[2] After hearing evidence and the submissions of the parties over a nine-day trial of this action, I dismiss Dr. Sherwani’s action in its entirety.

The parties and their positions

Dr. Sherwani

[3] Dr. Sherwani is a general surgeon. He completed his undergraduate medical degree in Pakistan in 1986. He then completed further post-graduate training in surgery. After practising in Pakistan and Great Britain, Dr. Sherwani moved to Canada in 1999. He completed his fellowship in general surgery with the Royal College of Physicians and Surgeons of Canada. He practised in Newfoundland and Swift Current, Saskatchewan.

[4] A physician cannot practise at a hospital or admit a patient to a hospital without hospital privileges. Privileges are not defined in the Public Hospitals Act, R.S.O. 1990, c. P.40, but have been defined by the Health Professions Appeal and Review Board (“HPARB”) to mean:

[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.[^1]

[5] On October 6, 2008, the hospital’s board of trustees accepted the recommendation of its Medical Advisory Committee (the “MAC”) and granted locum tenens privileges to Dr. Sherwani. On August 10, 2009, the board accepted the recommendation of the MAC and granted full active consulting privileges to Dr. Sherwani.[^2]

[6] Dr. Sherwani was a very busy general surgeon at the hospital. His practice included endoscopy and a broad variety of traditional general surgery procedures.

[7] Dr. Sherwani alleges that Dr. Fargher commenced a “war of attrition” against him beginning in January 2010, when Dr. Fargher wrote a six-page letter to Mr. Sanderson and Dr. Hunkin, who was then the hospital’s chief of staff, which was highly critical of Dr. Sherwani’s practice. Dr. Sherwani alleges that this letter was defamatory and seeks damages for the harm it caused to him.

[8] Dr. Fargher’s letter caused the hospital to conduct a clinical review of Dr. Sherwani’s practice. That review, Dr. Sherwani asserts, found that he met the standard of care as a general surgeon, and made some general recommendations that would apply to any surgeon. Dr. Sherwani agreed to implement those recommendations and he did so. Dr. Sherwani also alleges that, around this time, Dr. Fargher defamed him by making false statements about his complication rate in front of other doctors in their lounge.

[9] Dr. Sherwani alleges that after the hospital appointed Dr. Fargher its chief of staff on July 1, 2010, Dr. Fargher abused his powers as a public office holder to continue his “war” against Dr. Sherwani and to oust him from the hospital. Dr. Sherwani alleges that Dr. Fargher and Mr. Sanderson threatened that unless he voluntarily stopped exercising his privileges, they would suspend or revoke his privileges. Dr. Sherwani asserts that “as a result of this improper threat and coercion…[I] had no choice but to voluntarily suspend [my] practice.”

[10] Thereafter, the hospital retained a second external surgeon to conduct a further clinical review of Dr. Sherwani’s practice. This second review produced “draconian” recommendations, but Dr. Sherwani agreed to implement them. Nevertheless, Dr. Sherwani alleges, Dr. Fargher improperly convened a meeting of the MAC to recommend the revocation of his privileges. Dr. Sherwani submits that Dr. Fargher, acting in bad faith, with malice, and in breach of his duties, coerced the MAC to recommend that the board revoke Dr. Sherwani’s privileges.

[11] Dr. Sherwani submits that he has suffered damages to his reputation and a loss of income as a result of Dr. Fargher’s defamation. He submits he has economic loss arising from the bad faith exercise of the statutory public power by the defendants. Dr. Sherwani filed an expert report that calculated his loss of income at approximately $3.4 million.

The hospital, Mr. Sanderson, and Dr. Fargher

[12] The hospital is a public hospital incorporated and operating pursuant to the Public Hospitals Act. The hospital enacted by-law #3, which relates to the business and affairs of the hospital. Pursuant to that by-law, the hospital’s board of trustees is vested with the powers necessary to manage the affairs of the hospital. The duties of the board include appointing and reappointing physicians to the medical staff and delineating their privileges.

[13] The board is also responsible for appointing the chief executive officer of the hospital. Mr. Sanderson was the hospital’s chief executive officer at all times relevant to this action. Pursuant to the by-law, Mr. Sanderson was responsible to the board for taking all actions he considered necessary to ensure compliance with the Public Hospitals Act, to notify the chief of staff and the board of any failure of a physician to act in accordance with their duties, and any other matter of which they should have knowledge.

[14] The board also appoints the chief of staff. Dr. Hunkin was the chief of staff until June 30, 2010. The board appointed Dr. Fargher chief of staff on July 1, 2010, and he remained in that role at all times relevant to this action. All of the hospital’s medical staff practise under the supervision of the chief of staff, who is also the chair of the MAC. The by-law obliges the chief of staff to scrutinize the treatment of any patient at the hospital and make recommendations to the physician and, if necessary, the MAC. The MAC is required to report to the board concerning the practice of medicine at the hospital in relation to professionally recognized standards of medical care.

[15] The board has the power to appoint annually the hospital’s medical staff. Consistent with the provisions of the Public Hospitals Act, the by-law specifies that appointment to the medical staff is for one calendar year or until the board makes its appointments for the ensuing year. The board may at any time suspend the privileges of a physician pending a hearing or it may accept an undertaking from a physician not to exercise privileges pending a hearing. In both cases, the board is to act on the recommendation of the MAC, which is to convene a hearing and then make a recommendation regarding any mid-term suspension or revocation of privileges.

[16] Dr. Fargher asserts that he did not defame Dr. Sherwani. He denies that he ever spoke about Dr. Sherwani’s complication rate in front of other doctors outside of a formal meeting. He denies that his letter dated January 15, 2010, was defamatory. In any event, that letter, like all of his written correspondence about Dr. Sherwani, was sent on an occasion of qualified privilege. Dr. Fargher submits that Dr. Sherwani’s claim in respect of the letter is barred by the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B.

[17] Each defendant asserts that all of their actions were in the good faith execution of their duties and powers under the Public Hospitals Act, and that Dr. Sherwani’s claims are defeated by the protection from liability afforded by s. 13 of the Public Hospitals Act.

[18] The defendants submit that Dr. Sherwani voluntarily agreed to stop exercising his privileges in November 2010, voluntarily resigned his privileges at the hospital effective December 31, 2011, and that no liability can arise from either decision. Moreover, all of Dr. Sherwani’s claims (except for the defamation claim) flow from a dispute over his privileges at the hospital. Because Dr. Sherwani did not exercise his right to a hearing before the board, his right to appeal that dispute to the HPARB, or to appeal a decision of HPARB to the Divisional Court, the defendants submit that “the court has no jurisdiction to consider Dr. Sherwani’s claim of misfeasance in public office.”

[19] The defendants submit that Dr. Sherwani has not proved that their actions caused him to lose any income, that the evidence he provided in support of his damages claim is deeply flawed, and that Dr. Sherwani has not proved that he suffered any damages.

Facts

[20] Many of the facts in this case are not in dispute. The extensive contemporaneous correspondence among the main players and their counsel clearly and convincingly describe many the events at issue. Dr. Sherwani spent a great deal of time during his own testimony and his cross-examination of other witnesses on a detailed review of his surgical practice regarding several patients. Ultimately, for the reasons set out below, it is not necessary for me to decide on a patient-by-patient, clinical note-by-clinical note basis whether or not Dr. Sherwani met the standard of care.

[21] Other than that issue, there are only a few key evidentiary disputes, which I will address below. First, however, I will set out the undisputed facts that frame this action.

Concerns about Dr. Sherwani’s practice lead to Dr. Girotti’s review

[22] In the fall of 2009, Dr. Fargher had concerns about Dr. Sherwani’s surgical practice and discussed those issues with him. Unsatisfied by those conversations, Dr. Fargher raised his concerns with Dr. Hunkin, then chief of staff, and Mr. Sanderson. Dr. Fargher was not the only one with concerns about Dr. Sherwani. On December 10, 2009, a nurse prepared a list of 10 cases in which she had concerns about Dr. Sherwani’s practice.

[23] Dr. Hunkin and Mr. Sanderson asked Dr. Fargher to put his concerns in writing. On January 15, 2010, Dr. Fargher submitted a detailed, six-page letter setting out his concerns about Dr. Sherwani’s surgical management of complex patients, scientific knowledge, communication skills, collaboration skills, and teamwork with respect to 13 different patients. In his letter, Dr. Fargher stated that, in his opinion, several of Dr. Sherwani’s decisions and practices had placed patients at risk of adverse outcomes. Dr. Fargher stated that he felt that it was “no longer possible for me to continue working with or sharing responsibility for patients that are being treated by Dr. Sherwani.”

[24] On May 4, 2010, Dr. Hunkin and Mr. Sanderson advised Dr. Sherwani that the hospital had retained Dr. Murray Girotti to conduct an independent review of Dr. Sherwani’s clinical practice. Dr. Hunkin asked Dr. Girotti to review 13 cases. Dr. Girotti met twice with Dr. Sherwani and reviewed three additional cases that Dr. Sherwani presented as representative of his clinical practice at the hospital. Dr. Girotti also met with Dr. Fargher and other members of the hospital’s administrative, medical, and nursing staff.

[25] On June 1, 2010, Dr. C.A. McKinley wrote to Dr. Hunkin to express his concerns about Dr. Sherwani’s clinical judgment, technical competency, and collegiality. His letter read, in part, as follows:

This is not something I take likely [sic], nor is it something I have ever felt necessary to do as a practicing surgeon. However recent events relating to Dr. Sherwani has made it impossible for me to ignore his clinical judgment, his technical competency, and his collegial nature. That is to say that I am concerned that his clinical judgement is not sound, his technical abilities are not sound and he is extremely unprofessional with his colleagues and with others throughout the hospital. …

I am of the conclusion now that it would be unsafe for Dr. Sherwani to continue to have privileges in the hospital. And I do not make this point lightly.

[26] The hospital provided both Dr. McKinley’s letter and Dr. Fargher’s letter to Dr. Girotti. In his report, which was dated June 22, 2010, Dr. Girotti described Dr. Fargher’s letter as “very critical of Dr. Sherwani’s skills (primarily clinical judgment).” Dr. Girotti met with Dr. Fargher and stated that he found Dr. Fargher to be “highly credible” and that he had “no reason to doubt the factual content of this letter as it relates to Dr. Sherwani.” Dr. Girotti wrote as follows:

I feel I must comment in particular on the letter from [Dr. Fargher] in light of my interview with this individual. The letter was at least 6 pages in length documenting details of case management wherein this individual felt Dr. Sherwani had not responded appropriately in certain clinical situations. This involved areas of Dr. Sherwani's communication skills, his basic science knowledge and instances of his poor clinical judgment. This specialist stood by his letter and its contents when I discussed it with him and reviewed some of its specific details. I found this physician to be highly credible with a clear passion for excellence in patient care. I have no reason to doubt the factual content of this letter as it relates to Dr. Sherwani.

[27] In his report, Dr. Girotti summarized the many serious concerns that the hospital staff raised with him about Dr. Sherwani’s practice:

Dr. Sherwani is regarded as a very poor communicator. In simple terms, he does not listen. This was a near unanimous concern expressed to me by all people interviewed. I personally experienced this in dealing with Dr. Sherwani during my first interview with him….

It is clearly felt by the majority of interviewees that Dr. Sherwani's poor communication skills significantly interferes with his relationships with patients, medical colleagues, nurses and others that he relates to on a daily basis…. Numerous instances were identified to me regarding Dr. Sherwani's distinct inability to listen to or heed advice from medical colleagues regarding either patient care related issues or hospital policies….

I was most concerned to hear that Dr. Sherwani at times has ‘added’ procedures with an operative procedure without prior consent. This has happened on more than one occasion. When challenged by the OR nurses regarding these events, Dr. Sherwani responds by saying that he is doing patients a ‘favor’, as they will only have to come back and have another surgical procedure (to either repair an incidental hernia or deal with ovarian pathology). …

In general, I found that during the interview process that Dr. Sherwani's surgical colleagues were reluctant to openly criticize Dr. Sherwani's clinical judgment. It was obvious to me during these conversations that there were instances in their minds wherein they felt there were issues with Dr. Sherwani's clinical judgment and had tried to distance themselves and their patients from Dr. Sherwani. Other non-surgical members of the medical staff were more expressive in this regard. They had clear instances where they felt Dr. Sherwani exercised poor clinical judgment, especially when it came to complicated, sick pre and post operative patients. …

My review of the cases supplied to me by the Chief of Staff revealed some concerns (see individual case reports) wherein I felt Dr. Sherwani was struggling with both the pre and the post operative management of clinical cases complicated by extensive or significant concurrent medical illnesses. Most of these cases involved patients admitted to the ICU. Concurrent general internal medical support seemed to be critical in getting these patients out of the ICU and out of hospital successfully.

[28] Dr. Girotti concluded that Dr. Sherwani was a very busy general surgeon and that most people he interviewed believed that Dr. Sherwani was a “reasonably good surgical technician.” Dr. Girotti reached seven conclusions about Dr. Sherwani’s practice:

I do feel that I can make several comments that I believe relate to Dr. Sherwani's general surgical practice:

a) Dr. Sherwani just barely meets the standard of care in his practice as a general surgeon at WPHSC;

b) Dr. Sherwani is a poor communicator;

c) Dr. Sherwani disregards certain hospital policies;

d) Dr. Sherwani has gaps in certain areas of his basic science knowledge;

e) Dr. Sherwani, at times, exercises poor clinical judgment as it applies to the complex and very sick medical patient undergoing a surgical procedure;

f) Dr. Sherwani is, as near as I can determine, a competent surgical technician;

g) Dr. Sherwani does not distinguish himself in the area of urgent/emergent OR bookings.

[29] Dr. Girotti also provided detailed comments and assessments on each patient file that he reviewed. He made four recommendations to Dr. Hunkin about Dr. Sherwani’s practice, which I will discuss below.

The hospital’s response to Dr. Girotti’s review

[30] On June 25, 2010, Dr. Fargher wrote to Dr. Girotti to request one small wording change to better reflect Dr. Fargher’s view of the incident. Dr. Girotti did not change his report.

[31] In a letter dated June 28, 2010, Dr. Sherwani wrote to Dr. Hunkin to thank him for providing a copy of Dr. Girotti’s report.[^3] Dr. Sherwani clarified his educational background, indicated that he was open to improving his communication skills, and maintained that he adhered to hospital policies. Dr. Sherwani stated that “I have the lowest complication rate among my peers.” He then provided a detailed response to a number of the case files considered by Dr. Girotti.

[32] On June 30, 2010, Dr. Hunkin wrote to Dr. Sherwani. Dr. Hunkin summarized Dr. Girotti’s process, and the conclusions set out above. Dr. Hunkin then issued five directives to Dr. Sherwani, which were drawn from Dr. Girotti’s recommendations. Dr. Hunkin wrote:

Based on these findings and as Chief of Medical Staff, I make the following directives: -

1. Dr. Sherwani must improve his communication skills both written and spoken. This would apply to his entry into the health record of a pre operative consult note when appropriate. Dr. Sherwani must develop ‘listening’ skills. There are opportunities to do so through various professional bodies in Ontario such as the [College of Physicians and Surgeons of Ontario] and [the Ontario Medical Association]. There are also professional opportunities for similar courses in the United States. Dr. Sherwani must attend and show evidence of completion of an approved course, at his own expense, by the end of December 2010.

2. Effective immediately, Dr. Sherwani must at all times adhere to the policies and procedures of the [hospital]. This will be monitored by the Chief of Staff, Chief Nursing Officer and Chief Executive Officer.

3. There have been questions raised about Dr. Sherwani's basic science knowledge. While I understand that many issues of medical/surgical treatment are debatable, nevertheless, I would suggest that Dr. Sherwani needs to be more attentive to his [continuing medical education] pursuits in the next 6-12 months. A suggestion would be for Dr. Sherwani to attend the American Board of Surgery preparatory course for examination purposes. It is not my intent to recommend that Dr. Sherwani actually sit the ABS examinations. I do however insist on documentation of CME in the next six months.

