Kadiri v. Southlake Regional Health Centre et al., 2015 ONCA 847

• Judge: Gillese, Epstein and D. Brown, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: September 21, 2015
• Jurisdiction: Ontario
• Citations: 2015 ONCA 847;(2015), 343 O.A.C. 186 (CA)

Kadiri v. Southlake Health (2015), 343 O.A.C. 186 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. DE.012

Yahaya Kadiri (plaintiff/respondent) v. Southlake Regional Health Centre, Nancy Merrow, Robert Smyth, Michael Sullivan, Lee Ellis Heinrich , Ira Bloom and Giles Cruickshanks (defendants/appellants)

(C60036; 2015 ONCA 847)

Indexed As: Kadiri v. Southlake Regional Health Centre et al.

Ontario Court of Appeal

Gillese, Epstein and D. Brown, JJ.A.

December 4, 2015.

Summary:

In April 2012, Dr. Kadiri sued for loss of income and other damages concerning his ability to exercise his hospital privileges from April 2008 to January 2011. He had returned to full practice in January 2011. The defendants moved to dismiss the action, arguing that the court had no jurisdiction. They contended that s. 41 of the Public Hospitals Act required Dr. Kadiri to proceed to a hearing before the Health Professions Appeal and Review Board (HPARB) before starting his lawsuit.

The Ontario Superior Court, with reasons reported at 2015 ONSC 621, held that the court had jurisdiction over the subject-matter of Dr. Kadiri's claim and that, in the circumstances, Dr. Kadiri was not required first to proceed to the HPARB before commencing his action. The defendants appealed.

The Ontario Court of Appeal dismissed the appeal.

Hospitals - Topic 233

Operation - Administration - Medical or practitioner staff appeal tribunals (incl. jurisdiction) - [See second Hospitals - Topic 344 ].

Hospitals - Topic 342

Operation - Doctors - Restriction or revocation of hospital privileges - Authority for - The Ontario Court of Appeal provided a summary of the statutory framework set out in the Public Hospitals Act and a hospital's bylaws governing disputes about a physician's hospital privileges - See paragraphs 10 to 19.

Hospitals - Topic 344

Operation - Doctors - Restriction or revocation of hospital privileges - Right of doctor to a hearing - In April 2012, Dr. Kadiri claimed damages for conduct undertaken by the defendants concerning his ability to exercise his hospital privileges between April 2008 and January 2011 - He had returned to full practice in January 2011, after following through with the hospital bylaw's dispute resolution process - The motion judge denied the defendants' motion to dismiss the action on jurisdictional grounds - The defendants had submitted that Dr. Kadiri had not followed the process set out in s. 41 of the Public Hospitals Act (PHA) before starting the lawsuit - Section 41(1)(b) afforded a physician a right to a hearing before the Health Professions Appeal and Review Board (HPARB) in disputes over privileges - The Ontario Court of Appeal held that the motion judge was correct - When Dr. Kadiri started his lawsuit, the court had jurisdiction over it because, by that point in time, Dr. Kadiri had properly followed through with the statutory process under the hospital bylaw and PHA - "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." - See paragraphs 23 to 59.

Hospitals - Topic 344

Operation - Doctors - Restriction or revocation of hospital privileges - Right of doctor to a hearing - Dr. Kadiri commenced an action for loss of income and other damages after being restored to full hospital privileges - The motion judge denied the defendants' request to dismiss the action on jurisdictional grounds - The defendants 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 (PHA) which, they contended, required him to proceed to a hearing before the Health Professions Appeal and Review Board (HPARB) before starting the lawsuit - The Ontario Court of Appeal, in dismissing the defendants' appeal, stated that "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 HPARB's statutory framework or the prevailing approach to civil litigation. As to the statutory framework, neither of the HPARB's 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." - See paragraphs 60 and 61.

Hospitals - Topic 344

Operation - Doctors - Restriction or revocation of hospital privileges - Right of doctor to a hearing - Dr. Kadiri commenced an action for loss of income and other damages after being restored to full privileges - The motion judge denied the defendants' request to dismiss Dr. Kadiri's action on jurisdictional grounds - The defendants 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 which, they contended, required him to proceed to a hearing before the Health Professions Appeal and Review Board (HPARB) before starting a lawsuit - The Ontario Court of Appeal, in dismissing the defendants' appeal, stated that "[t]he 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 physician's 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 [v. Mauldin, (2014) (S.C.C.)]." - See paragraph 62.

Hospitals - Topic 353

Operation - Doctors - Restriction or revocation of hospital privileges - Restoration of privileges - [See third Hospitals - Topic 344 ].

Hospitals - Topic 356

Operation - Doctors - Restriction or revocation of hospital privileges - Appeals and judicial review - [See first Hospitals - Topic 344 ].

Cases Noticed:

Rosenhek v. Windsor Regional Hospital (2010), 257 O.A.C. 283; 2010 ONCA 13, refd to. [para. 11].

Hryniak v. Mauldin, [2014] 1 S.C.R. 87; 453 N.R. 51; 314 O.A.C. 1; 2014 SCC 7, appld. [para. 21].

Khan Resources Inc. et al. v. W M Mining Co. LLC et al. (2006), 208 O.A.C. 204 (C.A.), refd to. [para. 22].

Beiko et al. v. Hotel Dieu Hospital St. Catharines et al., [2007] O.A.C. Uned. 509; 2007 ONCA 860, consd. [paras. 23, 26 et seq.].

Baranick v. Queensway Carleton Hospital, 2009 CanLII 88687 (Ont. HPARB), refd to. [para. 44].

Statutes Noticed:

Public Hospitals Act, R.S.O. 1990, c. P-4, sect. 41(1)(b) [para. 13].

Counsel:

William Carter and Lee Lenkinski, for the appellants;

Paul Harte and Giuseppe Michelucci, for the respondent.

This appeal was heard on September 21, 2015, before Gillese, Epstein and D. Brown, JJ.A., of the Ontario Court of Appeal. In reasons written by D. Brown, J.A., the Court delivered the following judgment, released on December 4, 2015.