QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2016 SKQB 293 Date: 2016 09 07 Docket: QBG 126 of 2016 Judicial Centre: Saskatoon BETWEEN: MUSBAH ABOUHAMRA and PRAIRIE NORTH REGIONAL HEALTH AUTHORITY Counsel: Christine J. Glazer, Q.C., Sheila E. Caston and Allan J. Stonhouse for the appellant Christopher C. Boychuk, Q.C. for the respondent JUDGMENT DANYLIUK J. September 7, 2016 [1] This is judgment following statute-based appeal brought by the appellant against decision of an administrative tribunal. To better organize this judgment, it has been divided into the following subsections: ITEM PARAGRAPHS Introduction .......................................................................................................................... Background Facts................................................................................................................. Regulatory Framework and Procedural History............................................................ 27 Evidence before the Tribunal .......................................................................................... 51 Issues ………...................................................................................................................... 57 Jurisdiction and Standard of Review.............................................................................. 59 Analysis …..….................................................................................................................... 68 Conclusion ....................................................................................................................... 204 Introduction [2] The appellant, medical doctor, appeals from decision of the Practitioner Staff Appeals Tribunal [Tribunal]. The appellant had his hospital privileges suspended by the respondent’s Senior Medical Officer [SMO], Dr. Prollius. The appellant contends the original suspension was done wrongfully and precipitously, and that ultimately the Tribunal made fatal errors when dealing with this matter pursuant to statutory appeal. [3] To me, it appears all parties acted in good faith throughout. Nevertheless, my task has been to review the decision of the Tribunal to determine if it made any of the numerous errors alleged by the appellant such that its decision is rendered unreasonable or, in one case, incorrect. have determined that the Tribunal did err in some respects, and that the errors lead to the granting of remedy to the appellant, that of quashing the Tribunal’s decision and full reinstatement of his privileges. Background Facts [4] significant amount of material was filed on this application, and the record from the Tribunal ran to some 2,000 pages. The facts disclosed by that record are only summarized herein. Note is made of those facts which bear upon the application and the analysis of same. The parties may rest assured that the entirety of the record has been reviewed by the court, in detail. [5] The respondent’s mandate, in the broadest terms, is to administer health care within geographic region within this province. The Regional Health Services Act, SS 2002, R-8.2 [Act] applies. The respondent operates health care facilities, including hospitals, within its region. Medical doctors such as the appellant practice within the region and at those hospitals. To do so, those doctors must firstly obtain privileges under the respondent’s Bylaws. Section 43 of The Regional Health Services Act requires every health authority to make bylaws governing the practitioner staff covering, inter alia, privileges and the matters in issue in the within appeals. [6] Dr. Abouhamra was at all material times medical doctor with specialty (he is fellow of the Royal College of Physicians and Surgeons in Obstetrics and Gynecology). He practiced at hospital in Lloydminster, Saskatchewan, facility administered by the respondent. He did so since 2003. On December 18, 2014 the SMO of the Health Authority suspended Dr. Abouhamra’s privileges. Hearings and appeals have brought the matter to this point, over one and one-half years later. [7] The appellant and his wife (Dr. Elghdewi) are both qualified to specialize in obstetrics and gynecology. Both have licensure in Saskatchewan and Alberta. Both work within the respondent Health Authority at Lloydminster. The appellant practiced there for about dozen years prior to these proceedings. [8] The review of number of patient files caused the SMO to suspend Dr. Abouhamra. These patients are referred to herein only by their initials, NW, HN, CW, EA, and CC. Each of these patients’ matters is summarized below. As well, in the Analysis section of this judgment, review of the competing evidence and conflicting medical opinions concerning the appellant’s handling of these five cases is reviewed not to conduct new review and make new findings on this appeal, but rather to assess whether the Tribunal properly analyzed the available evidence, properly conducted hearing de novo, and properly documented its decision with adequate reasons. [9] From the material before the court it appears that NW’s matter was the first to pique the SMO’s interest. NW delivered her baby in mid-September 2013 and while the forceps delivery was not entirely uneventful, neither was it remarkable from medical perspective. The baby was born healthy. However, following the delivery NW began to bleed and there were problems controlling the bleeding, problems which threatened NW’s life. This is condition known as post-partum hemorrhage [PPH]. PPH is not an uncommon condition. Various measures, largely directed by the appellant, were taken to control NW’s PPH. Other physicians (notably Dr. Elghdewi) and nurses played roles in NW’s care. The bleeding continued and Dr. Abouhamra had to perform hysterectomy on NW to stop the hemorrhaging and save her life. That