4. Effective immediately and until further notice, Dr. Sherwani must seek mandatory consultations for concurrent management from general internal medical specialists when he admits any patients to the ICU at WPSHC, both pre-operatively, when time permits and post-operatively.

5. Should Dr. Sherwani take exception to these directives, the Chief of Staff will convene a special meeting of the [hospital’s] Medical Advisory Committee (MAC) to adjudicate the resolution of this matter.

[33] On June 30, 2010, Dr. Sherwani wrote to Mr. Sanderson.[^4] He indicated that he was writing “further to our meeting on June 30, 2010, and in response to the letter provided to me by Dr. Hunkin.” Dr. Sherwani stated that he was “largely amenable to recommendations we discussed and resolving this matter on mutually agreeable terms.” Dr. Sherwani, stated that he had concerns about the report forming part of his credentialling file because it was based on “incomplete and incorrect information.” Dr. Sherwani concluded that:

Finally, with respect to my clinical judgment, this is reflected in my results. I have been a very busy surgeon. I also covered other surgeons as needed and operated on patients which other surgeons did not want to operate. I am the only surgeon doing head and neck surgery. I have the lowest complication rate among my colleagues. I believe that I have always been regarded as a very competent surgeon.

In light of everything above, I request that Dr. Girotti's report not form part of my credentialing file with the Hospital. I would like to discuss a resolution of this matter, that will satisfy the hospital and that is also fair to me.

[34] On July 1, 2010, Dr. Fargher replaced Dr. Hunkin as the hospital’s chief of staff.

[35] On July 21, 2010, counsel for the hospital and Dr. Fargher (in his capacity as chief of staff) wrote to counsel for Dr. Sherwani to introduce himself, acknowledge her request for relevant documentation, and to indicate that the hospital hoped that Dr. Sherwani would volunteer and agree to adopt the remedial approach outlined in Dr. Hunkin’s letter dated June 30, 2010.

Additional concerns about Dr. Sherwani in fall 2010

[36] On September 9, 2010, the nurse who managed the hospital’s emergency department and the intensive care unit sent an email to Dr. Fargher. She attached a summary of events that took place in the ICU on August 25, 2010. The notes addressed concerns about a surgical patient, S.K.

[37] The first set of concerns related to Dr. Sherwani’s immediate post-operative care for S.K., who experienced oozing from the incision, elevated heart rate, low blood pressure, and low urine output. The nurses concluded that S.K. was suffering from post-operative bleeding and that S.K.’s condition was deteriorating. The nurses felt that Dr. Sherwani did not provide them with sufficient support, was slow to respond to their requests for assistance, and delayed S.K.’s eventual return to the operating room to repair the bleeding. The nurses reported that they thought S.K. might die because Dr. Sherwani was not addressing their observations in a timely way.

[38] The second set of concerns related to Dr. Sherwani’s decision to order heparin for S.K. after the repair surgery. The nurses were very concerned about this order because they felt that administering heparin could exacerbate S.K.’s post-operative bleeding and could threaten the patient’s life. The nurses remained very concerned that Dr. Sherwani spoke to them in a disrespectful manner, failed to take their concerns seriously, and failed to collaborate with them to act in S.K.’s best interests. The nurses were so concerned that they took S.K.’s patient chart to another surgeon for a second opinion. The second surgeon was of the opinion that heparin should not be used until an internal medicine specialist had assessed S.K. The nurses obtained that assessment and the internal medicine specialist ordered that the heparin not be administered. When the nurses updated Dr. Sherwani about the assessment of the internal medicine specialist, he continued to insist that the nurses should administer heparin.

[39] Mr. Sanderson asked Dr. Fargher to review S.K.’s file and assess Dr. Sherwani’s management of the patient’s surgical condition. On October 15, 2010, Dr. Fargher wrote a dense, three-page memo summarizing his findings. Dr. Fargher concluded that, given S.K.’s history of bleeding, Dr. Sherwani should have anticipated that the patient might well bleed after the operation. Dr. Fargher also concluded that Dr. Sherwani left the nurses “in the lurch with an extremely ill patient,” and that “Dr. Sherwani should have been taking more hands on responsibility” for S.K. Dr. Fargher concluded that this incident demonstrated that “Dr. Sherwani’s surgical, interpersonal and professional skills are significantly substandard.”

[40] On October 13, 2010, a nurse hospital prepared a note summarizing her involvement with Dr. Sherwani during her treatment of a person with a crushed finger. The nurse was very concerned about how Dr. Sherwani spoke to her and that he did not provide her with the support and assistance that she needed to treat the patient.

[41] On October 29, 2010, Dr. Fargher wrote a memo to Mr. Sanderson that outlined his concerns with Dr. Sherwani’s medical management of patient D.S., who arrived back at the hospital 10 days after surgery with significant post-operative bleeding. Dr. Fargher believed that the patient was likely to die from the bleed unless it was stopped. In his memo, Dr. Fargher stated that Dr. Sherwani failed to provide him with necessary assistance, which left Dr. Fargher, an internal medicine specialist, to deal with what was clearly a surgical case. Dr. Fargher concluded that Dr. Sherwani exercised poor judgment about the source of the bleed and whether or not the patient was stable enough to be transferred to another hospital. Dr. Fargher concluded that Dr. Sherwani’s behaviour was unhelpful and obstructive and that he “is severely lacking in professionalism and surgical skill with a marked inability to function in any way as part of a multi-disciplinary team.”

[42] Also on October 29, 2010, Dr. Fargher wrote a memo to Mr. Sanderson that outlined his concerns with Dr. Sherwani’s medical management of patient M.A. on October 14, 2010. Dr. Fargher had significant concerns about Dr. Sherwani’s assessment that the patient was not a candidate for surgery and his failure to review abdominal X-rays that revealed an abdominal abscess that was causing the patient significant pain. Although the patient was terminally ill, and died shortly thereafter, Dr. Fargher concluded that Dr. Sherwani’s assessment was inadequate, incorrect, and demonstrated a marked lack of judgment.

Dr. Sherwani voluntarily stops exercising his privileges

[43] On November 2, 2010, counsel for the hospital wrote to counsel for Dr. Sherwani and provided her with Dr. Fargher’s three recent memos to Mr. Sanderson. Counsel for the hospital indicated that the hospital needed to address Dr. Sherwani’s privileges either on an informal and voluntary basis or by reference to the MAC. Counsel for the hospital advised that, in the interim, unless Dr. Sherwani voluntarily stopped exercising his privileges, Dr. Fargher would suspend those privileges pursuant to his authority under the Public Hospitals Act and the hospital’s by-laws.

[44] On November 5, 2010, counsel for Dr. Sherwani advised that he would voluntarily stop exercising his privileges. It was later clarified that Dr. Sherwani would continue to run his outpatient clinic but would not perform any procedures in his clinic. This event remains in dispute among the parties and will be discussed in detail below.

[45] On November 8, 2010, Dr. Fargher called an urgent meeting of the MAC for November 11, 2010. Dr. Fargher prepared an extensive package of information for the meeting. This included images of CT scans and notes from medical files. He also included Dr. Girotti’s report, Dr. Fargher’s letter of January 15, 2010, the letters among Dr. Hunkin, Mr. Sanderson, and Dr. Sherwani that followed the release of Dr. Girotti’s report, and Dr. Fargher’s three memos from October 2010. The package also included a memo from Dr. Fargher dated November 7, 2010, which provided his reply to Dr. Sherwani’s response to Dr. Girotti’s report. Among other points in this memo, Dr. Fargher stated “I disagree with numerous of Dr. Sherwani’s assertions…In the first instance, I do not believe that he has the lowest complication rate amongst his surgical peers.”

[46] At the meeting, Dr. Fargher advised the MAC that Dr. Sherwani had voluntarily stopped exercising his privileges at the hospital. The members of the MAC debated whether or not Dr. Sherwani was remediable and ultimately voted 8 to 6 that he was. They also voted unanimously to advise the College of Physicians and Surgeons of Ontario (“CPSO”) of their concerns about Dr. Sherwani.

[47] On November 16, 2010, pursuant to s. 85.2(1) of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, Dr. Fargher reported significant concerns with respect to Dr. Sherwani’s judgment and competency to the Registrar of the CPSO.

The second review, conducted by Dr. Muir

[48] The hospital intended to retain Dr. Girotti to review the additional cases of concern discussed in Dr. Fargher’s October 2010 memos. Unfortunately, Dr. Girotti died in late 2010. On January 20, 2011, counsel for the hospital advised counsel for Dr. Sherwani that the hospital had retained Dr. Craig Muir to conduct the second review.

[49] Dr. Muir reviewed the three charts of concern, Dr. Girotti’s report, documentation and correspondence related to that report, and information received from Dr. Sherwani’s counsel regarding his completed and proposed continuing medical education. He also met with Dr. Sherwani in the presence of his counsel and counsel for the hospital.

[50] In March 2011, Dr. Muir delivered his report. He concluded that Dr. Sherwani’s “practice is marginal” and the cases he reviewed “demonstrate persisting deficiencies in his surgical care.” Dr. Muir found that the cases he reviewed demonstrated several of the same concerns identified by Dr. Girotti. Dr. Muir concluded that “Dr. Sherwani’s ability to critically self appraise his decisions is limited.” Dr. Muir elaborated as follows:

Once Dr. Sherwani has formed and expressed his opinion, he seems absolutely committed to it and unable or unwilling to reassess that opinion even if further evidence or concerns are brought to his attention. This was well expressed in Dr. Girotti's report as an inability to listen to others, communicate well and manage complex cases. The recommendations designed to address these problems have not been effective.

[51] Dr. Muir rejected the notion that the medical staff’s concerns about Dr. Sherwani could be understood as mere interpersonal conflicts. He noted that it takes a very serious incident, or series of incidents, to have a medical professional document their concerns about a colleague in writing. Dr. Muir noted that “their concerns have been, in large part, substantiated by two independent reviewers.”

[52] Dr. Muir made six recommendations to the hospital:

a. The hospital should move Dr. Sherwani to a probationary status and that he should only have associate privileges for a minimum of six months;

b. Dr. Sherwani must provide documentation to confirm that he has completed all of the courses recommended in Dr. Girotti’s report;

c. Dr. Sherwani must prepare and submit an educational plan to the chief of staff;

d. Dr. Sherwani must submit proof of his Maintenance of Competence status to the hospital;

e. Dr. Sherwani must demonstrate improved communication skills, adhere to hospital policies and procedures, address gaps in basic science knowledge and have mandatory medical specialist involvement for his patients admitted to ICU; and

f. The MAC should review the status Dr. Sherwani’s privileges in six months and make recommendation to extend the probationary period, to restore his privileges to active staff status, or to terminate his privileges.

[53] On March 21, 2011, counsel for the hospital sent Dr. Muir’s report to counsel for Dr. Sherwani. On April 11, 2011, counsel for Dr. Sherwani advised that Dr. Sherwani would agree to abide by Dr. Muir’s recommendations providing “his privileges remain active.” The hospital did not agree to this condition.

The MAC recommends revoking Dr. Sherwani’s privileges

[54] Instead, Dr. Fargher called a special meeting of the MAC for April 27, 2011, to consider Dr. Sherwani’s practice and privileges in light of the reports of Dr. Girotti and Dr. Muir. According to the minutes of the meeting, Dr. Fargher made a presentation that included a summary of the concerns contained in his letter dated January 15, 2010, the report of Dr. Girotti, his October 2010 file reviews, and the report of Dr. Muir.

[55] Dr. Sherwani made a responding presentation. He addressed many of the individual cases mentioned in the reports of Dr. Girotti and Dr. Muir. He requested that his full privileges be restored immediately. Counsel for Dr. Sherwani also made submissions. She noted that neither Dr. Girotti nor Dr. Muir concluded that Dr. Sherwani was unsafe. She emphasized the importance of not moving Dr. Sherwani to associate privileges, which would be extremely prejudicial to his interests and ability to obtain other positions. At the conclusion of this presentation, Dr. Sherwani and his counsel left the meeting so that the voting members of the MAC could deliberate in private with counsel for the hospital.

[56] Dr. Gehrels moved a motion that the MAC recommend to the board that it revoke Dr. Sherwani’s privileges. Dr. Hunkin, the former chief of staff, seconded the motion. In a recorded vote, the members of the MAC voted 15-1 in favour of recommending to the board that it revoke Dr. Sherwani’s privileges.

[57] The next day, counsel for the hospital advised counsel for Dr. Sherwani of the result of the vote. On May 3, 2011, counsel for Dr. Sherwani requested pursuant to s. 37(7)(a) of the Public Hospitals Act that the MAC provide written reasons for its recommendation. On May 9, 2011, Mr. Sanderson and Dr. Fargher provided written reasons for the recommendation. The letter read, in part, as follows:

In respect of your request for reasons concerning the above recommendation, please note that the Medical Advisory Committee based its decision upon the following:

• You have demonstrated unprofessional behaviour with respect to your lack of communication and collegiality in working with colleagues.

• You have demonstrated a failure to communicate adequately and appropriately with patients, including a lack of appropriate follow up, the making of inappropriate statements, and a lack of pre-operative consultation.

• When confronted with clinical issues or criticisms regarding practice management, you have demonstrated and continue to demonstrate a lack of insight and a failure to accept or respond to criticisms and directions with respect to remediation.

• You fail to practice collaboratively with your peers and other hospital staff and in so doing fail to seek or accept advice.

• You have repeatedly failed to meet recognized standards of care in the practice of surgery and demonstrate a lack of appropriate clinical judgement and acceptance of current medical/scientific standards and practices.

• In light of the above the Medical Advisory Committee did not believe that there would be a practicable opportunity for remediation at the hospital in a working environment where by your own statement you were not prepared to accept criticism.

Please note that further to the Public Hospitals Act and the By-Laws of the hospital, you are entitled to request a Hearing before the Board should you wish to challenge the above recommendation, so long as such request is made within seven days from receipt of these reasons.

[58] On May 13, 2011, Dr. Sherwani requested, pursuant to s. 37(4) of the Public Hospitals Act, that the board hold a hearing into the question of his privileges. The hearing was eventually scheduled to take place on November 1 and 2, 2011.

[59] On October 4, 2011, however, Dr. Sherwani provided a proposal “to resolve the Hospital Board Hearing.” The proposal was as follows:

1. Dr. Sherwani will provide the hospital with a resignation letter now that will be effective December 31, 2011;

2. the hospital will maintain Dr. Sherwani's privileges under the status quo until December 31, 2011; and,

3. the hospital will provide a mutually acceptable reference letter signed by the Chief of Staff that will include the following: the period of time Dr. Sherwani held his appointment at the hospital; that Dr. Sherwani resigned to pursue opportunities elsewhere; it will set out the scope of Dr. Sherwani's practice; it will state that Dr. Sherwani has been an active participant in the hospital.

4. If a request is made of the hospital for a verbal reference, the verbal reference will be limited to the information contained in the letter of reference, any breach of this will be considered a breach of the resolution.

[60] Mr. Sanderson signed a reference letter for Dr. Sherwani dated October 6, 2011, it read as follows:

Dr. Aamir Sherwani has held an appointment to the West Parry Sound Health Centre from May 18th, 2009, to December 31, 2011.

Dr. Sherwani was appointed to the Active Staff, Department of Surgery, the scope of his practice including full general surgical privileges.

Dr. Sherwani resigned his appointment at the West Parry Sound Health Centre with the intention to pursue opportunities elsewhere.

[61] On October 31, 2011, counsel for Dr. Sherwani wrote to counsel for the hospital to confirm the resolution of Dr. Sherwani’s request that the board consider the MAC’s recommendation. She wrote:

I received a copy of the draft reference from Wendy this morning. Thanks for that. I will forward to Dr. Sherwani - as he is in Pakistan it may take a day or two for me to get the OK to release his resignation letter. I will get back to you as soon as I hear back from him. In the mean time, I have advised our witnesses that the matter is resolved and will not be attending in Parry Sound tomorrow.

