Administrative law – Decisions of administrative tribunals – Hospital Appeal Board – Physicians and surgeons – Hospital privileges – Hearings – Conduct of hearings – Bias – Judicial review application – Striking out – Premature – Judicial review – Compliance with legislation – Jurisdiction
Khan v. Scarborough General Hospital, [2009} O.J. No. 5437, Ontario Superior Court of Justice, December 3, 2009, J.M. Wilson J.
The Applicant (“Dr. Khan”) had privileges at the Respondent Hospital (the “Hospital”), which entitled him to practice in the Hospital. The Medical Advisory Committee (the “MAC”) of the Hospital recommended that the Hospital terminate Dr. Khan’s privileges because of a history of disruptive conduct (culminating in one email that Dr. Khan sent). The email related to the Chief of Medical Staff, Dr. Jackson.
Dr. Khan brought a preliminary motion to the Executive Committee of the Board of Directors of the Hospital (the “Committee”) to quash the recommendation of the MAC. The Committee refused to quash the MAC’s recommendation (the “Motion Decision”). The Committee still had to have a hearing to decide whether to accept the MAC’s recommendation. In advance of the Committee’s hearing, Dr. Khan brought a court application to stop the Committee from making a decision before the within application (relating to the Motion Decision) was heard. The Court application was unsuccessful but the Court ordered that the Hospital wait to disclose the Committee’s decision until the within application was concluded.
In the within application, Dr. Khan raised several grounds in support of his application to quash the MAC’s recommendation.
Dr. Khan argued that the MAC had no jurisdiction to recommend the termination of his privileges because of the email that Dr. Khan sent. The Court held that his argument had no merit because there was nothing in the bylaws of the Hospital that precluded the MAC from reconsidering its recommendation in light of new evidence that was received before the Committee considered the matter.
Second, Dr. Khan argued that the Committee lost its jurisdiction to consider the MAC recommendation because Dr. Jackson was at the Committee meeting. Dr. Khan based this argument on a documented comment that Dr. Jackson made at the hearing. The Court held that the comment was far from a clear violation of the relevant provision of the Public Hospitals Act. The Court also noted that, if Dr. Khan’s privileges were terminated, he would have a right of full appeal to the Health Professions Appeal and Review Board (the “HPARB”) and then to the Court. The HPARB would be well situated to weigh the significance of the comment made by Dr. Jackson.
Third, Dr. Khan argued that the involvement of Dr. Jackson created a reasonable apprehension of bias. The Court noted that the Committee considered this argument fully in the Motion Decision. The Court concluded that Dr. Khan did not meet the test for bias.
Finally, Dr. Khan attempted to argue that the within application was not premature but the Court rejected that argument. The Court referred to previous cases involving hospital privileges disputes and found that Dr. Khan had to pursue all avenues of statutory relief before he seeks judicial review in the courts.
Dr. Khan’s application for judicial review was dismissed.
This case was digested by Scott J. Marcinkow of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at firstname.lastname@example.org or review his biography at http://www.harpergrey.com.
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