surgery was successful. Dr. Abouhamra’s evidence is that this is the first and only occasion where he was required to do hysterectomy to control patient’s PPH. [10] In the case of NW, the SMO did ask for input from Drs. Abouhamra and Elghdewi as to the patient’s care and management. The SMO’s letter of October 8, 2013 also stated that formal five-patient audit would be performed. It does not appear such an audit was ever actually conducted; at least, the appellant never received the results of same from the SMO and no audit material was disclosed in the course of this application. [11] The SMO’s inquiries were written, so (with the assistance of an Edmonton lawyer) the two doctors provided written replies. Those were dated December 6, 2013. There was no further inquiry from the SMO. The appellant assumed, wrongly as it turned out, that the responses were accepted by the SMO and satisfied any concerns he might have had. [12] There was follow-up in the sense that Critical Review Conference was held on January 28, 2014. This involved the SMO, the appellant, Dr. Elghdewi, and other health professionals involved in NW’s case. Critical Review Conference is mandated by s. 58 of the Act, and is part of the quality assurance process of the Health Authority, discussed in more detail below. [13] The results of the Critical Review Conference regarding NW were not immediately made known to the appellant. His lawyer at that time sought an update from the SMO in spring 2014 and the SMO sent redacted version of that report. What was redacted included the contributing factors listed in the report. It was not until then that the full report was disclosed to Dr. Abouhamra, and it was not until later that he learned that none of that report’s suggestions were specific to his performance, but rather dealt with better team management and the overall response. [14] From the evidence it is clear that the SMO never followed up directly with the appellant regarding NW’s case, nor voiced any criticisms or concerns to him regarding the appellant’s care and management of NW. The SMO did write to the registrar of the College of Physicians and Surgeons of Saskatchewan on January 17, 2014. The SMO set out concerns as to the appellant’s management of NW’s case and that of HN, discussed below. In his correspondence to the College the SMO raised concerns as to the appellant’s overall competence and suggested he had caused an internal review or investigation to be commenced. The registrar replied to the SMO some six months later, indicating that review by the College was unlikely based on one putative lapse in judgment on the part of the appellant. She outlined to the SMO the College’s process if such review was instituted. [15] In subsequent correspondence with the College’s registrar, the SMO indicated that he had ongoing concerns with what he termed Dr. Abouhamra’s “non-compliance” with Health Authority policy. Those concerns were never identified or disclosed to the appellant. [16] The appellant was not told of this correspondence between the SMO and the College. [17] second case was identified by the SMO as warranting concern, that of HN. This was case from December 2013. It involved review of the appellant’s interpretation of fetal heart rate tracings. Those readings can be indicative of fetus in distress, and can assist physician in making the decision as to when to intervene and conduct caesarian section as opposed to allowing natural childbirth. This necessarily involves issues of patient and fetus safety. [18] In this case the appellant provided HN with all treatment options, and she indicated that she wanted natural delivery through induction. This was done. As matters eventually transpired, the child was born with significant ongoing disabilities, including cerebral palsy. [19] Among medical professionals it is widely agreed that there is much disagreement as to the interpretation of fetal heart rate tracings. One expert referred to it as being as much art as science. There is no standard by which these are interpreted. There appears to be considerable room for individual physicians’ judgment. Indeed, the experts in this very case have varying opinions as to whether and when the appellant ought to have intervened. Such diversity in opinions is not uncommon. [20] This was tragic case ending with the mother’s death. It occurred in September 2014, months after the first two cases reviewed. CW had rare condition (streptococci septicemia) that often proves to be fatal even though (or perhaps because) it has fairly low incidence. She delivered her baby and that was relatively unremarkable. There was post-partum hemorrhaging but that appears to have been properly managed. CW went on to develop this infection and she died during surgery being conducted by another physician. Dr. Abouhamra’s evidence is that this is the only death of mother he has experienced. [21] Factually, this case is somewhat discordant with the other four. There is no real nexus between this rare condition and the other situations Dr. Abouhamra was called upon to manage in the course of his ob/gyn practice in the respondent’s facility. The reviewing physicians tend to agree there was no mismanagement of CW on the part of the appellant. On any objective basis, this case cannot be taken to be supportive of the suspension of Dr. Abouhamra. [22] This was another case of post-partum hemorrhage. The patient recovered. [23] This matter was not reviewed by the respondent’s experts, only the SMO. The appellant’s experts did review this case. Everyone except the SMO found the appellant met the standard of care. There were no discussions between the SMO and Dr. Abouhamra prior to the SMO presenting his views to the respondent’s Board and Tribunal. The SMO sought and obtained no information re: CW from the appellant