[62] Dr. Sherwani’s counsel never provided the resignation letter. On December 19, 2011, counsel for the hospital wrote to counsel for Dr. Sherwani to advise that the hospital took the position that Dr. Sherwani had resigned his appointment and privileges effective December 31, 2011. Neither Dr. Sherwani nor his counsel ever responded to this letter, contested the hospital’s position that Dr. Sherwani had resigned, requested that the board reschedule its meeting to consider the MAC’s recommendation, or requested that the board reinstate Dr. Sherwani’s privileges. This point remains in dispute among the parties and will be discussed in detail below.

[63] Almost one year later, on November 2, 2012, Dr. Sherwani issued his statement of claim.

Assessing credibility

[64] To determine some of the issues raised in this action, I must assess the reliability and credibility of the witnesses. One of the leading decisions on assessing credibility is Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.); Phillips et al. v. Ford Motor Co. of Canada Ltd. et al., 1971 CanLII 389 (ON CA), [1971] 2 O.R. 637 (C.A.). In Faryna, at pp. 356-358, the court explained that:

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. Only thus can a court satisfactorily appraise the testimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience in combining skilful exaggeration with partial suppression of the truth. Again a witness may testify what he sincerely believes to be true, but he may be quite honestly mistaken. For a trial Judge to say "I believe him because I judge him to be telling the truth," is to come to a conclusion on consideration of only half the problem. In truth it may easily be self-direction of a dangerous kind.

[65] I am entitled to accept all, some, or none of the evidence of a witness. I will assess the evidence before me according to many factors including:

a. whether the evidence makes sense by being internally consistent, logical or plausible;

b. whether there are inconsistencies or weaknesses in the evidence of the witness such as internal inconsistencies, prior inconsistent statements, or inconsistencies with the evidence of other witnesses;

c. whether or not there is independent evidence to confirm or contradict the evidence of a witness;

d. the witness’s demeanour, including their sincerity and use of language, although this must be considered with caution; and

e. whether the witness, particularly one that is a party in a case, may have a motive to fabricate: Caroti v. Vuletic, 2022 ONSC 4695, at paras. 434-436; 1088558 Ontario Inc. v. Musial, 2022 ONSC 5239, at para. 83.

[66] In this case, one important factor is how consistent or inconsistent a witness’s evidence was with the contemporaneous written record. Where a witness gave oral evidence that was inconsistent with the written record, I had to consider carefully the possible reasons for that discrepancy and how that affected my assessment of the witness’s credibility.

Defamation

[67] Dr. Sherwani focussed his defamation allegations on two events:

a. Dr. Fargher’s statements in front of other doctors that Dr. Sherwani had a high complication rate; and

b. Dr. Fargher’s letter dated January 15, 2010, to Dr. Hunkin and Mr. Sanderson.

Dr. Fargher did not make public statements about Dr. Sherwani’s complication rate

[68] In his statement of claim, Dr. Sherwani did not assert that Dr. Fargher made any defamatory comments about his complication rate. Dr. Sherwani pleaded that he had a “minimal complications rate,” that Dr. Fargher’s January 2010 letter “identified and discussed various case studies of some complex surgeries with complications where [Dr. Fargher] identified his disagreements with the plaintiff,” and that while any general surgeon who has numerous complex cases will have some complications, “his complication rate was very low, if not the lowest among the general surgeons” at the hospital.

[69] At trial, Dr. Sherwani testified that Dr. Fargher “used to come to the operating room, doctor’s lounge, and he used to say [that I had a high complication rate] in front of everybody.” Dr. Sherwani could not specifically state when Dr. Fargher made these comments. He could only say that it was in mid-2010, “when he started these investigations.” Dr. Sherwani said that Dr. Fargher made these comments in front of Dr. Sherwani and the other doctors in the doctors’ lounge but he could not identify any of the other doctors present.

[70] Dr. Fargher categorically denied making such statements around the hospital or in the lounge. He denied ever talking about Dr. Sherwani’s complication rate outside of a formal meeting. Dr. Hunkin testified that he did not remember Dr. Fargher ever saying that Dr. Sherwani had a high complication rate. Dr. Hunt testified that he never heard Dr. Fargher criticize Dr. Sherwani in any way outside of a MAC meeting.

[71] As noted, Dr. Sherwani’s statement of claim did not plead Dr. Fargher’s allegedly defamatory statements about his complication rate. Had it been necessary to do so, I would have granted Dr. Sherwani leave to amend the statement of claim at trial to plead these statements: rule 26.01, Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Rule 26.01 requires the court to make such an amendment unless the defendant can show prejudice that cannot be cured by costs or an adjournment: M.B. v. 2014052 Ontario Ltd. (Deluxe Windows of Canada), 2012 ONCA 135, 109 O.R. (3d) 351, at para. 72. I do not see any non-compensable prejudice to Dr. Fargher. At trial, Dr. Sherwani was self-represented. I would have exercised my discretion generously to permit him to amend his statement of claim, even at this late date, to ensure that all the matters that he wished to address were canvassed at trial.

[72] I find as a fact, however, that Dr. Fargher never talked about Dr. Sherwani’s complication rate in the doctors’ lounge or in any setting other than at a meeting of the MAC. I reach this conclusion for five reasons.

[73] First, Dr. Sherwani’s evidence in support of this allegation was imprecise. He could not identify any other doctor who was present to overhear the alleged conversation. He could not identify the date on which such a conversation took place.

[74] Second, Dr. Sherwani’s evidence was uncorroborated. He did not call any witnesses who testified that Dr. Fargher made such a statement. Other than Dr. Sherwani, no witness testified that they heard Dr. Fargher criticize Dr. Sherwani, including his complication rate, outside of a MAC meeting. While the lack of corroboration is not fatal, when combined with the lack of precision in Dr. Sherwani’s evidence, it makes me reluctant to accept the evidence too readily.

[75] Third, at no time in 2010 or 2011, or in the statement of claim in 2012, did Dr. Sherwani or his counsel raise any such allegation despite its importance to Dr. Sherwani’s interests.

[76] Fourth, I find that it was Dr. Sherwani, not Dr. Fargher, who first raised the issue of his complication rate. On June 28, 2010, Dr. Sherwani wrote to Dr. Hunkin (then chief of staff) and stated that “I have the lowest complication rate among my peers.” On June 30, 2010, Dr. Sherwani wrote to Mr. Sanderson and stated that “I have the lowest complication rate among my peers.” This appears to be the first time anyone raised the issue of Dr. Sherwani’s complication rate or the comparison of his rate to the complication rate of other surgeons. Dr. Fargher did not raise that issue in his letter dated January 15, 2010. Dr. Girotti did not comment on Dr. Sherwani’s complication rate or compare it to other surgeons at the hospital. Indeed, Dr. Girotti appears to have received no data that would allow him to make such a comparison. In late June 2010, only Dr. Sherwani was focussed on his relative complication rate.

[77] The first comment that Dr. Fargher made about Dr. Sherwani’s complication rate is on November 7, 2010, in the memo he wrote for the meeting of the MAC. Dr. Fargher included Dr. Sherwani’s June 2010 correspondence to Mr. Sanderson and Dr. Hunkin in the package that went to the MAC. Dr. Fargher testified that he had not seen these letters before he was assembling the package. He then prepared a memo, dated November 7, 2010, which responded to Dr. Sherwani’s assertions in his correspondence. Dr. Fargher testified that he prepared this memo so that the MAC would have a complete picture of the situation: Dr. Fargher’s January 2010 letter, Dr. Girotti’s report, Dr. Sherwani’s response to Dr. Girotti’s report, and Dr. Fargher’s reply to Dr. Sherwani’s comments. In his memo dated November 7, 2010, Dr. Fargher stated, “I do not believe [Dr. Sherwani] has the lowest complication rate amongst his surgical peers.” This statement is directly responsive to Dr. Sherwani’s claim in his response to Dr. Girotti’s report.

[78] Dr. Fargher’s evidence was that he only became aware of Dr. Sherwani’s claim to the lowest complication rate among the surgeons in November 2010. I accept this evidence, which is consistent with the fact that Dr. Fargher did not raise any issues regarding Dr. Sherwani’s complication rate in his letter dated January 15, 2010, or in any of his case assessment memos in October 2020.

[79] Dr. Fargher testified that he did not have any data that compared Dr. Sherwani’s complication rate to those of the other surgeons at the hospital. I find that this makes it more likely than not that Dr. Fargher would not have commented on Dr. Sherwani’s complication rate before Dr. Sherwani raised the issue. As noted, Dr. Fargher did not become aware of Dr. Sherwani’s claim until he was assembling the MAC package in November 2010. From January to November 2010, Dr. Fargher had many concerns about Dr. Sherwani, but his relative complication rate was not one of them. I find that it is very unlikely that Dr. Fargher would have raised the issue before that time.

[80] Fifth, Dr. Fargher testified that he did not speak about this issue in the doctor’s lounge and that he would not have done so because he was very mindful of his obligations as chief of staff. It would not be consistent with those obligations for him to have behaved as alleged by Dr. Sherwani. This evidence is credible and consistent with Dr. Fargher’s demonstrated commitment to his responsibilities.

[81] Taking all of these factors into account, I accept Dr. Fargher’s evidence that he never criticized Dr. Sherwani’s complication rate in the doctors’ lounge. I do not accept Dr. Sherwani’s uncorroborated evidence on this point. I find that Dr. Sherwani has not proved on the balance of probabilities that Dr. Fargher ever talked about Dr. Sherwani’s complication rate in front of other doctors in their lounge or on any informal or public occasion. I dismiss this aspect of Dr. Sherwani’s defamation claim.

Dr. Fargher’s letter dated January 15, 2010

[82] In his statement of claim, Dr. Sherwani pleads that Dr. Fargher defamed him in his letter dated January 15, 2010. The pleading states:

The comments made in this letter were false and improperly disparaging of the plaintiff with respect to, inter alia, his abilities as a medical general surgeon. These comments were improperly motivated, not out of concern for the safety of patients but as they were made as part of an effort by Dr. Fargher to oust the plaintiff from the [hospital].

As a result of the false and defamatory comments made by Dr. Fargher, both in this letter and in subsequent correspondence and oral communications as hereinafter described, the plaintiff has been greatly injured in his character, credit and reputation in the [hospital], the medical community and the community at large and has suffered great distress, embarrassment, loss of reputation and humiliation.

Dr. Sherwani’s defamation claim is not barred by the Limitations Act

[83] Dr. Fargher submits that Dr. Sherwani commenced his action on November 2, 2012, which was more than two years after he learned of Dr. Fargher’s letter dated January 15, 2010. Dr. Fargher submits that this aspect of the defamation claim is, therefore, barred by the Limitations Act.

[84] In Ontario, most actions, including this one, must be started on or before the second anniversary of the day on which the claim was discovered: Limitations Act, s. 4. Dr. Sherwani issued his statement of claim on November 2, 2012. Working backwards, Dr. Sherwani’s defamation claim is statute barred if he discovered it before November 2, 2010.

[85] Section 5 of the Limitations Act explains when a claim is discovered:

5(1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.

[86] The first step is to assess Dr. Sherwani’s subjective knowledge: when did he know the material facts underlying the claim? Pursuant to s. 5(2), he is presumed to have known of the matters in s. 5(1)(a)(i) to (iv) on January 15, 2010 (the date of Dr. Fargher’s letter), unless he proves otherwise. Unless Dr. Sherwani displaces the statutory presumption, the defamation claim he commenced on November 2, 2012, is statute barred.

[87] I find that Dr. Sherwani has displaced the statutory presumption. There is no evidence that Dr. Fargher sent his letter to Dr. Sherwani on January 15, 2010. All of the evidence suggests that Dr. Fargher did not share his letter with Dr. Sherwani at that time. I find that Dr. Sherwani has displaced the statutory presumption that he learned of the contents of Dr. Fargher’s letter on January 15, 2010.

[88] The next step is to determine when Dr. Sherwani actually received a copy of Dr. Fargher’s letter. I find that Dr. Sherwani received the letter no later than April 27, 2011, when the letter was discussed in Dr. Sherwani’s presence at the meeting of the MAC. If that was the first time that Dr. Sherwani saw the letter, then he commenced his defamation action before the expiration of the limitation period. I must now consider if he received the letter before that date.

[89] Dr. Fargher did not present clear and convincing evidence that anyone delivered Dr. Fargher’s letter to Dr. Sherwani before April 2011. For example, Dr. Fargher did not place in evidence correspondence from the hospital to Dr. Sherwani or his counsel that enclosed a copy of Dr. Fargher’s letter. None of Mr. Sanderson, Dr. Fargher, or Dr. Hunkin testified that they sent the letter to Dr. Sherwani on a certain date.

[90] Instead, Dr. Fargher relied on Dr. Sherwani’s evidence at trial and on his examination for discovery to try and prove when he received the report. Dr. Fargher submits that Dr. Sherwani’s evidence confirmed that he received Dr. Fargher’s letter in June 2010, at or around the time that he received Dr. Girotti’s report. I disagree.

[91] I interpret Dr. Sherwani’s evidence to be that he cannot remember when he first saw Dr. Fargher’s letter. For example, this excerpt of Dr. Sherwani’s cross-examination at trial is representative of his lingering uncertainty regarding when he first saw Dr. Fargher’s letter:

Q. Okay. And so, Doctor – that we can agree, Dr. Sherwani, is Dr. Fargher’s letter of January 15, 2010, right?

A. Yes.

Q. Yes. And so, Dr. Girotti make specific reference to Dr. Fargher’s letter of January 15, 2010 in his report?

A. Yes.

Q. And you reviewing Dr. Girotti’s report in June 2010 would have obtained a copy of Dr. Fargher’s letter as you review and interpret Dr. Girotti’s report, right?

A. I can’t remember. I mean sometimes things are confidential and I really don’t remember. I remember that – it was about 12 or 13 years ago, Dr. Hunkin met me and he told me that we [indiscernible] a review and he gave me a list of [indiscernible] patients so that I can see. So, I went and I pulled the charts and I reviewed them and I met with Dr. Girotti and, Dr. Girotti report said that he met me twice. I don’t remember, but I remember once meeting with him and then the report came up and I looked at the recommendations and agreed to follow through. And there were some concerns which I raised in the letter you have mentioned to me.

Q. Yes. And we’re going to talk about some of that or much of that. But I just want to focus for the moment on this one issue regarding your evidence that you received Dr. Fargher’s letter, January 15, 2010 letter and I just want to give you one more opportunity, sir, to tell us will you agree that at the time that your received Dr. Girotti’s report in June 2010, you also reviewed Dr. Fargher’s letter of January 15, 2010 at that time?

A. I can’t remember.

[92] I find that Dr. Sherwani’s evidence at trial does not prove on a balance of probabilities that he received a copy of Dr. Fargher’s letter at or around the time he received Dr. Girotti’s report.

[93] Counsel for Dr. Fargher then confronted Dr. Sherwani with the answers from his examination for discovery. Dr. Sherwani agreed that the answers that he gave on his examination for discovery were true at the time he gave them and that they remained true. The key question and answer, though, was the following:

Question 200: So, when you received Dr. Girotti’s report which is dated June 22, 2010, you had an opportunity to see the January 15, 2010 letter?

A. That’s correct, yes.

[94] In my view, ‘having the opportunity to see’ Dr. Fargher’s letter is not the same as evidence that Dr. Sherwani actually saw the letter. I do not accept that during his discovery, Dr. Sherwani admitted that he saw Dr. Fargher’s letter in June 2010.

[95] Moreover, Dr. Sherwani did not specifically refer to Dr. Fargher’s letter in either of his responses to Dr. Girotti’s report that he sent to Dr. Hunkin or Mr. Sanderson in June 2010. Given how strongly he objected to its contents, if Dr. Sherwani had received a copy of Dr. Fargher’s highly critical letter around the time he received Dr. Girotti’s report, I would have expected him to refer specifically to it.

