



COURT OF APPEAL FOR ONTARIO

CITATION: Kadiri v. Southlake Regional Health Centre, 2015
    ONCA 847

DATE: 20151204

DOCKET: C60036

Gillese, Epstein and Brown JJ.A.

BETWEEN

Yahaya Kadiri

Plaintiff (Respondent)

and

Southlake Regional Health
    Centre, Nancy Merrow, Robert Smyth, Michael Sullivan, Lee Ellis Heinrich
,
    Ira Bloom and Giles Cruickshanks

Defendants (
Appellants
)

William Carter and Lee Lenkinski, for the appellants

Paul Harte and Giuseppe Michelucci, for the respondent

Heard: September 21, 2015

On appeal from the judgment of Justice Cory A. Gilmore of
    the Superior Court of Justice, dated January 27, 2015, with reasons reported at
    2015 ONSC 621.

Brown J.A.:

I.

OVERVIEW

[1]

On April 11, 2008, the respondent, Dr. Yahaya
    Kadiri, was acting as the anesthetist during knee replacement surgery at the
    appellant hospital, the Southlake Regional Health Centre (the Hospital). Towards
    the end of the surgery, Dr. Kadiri turned off the flow of the anesthetic to the
    patient. Suddenly, Dr. Kadiri experienced a feeling of urinary urgency. He left
    the operating room without telling the other members of the surgical team. While
    he was away, the patient awoke from the sedation. Team members had to restrain
    the patient until another anesthetist was able to attend and care for the
    patient.

[2]

The Hospital commenced an investigation. From
    April 2008 until December 2010, Dr. Kadiri was on reduced duties pending the
    results of medical and psychological assessments. Whether the reduction of Dr.
    Kadiris duties was voluntary or compelled during some or all of that period of
    time is a matter of dispute between the parties. What is not in dispute is that
    in January 2011, following a series of assessments and a period of re-training,
    Dr. Kadiri returned to full practice at the Hospital.

[3]

On April 26, 2012, Dr. Kadiri 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 at the Hospital. He named as
    defendants the Hospital, Dr. Nancy Merrow, the Chief of Staff and Chair of the
    Hospitals Medical Advisory Committee during the period covered by the claim, Dr.
    Robert Smyth, who was the Chief of the Hospitals Department of Anasthesiology
    until July 2010, and four other staff anesthesiologists: Drs. Sullivan,
    Heinrich, Bloom and Cruickshanks. The claims made against Drs. Bloom and
    Cruickshanks were different from those made against the other defendants.

[4]

All 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 and the action
    was statute-barred. Alternatively, the defendants sought a stay of the action
    until Dr. Kadiris claims had been determined by the Health Professions Appeal
    and Review Board (the HPARB).

[5]

The motion judge dismissed the action against
    Drs. Bloom and Cruickshanks as statute-barred. While Dr. Kadiri initially
    cross-appealed that part of the judgment, he has since abandoned his
    cross-appeal.

[6]

The motion judge held that the action was not
    statute-barred as against any of the other defendants. No appeal has been taken
    from that part of her judgment.

[7]

The motion judge denied the appellants request to
    dismiss Dr. Kadiris action on jurisdictional grounds. The appellants had
    submitted that the court had no jurisdiction over the subject-matter of the
    proceeding because Dr. Kadiri had not followed the process set out in s. 41 of
    the
Public Hospitals Act,
R.S.O. 1990, c. P.4 (the 
PHA
) which, they contended, required him to proceed to
    a hearing before the HPARB before starting a lawsuit
.

[8]

The appellants seek to set aside that part of
    the judgment.  Accordingly, the sole issue on this appeal is whether the motion
    judge erred in finding that the Superior Court of Justice possessed the
    jurisdiction to consider Dr. Kadiris April 2012 claim.

[9]

For the reasons set out below, I would dismiss
    the appeal. In my view, the motion judge correctly concluded that the court had
    jurisdiction over the subject-matter of Dr. Kadiris claim and that, in the
    circumstances of this case, Dr. Kadiri was not required first to proceed to the
    HPARB before commencing his action.