before the SMO formed his own opinion, leading to the interim suspension. [24] In this case the young woman was pregnant but her fetus died at 21 to 22 weeks’ gestation. The issue in this case centred on the options available to deal with this intrauterine death. Each option carried with it certain risks. Again, the respondent’s experts did not review this matter, only the SMO did so. He had several criticisms of the appellant’s management of these options. [25] The evidence from the appellant (confirmed in part by the medical file) is that all options were reviewed with CC, who elected to pursue particular course of treatment. This was done. The question is whether it was done appropriately, as during the treatment uterine rupture occurred, requiring remedial steps to safeguard the mother’s welfare. Again, medical opinion on CC is somewhat divided. [26] Upon reviewing these five cases (and some outside expert opinions obtained by the respondent) the SMO purportedly determined that the appellant’s medical performance was reasonably likely to expose patients to harm or injury, and that immediate action was required to protect future patients from that risk. Accordingly, he suspended Dr. Abouhamra on an interim basis. It must also be noted that the SMO shared the same specialty as the appellant (ob/gyn). Regulatory Framework and Procedural History Regulatory Framework [27] Both statutory and internal rules apply to the parties. As stated above, the respondent is both established (under Part III) and governed by The Regional Health Services Act. The respondent is essentially non-profit corporation established under statute. Under Part IV of this legislation it is the respondent that is responsible for delivery of health services within particular geographic region. Specifically, the respondent is empowered to conduct the “planning, organization, delivery and evaluation of health services” within its region (s. 27, Act). [28] Part VI of the Act sets out the responsibilities and powers of health care organizations. Part VII deals with governance, and some of those provisions are apposite here. Section 42 of the Act mandates that the respondent must make general bylaws and policies regarding its internal organization and proceedings, and the general conduct and management of its affairs and activities. All of this must be done consistent with ministerial guidelines. [29] Section 43 of the Act directs every regional health authority to make bylaws concerning its practitioner staff. It reads as follows: 43 Every regional health authority and every affiliate prescribed for the purposes of this section shall make bylaws governing the practitioner staff, including bylaws: (a) respecting the appointment, reappointment and termination of appointment of persons to the practitioner staff and the suspension of persons appointed to the practitioner staff; (a.1) respecting the disciplining of members of the practitioner staff; (a.2) respecting the granting of privileges to members of the practitioner staff, including the amending, suspending and revoking of privileges granted; (b) governing the classification and organization of the practitioner staff; (c) governing the appointment of committees and officers of the practitioner staff and prescribing their duties; (d) respecting any other prescribed matter. [30] In this appeal, the parties are primarily concerned with s. 43(a). The respondent has made the bylaws required by that subsection. They are based on “model bylaws” promulgated by the Ministry of Health about decade ago. These are the respondent’s Practitioner Staff Bylaws [Bylaws]. The Bylaws are integral to an assessment of the within appeal. [31] The Bylaws (s. 7) create the position of Senior Medical Officer, who is given an overarching responsibility for governing the respondent’s medical staff and practitioners. The SMO is accountable directly to the respondent’s Chief Executive Officer. Amongst the SMO’s several duties are management and administration of the medical staff (s. 7(b)); ensuring provision of quality of practitioner care (s. 7(d)); practitioner staff resource planning (s. 7(e)); professional and ethical conduct of practitioner staff (s. 7(f)); continuing practitioner staff education (s. 7(g)); and teaching and research (s. 7(h)). [32] As well, for the purposes of this appeal one of the key responsibilities of the SMO is outlined at s. 7(c) of the Bylaws: (c) with respect to the appointment, privileging and discipline, including reappointment, termination, suspension and amendment thereof, of practitioner staff members: (i) ensuring that appropriate practitioner staff appointment, privileging, reappointment and discipline processes are in place and consistent with applicable law and legislation and with these bylaws. [33] Parts VIII through of the Bylaws also merit consideration in this appeal. Part VIII deals with discipline. It provides (s. 65) for procedure to follow in the event of discipline. physician has an opportunity to address the allegations or complaints made against him or her. [34] Part IX deals with immediate suspension. Sections 76 and 77 are particularly important: 76(1) Notwithstanding anything in these Bylaws, the senior medical officer or the chief executive officer may immediately suspend the appointment of member or the member’s privileges in circumstances where in the opinion of the senior medical officer or the chief executive officer: (a) The conduct, performance or competence of member exposes, or is reasonably likely to expose patient(s) or others to harm or injury, or is reasonably likely to be detrimental to the delivery of quality patient care provided by the regional health authority; and (b) Immediate action just be taken to protect the patient(s) or others, or to avoid detriment to the delivery of quality patient care. (2) The senior medical officer or the chief executive officer shall immediately advise the member of the suspension. (3) Within forty-eight (48) hours of the immediate suspension, the senior medical officer or chief executive officer who suspended the member shall provide the member with written reasons for the suspension, which shall constitute referral under clause 65(5)(d). (4) The senior medical officer or the chief executive officer, with the assistance of the member, shall immediately appoint another member of the active medical staff to assume responsibility for the care of all of the patients of the suspended member within the facilities of the regional health authority, as required. (5) The senior medical officer or the chief executive officer shall also notify the College of the suspension. 