[96] I find that Dr. Sherwani did not clearly admit to receiving the letter from Dr. Girotti in June 2010. Dr. Fargher has not provided clear and convincing evidence of when they first sent a copy of Dr. Fargher’s letter to Dr. Sherwani. I find, therefore, that Dr. Sherwani first received a copy of Dr. Fargher’s letter in April 2011.

[97] Dr. Fargher did not make submissions regarding when a reasonable person with the abilities and in the circumstances of Dr. Sherwani first ought to have knowledge sufficient to trigger the running of the limitation period pursuant s. 5(1)(b) of the Limitations Act. I will, therefore, not consider that issue further. I note, however, that merely having the opportunity to review Dr. Fargher’s letter would not, on its own, likely trigger the running of the limitation period under s. 5(1)(b).

[98] I find that Dr. Sherwani commenced his defamation claim before the two-year limitation period expired.

Was Dr. Fargher’s letter defamatory?

[99] In Bent v. Platnick, 2020 SCC 23, 449 D.L.R. (4th) 45, at para. 92, the Supreme Court of Canada held that a defamation claim must meet an initial three-part test:

a. The words complained of were communicated to at least one person other than the plaintiff;

b. The words complained of refer to the plaintiff; and

c. The words complained of would tend to lower the reputation of the plaintiff in the eyes of a reasonable person.

[100] I accept that Dr. Fargher’s letter dated January 15, 2010, meets the initial test for defamation. Dr. Fargher sent the letter to Mr. Sanderson and Dr. Hunkin. The letter names Dr. Sherwani and clearly refers to him. Dr. Fargher chose to use strong and unequivocal language about Dr. Sherwani that would tend to lower Dr. Sherwani’s reputation in the eyes of a reasonable person.

Defence of qualified privilege

[101] Dr. Fargher relies on qualified privilege, which is a defence to a defamation action. Qualified privilege attaches to the occasion when a defamatory statement is made, not to the statement itself. On an occasion of qualified privilege, a person may defame another without liability. The law presumes that the defamatory statement was made honestly and in good faith: RTC Engineering Consultants Ltd. v. Ontario (Ministry of the Solicitor General & Correctional Services-Office of Fire Marshall) (2002), 2002 CanLII 14179 (ON CA), 58 O.R. (3d) 726 (C.A.), at para. 14.

[102] The law provides this defence where the interest to be protected by the statement is important enough to justify a limited immunity from a defamation action. The defence extends only to statements that are germane, reasonably appropriate, made honestly, and in good faith or without malice: RTC Engineering, at paras. 15-18.

[103] The person making the statement must have an interest in making it and the person to whom the statement is made must have some interest in receiving it. In RTC Engineering, at para. 16, Laskin J.A. explained this notion of reciprocity or mutuality of interests as follows:

At the heart of the defence of qualified privilege is the notion of reciprocity or mutuality. A defendant must have some interest in making the statement and those to whom the statement is made must have some interest in receiving it. “Interest”, however, should not be viewed technically or narrowly. The interest sought to be served may be personal, social, business, financial, or legal. The context is important. The nature of the statement, the circumstances under which it was made, and by whom and to whom it was made are all relevant in determining whether the defence of qualified privilege applies.

[104] The defence of qualified privilege is not absolute. The privilege may be lost if the defendant’s dominant motive for making the statement was malice or if the statement is not commensurate with the occasion, either because the statement is not germane and reasonably appropriate to the occasion or because the recipients of the statement have no interest in receiving it: Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130; Douglas v. Tucker, 1951 CanLII 54 (SCC), [1952] 1 S.C.R. 275; RTC Engineering, at para. 18.

[105] Courts have regularly held that when one doctor raises concerns about the competence of another, that is an occasion of qualified privilege: MacArthur v. Meuser (1997), 1997 CanLII 12312 (ON SC), 146 D.L.R. (4th) 125 (Ont. Gen. Div.), at paras. 39-43; Lewis v. Abel, 2007 BCSC 604; Cimolai v. Hall, 2005 BCSC 31; Bainhauer v. Manoukian (1987), 215 N.J. Super. 9, 520 A.2d 1154; see also Shapiro v. Vancouver (City), [1979] B.C.J. No. 577 (S.C.).

[106] I find that Dr. Fargher had a legitimate interest in writing his letter of January 15, 2010. Dr. Fargher was concerned about the health and well-being of patients at the hospital. He had professional duties to provide appropriate patient care and to advise other responsible persons if he became aware of circumstances or conduct that he believed imperiled his ability to provide that care. If Dr. Fargher felt that Dr. Sherwani was not capable of providing services that he was about to undertake, the hospital’s by-laws imposed a duty on him to communicate that information to the chief of staff and to the chief executive officer.

[107] Dr. Nancy Merrow is the chief of staff at Orillia Soldiers’ Memorial Hospital in Orillia, Ontario. She was qualified as an expert to address the process of dealing with physician’s privileges including the application of the Public Hospitals Act to a privileges matter. Dr. Merrow testified that Dr. Fargher raised his concerns in a reasonable manner. She observed that his concerns were serious, that he was not alone in his concerns, that he had a duty to share his concerns, and that the hospital had a duty to investigate fairly these concerns. Her testimony was not challenged on these points and I accept it.

[108] In his letter, Dr. Fargher explained that Dr. Hunkin and Mr. Sanderson asked him to put his concerns about Dr. Sherwani in writing. At the time, Dr. Hunkin was the chief of staff. Under the hospital’s by-laws, he had a duty to supervise the professional care provided by Dr. Sherwani and to ensure the quality of the medical care given to all patients at the hospital. Under the hospital’s by-laws, Dr. Hunkin was required to scrutinize the treatment of any patient at the hospital, if he believed it to be necessary or desirable in the best interest of a patient. Dr. Hunkin testified that he asked Dr. Fargher to put his concerns in writing so that he could do something about them.

[109] As the hospital’s chief executive officer, Mr. Sanderson had the duty to advise Dr. Hunkin and the board of any failure by a physician to act in accordance with statute law, regulations, or the hospital’s by-laws and rules. Mr. Sanderson also had the duty to cooperate with the MAC in the provision of quality care.

[110] I find that Dr. Fargher, who made the statements, and Dr. Hunkin and Mr. Sanderson, who received the statements, each had a symmetrical or reciprocal interest in providing and receiving Dr. Fargher’s concerns about Dr. Sherwani. Dr. Fargher did not publish the views in his letter more broadly than necessary. He did not send the letter to anyone at the hospital who did not have a legitimate interest in receiving this information. Dr. Sherwani has not rebutted the presumption that Dr. Fargher was acting honestly and in good faith.

[111] Malice may be established by an admission by the defendant, or by the drawing of inferences from proven facts, generally facts relating to the defendant’s conduct before and following the publication of the defamatory statement, or the exaggerated terms of the statement itself, or a combination of both: Lewis, at para. 56. I find not only that malice was not Dr. Fargher’s dominant motive, I find that he had no malicious motive whatsoever in writing the letter. I find that Dr. Fargher had no ulterior motive that conflicted with the interest or duty created by the occasion. I find that Dr. Fargher was neither dishonest in his letter nor reckless with the truth. I make these findings for seven reasons.

[112] First, Dr. Fargher testified that he had an honest belief in the truth of his statements, that he did not dislike Dr. Sherwani, and that he never had any personal issues with him. From his perspective, the issues raised in the letter were only about patient management and care, not any personal animosity. Dr. Fargher testified that he had few interactions with Dr. Sherwani outside the professional context. However, to the extent the two men discussed cricket or other non-work topics, the conversations were pleasant and unremarkable. Even though dislike, ill will, and annoyance are not enough to defeat the privilege, I find that Dr. Fargher did not dislike Dr. Sherwani.

[113] Second, Dr. Fargher testified that he spoke to Dr. Sherwani about his concerns and only committed them to writing after those discussions proved fruitless. It was appropriate for Dr. Fargher to raise these concerns directly with Dr. Sherwani before sharing them more broadly. A face-to-face discussion provides a useful, informal opportunity to exchange professional views and to explore opportunities to resolve any concerns. However, those discussions did not resolve Dr. Fargher’s concerns. I accept that Dr. Fargher felt that it was then necessary to escalate this issue to the hospital’s chief executive officer and chief of staff.

[114] Third, there is no evidence that Dr. Fargher acted before he conducted an investigation commensurate with the occasion. He had first-hand information about the issues. In addition, he testified that he reviewed the patient files before preparing his letter. This is not a case where he acted precipitously or took the word of others without investigating the validity of their concerns. As noted above, he gave Dr. Sherwani an opportunity to respond to his concerns before he wrote his letter.

[115] Fourth, I find that Dr. Girotti’s assessment of Dr. Fargher’s concerns and motives support a finding that Dr. Fargher was not motivated by malice. Dr. Girotti, an independent expert reviewer, did not doubt the factual content of Dr. Fargher’s letter. Dr. Girotti described Dr. Fargher as highly credible and that he demonstrated a clear passion for excellence in patient care. Dr. Girotti wrote as follows:

I feel I must comment in particular on the letter from [Dr. Fargher] in light of my interview with this individual. The letter was at least 6 pages in length documenting details of case management wherein this individual felt Dr. Sherwani had not responded appropriately in certain clinical situations. This involved areas of Dr. Sherwani's communication skills, his basic science knowledge and instances of his poor clinical judgment. This specialist stood by his letter and its contents when I discussed it with him and reviewed some of its specific details. I found this physician to be highly credible with a clear passion for excellence in patient care. I have no reason to doubt the factual content of this letter as it relates to Dr. Sherwani. [emphasis added]

[116] Fifth, Dr. Muir found that Dr. Fargher’s concerns were “largely substantiated” both by Dr. Girotti’s review and his own. Dr. Muir, an expert independent reviewer, commented that Dr. Fargher’s concerns were not simply interpersonal conflicts and that the trust of Dr. Fargher (and others) in Dr. Sherwani had been seriously shaken. Dr. Muir’s findings support a conclusion that Dr. Fargher’s dominant motive was not malice:

It takes a very serious incident, or series of incidents, to compel most health care professionals to submit written documentation of their concerns. In doing so, there is a risk related to their own credentialing. However, their concerns have been, in large part, substantiated by two independent reviewers. I do not believe these issues can be construed as interpersonal conflict(s). The CPSO notes in the “Principles of Practice and Duties of Physicians” the need to “work respectfully and collaboratively with other members of the health care team to maximize the quality of patents’ care”. Although it was not specifically referenced, this theme is likely echoed in [the hospital’s] internal policies. The question arises whether any of these cases might be potentially subject to review internally and to have constituted an actionable breach of such policies. The CPSO document also stresses the need to recognize and accept the unique roles and skills of other health care professionals, Effective communication is integral to achieving and maintaining that trust and unfortunately, the trust in Dr. Sherwani appears to have been seriously shaken.

[117] Sixth, in November 2010, the hospital’s MAC voted unanimously to bring the hospital’s concerns about Dr. Sherwani to the attention of the Registrar of the CPSO. This decision was based, in part, on Dr. Girotti’s report and Dr. Fargher’s letter dated January 15, 2010. The MAC is a broad-based group with a wide range of medical experiences. Dr. Fargher testified that it acted as an executive committee of the physicians and surgeons at the hospital. They had access to information including underlying patient records. Their unanimous view that it was necessary to report the concerns identified by Dr. Fargher and confirmed by Dr. Girotti to the CPSO is strong evidence that Dr. Fargher was not dishonest, reckless, or malicious in his letter.

[118] Seventh, Dr. Sherwani presented no evidence that Dr. Fargher acted with malice or improper purpose. It is clear that Dr. Sherwani disagreed vehemently with Dr. Fargher’s assessment of his surgical skills and patient management. Dr. Sherwani also challenged whether or not Dr. Fargher was competent to assess his practice because Dr. Fargher was not a surgeon. He did not, however, lead any evidence of Dr. Fargher’s malice, or an improper or collateral purpose.

[119] In his closing submissions, Dr. Sherwani alleged that Dr. Fargher’s actions were motivated by racism and to maximize his own (and the hospital’s) income. Dr. Sherwani candidly admitted that he did not raise these allegations in his statement of claim, that he did not testify in support of these allegations, and that he did not cross-examine Dr. Fargher or any other witness about them. These very serious allegations are wholly unsupported by the evidence. I reject them.

[120] Finally, I find that Dr. Fargher’s letter dated January 15, 2010, was germane and reasonably appropriate for the occasion. Indeed, every single issue raised by Dr. Fargher was a clinical concern. Dr. Fargher raised no extraneous issues. The recipients of the statement had an interest in receiving each and every one of Dr. Fargher’s concerns.

[121] In conclusion, I find that Dr. Fargher has made out the defence of qualified privilege. Dr. Fargher’s letter dated January 15, 2010, was made on an occasion of qualified privilege. His statements were germane, appropriate, made honestly, in good faith, and without malice. I dismiss Dr. Sherwani’s defamation claim in respect of that letter.

Justification

[122] The defendant also relied on the defence of justification, which is a complete defence. If the facts comprising the defamatory statements are true, then a plaintiff cannot succeed: Health Genetic Center Corp. o/a Health Genetics Center v. New Scientist Magazine, 2018 ONSC 7224, 54 C.C.L.T. (4th) 267, at paras. 50-53.

[123] Dr. Sherwani did not specify which of the statements in Dr. Fargher’s six-page letter he relied on as defamatory. If each statement is at issue, it would take enormous effort to evaluate whether or not the facts comprising the entire letter are true. Since I have already found that Dr. Fargher’s letter was written on an occasion of qualified privilege, I find that it is unnecessary to address the defence of justification.

Damages for defamation

[124] Had I found in favour of Dr. Sherwani, I would have only awarded nominal damages. Dr. Sherwani has not suffered damages from the allegedly defamatory statements that are separate or in addition to the discomfort he has experienced through the review process conducted by Dr. Girotti, Dr. Muir, the MAC, and the CPSO: MacArthur, at para. 44.

The court has jurisdiction to consider Dr. Sherwani’s misfeasance in public office claim

[125] The defendants submit that Dr. Sherwani’s claim of misfeasance in public office essentially raises a dispute about his hospital privileges. They submit that the Public Hospitals Act is a comprehensive code for governing the determination of privileges for members of a hospital’s professional staff. Because Dr. Sherwani did not exercise his right to a hearing before the board, his right to appeal any board decision to the HPARB, or to appeal a decision of HPARB to the Divisional Court, the defendants submit that “the court has no jurisdiction to consider Dr. Sherwani’s claim of misfeasance in public office.” In support of this submission, the defendants point to the following features of the Public Hospitals Act.

[126] Section 36 of the Public Hospitals Act provides hospital boards the power to grant privileges to physicians and to revoke, suspend or refuse to re-appoint a physician to its medical staff. Such decisions are typically made upon the recommendation of a MAC: s. 7(2)(a)(iv) of Regulation 965 to the Public Hospitals Act: Hospital Management, R.R.O. 1990, Reg. 965. Section 37 of the Public Hospitals Act states that every physician is entitled to apply for a one-year appointment or a reappointment to any group of the medical staff of a hospital.

[127] The hospital’s by-laws are consistent with the Public Hospitals Act. The MAC may make a recommendation to the board regarding the mid-term suspension or revocation of a physician’s privileges. The physician is entitled to be heard at such a meeting, and to receive written reasons for the MAC’s recommendation upon request. The hospital’s by-laws provide that the board may then suspend or revoke the privileges of a physician. The physician has the right to a hearing at the board in advance of the board’s decision on the MAC recommendation.

[128] Section 41 of the Public Hospitals Act creates a statutory right of appeal from the decision of the board to HPARB, designates the parties to and the procedure for the appeal, and sets out the powers of the HPARB. The hearing is held de novo: Rosenhek v. Windsor Regional Hospital, 2010 ONCA 13, 257 O.A.C. 283, at para. 2. The relevant portions of s. 41 read as follows:

41(1) 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 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 [HPARB] if a written request is received by the [HPARB] 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.

(2) Section 39 applies to a hearing before [HPARB] in the same manner as if the party or member were an applicant entitled to a hearing before a board under section 37.