II.

THE STATUTORY FRAMEWORK GOVERNING DECISIONS THAT
    CANCEL, SUSPEND OR SUBSTANTIALLY ALTER PRIVILEGES

[10]

What occurred during the period from the date of
    the operating room incident until the time of Dr. Kadiris return to full
    practice at the Hospital is not in dispute. The parties disagree, however,
    about how those events affect the jurisdiction of the court to consider Dr.
    Kadiris lawsuit. To put in context the evidence about those events and the
    motion judges findings of fact, a summary of the framework governing disputes
    about a physicians hospital privileges is in order.  The framework is set out
    in the
PHA
and a hospitals bylaws.

The
Public Hospitals Act

[11]

The
PHA
vests in the board of a
    hospital the power to appoint physicians to its medical staff, to determine the
    hospital privileges to be attached to the appointment of a member of the staff,
    and to revoke or suspend the appointment of a member of the medical staff:
PHA
,
    s. 36. Privileges define the scope of a physicians ability to use the
    hospitals resources to care for his or her patients:
Rosenhek v. Windsor
    Regional Hospital
, 2010 ONCA 13
, 257 O.A.C. 283,
at
    paras. 4-5.

[12]

Under the
PHA
and its regulations, a
    hospitals medical advisory committee (MAC) receives applications from
    physicians concerning their appointments and privileges and makes
    recommendations on these applications to the board:
PHA
, s. 37. The medical advisory committee may also make
    recommendations to the board concerning the dismissal, suspension or
    restrictions of the hospital privileges of any member of the medical staff: R.R.O.
    1990, Reg. 965, s. 7(2)(a)(iv).

[13]

Section 41(1) of the
PHA
affords a
    physician a right to a hearing before the HPARB in certain disputes over
    privileges. The section provides, in part:

41. (1) Any,



(b) member of the medical staff of a hospital who considers
    himself or herself aggrieved by any decision under the by-laws cancelling,
    suspending or substantially altering his or her hospital privileges,

is entitled to,

(c) written reasons for the decision if a request is received
    by the board, person or body making the decision within seven days of the
    receipt by the applicant or member of a notice of the decision; and

(d) a hearing before the Appeal Board if a written request is
    received by the Appeal Board and the board, person or body making the decision
    within seven days of the receipt by the applicant or member of the written
    reasons for the decision.

[14]

The HPARB is constituted under the
Ministry
    of Health and Long-Term Care Appeal and Review Boards Act
, 1998
, S.O. 1998, c. 18, Sch. H. The HPARB is charged with conducting the
    hearings and reviews assigned to it under the
PHA
and other statutes. In proceedings under the
PHA
, a party may appeal from a decision of the HPARB to the Divisional
    Court on questions of law, fact, or both: s. 43.

The Hospitals By-laws

[15]

The Hospitals By-law No. 1 (the By-law) establishes
    procedures for applications by physicians to join the Hospitals medical staff
    and their associated requests for privileges. Appointments of the medical staff
    are made for a one-year term.

[16]

The By-law also describes in detail the process for
    cancelling, suspending or substantially altering the hospital privileges of a member
    of the medical staff. Section 7.6.1 concerns action taken during the mid-term of
    a physicians appointment and provides:

7.6.1(1) Pursuant to the Public Hospitals Act
    and the Regulations thereunder and in accordance with this By-law, the Board at
    any time may revoke or suspend any appointment of a member of the medical staff
    or dismiss, suspend, restrict or otherwise deal with, the privileges of the
    member.

(2) Mid-term action in respect of a member of
    the medical staff, shall be processed in accordance with, and in the same
    manner provided in part 12 of this by-law.

[17]

Part 12 of the By-law distinguishes two forms of
    mid-term action in respect of privileges: non-immediate action (s. 12.1) and
    immediate action in an emergency situation (s. 12.2).