77 The chief executive officer shall set date for hearing by the Board, to be held within fourteen (14) days from the date of the immediate suspension made pursuant to section 76, to review the immediate suspension of appointment or privileges. [35] Section 78 goes on to say that the member must have at least five days’ written notice of the Board meeting. Section 79 governs the procedure at that Board meeting, and provides inter alia that the member may examine any evidence that will be produced to the Board. Section 80 provides the Board’s options regarding the immediate suspension. The Board may overturn it; it may be confirmed for specified time; or it may be confirmed and the matter referred for discipline. Section 81 provides that the Board decision is subject to appeal to tribunal in accordance with The Regional Health Services Act. [36] Part provides for general procedures. Section 84 provides for full disclosure prior to Board hearing, subject to claims of privilege. The Board is not bound by the rules of evidence (s. 85(c)). [37] Once the Board has rendered its decision and provided the parties with copy of same, statutory appeals are available under s. 45 of The Regional Health Services Act: 45(1) person who is aggrieved by decision of regional health authority or an affiliate made in relation to the following matters may, in accordance with the regulations, appeal the decision to tribunal established by the regulations: (a) the appointment of the person to the practitioner staff or the reappointment, suspension or termination of appointment of the person; (b) the disciplining of the person as member of the practitioner staff; (c) the granting of privileges to the person as member of the practitioner staff, or the amending, suspending or revoking of privileges granted to the person. (2) Subject to the regulations, tribunal may determine its own procedures for the hearing of an appeal pursuant to subsection (1). (3) For the purposes of hearing an appeal pursuant to subsection (1), the members of tribunal have the powers conferred on commission by sections 11, 15 and 25 of The Public Inquiries Act, 2013. (4) decision of tribunal may be appealed to judge of the Court of Queen’s Bench on question of law or jurisdiction within 30 days after the date of the tribunal’s decision. [38] The s. 45 appeal to tribunal is de novo appeal hearing. It is not an appeal on the record. Curial deference is not owed and the tribunal may (indeed, must) take its own view of the evidence put before it and is not bound by the view of the Board. [39] Running somewhat parallel to all these processes are quality assurance procedures. Section 58 of the Act requires review process regarding “critical incidents”. Those incidents are inclusively (not exhaustively) defined in the legislation by incorporating the definition found in The Saskatchewan Critical Incident Reporting Guideline, 2004. They include “a serious adverse health event, including, but not limited to, the actual or potential loss of life, limb or function related to health service provided by, or program operated by, regional health authority (RHA) or health care organization (HCO).” There are six broad categories within which critical incidents are classified (and the examples following each are mine): Surgical events (e.g. things going awry during surgical or invasive procedure); Product or device events (e.g. equipment failing during patient care); Patient protection events (e.g. care team members or staff do not provide for patient’s safety, such as discharging an infant to the wrong caregiver); Care management events (e.g. misdiagnosis of patient’s condition, or the administration of the wrong test or medication); Environmental events (e.g. patient coming to harm as result of fall); and Criminal events (e.g. patient is harmed due to another person’s unlawful act, such as an assault). [40] These statutory critical incident reviews do not come about as result of concerns about the type or quality of patient care delivered by doctors or nurses. Rather, the result or outcome for the patient is assessed to determine if the matter qualifies as critical incident, and review is required. Such incidents are reported to the Ministry of Health and there is public reporting. For example, the 2013-14 Annual Report of the Ministry of Health indicates that provincially that year, 195 critical incidents were reported. [41] The holding of critical incident review does not connote any wrongful act or omission on the part of any members of the patient care team. It is, rather, part of the process by which health authorities evaluate their delivery of care to determine if adequate standards are being met, or how things could be improved. They are designed to be collaborative in nature. They are not punitive. The reports emanating from such reviews are privileged under ss. 58(5) and (6) of the Act. Procedural history [42] Dr. Abouhamra was advised of the immediate suspension on December 18, 2014. Two days later, he