(3) The board and person mentioned in subsection (1) and such other persons as [HPARB] may specify are parties to proceedings before [HPARB] under this section.

(4) Oral evidence taken before [HPARB] 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.

(5) After a hearing, [HPARB] 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 [HPARB] 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.

[129] Pursuant to s. 39, a physician’s privileges are extended pending the release of HPARB’s decision.

[130] Section 43 of the Public Hospitals Act provides that any party to proceedings before HPARB may appeal from its decision to the Divisional Court.

[131] The defendants submit that the court does not have jurisdiction to consider Dr. Sherwani’s claim of misfeasance in public office because he failed to exhaust this statutory scheme. The defendants rely on the decision of Morawetz J. (as he then was) in Beiko v. Hotel Dieu Hospital St. Catharines, 2007 CanLII 1912 (Ont. S.C.) (“Beiko (ONSC)”), aff’d 2007 ONCA 860 (“Beiko (ONCA)”).

[132] In Beiko (ONSC), the hospital made a decision under its by-laws about allocation of time in the operating room, which substantially altered the privileges of members of the medical staff. The affected physicians tried unsuccessfully to use the review mechanism established under the hospital’s by-laws to reverse that decision. The physicians initiated a hearing before the HPARB, but then did not proceed with that hearing and, instead, commenced a lawsuit. Justice Morawetz held that the physicians were bound by the determinations relating to privilege matters made under the hospital bylaw’s dispute resolution mechanism subject only to their right to a hearing before the HPARB under the Public Hospitals Act. Having abandoned their appeal to the HPARB, the physicians could not proceed with their loss of income claim. Justice Morawetz held:

[53] It seems to me that in establishing such a comprehensive code to deal with issues of privilege, it is not open for this Court to usurp the statutory regime by conducting a hearing independent from the process as set out in the Act. This Court lacks the jurisdiction to do so. In my view, parties do not have access to the Court to determine issues of privilege in the absence of following the statutory route.

[54] The bringing of an action for damages is not inconsistent with determining a privilege issue in accordance with the statutory process. However, it is incumbent upon any party who wishes to bring an action for damages, arising out of a privilege issue, to first proceed by way of the statutory route to establish the basis for sustaining the claim in damages. There may very well be situations in which an applicant, by following the statutory process, will succeed in establishing the basis for a remedy in damages. But it is only after establishing the basis through the statutory process that it is open for the applicant to then bring an action for damages in the ordinary courts. To permit applicants to commence actions for damages on a privilege issue without following the statutory process would result in a system whereby a dissatisfied party would be able to bypass the specialized tribunal, a result that, in my view, is not permitted under the Act.

[55] In the circumstances of this case, the allocation of OR time is a matter of privilege which was determined under the regime set out in the Act. This Court can determine claims for damages arising out of this privilege issue, but such determination has to take into account that the issues relating to privilege have been determined.

[56] The plaintiff has brought this action in respect of breach of contract and negligent misrepresentation, which can, theoretically result in a claim for damages. However, in its current form, the Statement of Claim does not qualify as a proper pleading as against the Hospital. It must be substantially revised to take into account that all matters relating to the issue of privilege have been determined, in a final sense, under the Act. In the result, the plaintiffs’ claim for damages for loss of income cannot be sustained.

[133] The Court of Appeal upheld the decision of the judge in a brief endorsement. At para. 4, the Court of Appeal held:

The motion judge reviewed the [Public Hospitals Act] in detail and concluded that the legislature had established “a comprehensive code under which the hospital determines privileges for a member of staff.” He then found, again following a careful review of the record, that “[i]n the circumstances of this case, the allocation of OR time is a matter of privilege which was determined under the regime set out in the Act.” In our view, these conclusions are unassailable and fit comfortably within the analytical framework set out in Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] 2 S.C.R. 929 (S.C.C.). The appellants’ complaint is about their access to the respondents’ operating rooms. The essence of this complaint is about an alteration in the crucial professional privilege the appellants enjoy at the hospital. As such, their complaint is amenable to the statutory review and appeal regime established by the [Public Hospitals Act].

[134] The breadth of the holding in Beiko (ONCA) was narrowed somewhat in the subsequent decision of the Court of Appeal for Ontario in Kadiri v. Southlake Regional Health Centre, 2015 ONCA 847, 343 O.A.C. 186 (“Kadiri (ONCA)”). In that case, Southlake commenced an investigation into an April 11, 2008, incident involving Dr. Kadiri. From April 28, 2008, to December 2010, Dr. Kadiri was on reduced duties. In January 2011, Dr. Kadiri returned to full practice at Southlake. On April 6, 2012, he commenced an action for loss of income and other damages as a result of the events between the date of the incident and his return to full practice.

[135] The defendants brought a motion for summary judgment seeking to dismiss the action on several grounds, including that the court had no jurisdiction over the subject-matter of the action because Dr. Kadiri had not followed the process under s. 41 of the Public Hospitals Act for challenging a privileges dispute. They submitted that the Public Hospitals Act regime required Dr. Kadiri to bring a proceeding to HPARB before starting a lawsuit. Alternatively, the defendants sought a stay of Dr. Kadiri’s action until HPARB considered and determined his claims. The motion judge dismissed the defendants’ motion: Kadiri v. Southlake Regional Health Centre, 2015 ONSC 621 (“Kadiri (ONSC)”).

[136] The defendants appealed the decision to the Court of Appeal for Ontario, which dismissed the appeal. Justice Brown noted that the parties agreed that neither the Southlake Board nor its MAC ever made a decision that cancelled, suspended or substantially altered Dr. Kadiri’s privileges. Instead, Dr. Kadiri and Southlake agreed that Dr. Kadiri would undergo assessments and re-training to the satisfaction of Southlake before resuming full practice. Although Dr. Kadiri raised many concerns about the fairness of the process, he completed the assessment and re-training process and returned to full practice at Southlake in January 2011. By the time Dr. Kadiri started his lawsuit in April 2012, he had been back at work for over a year, and there was no decision in place that cancelled, suspended, or substantially altered his hospital privileges. The Court of Appeal upheld the motion judge’s decision to allow Dr. Kadiri’s claim to proceed for three reasons.

[137] First, the court held there was ample evidence to support the motion judge’s finding that Dr. Kadiri had followed through the Southlake dispute resolution process, albeit that the parties worked out an informal resolution process. At para. 55, Brown J.A. held that the “principle in Beiko – which required Dr. Kadiri to go through and exhaust the [Public Hospitals Act] process prior to commencing an action in court – was satisfied, with the result that the court has jurisdiction over his action.”

[138] Second, the court accepted that the decision of the motion judge “accorded with the reality” that by the time Dr. Kadiri started his lawsuit, he was back at Southlake enjoying full privileges. In these circumstances, the court held at para. 57 that there was nothing more HPARB could do:

It is very difficult to see what action the HPARB could have taken, or opinion it could have expressed, in April 2012 relating to any cancellation, suspension or substantial alteration of Dr. Kadiri’s hospital privileges because at that time he enjoyed full privileges. In April 2012 there were no privileges of Dr. Kadiri to restore.

[139] Third, the court rejected that Beiko (ONCA) stands for the proposition that an appeal to HPARB was a condition precedent to bringing an action in court. At para. 59, the court held that:

In my view, the Beiko decision does not stand for such a proposition. Whether a physician has followed through with the statutory privileges dispute-resolution process under a hospital’s bylaws and the PHA will turn on the specific facts of each case. Depending on the specific circumstances of a case, proceeding to a hearing before the HPARB may or may not be required of the physician.

[140] The court held that Dr. Kadiri was not required to proceed to a hearing at HPARB because the parties had resolved their dispute and, at the time Dr. Kadiri commenced his lawsuit, he had returned to full practice. On that basis the court distinguished the Beiko (ONCA) decision. The court also noted that neither of HPARB’s home statutes contained a provision granting HPARB the exclusive jurisdiction to hear all matters touching on privileges, including a claim for compensation by a physician who has been restored to full privileges.

[141] In light of Kadiri (ONCA), I have some difficulty with the defendants’ submission that the court does not have jurisdiction to hear Dr. Sherwani’s allegations of misfeasance in public office because the dispute arises out of Dr. Sherwani’s privileges at the hospital.

[142] The Superior Court of Justice is a court of inherent jurisdiction. Any derogation from its jurisdiction requires clear and explicit statutory language: Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3 S.C.R. 585, at para. 42; United States of America v. Khadr, 2011 ONCA 358, 106 O.R. (3d) 449, at para. 50. Jurisdiction is the collection of attributes that enable a court to issue an enforceable order or judgment: TeleZone, at para. 44. A court has jurisdiction if its authority extends to “the person and the subject matter in question and, in addition, has authority to make the order sought”: TeleZone, at para. 44, citing Mills v. The Queen, 1986 CanLII 17 (SCC), [1986] 1 S.C.R. 863, per McIntyre J., at p. 960, quoting Brooke J.A. in R. v. Morgentaler (1984), 1984 CanLII 55 (ON CA), 41 C.R. (3d) 262 (Ont. C.A.), at p. 271, and per Lamer J. (as he then was), dissenting, at p. 890; R. v. Rahey, 1987 CanLII 52 (SCC), [1987] 1 S.C.R. 588, at p. 603; R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575, at para. 15; R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765.

[143] The Legislature can oust the Superior Court's jurisdiction in favour of an administrative tribunal where a statutory scheme provides an administrative tribunal with exclusive jurisdiction over a particular subject-matter or the subject-matter of the dispute is expressly or inferentially governed by the statutory scheme: Muirhead v. York Regional Police Services Board, 2014 ONSC 6817, 16 C.C.L.T. (4th) 136, at para. 59; TeleZone, at paras. 42-45; Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] 2 S.C.R. 929, at paras. 43 and 44; Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, 2000 SCC 14, [2000] 1 S.C.R. 360, at para. 35.

[144] When the Legislature wishes to remove the jurisdiction of the Superior Court, it uses clear and unequivocal language. To take one well-known example, s. 114(1) of the Ontario Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A, grants exclusive jurisdiction over matters of labour relations to the Ontario Labour Relations Board:

114 (1) The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nevertheless the Board may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling.

[145] The HPARB is created by the Ministry of Health and Long-Term Care Appeal and Review Boards Act, 1998, S.O. 1998, c. 18, Sched. H. Its duties are “to conduct the hearings and reviews and to perform the duties that are assigned to it under the… Public Hospitals Act or under any other Act.” As the Court of Appeal noted in Kadiri (ONCA), there is no statutory indication that the jurisdiction of the HPARB is exclusive or that it can award damages. I accept that the Public Hospitals Act is a complete code with respect to granting and revoking privileges, but I do not see clear and unequivocal language in the Public Hospitals Act or the Ministry of Health and Long-Term Care Appeal and Review Boards Act, 1998, that removes the inherent jurisdiction of the Superior Court of Justice to hear Dr. Sherwani’s claim just because it emerges from a dispute about his privileges.

[146] In my view, to determine whether or not the court has jurisdiction over Dr. Sherwani’s claim, it is helpful to focus on the remedy sought: Jaffer v. York University, 2010 ONCA 654, 268 O.A.C. 338, at para. 26; Gauthier c. Saint-Germain, 2010 ONCA 309, 325 D.L.R. (4th) 558, para. 46.

[147] In Jaffer, York University admitted Mr. Jaffer to its first-year program. Mr. Jaffer and the university discussed the academic accommodations he would require as a result of a recognized disability, but they did not agree on an accommodation plan. A dispute arose over whether or not Mr. Jaffer would receive deferred status in all of his courses while the parties attempted to resolve the accommodation plan. York University decided that granting Mr. Jaffer deferred standing in all courses was not appropriate and assigned him the academic status of “failed to gain standing, no credit retained,” which meant that Mr. Jaffer was not eligible to continue his studies.

[148] Mr. Jaffer sued the university for breach of contract, negligence, negligent misrepresentation, a breach of the duty of good faith, and the failure to accommodate his disabilities. York University successfully moved to strike out the claim on the basis that the court had no jurisdiction over the matter because the complaint was academic in nature and because it should be dealt with at the Ontario Human Rights Tribunal as a complaint under the Ontario Human Rights Code, R.S.O. 1990, c. H.19. Mr. Jaffer appealed the decision to the Court of Appeal for Ontario.

[149] On appeal, York University submitted that the motion judge correctly decided that the Superior Court of Justice lacked jurisdiction over the claim because even if Mr. Jaffer framed the dispute in contract or tort, its essential character was an academic matter as it arose out of academic decisions and procedures of the university. Therefore, it was beyond the jurisdiction of the court. The university pointed to its detailed and elaborate internal process for making and appealing academic decisions. York University agreed that a student has a right of judicial review with respect to procedural matters, but the court had no jurisdiction to interfere with a university's decisions or judgments relating to academic matters in an action for damages. The Court of Appeal disagreed.

[150] The Court of Appeal started from the proposition that the Superior Court of Justice is a court of inherent jurisdiction and that its jurisdiction is therefore limited only by express language in a statute or contractual provision. The Court of Appeal rejected the proposition that the court lacked jurisdiction solely because a breach of contract or negligence claim arises out of a dispute of an academic nature. If a plaintiff properly pleads the elements of a claim for breach of contract or negligence, the Superior Court will have jurisdiction over a claim even if the dispute is academic in nature and arises out of the academic activities of a university: Jaffer, at para. 21.

[151] The Court of Appeal looked to the remedy sought to determine whether or not the court had jurisdiction. Judicial review was the proper procedure for a student seeking to reverse an internal academic decision. However, if a student pleads a cause of action in tort or contract and claims damages, then the court will have jurisdiction even if the dispute arises out of an academic matter: Jaffer, at para. 26; Gauthier, at para 46. The court may still strike a claim under rule 21.01(1) where the claim is untenable. For example, if “an action is simply an indirect attempt to appeal an academic decision and the appropriate remedy would be judicial review, or if the pleadings do not disclose details necessary to establish that the university’s actions go beyond the broad discretion that it enjoys,” then it is appropriate to strike out the action: Jaffer, at para. 28; Gauthier, at para. 50.

[152] The Court of Appeal held that the Superior Court of Justice has jurisdiction over a properly pleaded breach of contract and tort claim, even if the issues raised related to the academic function of a university:

The Superior Court's jurisdiction over the action in this case is thus not ousted by the raising of issues relating to the university's academic function. As in Gauthier, the action is not simply an indirect attempt at judicial review, as the appellant does not seek to reverse decisions with respect to his grades or compel the university to readmit him. His claim is that the university owed him various obligations in both contract and in tort, and that its failure to meet those obligations has caused him pecuniary and non-pecuniary damages. Such claims fall within the jurisdiction of the Superior Court and may proceed if they are properly pleaded and tenable in law and disclose a reasonable cause of action. (Jaffer, at para. 29)

[153] The Court of Appeal commented that the “real issue” was not whether or not the dispute was academic in nature, but rather whether the pleadings supported a cause of action in either contract or tort: Jaffer, at para 31. The Court of Appeal held that there is no free-standing duty of care to provide accommodation that can ground a claim in negligence, so the motion judge was, therefore, correct that whether or not the university failed to comply with its duty to accommodate under the Code was a matter for the OHRC. The Court of Appeal noted that a breach of the Code is relevant to a cause of action that is otherwise based upon breach of contract or negligent misrepresentation. The Court of Appeal allowed the appeal in part and struck Mr. Jaffer’s pleadings but with leave to amend the statement of claim to permit him to attempt to plead the elements of both breach of contract and negligent misrepresentation: Jaffer, at paras. 40, 41, 51, and 58.

[154] In my view, the Court of Appeal’s analysis in Jaffer is a useful tool to assess whether or not the Superior Court of Justice has jurisdiction over an action commenced by a physician against a hospital that arises out of the hospital’s decisions regarding the physician’s privileges.