[18]

The appellants concede that they proceeded
    against Dr. Kadiri under s. 12.1, i.e. they took non-immediate mid-term action.
    In this form of action, only the Board can make a decision to cancel, suspend
    or substantially alter the privileges of a member of the medical staff, upon
    the recommendation of the MAC.

[19]

By contrast, s. 12.2 applies where the conduct
    of a member exposes, or is reasonably like[ly] to expose patient(s) to harm or
    injury and immediate action must be taken to protect the patients and no less
    restrictive measure can be taken. In this situation, the Chief of Staff or Chief
    of Department, or his or her delegate, may immediately and temporarily suspend
    the members privileges. Where such immediate mid-term action is taken, the
    By-law requires two meetings be held on an expedited basis: first, a meeting of
    the MAC to review the suspension and to make recommendations to the Hospital
    Board, and then a meeting of the Board to decide either to follow or not to
    follow the MACs recommendations.

III.

DECISION OF THE MOTION JUDGE

[20]

The motion judge denied the appellants request
    for a stay of Dr. Kadiris action pending an appeal by him to the HPARB. She held
    that the court had jurisdiction over Dr. Kadiris action. In reaching that
    conclusion, the motion judge relied on two main findings:


(i)

The appellants argued that if Dr. Kadiri had
    considered himself aggrieved by any of their conduct during the period from the
    April 2008 incident until his return to full practice at the Hospital in 2011,
    he should have sought a hearing before the HPARB. By not doing so and, instead,
    commencing his lawsuit, Dr. Kadiri was improperly trying to avoid the statutory
    process contained in s. 41(1) of the
PHA
. The
    motion judge did not accept this argument. She found that no decision was ever
    made within the meaning of s. 41(1)(b) of the
PHA
with respect to Dr.
    Kadiris privileges. In the absence of such a decision, the motion judge found
    that the statutory basis for any appeal to the HPARB lacked foundation: at
    para. 71.


(ii)

The appellants also submitted that even
    following his return to full practice at the Hospital in January 2011, Dr.
    Kadiri was obliged to go before the HPARB to determine any
privileges-
related complaint he might have against the appellants before
    starting a lawsuit. The motion judge acknowledged that both Dr. Kadiri and the
    Hospital were obliged to follow through with the privileges-dispute process set
    out under the
PHA
, the By-laws and the Hospitals Rules. However, she held
    that Dr. Kadiri in fact had followed through with that process as required, and
    the process ultimately concluded in his favour with his return to full practice
    in January 2011.

IV.

STANDARD OF REVIEW

[21]

In
Hryniak v. Mauldin
, 2014 SCC 7, [2014] 1
    S.C.R. 87, the Supreme Court of Canada held, at para. 81, that absent an error
    of law, the exercise of powers by a motion judge under Rule 20 of the
Rules
    of Civil Procedure
attracts deference. Whether a genuine issue
    requiring a trial exists is a question of mixed fact and law. Where there is no
    extricable error in principle, findings of mixed fact and law should not be
    overturned, absen
t palpable and overriding error.

[22]

The determination of whether a provincial superior court has
    jurisdiction over a matter is a question of law:
Khan Resources Inc. v. W M
    Mining Company
(2006), 79 O.R. (3d) 411 (C.A.), at para. 7. Whether the
    issue of jurisdiction is determined on a summary judgment motion, or on a motion
    under r. 21.01(3)(a) of the
Rules of Civil Procedure,
does not alter
    the standard of review.


V.

DID THE MOTION JUDGE ERR IN CONCLUDING THAT THE
    COURT HAD THE JURISDICTION TO CONSIDER DR. KADIRIS CLAIMS?

Overview of the Analysis

[23]

The appellants submit that this court, in its
    decision in
Beiko v. Hotel Dieu Hospital St. Catherines,
2007 ONCA 860, recognized that the
PHA
established a comprehensive statutory process for the determination
    of privileges disputes between physicians and hospitals.  That statutory
    process consists of a dispute resolution mechanism under the bylaws of a
    hospital, coupled with the right of a physician to seek a hearing before the
    HPARB.