was served with written reasons for his suspension and notice of Board meeting as required by s. 76(3) of the Bylaws. At that same time the appellant received copies of documents which the SMO said he had relied upon in coming to the decision to levy an interim suspension. These documents included the charts for the five patients discussed above, as well as the external physicians’ opinions (Dr. van Rensburg and Dr. Almas). One document was missed but that was an oversight, swiftly remedied by the SMO. [43] As required by the Bylaws the mandatory Board meeting was scheduled for December 30, 2014. It was adjourned from time to time at the request of Dr. Abouhamra. The Board meeting was actually held May 20, 2015. The Board’s written decision was rendered May 24, 2015. Under s. 80(1)(c) of the Bylaws the Board’s decision was to confirm and continue the SMO’s immediate suspension of the appellant, and to refer this matter into the discipline process. The Board’s stated reasons for the decision were that the appellant’s practice was likely to expose patients to harm, and that immediate action was required to protect those patients. This decision is found at pages 8a to 16a of Volume of the Appeal Book, and in particular paras. 16 to 19, and 33 and 34 of the Board’s decision and reasons are referenced. [44] Dr. Abouhamra had right of appeal to the Practitioner Staff Appeals Tribunal. He exercised that right by way of written notice of appeal dated June 11, 2015. Nine grounds of appeal (with several sub-grounds) were listed. Although the Tribunal appeal is de novo hearing, the grounds of appeal were framed as errors made by the Board. As well, for expediency the parties agreed to proceed with that appeal without calling evidence. Rather, the evidence was comprised of slightly augmented record from the Board hearing. This position was set out in the appellant’s notice of appeal to the Tribunal. This may have led to some confusion within the Tribunal as to the task at hand, which will be discussed in detail below. [45] This was dealt with at the outset of the Tribunal hearing, which (due to scheduling difficulties) was not conducted until September 16, 2015. In response to an inquiry from the Tribunal Chair as to number of witnesses, appellant’s counsel advised that this was an appeal on the record for the purposes of expediting the appeal (Appeal Book, Volume V, Tribunal Transcript, pages to 8). However, in the preliminary phase of the Tribunal hearing, appellant’s counsel also made it abundantly clear to the Tribunal that the nature of the appeal remained de novo hearing (Appeal Book, Volume V, Tribunal Transcript, pages 14 to 15): MS. GLAZER: Actually, would expect that because it is trial de novo or hearing de novo that Mr. Boychuk would present first, and we would present second in the same fashion that occurred before the Board because you are essentially hearing this case anew. In my experience, that is what we have done in the past, the Health Region makes its case, and we respond. Even though it is an appeal and we are the appellant, the trial de novo contemplates hearing that is basically new hearing. So it is not that you are THE CHAIRPERSON: understand. MS. GLAZER: reviewing the decision per se, although the decision is relevant in your deliberation of whether it is correct and whether you agree with parts or any of it. The hearing should proceed in the same fashion as it proceeded before the Board. [46] While it appears from the Tribunal Transcript counsel for the respondent felt surprised by this, the appellant’s position is in accord with s. 45(3) of the Act. There would be no reason for the Tribunal to have the same powers as commission under The Public Inquiries Act, 2013, SS 2013, P-38.01, if it was not de novo proceeding. In any event respondent’s counsel quite properly agreed to proceed in that fashion before the Tribunal. [47] The Tribunal had the full record from the Board in front of it. As well, from the appellant it had second opinion (July 31, 2015 from Dr. Olatunbosun) which was designed to address the SMO’s PowerPoint presentation at the Board hearing, which the appellant and his counsel saw for the first time at that hearing. The parties also filed written briefs and made extensive oral submissions before the Tribunal. [48] The decision and reasons for the decision of the Tribunal were delivered in writing on December 22, 2015. All grounds of appeal were dismissed, and the Board decision was upheld in its entirety. [49] From that Tribunal decision the appellant has brought this appeal, by way of written notice of appeal dated January 21, 2016. [50] The appellant has been suspended continuously since December 18, 2014. Evidence before the Tribunal [51] Without at this point dissecting each piece of evidence in detail, there is some utility in identifying what the Tribunal had before it for consideration of the appeal de novo it was to address. The Tribunal had all the material from the Board hearing, plus new items. concise summary of the evidence before the Tribunal is found at para. of the Tribunal decision. [52] The Tribunal had the notice of immediate suspension dated December 18, 2014 and the notice of the Board meeting dated December 19, 2014. Medical charting and information concerning the patients discussed above were all before the Tribunal. The respondent placed numerous policies and clinical guidelines before the Tribunal. As well, the PowerPoint presentation of the SMO (which was first made at the Board hearing and had not been disclosed to the appellant prior to that hearing) was in front of the Tribunal. In response to that PowerPoint, the appellant had secured second opinion from Dr. Olatunbosun dated July 31, 2015, and that opinion was before the Tribunal. This last document was somewhat controversial, insofar