[155] If a physician pleads that the hospital, its board members, employees or members of its medical staff owe her obligations in contract or tort and that their failure to meet those obligations has caused her pecuniary and non-pecuniary losses, the court will have jurisdiction over those claims even if they arise out of a dispute over privileges. I do not see any provisions of the Public Hospitals Act that deprives the Superior Court of Justice over such a claim, even if it arises out of a privileges dispute. The physician will need to plead the elements of a viable private cause of action and will have to prove something more and other than that a hospital board made an incorrect decision with respect to her privileges.

[156] If the physician seeks a remedy related to her or his privileges, she must proceed through the hospital board and then exercise her statutory rights of appeal to HPARB and the Divisional Court. This would include cases where the physician seeks a restoration of her privileges, conferral of privileges, expansion of her privileges, the removal of restrictions on privileges, or increased access to hospital resources to give effect to her privileges. It does not matter which legal label the physician attaches to her complaint (contract, negligence, intentional tort). If the remedy the physician seeks is an adjustment to the privileges as granted (or refused) by the hospital, the court does not have jurisdiction to grant that relief in an action. The Public Hospitals Act provides that such relief is only available by way of the statutory appeal to HPARB and then to the Divisional Court.

[157] However, where a physician is content to let the hospital’s privileges decision, or the existing status of the plaintiff’s privileges remain in place and instead seek monetary damages for a properly pleaded private law cause of action, I see no statutory basis or principled reason why the plaintiff should be compelled to go first to HPARB when the Superior Court of Justice has jurisdiction over her claim: TeleZone, at para. 19; Kadiri (ONCA), at para. 59.

[158] I think this approach is consistent with the Court of Appeal’s decision in Kadiri (ONCA) and the general law governing the jurisdiction of the Superior Court of Justice.

Application

[159] I would apply these principles to this case as follows.

[160] First, in his closing submissions, Dr. Sherwani stated that “I wish to resume my practice.” Read liberally and generously, this is a request that the court order a restoration of his privileges. I find that the court does not have jurisdiction to grant that relief in this action. A remedy related to his privileges is only available through the hospital board, with statutory appeals to HPARB and the Divisional Court. Even if Dr. Sherwani established one of the torts pleaded, I do not have jurisdiction to grant him a remedy related to his privileges. I, therefore, dismiss Dr. Sherwani’s request for that relief.

[161] Second, Dr. Sherwani seeks damages for misfeasance in public office. In my view, I have jurisdiction to consider this claim because nothing in the Public Hospitals Act assigns exclusive jurisdiction over such a claim to HPARB. He has pleaded that the defendants breached duties owed to him and caused him pecuniary and non-pecuniary losses.

[162] Even on a narrow reading of Kadiri (ONCA), I would find that Dr. Sherwani may advance this claim in an action. Dr. Kadiri was permitted to bring his action because at the time he commenced the action, he had been restored to full privileges and, therefore, there was nothing more HPARB could do. In my view, Dr. Sherwani is in the same position. For the reasons set out below, I find that he resigned his privileges at the hospital. In any event, his privileges lapsed by operation of the Public Hospitals Act and the hospital by-laws on January 1, 2012. Because Dr. Sherwani did not follow through on his hearing at the board or HPARB, his privileges were not extended by operation of ss. 39(2) and 41(2) of the Public Hospitals Act. Having resigned his privileges, it is difficult to see what action the HPARB could have taken, or opinion it could have expressed. He had no privileges at the time he commenced his claim. He seeks damages for harm allegedly caused to him by the defendants through a properly pleaded private law cause of action. The Superior Court of Justice has jurisdiction over that type of claim.

[163] For these reasons, I find I have jurisdiction to consider Dr. Sherwani’s claim for misfeasance in public office.

Misfeasance in Public Office

[164] The plaintiff pleads that Dr. Fargher, Mr. Sanderson, and the hospital are liable to him for the tort of misfeasance in public office. In particular, Dr. Sherwani pleads that:

a. In November 2010, Dr. Fargher and Mr. Sanderson threatened Dr. Sherwani by stating that if he did not voluntarily withdraw from exercising privileges at the hospital, they would ensure that his privileges would be revoked. As a result of this bad faith threat, Dr. Sherwani had no choice but to agree and voluntarily withdraw from exercising privileges pending the review of Dr. Muir.

b. Dr. Fargher and Mr. Sanderson never intended to rely on the results of Dr. Muir’s review and were simply looking for an excuse to revoke Dr. Sherwani’s privileges. They, improperly and in breach of their duties, disregarded the recommendations of both Dr. Muir and Dr. Girotti.

c. Dr. Fargher and Mr. Sanderson coerced the MAC to recommend the revocation of Dr. Sherwani’s privileges. They did so out of malice, for the improper motive of ousting Dr. Sherwani from the hospital, without appropriate reasons, and not because of good faith concerns about Dr. Sherwani’s medical practice.

d. Dr. Fargher and Mr. Sanderson failed to provide procedural fairness to Dr. Sherwani, which is further evidence of their bad faith in the process leading to the revocation of Dr. Sherwani’s privileges.

e. As a result of their misfeasance in public office, Dr. Sherwani lost his privileges and as suffered a significant loss of income

The tort of misfeasance in public office

[165] To establish misfeasance in public office, Dr. Sherwani must prove that a public official engaged in deliberate and unlawful conduct in his or her capacity as a public official and that the official was aware that the conduct was unlawful and likely to harm Dr. Sherwani: Ontario (Attorney General) v. Clark, 2021 SCC 18, 456 D.L.R. (4th) 361, at para. 22; Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263, at para 23. In Freeman-Maloy v. York University (2006), 2006 CanLII 9693 (ON CA), 79 O.R. (3d) 401 (C.A.), at para. 10, the Court of Appeal for Ontario described the purpose of the tort as follows:

The tort of misfeasance in a public office is founded on the fundamental rule of law principle that those who hold public office and exercise public functions are subject to the law and must not abuse their powers to the detriment of the ordinary citizen. As Lord Steyn put it in Three Rivers District Council v. Bank of England (No. 3), [2000] 2 W.L.R. 1220 (U.K. H.L.), at 1230: “The rationale of the tort is that in a legal system based on the rule of law executive or administrative power ‘may be exercised only for the public good’ and not for ulterior and improper purposes”. The “underlying purpose” of the tort of misfeasance in a public office “is to protect each citizen's reasonable expectation that a public officer will not intentionally injure a member of the public through deliberate and unlawful conduct in the exercise of public functions”

[166] As summarized by the Court of Appeal for Ontario in Meekis v. Ontario, 2021 ONCA 534, 158 O.R. (3d) 1, at para. 73, to succeed, Dr. Sherwani must prove all of the following elements of the tort of misfeasance in public office:

a. the defendants were each a public official exercising public functions at the relevant time;

b. the public official deliberately engaged in an unlawful act in their public capacity, which is typically established by proving any of

i. an act in excess of the public official’s powers,

ii. an exercise of a power for an improper purpose, or

iii. a breach of a statutory duty (the “unlawful act element”);

c. the public official was aware both that their conduct was unlawful and that it was likely to harm Dr. Sherwani, which, may be established through actual knowledge, subjective recklessness, or “conscious disregard” for the lawfulness of the conduct and the consequences to Dr. Sherwani (the “knowledge element”);

d. the public official’s tortious conduct was the legal cause of the plaintiff’s injuries; and

e. the injuries suffered are compensable in tort law.

[167] In Odhavji Estate v. Woodhouse, at paras. 22-23, The Supreme Court of Canada explained that the tort of misfeasance in public office can arise in either or two ways:

a. through conduct that is specifically intended to injure the plaintiff, sometimes called “targeted malice” (Category A); and

b. where a public official acts with knowledge both that he has no power to do the act complained of and that the act is likely to injure the plaintiff (Category B).

[168] In Foschia v. Conseil des Écoles Catholique de Langue Française du Centre-Est, 2009 ONCA 499, 266 O.A.C. 17, at para. 24, The Court of Appeal for Ontario elaborated on the differences between Category A and Category B claims of misfeasance in public office:

While the constituent elements of the tort do not change depending on the category of misfeasance alleged, the way those elements are proven does. If the plaintiff proves that the public official was acting for the improper purpose of deliberately causing harm to the plaintiff, this will be sufficient to prove both the [unlawful act] and [knowledge] elements of the tort. If, on the other hand, the plaintiff is alleging misfeasance in the form of Category B, then it is necessary to individually prove both the [unlawful act] and [knowledge] elements. In proving the [knowledge] element, it is sufficient for the plaintiff to show that the public official acted with reckless indifference to both the unlawfulness of his or her act and the likelihood that it would injure the plaintiff.

[169] In Clark, at para. 23, the Supreme Court affirmed the broad scope or ambit of the tort and that subjective awareness can be established by proving either subjective recklessness or a conscious disregard for the lawfulness of the conduct and its harmful consequences:

The unlawful conduct anchoring a misfeasance claim typically falls into one of three categories, namely an act in excess of the public official's powers, an exercise of a power for an improper purpose, or a breach of a statutory duty (Odhavji, at para. 24). The minimum requirement of subjective awareness has been described as "subjective recklessness" or "conscious disregard" for the lawfulness of the conduct and the consequences to the plaintiff (Odhavji, at paras. 25 and 29; Powder Mountain Resorts Ltd. v. British Columbia (2001), 2001 BCCA 619, 94 B.C.L.R. (3d) 14(C.A.), at para. 7; Three Rivers District Council v. Bank of England (No. 3) (2000), [2003] 2 A.C. 1(H.L.), at pp. 194-95, per Lord Steyn).

Dr. Fargher and Mr. Sanderson were public officials

[170] I am prepared to assume that Dr. Fargher and Mr. Sanderson are public office holders for the purposes of the tort of misfeasance in public office.

[171] In Rosenhek, the Court of Appeal for Ontario upheld a finding that the board of the Windsor Regional Hospital committed the tort of misfeasance in public office when it revoked Dr. Rosenhek’s privileges. The Court of Appeal noted that the Chief of Medicine at the Windsor Regional Hospital was “very much at the forefront of those who denied Dr. Rosenhek access to a coverage group.” The trial judge found that the Windsor Regional Hospital’s “predominant purpose” in revoking Dr. Rosenhek’s privileges was to “resolve a perceived problem among specialists” and that its board acted in bad faith. At paras. 35-36, the Court of Appeal concluded:

In summary, there was ample evidence before the trial judge to support his finding that the Board acted in bad faith. That finding stands.

The Board, in bad faith, exercised its decision-making function for an ulterior purpose and not for the public good, in circumstances where it had to know that its conduct would likely injure the plaintiff. We are satisfied that the tort of misfeasance in a public office was made out: see Odhavji Estate, at paras. 26-32; Three Rivers District Council v. Bank of England (No. 3), [2000] 2 W.L.R. 1220 (H.L.), at p. 1230. We would not disturb the trial judge’s finding that the Hospital is liable to Dr. Rosenhek.

[172] If a hospital board comprises public office holders capable of committing the tort of misfeasance in public office, then I am prepared to assume a hospital’s chief executive officer and the chief of staff are also public office holders capable of committing the tort.

Mr. Sanderson did not commit an unlawful act

[173] Dr. Sherwani did not prove that Mr. Sanderson deliberately engaged in an unlawful act in his public capacity. He did not prove that Mr. Sanderson committed an act in excess of his powers, exercised his power for an improper purpose, or breached a statutory duty. Dr. Sherwani called virtually no evidence about Mr. Sanderson at all. Dr. Sherwani testified or elicited on cross-examination that:

a. He came to the hospital on the personal request of Mr. Sanderson (which Mr. Sanderson denied);

b. Mr. Sanderson received reports from Dr. Fargher in January and October 2010, regarding Dr. Fargher’s concerns about Dr. Sherwani’s treatment of patients;

c. Mr. Sanderson did not refer Dr. Fargher’s October 2010 concerns to Dr. Hunt, the chief of surgery, because Mr. Sanderson believed it was Dr. Fargher’s role as chief of the medical staff to review all matters of a clinical nature;

d. Mr. Sanderson received correspondence from Dr. Sherwani in response to Dr. Girotti’s letter;

e. On May 9, 2011, Mr. Sanderson co-authored (with Dr. Fargher) the letter that provided Dr. Sherwani with the reasons for MAC’s recommendation to revoke Dr. Sherwani’s privileges;

f. Mr. Sanderson signed the letter of reference the hospital agreed to provide to Dr. Sherwani as part of the agreement that would see Dr. Sherwani resign his privileges at the hospital effective December 31, 2011.

[174] None of these acts are unlawful or would support a finding of misfeasance in public office against Mr. Sanderson.

[175] Dr. Sherwani alleged, but provided no evidence, that Mr. Sanderson Dr. Fargher, Dr. Muir, and counsel for the hospital, “created” Dr. Muir’s report. Dr. Sherwani did not cross-examine Mr. Sanderson on this issue. Dr. Muir testified that he wrote his report without any assistance, interference, or direction about his conclusions and recommendations. Dr. Muir testified that he did not receive a copy of Dr. Fargher’s comments on his report. I find as a fact that no one at the hospital had any involvement in the drafting of Dr. Muir’s report, his findings, or his recommendations.

[176] In his closing submissions, Dr. Sherwani stated that “Dr. Terrance Fargher and Mr. Donald Sanderson decision to suspend me on Nov. 5 [2010] was unlawful based upon LIE, HATE, BIAS and Racism.” (capitalization as in original). Dr. Sherwani did not cross-examine Mr. Sanderson on the question of whether or not he decided to suspend Dr. Sherwani in November 2010, or why he did so.

[177] First, I do not accept Dr. Sherwani’s submission that he was suspended. I find as a fact that no one at the hospital suspended Dr. Sherwani in November 2010. The evidence on this issue is clear. On November 2, 2010, counsel for the hospital wrote to counsel for Dr. Sherwani and provided Dr. Fargher’s three memos to Mr. Sanderson. Counsel for the hospital indicated that the hospital needed to address Dr. Sherwani’s privileges at the hospital either through an informal and voluntary basis or by reference to the MAC. Counsel for the hospital then indicated that, to ensure patient safety, the hospital needed to address Dr. Sherwani’s privileges on an interim basis. Counsel wrote as follows:

In the interim and in order to ensure that patients of the West Parry Sound Health Centre are not at risk, it is Dr. Fargher's opinion that Dr. Sherwani's privileges be immediately suspended. Dr. Fargher is prepared to accept a voluntary undertaking from your client in this respect or otherwise will impose the same through his authority under the Public Hospitals Act and pursuant to the By-Laws of the Hospital.

[178] On November 5, 2010, counsel for Dr. Sherwani responded by email and stated:

I have spoken with Dr. Sherwani. He is agreeable to voluntarily cease exercising his privileges. Dr. Sherwani is scheduled to take call [Monday] (Nov 8). We leave it to the Hospital to make alternate arrangements. I trust that this agreement will not affect Dr. Sherwani's outpatient clinic.

[179] On November 10, 2010, counsel for Dr. Sherwani sent another email to confirm that Dr. Sherwani agreed voluntarily to stop exercising his privileges, would continue to run his out-patient clinic, but would not perform any procedures. She wrote:

I write further to my email below and our subsequent telephone discussions. This will confirm that Dr. Sherwani is agreeable to voluntarily cease exercising his privileges while we deal with the recent issues that have arisen. Dr. Sherwani will continue to run his outpatient clinic. However, he will not perform any out procedures in his clinic. For clarity, Dr. Sherwani will not perform any procedure during the period of this agreement.

[180] On November 11, 2010, counsel for the hospital confirmed that the hospital accepted this arrangement:

I confirm our telephone discussion of yesterday and your e-mail of yesterday afternoon.

I confirm that Dr. Sherwani has agreed to voluntarily cease exercising his inpatient services which includes undertaking inpatient surgery, and has further agreed that he will not conduct any procedures on an outpatient or ambulatory basis.

I confirm that we have further agreed that Dr. Sherwani may continue to undertake outpatient surgical consultations without the performance of procedures.