[24]

A review of Dr. Kadiris statement of claim
    discloses that he seeks relief for conduct undertaken by the appellants in the
    April 2008 to January 2011 time period which he alleges wrongfully interfered
    with his ability to carry on a full practice at the Hospital.  In other words,
    his action concerns his ability to exercise his privileges at the Hospital
    during that period of time.  The main issue on this appeal is whether the
    motion judge erred in concluding that the court has jurisdiction over the
    subject-matter of Dr. Kadiris 2012 lawsuit.

[25]

As I will explain below, I accept the
    appellants submission that certain of their conduct in May and June 2008 could
    have entitled Dr. Kadiri to seek a hearing before the HPARB on the basis that
    the appellants were substantially altering his privileges.  In holding that the
    appellants made no such decision, I respectfully disagree with the motion judge. 
    She erred in so finding.  However, her error was without consequence to the key
    issue of whether, when Dr. Kadiri started his lawsuit in April 2012, the court
    had jurisdiction over it.  In my view, the motion judge was correct in
    concluding that the court did because, by that point in time, Dr. Kadiri had
    properly followed through with the statutory process under the By-law and
PHA

as required in the specific circumstances of this case.
    Finally, I will explain why I do not accept the appellants argument that the
Beiko
decision stands for the proposition that only after establishing
    the basis for a remedy in damages at a hearing before the HPARB may a physician
    bring an action for damages in the courts.

The Principle in
Beiko v. Hotel Dieu Hospital St. Catharines

[26]

The starting point of the analysis is the
    decision of this court in
Beiko
.  That case
    involved plaintiff opthalmologists who had entered into an agreement with the
    hospital under which they would recruit a new ophthalmologist.  In return, the
    hospital undertook not to reduce their existing operating room time. 
    Subsequently, the hospitals operating room utilization committee reduced their
    operating room time.  The doctors asked the hospitals medical advisory
    committee to reverse that decision; the MAC refused.  The doctors next went to
    the hospitals board of directors; they affirmed the MAC decision.  The doctors
    then launched an appeal to the HPARB under s. 41 of the
PHA
.  However, before their appeal was heard, they withdrew it. 
    Instead, they commenced an action seeking damages for breach of contract and
    negligent misrepresentation.

[27]

The motion judge in
Beiko

dismissed the physicians action: 2007 CanLII 1912 (Ont. S.C.). In a
    brief endorsement, this court affirmed the decision of the motion judge. At
    para. 4, this court stated:

The motion judge reviewed the
PHA
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] 2 S.C.R. 929. 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
PHA
.

[28]

In
Beiko
, a decision was made under the
    hospitals by-laws that substantially altered the privileges of members of the
    medical staff. The physicians sought to reverse that decision, utilizing the
    review mechanism established under the hospitals by-laws. They were not
    successful and remained aggrieved by the decision. The physicians sought a
    hearing before the HPARB, but then shifted gears and commenced a lawsuit. The
    motion judge held, in effect, that the physicians were bound by the
    determinations relating to privilege matters made under the statutory process 
    i.e. the hospital bylaws dispute resolution mechanism and the right to a
    hearing before the HPARB under the
PHA
. 
    Having abandoned their appeal to the HPARB, the physicians could not proceed
    with their loss of income claim.  This court upheld that result.

[29]

Here, the motion judge acknowledged that the
Beiko
decision required Dr. Kadiri to go through and exhaust the
    statutory
PHA
process prior to commencing an
    action in court: paras. 55 and 63.  The appellants argue that although the
    motion judge purported to follow the decision in
Beiko,
she erred (i) in finding that between April 2008 and January 2011
    the Hospital did not make a decision substantially altering Dr. Kadiris
    privileges which he could have appealed to the HPARB and (ii) in concluding
    that Dr. Kadiri had followed the statutory dispute resolution process under the
    Bylaw and
PHA
to its appropriate conclusion
    prior to commencing his action.  I shall consider each of these submissions in
    turn.