as it is much less purely medical opinion than it is an opinion on the process utilized by the SMO regarding the appellant’s suspension. [53] Filed by Dr. Abouhamra was his affidavit sworn May 9, 2015, with exhibits “A” through “DD” annexed. The affidavit is extensive. It runs to 34 pages, plus exhibits. It sets out the appellant’s background, the procedural history of the matter, and the appellant’s view of the case studies relied upon by the SMO in levying the interim suspension. [54] Also of note were the expert medical opinions filed by each side. The respondent filed the medical opinions of the SMO, as well as outside expert opinions from Drs. Almas and van Rensburg. The appellant filed expert medical opinions from Drs. Olatunbosun, Elkelani and Davey. [55] As well, the respondent filed various clinical practice guidelines and rules regarding chart completion. [56] The evidence before the Tribunal was, of course, all before this court. No further evidence was (nor should have been) added in the within appeal. There was one point of contention between counsel that should be addressed. At the outset of this appeal hearing appellant’s counsel filed “Compendium” of documents. This was selection of documents, all found in the appeal book filed, to which appellant’s counsel intended to refer during the course of argument. Respondent’s counsel indicated he had not seen the Compendium prior to that day and took some exception to same. did not find any fault with appellant’s counsel regarding the use of such document. It was an aid for the court and for counsel in making argument. Rather than sift through some 2,000 pages of the appeal book to locate documents referred to from time to time during argument, the Compendium provided quick and handy reference guide to the documents counsel for the appellant felt were important to her argument. It was nothing more than that. It was not new evidence. It did not create new argument. Counsel for the appellant could have made the selfsame argument and referred to the actual appeal book. This was done for convenience. The court has taken no exception to the provision and use of the Compendium, although it is noted that in the future it would be better to provide it to counsel opposite ahead of time. [57] In his notice of appeal the appellant sets forth 13 separate grounds of appeal. have altered the order in which those grounds are dealt with, but this judgment deals with all 13 points raised by the appellant. [58] At issue in this appeal are the following matters: 1. Did the Tribunal err in law by failing to review the evidence filed on the record anew as required in an appeal by hearing de novo, pursuant to s. 11(a) of The Practitioner Staff Appeals Regulations, RRS R-8.2, Reg 5? 2. Did the Tribunal err in law by failing to provide adequate reasons for its decision? 3. Did the Tribunal err in law by upholding the suspension by failing to conduct proper evidentiary analysis of the cases under review, including the conflicting expert opinions and affidavit evidence filed on behalf of the appellant, as required by s. 80 of the Bylaws, to determine whether the suspension imposed by the SMO pursuant to s. 76 of the Bylaws should be overturned? 4. Did the Tribunal err in law in failing to apply the appropriate legal test to support an interim suspension pursuant to ss. 76 and 80 of the Bylaws? 5. Did the Tribunal err in law in finding that the relevant time for determining if the suspension was reasonable was at the date of the suspension when no response to the concerns or input from the appellant was possible having received no notice of the SMO’s concerns until receiving the reasons for suspension on December 22, 2014? 6. Did the Tribunal err in law by ignoring or failing to consider uncontroverted evidence showing lack of procedural fairness in the SMO’s investigation of the five cases under review? 7. Did the Tribunal err in law in finding that the appellant’s attendance at quality assurance meetings and/or critical incident reviews for the cases under review provided adequate notice of the SMO’s concerns and that the appellant was not entitled to any further notice or procedural fairness under the Bylaws or at law? 8. Did the Tribunal err in law in finding that the appellant’s attendance at quality assurance meetings and/or critical incident reviews for the cases under review satisfied the notice and other requirements of procedural fairness while concurrently confirming the Board’s decision not to order production of the minutes/reports generated from such meetings on the basis of the privilege asserted by the SMO? 9. Did the Tribunal err in law in finding that the requirements of procedural fairness were met by the appellant’s attendance at quality assurance meetings and/or critical incident reviews when the uncontroverted evidence is that the SMO did not himself attend the quality assurance meeting in regard to the fourth case under review and that no quality assurance meeting occurred with respect to the fifth and final case under review? 10. Did the Tribunal err in law in upholding the interim suspension in light of the conflicting expert medical opinions, including the opinions of specialists in obstetrics and gynecology who found that the appellant had met the standard of care in the cases under review? 11. Did the Tribunal err in law in ignoring expert evidence that impugned the SMO’s investigation of the appellant’s practice and competence for having failed to arrange for an external review or audit of his medical charts and practice to determine if the concerns were indeed limited to the cases under review, which involved recognized complications in complex medical cases as well as systemic issues? 