[181] I find as a fact that Dr. Sherwani voluntarily agreed to stop exercising his privileges in November 2010. His privileges were not suspended. He was not “constructively terminated.” I reject Dr. Sherwani’s submission that he was suspended and, therefore, his submission that his suspension was an unlawful act for the purposes of the tort of misfeasance in public office.

[182] Second, at times in his submissions, Dr. Sherwani suggested that, even if he was not suspended, Dr. Fargher and Mr. Sanderson threatened him with suspension, so that his voluntary agreement to not exercise his privileges was coerced. The evidence does not support this submission and I do not accept it.

[183] In November 2010, neither Mr. Sanderson nor Dr. Fargher had a direct conversation with Dr. Sherwani about his privileges. All of the communication happened between counsel for the hospital and counsel for Dr. Sherwani. That correspondence is set out above. The correspondence does not support Dr. Sherwani’s assertion that he was threatened. Counsel for the hospital advised that Dr. Fargher was of the opinion that Dr. Sherwani posed a risk to patient care and safety and that this risk justified a suspension of his privileges. Counsel for the hospital offered Dr. Sherwani the opportunity to voluntarily stop exercising his privileges, failing which Dr. Fargher would invoke the process under the hospital’s by-laws and the Public Hospitals Act to suspend Dr. Sherwani’s privileges. This is not a threat, it is an explanation of the hospital’s intended next step, which would in turn provide appeal rights to Dr. Sherwani. I note that Dr. Merrow testified that the hospital acted reasonably and lawfully by negotiating a voluntary cessation of exercising privileges while Dr. Muir’s review was underway.

[184] Dr. Sherwani submits that the threat was communicated to him by his lawyer. I reject his submission for several reasons. First, throughout this period he was represented by experienced counsel, well-versed in the operation of hospital by-laws and the Public Hospitals Act. There is no evidence that Dr. Sherwani’s counsel ever raised with counsel for the hospital that she or Dr. Sherwani perceived that the hospital was threatening him. Second, neither Dr. Sherwani nor his counsel raised any allegation of procedural or substantive unfairness related to Dr. Sherwani’s decision around his privileges at the meeting of the MAC in April 2011. If Dr. Sherwani truly felt that he had been threatened by the hospital, I would have expected his counsel to have raised the issue in correspondence to the hospital, in an application to HPARB, or at the MAC hearing that would be deciding whether or not to recommend that the board revoke his privileges.

[185] I accept that Dr. Sherwani may have felt that he had few options in November 2010. The process was undoubtedly stressful, and he had to make decisions with significant personal and professional consequences. Nevertheless, he must take responsibility for the decisions that he made with the benefit of experienced counsel. I find that Dr. Sherwani was not threatened and, further, that in November 2010, he did not believe that he had been threatened.

[186] Finally, viewing his pleadings and submissions liberally, Dr. Sherwani asserts that Mr. Sanderson committed unlawful acts with respect to the process and recommendation of the MAC and the process at the board. I do not accept these submissions for several reasons.

[187] First, Mr. Sanderson is not a voting member of the MAC and did not vote on the resolution to recommend to the board that it revoke Dr. Sherwani’s privileges.

[188] Second, there was no evidence led at trial that there was anything improper about the process of leading to the recommendation of the MAC. The fact that Dr. Muir identified ongoing concerns with Dr. Sherwani’s practice so closely following Dr. Girotti’s report and Dr. Hunkin’s directives justified the hospital’s increased level of concern. At the time, counsel for Dr. Sherwani raised no concerns about the process leading to the meeting, the information provided at the meeting, Dr. Sherwani’s opportunity to make submissions at the meeting, counsel’s opportunity to make submissions at the meeting, or the reasons provided for the decision of the MAC to make its recommendation.

[189] Third, Dr. Merrow testified that Dr. Fargher’s decision to take the issue of Dr. Sherwani’s privileges to the MAC was reasonable and that the MAC meeting was conducted in accordance with the hospital’s by-laws and the standards of hospitals in Ontario acting under the Public Hospitals Act. I accept her evidence on this point, which was essentially unchallenged.

[190] Fourth, the recommendation of the MAC to revoke Dr. Sherwani’s privileges was just that: a recommendation. Dr. Sherwani was entitled to a hearing before the board before it made any decision with respect to his privileges. Indeed, on May 13, 2011, Dr. Sherwani requested, pursuant to s. 37(4) of the Public Hospitals Act, that the board hold a hearing into the question of his privileges. The hearing was eventually scheduled to take place on November 1 and 2, 2011.

[191] Instead of proceeding to a hearing, Dr. Sherwani, through counsel, proposed the terms of an agreement that would see him resign from the hospital. On October 4, 2011, Dr. Sherwani provided a proposal “to resolve the Hospital Board Hearing.” Dr. Sherwani’s counsel explained that Dr. Sherwani would resign effective December 31, 2011, if the hospital maintained his privileges and the status quo until that date, provided him with a reference letter, and agreed that verbal references would be consistent with the terms of the letter.

[192] The hospital agreed and Mr. Sanderson signed a reference letter dated October 6, 2011, which contained all of the information requested by Dr. Sherwani. Although the initial proposal from Dr. Sherwani’s counsel requested a reference letter from Dr. Fargher, there is no contemporaneous evidence that the identity of the author was a material term of the agreement or that Dr. Sherwani raised any concerns at the time that the letter, containing the information he asked to be included, was signed by Mr. Sanderson. At trial, Mr. Sanderson testified that to the best of his knowledge, Dr. Sherwani and his counsel raised no concerns about him signing the letter. Indeed, on October 31, 2011, counsel for Dr. Sherwani wrote to counsel for the hospital to confirm the matter was resolved. She wrote as follows:

I received a copy of the draft reference from Wendy this morning. Thanks for that. I will forward to Dr. Sherwani - as he is in Pakistan it may take a day or two for me to get the OK to release his resignation letter. I will get back to you as soon as I hear back from him. In the mean time, I have advised our witnesses that the matter is resolved and will not be attending in Parry Sound tomorrow.

[193] I pause here to note that, according to his lawyer’s email message, Dr. Sherwani was in Pakistan the day before the board hearing was scheduled to begin. I find that this is evidence that Dr. Sherwani knew that he would be resolving matters without a hearing at the board and that he did not need to be in Canada for the scheduled start of the hearing.

[194] I find that the parties reached an agreement and that Dr. Sherwani resigned from the hospital even though his counsel did not forward the resignation letter. The hospital was correct to take the position that Dr. Sherwani had resigned his appointment and privileges effective December 31, 2011. Indeed, neither Dr. Sherwani nor his counsel contested this position at the time, which they surely would have done if they did not agree that Dr. Sherwani had resigned. Viewed objectively, I have no doubt that the parties reached an agreement and Dr. Sherwani resigned.

[195] I find additional support for my conclusion in a letter dated December 15, 2011, from Dr. Maria Cescon, the Chief of Staff at the Ross Memorial Hospital, to Dr. Fargher. In that letter, Dr. Cescon requests that Dr. Fargher provide “information with respect to Dr. Aamir Sherwani’s appointment and resignation of appointment.” Dr. Cescon attached an authorization for release of information signed by Dr. Sherwani on December 12, 2011. That authorization read as follows:

I, Dr. A. Sherwani, authorize Dr. Maria Cescon, Chief of Staff and Mr. Brian Payne, President & CEO to communicate with… the West Parry Sound Hospital with respect to all matters concerning my appointment and resignation of appointment.

[196] Dr. Sherwani testified that he did not discuss his resignation from the hospital with Dr. Cescon or anyone else at Ross Memorial Hospital about. He stated that he probably did not read the text of the authorization at the time but admitted that it was his signature on the document. I do not accept Dr. Sherwani’s evidence. I find that he told Dr. Cescon that he had resigned from the hospital. Only Dr. Sherwani could have provided that information to Dr. Cescon and I find that he did provide that information to her. He signed this authorization over a month after his counsel indicated that she would be forwarding the resignation letter and that the matter was resolved. He knew that his authorization would be sent to the hospital. It makes no sense that he would authorize the hospital to discuss “his resignation of appointment” with Dr. Cescon if he did not believe that he had resigned. This is strong evidence confirming that on December 12, 2011, the date he signed the authorization for the release of the information to Dr. Cescon, Dr. Sherwani believed that he had resigned from the hospital.

[197] Dr. Sherwani testified that the agreement for him to resign was conditional on him finding a new job before December 31, 2011. Dr. Sherwani stated that he discussed this condition with his lawyer. He agreed that he never wrote to the hospital or the hospital’s lawyer to indicate that this was a condition of his agreement to resign. It was not a part of the initial proposal on October 4, 2011. Dr. Sherwani could not point to any emails where his lawyer put that position to counsel for the hospital. There are no documents in evidence where Dr. Sherwani or his counsel take that position. There are no documents in evidence where the hospital agreed that Dr. Sherwani’s resignation would only take effect if he found another job.

[198] I do not accept Dr. Sherwani’s evidence, which is either inconsistent with or unsupported by the contemporaneous written record. I have no doubt that Dr. Sherwani wanted to find another job. I infer that one of the reasons that Dr. Sherwani’s counsel proposed on October 4, 2011, that the resignation would not take effect until December 31, 2011, was to permit Dr. Sherwani to look for a position at another hospital before the resignation became effective. That is, however, very different than suggesting that the hospital agreed that Dr. Sherwani’s resignation was conditional on him first finding another position.

[199] The failure of Dr. Sherwani to provide the letter of resignation does not mean that he did not resign. He may well have breached a term of the agreement he reached with the hospital, but that does not vitiate his resignation, which became effective on December 31, 2011.

[200] Dr. Sherwani requested a hearing before the board to determine the question of his privileges. He abandoned that process when he resigned from the hospital effective December 31, 2011. As his lawyer advised the hospital, “the matter was resolved.” If Dr. Sherwani changed his mind, he could have asked for the board process to be re-commenced. If that happened, the hospital would need to decide what to do. That situation, however, never arose because Dr. Sherwani never suggested that he had not resigned until he commenced his action in 2012. I reject Dr. Sherwani’s submission that he was “constructively terminated.”

[201] I find that Mr. Sanderson committed no unlawful acts with respect to the process and recommendation of the MAC and the process at the board.

[202] In conclusion, I find that Dr. Sherwani has not proven on a balance of probabilities that Mr. Sanderson committed any unlawful acts. Because he did not commit any unlawful acts, I also find that Mr. Sanderson did not act with the knowledge that he had no power to do those acts. These findings are fatal to Dr. Sherwani’s attempt to prove that Mr. Sanderson committed Category B misfeasance in public office.

Mr. Sanderson was not acting for the improper purpose of deliberately causing harm to Dr. Sherwani

[203] As noted above, if Dr. Sherwani proves that Mr. Sanderson was acting for the improper purpose of deliberately and specifically causing harm to Dr. Sherwani, this will be sufficient to prove both the unlawful act and knowledge elements of the tort of misfeasance in public office: Foschia, at para. 24; Slater v. Pedigree Poultry Ltd., 2022 SKCA 113, 24 B.L.R. (6th) 1, at para. 90.

[204] Exercising discretion based on discriminatory considerations constitutes an improper purpose: Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), 1999 SCC 699, [1999] 2 S.C.R. 817, at para. 53; Roncarelli v. Duplessis, 1959 CanLII 50 (SCC), [1959] S.C.R. 121; Madadi v. Nichols, 2021 BCCA 10, 45 B.C.L.R. (6th) 59, at para. 72; Meekis, at paras. 78-80.

[205] In his closing submissions, Dr. Sherwani stated that “Dr. Terrance Fargher and Mr. Donald Sanderson decision to suspend me on Nov. 5 [2010] was unlawful based upon LIE, HATE, BIAS and Racism.” Dr. Sherwani did not raise these allegations in his statement of claim. Dr. Sherwani did not provide any evidence in support of these allegations. Dr. Sherwani did not cross-examine Mr. Sanderson regarding whether he used his public power to discriminate against him.

[206] In contrast, Mr. Sanderson testified that the steps he and the hospital took with respect to Dr. Sherwani were due to serious concerns about patient safety. He testified that he did not act for the purpose of harming Dr. Sherwani. His evidence is supported by the reports of Dr. Girotti and Dr. Muir, which provided independent support for the hospital’s concerns about Dr. Sherwani. I accept Mr. Sanderson’s evidence without hesitation.

[207] Dr. Sherwani’s very serious allegations are wholly unsupported by the evidence at trial. I reject them. Dr. Sherwani did not prove on a balance of probabilities that Mr. Sanderson acted on any discriminatory or improper purpose. This is fatal to Dr. Sherwani’s attempt to prove that Mr. Sanderson committed Category A misfeasance in public office.

Dr. Fargher did not commit an unlawful act

[208] I will now consider the conduct of Dr. Fargher. Dr. Sherwani alleged that Dr. Fargher committed more unlawful acts than Mr. Sanderson, however, there is significant overlap among the allegations. I rely on but will not repeat the analysis set out above regarding Mr. Sanderson’s conduct. I make the following findings with respect to Dr. Fargher’s conduct for the same reasons set out above in the section concerning Mr. Sanderson. I find that Dr. Fargher did not:

a. have any role in the drafting of Dr. Muir’s report, his findings, or his recommendations;

b. suspend Dr. Sherwani in November 2010;

c. coerce Dr. Sherwani into volunteering not to exercise his privileges pending the outcome of Dr. Muir’s review;

d. commit any unlawful acts related to the MAC’s recommendation or the process leading to that recommendation; and

e. commit any unlawful acts related to the meeting of the board, which was scheduled but did not proceed because Dr. Sherwani resigned from the hospital.

[209] Dr. Sherwani also alleges that Dr. Fargher committed unlawful acts when he wrote his letter dated January 15, 2010, kept track of Dr. Sherwani’s patients, and wrote his three file reviews in October 2010. I disagree.

[210] First, before he became chief of staff, Dr. Fargher was under a legal duty to advise Mr. Sanderson and Dr. Hunkin (then chief of staff) of any concerns that he had about Dr. Sherwani’s medical practice that threatened patient safety. Once they asked Dr. Fargher to put his concerns in writing, he was required to do so to assist them to discharge their legal duties. Dr. Fargher did not commit any unlawful acts when he wrote his letter dated January 15, 2010.

[211] Second, once he became chief of staff on July 1, 2010, Dr. Fargher had legal duties to supervise the practice of medicine at the hospital and to investigate any concerns regarding patient safety. I find that he was under a legal duty to conduct the three file reviews in October 2010 and that he committed no unlawful acts in preparing those letters.

[212] Dr. Sherwani also alleged that Dr. Fargher coerced the members of the MAC to vote to revoke his privileges. Dr. Fargher denied coercing anyone into voting a certain way. Both Dr. Hunt and Dr. Hunkin testified that they did not feel any pressure from Dr. Fargher to vote a certain way. There is nothing in the minutes of either meeting of the MAC to suggest that Dr. Fargher coerced anyone to vote a certain way. I do not accept Dr. Sherwani’s evidence and he not proven on a balance of probabilities that Dr. Fargher coerced any member of the MAC to vote a certain way.

[213] I have reviewed all of the evidence in the case. I find that Dr. Sherwani has not proven on a balance of probabilities that Dr. Fargher committed any unlawful acts. Because he did not commit any unlawful acts, I also find that Dr. Fargher did not act with the knowledge that he had no power to do those acts. These findings are fatal to to Dr. Sherwani’s attempt to prove that Dr. Fargher committed Category B misfeasance in public office.

Dr. Fargher was not acting for the improper purpose of deliberately causing harm to Dr. Sherwani

[214] I also find that Dr. Fargher was not acting for the improper purpose of deliberately causing harm to Dr. Sherwani.

[215] First, I rely on my findings I made in paragraphs [111] to [118] with respect to Dr. Fargher’s absence of malice in writing his letter dated January 15, 2010. Dr. Fargher did not act with malice and did not act for the improper purpose of deliberately causing harm to Dr. Sherwani. I find that, to borrow the words of Dr. Girotti, Dr. Fargher was motivated solely by his passion for excellence in patient care.