Were decisions made within the meaning of s. 41(1)(b) of the
PHA
?

[30]

As set out earlier in these reasons, under the
    By-law, the authority to cancel, suspend or substantially alter the privileges
    of a staff member lies with the Board, except in the case of immediate mid-term
    action in an emergency situation. There is no dispute that the Hospitals Board
    never made a decision that cancelled, suspended or substantially altered Dr.
    Kadiris privileges. On the contrary, in February 2009, January 2010 and
    January 2011, the Hospital informed Dr. Kadiri that his applications for
    reappointment to the medical staff had been approved by the Board.

[31]

Nor did the MAC decide to cancel, suspend or
    substantially alter Dr. Kadiris privileges. The appellants acknowledge that
    Dr. Merrow initiated an internal review process under s. 12.1 of the By-laws
    dealing with non-immediate mid-term action, not s. 12.2 concerning immediate
    mid-term action. Further, on her cross-examination, Dr. Merrow agreed that the
    MAC did not decide to suspend, cancel or substantially alter Dr. Kadiris
    privileges in relation to the incident.

[32]

Given this evidence, the motion judge did not
    err in finding that no decision was made according to the by-laws that
    cancelled, suspended or substantially altered Dr. Kadiris privileges within
    the meaning of s. 41(1)(b) of the
PHA
: para. 75
.

[33]

However, the appellants argue that even if the
    MAC or the Board did not make a decision that cancelled, suspended or
    substantially altered Dr. Kadiris privileges,
de facto
decisions were
    made by hospital staff during the investigation and assessment process which
    had the effect of substantially altering Dr. Kadiris privileges within the
    meaning of s. 41(1)(b) of the
PHA
. The appellants therefore submit
    that the motion judge erred in concluding, at para. 75 of her reasons, that no
    decision appears to have been made at all which Dr. Kadiri could appeal. To
    consider this argument, a more detailed review of some of the evidence is
    required.

[34]

The incident was first reported to Dr. Merrow on
    April 21, 2008, at which time she initiated an internal review process. She
    asked Dr. Smyth to investigate the matter. At a meeting with Drs. Merrow and
    Smyth on April 23, 2008, Dr. Kadiri agreed to take some time away from the
    operating room and on call duty pending Dr. Smyths completion of his
    investigation.

[35]

Dr. Smyth completed his report on April 28,
    2008, and Dr. Merrow sent a copy to Dr. Kadiri two days later. In that April 30
    communication, she wrote that in accordance with the hospital By-Laws the
    report needs to be reviewed by the Chief of Staff, Chief of Department and
    Chief Executive Officer to determine whether any further action may be
    required. Those steps are set out in ss. 12.1.1(10) and (11) of the By-law.
    Dr. Merrow went on to write: I am recommending at this time that you extend
    your voluntary leave through May 9, 2008, to allow ample time for consultation
    on the matter. Please respond in writing so that I may know we have an
    agreement on the length of time you will be away from your operating room and
    on call duties

[36]

Dr. Kadiri responded to Dr. Merrow on May 5,
    2008. He did not dispute the facts of the case, and he apologized for the
    incident, assuring Dr. Merrow that the incident was an anomaly and that it
    will not occur again.

[37]

Dr. Merrow informed Dr. Kadiri that she was
    relying on a section of the Hospitals Rules to establish a subcommittee of the
    MAC to receive Dr. Smyths report. The minutes of that subcommittees May 6,
    2008 meeting stated that [t]he physician is presently working with the Chief
    [of Anesthesiology] to provide service to the department without attending
    patients in the operating rooms, birthing unit or on call.

[38]

The MAC met on May 12, 2008, to consider the
    subcommittees report. The minutes of that meeting recorded that the MAC was
    proceeding under s. 12.1.2 of the By-Law dealing with non-immediate midterm
    action. The MAC decided to refer Dr. Kadiri for a medical and psychological
    assessment by an external consultant. By resolving to refer him to an external
    consultant, the MAC adopted one of the possible courses of action available to
    it under s. 12.1.2(4) of the By-law.