12. Did the Tribunal err in law by ignoring or dismissing the uncontroverted expert evidence that all of the cases under review fell within the practice area of obstetrics, which is distinct and separate area of medical practice from that of gynecology, and failing to consider that the suspension extended to the appellant’s gynecology privileges without any evidentiary support? 13. Did the Tribunal err in law by ignoring or failing to consider the long-accepted legal principle that, where there is more than one recognized method of diagnosis or treatment, physician is not negligent in selecting one of the recognized options even though such approach may not be favoured by certain practitioners? 14. If the appellant succeeds on any of these grounds, what is the appropriate remedy? Jurisdiction and Standard of Review [59] The parties are largely in agreement as to this court’s jurisdiction and the standard of review to apply in this case. [60] agree with counsel that this court’s jurisdiction to hear this appeal emanates from s. 45(4) of The Regional Health Services Act: 45(4) decision of tribunal may be appealed to judge of the Court of Queen’s Bench on question of law or jurisdiction within 30 days after the date of the tribunal’s decision. [61] As to the standard of review apposite here, there are actually two standards which apply. [62] First, the parties agree that the reasonableness standard governs all those issues relating to matters of the Tribunal’s interpretation of the governing statute, regulations thereunder, and the Bylaws (Dunsmuir New Brunswick, 2008 SCC (CanLII), [2008] SCR 190; Saskatoon Regional Health Authority Johnson, 2014 SKQB 266 (CanLII), 454 Sask 105). This standard covers all grounds of appeal raised by the appellant except the first ground as set out above, concerning the Tribunal’s putative failure to conduct an independent review of the evidence as required in hearing de novo. [63] That ground raises an issue as to fundamental procedural fairness. The applicable standard of review is that of correctness. However, that term is perhaps somewhat difficult to use in all such situations. This was recently discussed by Justice Caldwell in Eagle’s Nest Youth Ranch Inc. Corman Park No. 344 (Rural Municipality), 2016 SKCA 20 (CanLII), 476 Sask 18. It was determined that the chambers judge erred in applying reasonableness standard to an issue of procedural fairness paras. 20 to 25). In particular, Justice Caldwell stated: 20 One problem with this first question is that in post-Dunsmuir world [Dunsmuir New Brunswick, 2008 SCC (CanLII), [2008] SCR 190] the question seems to ask whether the other Dunsmuir standard correctness is the appropriate standard of review for matters of procedural fairness. In this respect, agree with Côté J.A.’s conclusion that correctness is an “awkward word to use” in the context of procedural fairness, see: Spinks Alberta (Law Enforcement Review Board), 2011 ABCA 162 (CanLII) at para 23, [2011] 10 WWR 264. say this because procedural fairness often calls for judicial deference to certain aspects of the administrative decision under review, but the rule of law ultimately requires that superior courts still ask whether the decision is itself borne of “‘just’ exercise of power” (Dunsmuir at para 90). So, while awkward, this is best reflected in the correctness standard, see Mission Institution Khela, 2014 SCC 24 (CanLII), [2014] SCR 502; Newfoundland Nurses [2011 SCC 62]; and Canada (Citizenship and Immigration) Khosa, 2009 SCC 12 (CanLII) at para 43, [2009] SCR 339; but see the separate reasons of Stratas J.A. and Webb J.A. in Maritime Broadcasting System Ltd. Canadian Media Guild, 2014 FCA 59 (CanLII), 373 DLR (4th) 167. [64] The concept of deference while within “correctness” review was discussed in some depth in the Maritime Broadcasting System Ltd. Canadian Media Guild, 2014 FCA 59 (CanLII), 373 DLR (4th) 167, case referenced by Caldwell J.A. Justice Stratas ultimately found that while the correctness standard is most often applicable, sometimes decision based in procedural fairness needs to be reviewed on the standard of reasonableness. He noted that the tribunal was charged with fact-finding, not the reviewing court. Generally that tribunal has some expertise, and generally that tribunal has substantial leeway in its self-determination of process issues (paras. 37 to 50). Even where correctness is the standard to apply, there are some cases where procedural fairness is in issue. In Maritime Broadcasting para 77 of Justice Webb’s concurring reasons contain this quote from Re: Sound Fitness Industry Council of Canada, 2014 FCA 48 (CanLII), [2015] [42] In short, whether an agency's procedural arrangements, general or specific, comply with the duty of fairness is for reviewing court to decide on the correctness standard, but in making that determination it must be respectful of the agency’s choices. It is thus appropriate for reviewing court to give weight to the manner in which an agency has sought to balance maximum participation on the one hand, and efficient and effective decision-making on the other. In recognition of the agency's expertise, degree of deference to an administrator's procedural choice may be particularly important when the procedural model of the agency under review differs significantly from the judicial model with which courts are most familiar. [65] It is my view that this is case where the standard of correctness applies to this issue, as submitted by counsel for both parties. make this finding cognizant that the law in this area is undergoing review and possibly change, changes alluded to in the dissent of Chief Justice Richards in Eagle’s Nest. am also mindful of the discussion of applicable standards discussed in Prairie North Regional Health Authority Kutzner, 2010 SKCA 132 (CanLII), 362 Sask 214. [66] do note that this is not de novo appeal; it is clearly an appeal on the record. Presently this court cannot, willy-nilly, overturn factual findings made by the Tribunal. am not engaged in new review of the evidence and am not free to draw my own conclusions or decide the case the way think it ought to be decided if had been the original adjudicator. From the plain wording of the statute, an error of law or jurisdiction must be demonstrated by the appellant. Depending on the issue, the appellant must show the Tribunal’s decision was incorrect or unreasonable. [67] The apposite standard of review for issue is that of correctness; the balance of the issues are to be assessed on the standard of reasonableness. 