[216] As noted above, in his closing submissions, Dr. Sherwani stated that “Dr. Terrance Fargher and Mr. Donald Sanderson decision to suspend me on Nov. 5 [2010] was unlawful based upon LIE, HATE, BIAS and Racism.” For the reasons given above with respect to Mr. Sanderson, I reject these allegations against Dr. Fargher. Dr. Sherwani did not provide any evidence in support of these allegations. Dr. Sherwani did not cross-examine Dr. Fargher regarding whether he used his public power to discriminate against him.

[217] I accept Dr. Fargher’s evidence he acted for the purpose of improving civility, collaboration, and communication among the medical professionals. I accept that Dr. Fargher was motivated by his concern for patient safety and to ensure that members of the medical staff, including the nursing team were respected and listened to by Dr. Sherwani.

[218] I heard a great deal of evidence about Dr. Sherwani’s diagnosis and practice management with respect to the patients whose files were reviewed by Dr. Girotti and Dr. Muir. Ultimately, I do not need to determine which doctor’s diagnosis or treatment choices were right or wrong to adjudicate Dr. Sherwani’s claim that the defendants committed misfeasance in public office. If Dr. Sherwani had pursued his hearing at the board or HPARB, those bodies may well have had to assess the medical files in much more depth to determine whether or not to revoke or reinstate Dr. Sherwani’s privileges.

[219] For this reason, I did not find the evidence of Dr. Soenen to be of much assistance to me. Dr. Sherwani called Dr. Soenen to provide an expert opinion on whether or not Dr. Sherwani met the standard of care on the three files reviewed by Dr. Muir. Dr. Soenen did not have access to a significant amount of the information that the MAC had available to it and did not interview Dr. Sherwani or any of the medical staff at the hospital. Dr. Soenen’s final answers during his examination-in-chief were representative of the limitations of his opinion to prove Dr. Sherwani’s claim of misfeasance in public office:

Q. Dr. Soenen, in, in your opinion did I meet the standard of care or not in these three patients you reviewed?

A. Well, as you know I did have some criticisms of your care. But in the final analysis I, I felt that although the standard was minimal in, in some of the cases that in total it was not, it was not unacceptable. And I would say that the, the standard was minimally met, yes.

[220] In this action, however, Dr. Sherwani must prove much more than that his medical decisions in 2009 and 2010 were correct or that he minimally met the standard of care in three files. Even if Dr. Fargher erred in his assessment of some of Dr. Sherwani’s clinical decisions, that would not prove that Dr. Fargher was acting for the improper purpose of deliberately causing harm to Dr. Sherwani. Even if Dr. Sherwani proved that Dr. Fargher’s opinion was incorrect, that is not an element of misfeasance in public office. An incorrect decision, without much more, is not unlawful conduct: Muldoe v. Derzak, 2021 BCCA 199, 51 B.C.L.R. (6th) 260, at paras 41 to 44.

[221] Moreover, both Dr. Girotti and Dr. Muir made findings that broadly supported the concerns of Dr. Fargher. Even if I were to agree with Dr. Sherwani’s perspective on some of the details of his involvement with the patients, that would not support a finding that Dr. Fargher was motivated by the improper purpose of harming Dr. Sherwani. The findings of Dr. Girotti and Dr. Muir, two independent surgeons, are very strong evidence that Dr. Fargher was not motivated by an improper purpose.

[222] On several occasions during his evidence, Dr. Fargher described himself as “biased” with respect to Dr. Sherwani. Dr. Fargher made these comments with respect to the implementation of Dr. Girotti’s recommendations immediately prior to him becoming chief of staff, the need in November 2010 to re-engage with Dr. Girotti (and ultimately Dr. Muir), and letting the MAC make the decision to refer Dr. Sherwani to the CPSO.

[223] I understood Dr. Fargher not to be using the word biased as a synonym for a discriminatory or unlawful purpose. In my view, he was referring to the fact that he had formed a conclusion about Dr. Sherwani’s inability to communicate or collaborate effectively with other members of the medical team to support patient health and safety. In addition, he used the phrase to explain why he wanted other people to be involved with the process of reviewing and making decisions that would affect Dr. Sherwani’s interests. Dr. Fargher wanted Dr. Hunkin to implement Dr. Girotti’s recommendations before Dr. Fargher became chief of staff. Dr. Fargher wanted an independent reviewer (ultimately, Dr. Muir) to look at the three patient files that concerned him. Dr. Fargher wanted the MAC to decide whether or not the concerns warranted referral to the CPSO. I found Dr. Fargher’s evidence on these points demonstrated self-awareness and his commitment to providing Dr. Sherwani with a fair process that involved multiple surgeons and physicians to review and advise on next steps.

[224] Dr. Sherwani’s very serious allegations described above are wholly unsupported by the evidence at trial. I reject them. Dr. Sherwani did not prove on a balance of probabilities that Dr. Fargher acted on any discriminatory or improper purpose. This is fatal to Dr. Sherwani’s attempt to prove that Dr. Fargher committed Category A misfeasance in public office.

No tortious conduct; no harm caused

[225] I have found that Dr. Sherwani has failed to establish either the unlawful act element or the knowledge element of the tort of misfeasance in public office. I have, therefore, found that neither Dr. Fargher nor Mr. Sanderson engaged in tortious conduct. That means that Dr. Sherwani has also not demonstrated the final two elements of the tort:

a. the public official’s tortious conduct was the legal cause of the plaintiff’s injuries; and

b. the injuries suffered are compensable in tort law.

[226] Absent a finding of tortious conduct, there can be no finding that the tortious conduct was the cause of the plaintiff’s injuries or, in turn, a finding that those injuries are compensable in tort law.

Conclusion

[227] For the reasons set out above, Dr. Sherwani has not proven on a balance of probabilities that any of the defendants committed the tort of misfeasance in public office. I dismiss these allegations.

Damages

[228] Although I have found that Dr. Sherwani has not proven his claim in defamation or misfeasance in public office, I will go on to consider his damages claim.

[229] Because I have found that Dr. Sherwani voluntarily agreed to stop exercising his privileges in November 2010 and that he resigned from the hospital effective December 31, 2011, he has not proved that the defendants caused any economic loss he suffered as a result of those decisions. However, even if I am wrong about those conclusions, I still find that Dr. Sherwani has not led sufficient evidence to prove that the defendants caused any damages to him.

[230] The first problem is that, based on the evidence filed by Dr. Sherwani, I am not prepared to find on a balance of probabilities that he suffered economic harm. Even if Dr. Sherwani had proved a loss caused by a wrongful act of the defendants, it would be impossible to calculate his losses with any degree of certainty. This is because Dr. Sherwani failed to produce or lead in evidence documents that were necessary to establish and quantify any losses:

a. Dr. Sherwani provided his personal tax returns for 2010 to 2020, but he did not provide the tax returns for his professional corporation through which, it appears, he may have practiced medicine.

b. Dr. Sherwani did not provide any documents that demonstrated the source of his income for any year. This made it impossible to see how much of his income in any given year came from the hospital and how much came from other sources. Dr. Sherwani’s own accounting expert, Melanie Russell, asked him to provide this information but she did not receive it.

c. Dr. Sherwani did not provide any documents that supported the expenses he claimed on his personal taxes. This made it impossible to assess whether or not the expenses were properly attributable to his surgical practice or if they may have unduly reduced his net income. This is particularly important given Dr. Kralj’s evidence that Dr. Sherwani’s claimed overhead expense level in 2011 (50% of gross revenue) was much higher than that of a typical surgeon (30% of gross income). It is also important given that Dr. Sherwani claimed a number of unusual or idiosyncratic expenses without explanation. For example, property taxes of $12,541 in 2017 when such taxes were not claimed in any other year; interest expense of $14,000 in 2016, but no other year.

[231] I have several other concerns about the reliability of Dr. Sherwani’s tax returns. First, Dr. Sherwani could not explain why he reported zero gross revenue and income on his 2015 tax return despite his evidence that he worked at Ross Memorial Hospital during that year.

[232] Second, although Dr. Sherwani voluntarily stopped exercising his privileges in November 2010, his reported gross income increased from $250,000 in 2010 to $498,500 in 2011. Dr. Sherwani was not able to provide a coherent or credible explanation for why his gross income increased to this extent while not exercising his privileges at the hospital.

[233] This unexplained significant increase in gross income in 2011 causes me to have significant doubts about the reliability of Dr. Sherwani’s income as reported on his tax returns. If the events that led to Dr. Sherwani agreeing not to exercise his privileges in November 2010 caused him economic harm, I would have expected that harm to materialize in the form of a significant drop in gross income in 2011, before he could take steps to obtain privileges elsewhere or to receive another locum tenens appointment. Instead, his gross revenue apparently increased from $250,000 to $498,500. Dr. Sherwani provided no documents to explain this anomalous situation. He offered a vague explanation about delayed payment by OHIP of certain fees for services rendered, but I do not accept this explanation as credible given his failure to produce the records that would have allowed his explanations to be tested.

[234] He also did not provide a compelling explanation for why he incurred so many expenses in 2011 that his net income decreased by $9,000 from 2010 to 2011 despite his much higher gross income.

[235] If these numbers are to be believed, it is difficult to conclude that the lack of fees for service at the hospital caused in economic harm. If Dr. Sherwani was able to double his gross income in 2011 without the benefit of privileges at the hospital, that is evidence that suggests that his lack of privileges at the hospital beginning in November 2010 was not the cause of Dr. Sherwani’s reduced reported income in 2012 onward.

[236] Dr. Sherwani also offered no explanation for why he was not able to replicate his 2011 gross income (which did not include fees for services provided at the hospital) in 2012 and later.

[237] The defendants suggested that Dr. Sherwani may have earned income outside of Canada that was not reflected in his tax returns. While it seems that Dr. Sherwani had connections with hospitals in Pakistan, I am not satisfied that he received income from those hospitals.

[238] The defendants raise a number of concerns about the assumptions and methodology employed by Dr. Sherwani’s accounting expert. They submit that Ms. Russell’s analysis fails to account for the decline in Dr. Sherwani’s income from 2008 to 2009 to 2010. They submit she erred by assuming that $250,000 was a reasonable salary for a surgeon with Dr. Sherwani’s experience and that she failed to consider adequately the fee-for-service billing model used in the Ontario health care system.

[239] In my view, the much more fundamental problem is with the data Dr. Sherwani provided to Ms. Russell. Her report was based entirely on the limited set of data provided by Dr. Sherwani. Ms. Russell requested from Dr. Sherwani, but did not receive, additional information that she felt was necessary to complete her report. I find that the information provided by Dr. Sherwani to Ms. Russell and the court was incomplete and unreliable. The problems with the data undermine the accuracy of Ms. Russell’s report. An expert’s report is only as good as the underlying data. I give it little or no weight: Pirani v. Esmail, 2014 ONCA 145, 320 O.A.C. 356, at para. 59; Di Martino v. Delisio (2008), 58 C.C.L.T. (3d) 218 (Ont. S.C.), at para. 127.

[240] Second, even if Dr. Sherwani suffered damages, he has not proven that the defendants caused those losses.

[241] Dr. Sherwani relied on the Temiskaming Hospital’s decision not to offer him privileges as evidence of damages caused by the defendants. However, the email sent by Bruce Cunningham on March 29, 2011, stated “A problem has arisen with regards to your Certificate of Professional Conduct received by Temiskaming Hospital from the College of Physicians and Surgeons of Ontario.” To the extent that Temiskaming Hospital changed its mind based on an investigation conducted by Dr. Sherwani’s regulator, which can only be initiated when the Registrar of the CPSO has reasonable and probable grounds to believe a member has engaged in an act of professional misconduct or is incompetent and that investigation is approved by a committee of the College, that loss was not caused by a wrongful act of the defendants.

[242] Dr. Sherwani also relied on a letter from MICs (Matheson – Iroquois falls – Cochrane) Group of Health Services dated September 17, 2020, as evidence that he could not obtain a locum tenens appointment with that organization. That letter stated that we are “declining your appointment at this time due to sufficient staffing of general surgeon locums.” Given the stated reasons of MICs for not offering Dr. Sherwani a position, that decision can not be attributed to any wrongful act of the defendants.

[243] Dr. Sherwani testified that he continually held privileges at Ross Memorial Hospital from 2009 to 2021. He testified that the doctors at that hospital think highly of his skills. As proof, he tendered two reference letters dated in July 2013 from doctors at Ross Memorial Hospital addressed to the lawyer that represented him throughout 2010 and 2011. The letters are quite complimentary of his skills. There is no evidence that any wrongful conduct of the defendants impaired his relationship with Ross Memorial Hospital. Equally, however, there is no evidence that Dr. Sherwani ever applied to increase his privileges at Ross Memorial Hospital, which would have increased his potential earnings.

[244] Dr. Sherwani did not present any documentary or oral evidence directly from any hospital stating that the hospital declined to offer or continue Dr. Sherwani’s privileges or locum tenens position for any reason attributable to any actions of the defendants. Other than as described above, Dr. Sherwani provided no evidence that he has applied unsuccessfully for privileges or any type of staff position with any hospital in Canada or abroad. Boris Kralj, an expert qualified to give evidence on earnings and employability of surgeons during this time period, testified that general surgeons were very much in demand around Ontario and across the country during this period.

[245] There are a number of very serious problems with the evidence Dr. Sherwani led in support of his damages claim. Based on the evidence before me, I am not satisfied on a balance of probabilities that he proved that he suffered a loss that was caused by the actions of the defendants.

Punitive Damages

[246] In his statement of claim, Dr. Sherwani pleaded that the “conduct of the defendants as aforesaid was capricious, high-handed, arbitrary, callous and in complete disregard of the rights of the plaintiff. As a result, the defendants, or any of them, are liable for exemplary and punitive damages.”

[247] Punitive damages are only awarded in exceptional cases for malicious, oppressive, and high-handed conduct that offends the court’s sense of decency and is deserving of punishment. Awards of punitive damages should only be made to punish misconduct that represents a marked departure from ordinary standards of reasonable behaviour or can be described as “harsh, vindictive, reprehensible and malicious”: Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002] 1 S.C.R. 595, at para. 36.

[248] There is no basis in the evidence for an award of punitive damages. I find that Dr. Fargher and Mr. Sanderson treated Dr. Sherwani fairly and in good faith. They were both motivated by their concern for patient care and to provide a collegial, collaborative working environment that focussed on the health of the hospital’s patients. There is nothing in the record before me that would support an award of punitive damages.

Conclusion and costs

[249] For the reasons given above, I dismiss the action in its entirety.

[250] If the parties are not able to resolve costs, Dr. Fargher and Mr. Sanderson and the hospital may each deliver a costs submission of no more than five double-spaced pages (exclusive of bill of costs and offers to settle if any) to be emailed to my judicial assistant on or before January 10, 2023. Dr. Sherwani may file a single responding submission of no more than seven double-spaced pages (exclusive of bill of costs and offers to settle if any) on or before January 17, 2023. No reply submissions are to be filed without leave.

Robert Centa J.

Released: January 3, 2023

CITATION: Sherwani v. Fargher, 2023 ONSC 20

COURT FILE NO.: CV-12-00466961-0000

DATE: 20230103

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Aamir Sherwani

Plaintiff

– and –

Terence Fargher, Donald Sanderson, and West Parry Sound Health Centre

Defendants

REASONS FOR JUDGMENT

Robert Centa J.

Released: January 3, 2023

[^1]: Abramson v. Medical Advisory Committee (North York General Hospital), 2011 CanLII 93929 (Ont. H.P.A.R.B.), at para. 54.

[^2]: Dr. Sherwani’s privileges did not include privileges to perform Caesarean sections until June 14, 2010, but nothing turns on that issue.

[^3]: Someone in the hospital administration stamped the letter as having been received on July 19, 2010, at 2:30 p.m. I do not think anything turns on the difference between the date of the letter and the stamp.

[^4]: Someone in the hospital administration stamped the letter as having been received on July 19, 2010, at 2:30 p.m. Again, I do not think anything turns on the difference between the date of the letter and the stamp.