[39]

The Minutes recorded Dr. Merrow as stating that
    at present we have the cooperation of this physician in voluntarily
    restricting his duties and it is hoped that this level of collaboration will
    continue. The MAC passed a motion indicating its support of the present
    arrangement that the physician will have clinic duty as directed by the Chief
    of Anesthesiology in the service of the department without providing operative
    anesthesia.

[40]

Dr. Merrow wrote to Dr. Kadiri on May 14, 2008,
    informed him about the MACs recommendation, and requested his consent to make
    a referral for a comprehensive assessment of his physical and
    neuropsychological health. Dr. Kadiri did not consent to submitting to a comprehensive
    assessment. His counsel took the position that the Hospital was not treating
    Dr. Kadiri fairly and was inappropriately restricting his privileges.

[41]

The MAC subcommittee met again on May 23, 2008. The
    minutes of the meeting acknowledged that Dr. Kadiri had withdrawn his
    cooperation with voluntary restriction in his duties and is requesting
    immediate reinstatement of full duties.
[1]
The subcommittee concluded that [i]f the physician holds his position it would
    seem that the only option is for the Chief of Staff to suspend his privileges
    pending a MAC meeting to begin an Immediate Mid Term Action. As noted above,
    immediate mid-term action is available under s. 12.2 of the By-laws in
    emergency situations and allows the Chief of Staff to immediately and
    temporarily suspend physician privileges.

[42]

Later on May 23, the Hospitals counsel informed
    Dr. Kadiris counsel that Dr. Merrow was requesting the respondent agree to an
    assessment and continue with the existing work arrangement in the clinic. The
    Hospitals counsel continued:

If this is not acceptable to Dr. Kadiri, then
    Dr. Merrow considers this a situation in which immediate midterm action is
    necessary under section 12. 2 of the by-laws. Under section 12.2.1(1), if Dr.
    Kadiri is not prepared to extend his voluntary leave and agree to the
    recommended assessment process, then she will suspend his privileges with the
    required notices and make arrangements for the MAC meeting under section
    12.2.2.

[43]

During the hearing of this appeal, much was made
    of the May 23 MAC subcommittee meeting. Appellants counsel pointed to the
    conduct of Dr. Merrow and the MAC subcommittee as providing Dr. Kadiri with
    reason to request a hearing before the HPARB under s. 41(1)(b) of the
PHA
on the basis that he had been aggrieved by a decision of Hospital
    administrators which, unless complied with, would result in the involuntary
    reduction of his privileges. On his part, Dr. Kadiri described the message that
    emerged from the May 23 meeting as a threat of unlawful action which, because
    of its unlawfulness, could not amount to a decisionunderthe by-laws of the
    Hospital within the meaning of s. 41(1)(b).

[44]

There may be some merit in the appellants
    argument on this point. In
Baranick v. Queensway Carleton Hospital
,
    2009 CanLII 88687 (Ont. HPARB), the HPARB took a broad view of its jurisdiction,
    holding, at para. 61:

The argument was made before us that the
    hospital had not made any decision under section 41 (1) (b) and in particular
    that it had not suspended Dr. Baranick pursuant to the by-laws but rather had
    done so wrongfully. In the Boards view, to the extent that the Hospital may
    have failed to follow the requirements of the by­laws for a mid-term
    suspension, our jurisdiction is triggered under the Act in a situation where
    the question is whether there was either a wrongful suspension of the
    appointment or the wrongful suspension of the privileges.

[45]

In light of the HPARBs broad view of its
    jurisdiction to hear privileges disputes, the motion judges conclusion that
    no decision appears to have been made at all which Dr. Kadiri could appeal was
    not completely accurate.  However, I do not regard that error by the motion
    judge to be of any ultimate consequence to the issue of whether the court has
    jurisdiction over Dr. Kadiris 2012 action. One cannot freeze the sequence of
    events at May 23, 2008 and consider only whether Dr. Kadiri could have, or
    should have, gone to the HPARB at that time.  To take that approach would
    ignore the evidence of the significant events that followed, which I review
    below.

