Saba v. Interlake Eastern Regional Health Authority, (2016) 328 Man.R.(2d) 98 (QB)

JudgeToews, J.
CourtCourt of Queen's Bench of Manitoba (Canada)
Case DateApril 22, 2016
JurisdictionManitoba
Citations(2016), 328 Man.R.(2d) 98 (QB);2016 MBQB 78

Saba v. Health Authority (2016), 328 Man.R.(2d) 98 (QB)

MLB headnote and full text

Temp. Cite: [2016] Man.R.(2d) TBEd. MY.002

Dr. Shahnaz Ziaei Saba (plaintiff) v. Interlake Eastern Regional Health Authority (defendant)

(CI 16-01-00487; 2016 MBQB 78)

Indexed As: Saba v. Interlake Eastern Regional Health Authority

Manitoba Court of Queen's Bench

Winnipeg Centre

Toews, J.

April 22, 2016.

Summary:

The plaintiff, Dr. Saba, commenced a claim against the defendant, the Interlake Eastern Regional Health Authority, asking for injunctive and declaratory relief, as well as damages. The plaintiff stated that the defendant improperly terminated her privileges to provide gynecology surgery and obstetric services at the Selkirk & District General Hospital. Only her obstetrical privileges had not been reinstated. The plaintiff brought a motion requesting a declaration requiring the defendant to follow its medical staff bylaws governing the granting and withdrawing of privileges, and requesting interlocutory injunctive relief reinstating the plaintiff's obstetrical privileges, including the hospital resources necessary for her to carry out those responsibilities.

The Manitoba Court of Queen's Bench dismissed the motion.

Hospitals - Topic 341.1

Operation - Doctors - Restriction or revocation of hospital privileges - What constitutes amendment, suspension or revocation of privileges - [See Hospitals - Topic 353 ].

Hospitals - Topic 353

Operation - Doctors - Restriction or revocation of hospital privileges - Restoration of privileges - The plaintiff, Dr. Saba, commenced a claim against the defendant, the Interlake Eastern Regional Health Authority, seeking injunctive and declaratory relief, as well as damages - The plaintiff stated that the defendant improperly terminated her privileges to provide gynecology surgery and obstetric services at a hospital - Only her obstetrical privileges had not been reinstated - The plaintiff brought a motion requesting a declaration requiring the defendant to follow its medical staff bylaws governing the granting and withdrawing of privileges, and requesting interlocutory injunctive relief reinstating the plaintiff's obstetrical privileges, including the hospital resources necessary for her to carry out those responsibilities - The defendant argued that the test to be applied when the moving party sought a mandatory injunction was a "modified" RJR-MacDonald test, whereby the first part of the test was "a strong and clear prima facie case" rather than "a serious question to be tried" - The Manitoba Court of Queen's Bench dismissed the plaintiff's motion - The application of the modified RJR-MacDonald test was appropriate in this case - The court was not satisfied that the plaintiff had a strong prima facie case that would probably prevail at trial or was likely to succeed at trial - It was the plaintiff who terminated her contract with the defendant in respect of her privileges by choosing to unilaterally withdraw the provision of obstetrical services - The plaintiff had also not established "irreparable harm" - The plaintiff's claim could be quantified in monetary terms - Finally, providing the remedy sought would have a significantly adverse impact on the delivery of obstetrical services in the hospital - Accordingly, the balance of convenience favoured the defendant - See paragraphs 76 to 94.

Injunctions - Topic 1606

Interlocutory or interim injunctions - General principles - Balance of convenience - [See Hospitals - Topic 353 ].

Injunctions - Topic 1607

Interlocutory or interim injunctions - General principles - Requirement of strong prima facie case or appearance of right - [See Hospitals - Topic 353 ].

Injunctions - Topic 1802

Interlocutory or interim injunctions - Requirement of irreparable injury - What constitutes - [See Hospitals - Topic 353 ].

Injunctions - Topic 2309

Mandatory injunctions - Interim or interlocutory mandatory injunctions - [See Hospitals - Topic 353 ].

Practice - Topic 3628

Evidence - Affidavits - Making of - Affidavit of information and belief (incl. requirement of personal knowledge) - [See Practice - Topic 3629 ].

Practice - Topic 3629

Evidence - Affidavits - Making of - Affidavit of information and belief - What constitutes - The plaintiff, Dr. Saba, commenced a claim against the defendant, the Interlake Eastern Regional Health Authority, seeking injunctive and declaratory relief, as well as damages - The plaintiff brought a motion requesting a declaration requiring the defendant to follow its medical staff bylaws governing the granting and withdrawing of privileges, and requesting interlocutory injunctive relief reinstating the plaintiff's obstetrical privileges - The plaintiff expressed concerns about the affidavits of Drs. Thiessen and Lindsay on the basis that they contained statements based on information and belief without identifying who provided the evidence and they relied on information and belief when direct evidence should have been provided - The Manitoba Court of Queen's Bench found that the paragraphs in issue did not violate the Queen's Bench Rules - The court stated that "First, the deponents of these affidavits are both senior members of the hospital staff. ...  In the course of their employment, they are responsible for the administration of the hospital and its staff. In that capacity it is not unusual that they would make decisions on behalf of their respective organizations based on the policies governing these organizations and on the interaction which they have with the staff and patients and the information that would come to them as a matter of course in their day-to-day responsibilities. ... Furthermore, in my opinion the affidavits have sufficiently identified the source of the information upon which they have relied in coming to their conclusions. Both doctors were cross-examined on their affidavits and to the extent that if the plaintiff had any concerns about the source or type of information which these two individuals relied upon and the opinions which they expressed, those concerns should have been raised at that time so that an appropriate evidentiary basis could be constructed on which to challenge their opinions or conclusions in court. Notwithstanding that a significant amount of hearsay evidence forms the basis of the affidavit evidence of the two doctors, in my opinion there is nothing in the material, including the cross-examination on the affidavits that challenges the reliability of their affidavit evidence or prevents its admission into evidence" - See paragraphs 59 to 68.

Practice - Topic 3663

Evidence - Affidavits - Striking out - Opinion - The plaintiff, Dr. Saba, commenced a claim against the defendant, the Interlake Eastern Regional Health Authority, seeking injunctive and declaratory relief, as well as damages - The plaintiff brought a motion requesting a declaration requiring the defendant to follow its medical staff bylaws governing the granting and withdrawing of privileges, and requesting interlocutory injunctive relief reinstating the plaintiff's obstetrical privileges - The plaintiff expressed concerns about the affidavits of Drs. Thiessen and Lindsay - The Manitoba Court of Queen's Bench did not agree with the concern raised by the plaintiff that the affidavits purported to give expert evidence in obstetrics which was beyond the expert knowledge and belief of the deponents - The court stated that "the decisions which the two doctors have made and the opinions which they have formulated and expressed in their respective affidavits fall within the parameters of their responsibilities as medical administrators. In my opinion, both deponents are properly qualified to provide the evidence and express the opinions found in their respective affidavits" - See paragraph 69.

Practice - Topic 3664

Evidence - Affidavits - Striking out - Hearsay - [See Practice - Topic 3629 ].

Counsel:

Helga D. Van Iderstine and Danielle A. Barchyn, for the plaintiff;

Vivian E. Rachlis and Bailey J. Harris, for the defendant.

This motion was heard before Toews, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on April 22, 2016.

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