Did Dr. Kadiri exhaust the remedies available to him under the
    By-law and the
PHA
?

[46]

The motion judge looked at the totality of the
    events in the dispute between Dr. Kadiri and the Hospital, including those
    which followed the May 23, 2008 meeting of the MAC subcommittee.  What that
    evidence showed was that by the end of May 2008, Dr. Kadiri and the Hospital
    had worked out an arrangement to deal with the dispute, albeit an arrangement
    that did not fit four-square within the process set out in the Hospitals
    By-law. As put by Dr. Merrow in her May 26, 2008 report to the Board Committee
    on Quality: The physician has agreed with the Chief of Anesthesia to reduce
    his duties until a full report and plan to prevent recurrence is available.
    And on May 29, 2008, Dr. Kadiris counsel wrote to the Hospitals counsel
    stating:

At no time has Dr. Kadiri withdrawn his
    cooperation with voluntary restrictions in his duties. Dr. Kadiri is, clearly,
    not happy about the restriction in his duties but he is carrying on,
    nonetheless.

[47]

After June 2008, the communications and dealings
    between Dr. Kadiri and the Hospital focused on two issues: arranging the appropriate
    psychological assessments of Dr. Kadiri, and addressing his concerns that the
    Hospital was not assigning to him a fair share of the clinical assessment work,
    with adverse effects on his income.

[48]

On two further occasions prior to the completion
    of the assessment process  in July 2008 and August 2009  Dr. Kadiris
    complaints about the lack of fairness in the process elicited responses from
    the Hospitals counsel that if Dr. Kadiri withdrew his co-operation with the
    process, the Hospital could proceed with a by-law process before the MAC and
    the Board. In both cases, Dr. Kadiri continued to co-operate with the
    assessment process, and the Hospital did not initiate a By-law process before
    the MAC and the Board.

[49]

The motion judge found that, for a variety of
    reasons, the assessment process was prolonged and the final assessment was not
    provided to the Hospital until May 2010. Dr. Kadiri attended and addressed the
    MAC during its meeting on July 20, 2010, during which the MAC resolved to
    re-integrate Dr. Kadiri into full practice following clinical re-training at
    another institution with reports satisfactory to the Chief of Department and
    Chief of Staff.

[50]

In December 2010, Dr. Kadiri underwent
    re-training at Mount Sinai Hospital from which he received a letter attesting
    to his competence to resume operative anesthesia clinical practice at the
    Hospital. Dr. Kadiri returned to work at the Hospital in January 2011.

[51]

When considered as a whole, the evidence discloses
    that while the Hospital initially proceeded with an investigation under s. 12.1
    of its By-laws, ultimately the parties participated in an informal process of
    psychological assessments and reduced duties. Even though Dr. Kadiri
    occasionally complained about that process, he saw it through to its end  the
    assessments were completed; he underwent re-training at the Mount Sinai
    Hospital; and he returned to full practice as part of the Hospitals medical
    staff in January 2011.

[52]

By the time Dr. Kadiri started his lawsuit in
    April 2012, there was no decision in place  formal or
de facto
 that cancelled, suspended or substantially altered his hospital
    privileges. Dr. Kadiri had resumed a full practice more than a year before.

[53]

Notwithstanding that state of affairs, the
    appellants submit that Dr. Kadiri was required to seek a hearing before the HPARB
    before he could commence his action. Only upon the completion of such a hearing,
    according to the appellants, could Dr. Kadiri bring an action in court seeking
    relief in respect of the events that took place between the date of the
    incident and his return to practice.

[54]

The motion judge rejected this argument in para.
    71 of her reasons where she stated, in respect of the process followed by Dr.
    Kadiri and the appellants:

Having followed through with the process, the
    defendants insist Dr. Kadiri must appeal to the HPARB. But what is he to
    appeal? The matter within the Hospital was concluded in his favour. The HPARB
    can only confirm a decision related to privileges

[55]

I see no error in the motion judges conclusion.
     First, as set out above, ample evidence supported the motion judges finding
    that Dr. Kadiri had followed through with the Bylaws dispute resolution process
    as required, albeit an informal process worked out by the parties in the particular
    circumstances.  The principle in
Beiko
 which
    required Dr. Kadiri to go through and exhaust the
PHA
process prior to commencing an action in court  was satisfied,
    with the result that the court has jurisdiction over his action.

[56]

Second, her conclusion accorded with the reality
    that, in April 2012, Dr. Kadiri was back at the Hospital enjoying full
    privileges. Under s. 41(1)(b) of the
PHA
, a member of the medical
    staff aggrieved by any decisionunderthe by-laws cancelling, suspending or
    substantially altering his or her hospital privileges is entitled to a hearing
    before the HPARB. The powers of the HPARB are set out in s. 41(5) of the
PHA
,
which provides:

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

[57]

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. Kadiris hospital
    privileges because at that time he enjoyed full privileges. In April 2012 there
    were no privileges of Dr. Kadiri to restore.

Is an appeal to HPARB a condition precedent
    to an action in court?

[58]

The appellants advance one further argument. 
    They submit in their factum that the decision of this court in
Beiko

stands for the proposition that, only after establishing the
    basis for a remedy in damages through the statutory process [HPARB], is it open
    for the applicant to bring an action for damages in the ordinary courts. The
    specialized tribunal must first determine that there is conduct respecting an
    issue of privileges to sustain a civil remedy.

[59]

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 hospitals 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.  In the
    present case, it was not because (i) Dr. Kadiri and the Hospital worked out an
    arrangement to deal with their dispute which they saw through to its end and
    (ii) at the time Dr. Kadiri commenced his lawsuit, he had returned to a full
    practice at the Hospital with full privileges. In those two respects, the facts
    of this case differ fundamentally from those in
Beiko
.

[60]

Moreover, the appellants proposition that the HPARB
    has the exclusive jurisdiction to act as a gatekeeper for any court action a
    physician may wish to bring after being restored to full privileges does not
    fit comfortably with the HPARBs statutory framework or the prevailing approach
    to civil litigation.

[61]

As to the statutory framework, neither of the HPARBs
    home statutes  the
PHA
and the
Ministry of Health and Long-Term
    Care Appeal and Review Boards Act
, 1998  contains a provision granting
    the HPARB the exclusive jurisdiction to hear any and all matters that may touch
    on the issue of privileges, including claims for compensation by a physician
    who has been restored to full privileges.

[62]

As to the prevailing approach to civil
    litigation, in
Hryniak
the Supreme Court of Canada recognized, at
    para. 2, that a culture shift is required in order to create an environment
    promoting timely and affordable access to the civil justice system. The
    appellants proposition that a physician who has been restored to full
    privileges nevertheless must seek a hearing before the HPARB so that it could
    first determine that there is conduct respecting an issue of privileges to
    sustain a civil remedy would impose cost and delay on the physicians ability
    to access the civil justice system. Absent clear legislative direction that a
    physician must incur that cost and delay before accessing the courts, in my
    view a court should be loath to interpret the jurisdiction of the HPARB in a
    fashion so antithetical to the culture shift the Supreme Court directed in
Hryniak
.


VI.

DISPOSITION

[63]

For the reasons set out above, I would dismiss
    the appeal. The parties agreed that the successful party would be entitled to
    costs of the appeal in the amount of $10,000. I would order the appellants to
    pay the respondent his costs of the appeal in the amount of $10,000, inclusive
    of disbursements and HST.

Released: December 4, 2015 (EEG)

David
    Brown J.A.

I
    agree E.E. Gillese J.A.

I
    agree Gloria Epstein J.A.





[1]
As noted below, Dr. Kadiri later disputed that he had withdrawn his
    co-operation.