1. Did the Tribunal err in law by failing to review the evidence filed on the record anew as required in an appeal by hearing de novo, pursuant to s. 11(a) of The Practitioner Staff Appeals Regulations, RRS R-8.2, Reg 5? [68] This ground of appeal is assessed on the standard of correctness. The positions of the parties are opposed, except on one point. There appears to be no contest that the appeal from the Board to the Tribunal is de novo appeal, not an appeal based purely on the record. Section 11(1) of the regulations states “An appeal to the tribunal shall be conducted as hearing de novo”. This was actually acknowledged by the Tribunal in its decision (paras. and 5) although, as discussed in more detail below, the Tribunal may have misapprehended the nature of the task actually before it. [69] On all other points within this issue, the parties are at odds. [70] The appellant submits that the Tribunal erred in not conducting its analysis as it ought to have; that is, as de novo hearing. The appellant suggests that the decision of the Tribunal is in the nature of decision based entirely on the record and the Board’s treatment of same. There was no independent analysis of the evidence conducted, nor is same readily apparent from the reasons for the Tribunal’s decision. [71] The respondent argues the appeal was heard on de novo basis. It is argued that this is explicit in the Tribunal decision. It is argued that just because the Tribunal agreed with the Board’s conclusions, this does not mean the Tribunal failed to conduct the independent analysis required. [72] Upon carefully reviewing all the arguments of the parties, conclude that the Tribunal did not properly conduct the hearing on de novo basis and that this ground of appeal must succeed. note that some aspects of this ground are intertwined with the ground alleging inadequacy of reasons. Still, they are distinct arguments and are therefore treated as such in this judgment. [73] The starting point is the nature of de novo hearing. The appellant cited Tomporowski Saskatchewan Association of Architects (1994), 1994 CanLII 3887 (SK QB), 113 DLR (4th) 693 (Sask QB). At page 698 Justice Baynton stated: [21] As the parties have proceeded on the basis of hearing de novo, need not concern myself with the “correctness” of the council’s decision, the sufficiency of the evidence presented, its jurisdiction, or other like considerations. On hearing de novo, the appeal court in effect assumes the role of the council and determines the complaints on the basis of the evidence provided on the new hearing. [Emphasis added]. [74] The nature of this type of hearing has been explored in other decisions, as follows: Green College of Physicians and Surgeons of Saskatchewan (1986), 1986 CanLII 3238 (SK CA), 51 Sask 241, (CA): In Green, our Court of Appeal held that the tribunal members ought to act “as any other tribunal involved in trial de novo and form their own conclusion as to the validity of the charge based on the evidence which is presented to them” (para. 12). As well, at para. 14 it was held that the role of tribunal in similar position to that in the instant case was not simply to review the decision below and determine if it was correct; rather, its mandate was to “independently assess the validity of the charges based upon the evidence which was presented to it”. Hicks West Coast General Hospital, 1993 CanLII 244 (BC SC): Cited by the appellant, this case suggests that de novo hearings “... are intended to overcome earlier deficiencies but they require detachment and distance from the earlier proceedings which is in question here”. The within appeal is similar. Confederation Life Insurance Company Woo (1994), 1994 CanLII 3868 (SK CA), 123 Sask 150 (SKCA), leave to appeal denied [1994] SCCA No 368 (QL): There, the Court of Appeal had ordered new trial. When that matter came before the new trial judge he found that he was bound by the factual findings of the previous trial judge unless there was evidence adduced to impel him to make new findings of fact. On appeal from that decision Justice Gerwing stated: “The first thing that must be noted is that the trial judge misapprehended the nature of trial de novo. trial de novo requires the consideration of all issues tabula rasa.” (para. 4). Re: Transglobal Communications Group Inc., 2009 ABQB 195 (CanLII), Alta LR (5th) 157: At paras 36 to 49 the court reviewed whether an appeal is on the record or de novo and what considerations are to be noted when determining this issue. Such factors include whether new evidence may be adduced, whether cross-examination is possible, whether new grounds of argument may be raised, whether the reviewing body can substitute its view for that of the tribunal below, whether an entirely new case could be presented, and whether the case proceeds on the basis of the evidence to the original tribunal but augmented by new facts or evidence. Transglobal was accepted in case cited by the appellant, Osteria De Medici Restaurant Ltd. Yaworski, 2009 ABQB 563 (CanLII), 15 Alta LR (5th) 195. Saskatoon Regional Health Authority Johnson: At para. 89, the nature of this type of appeal was found to be “a fresh hearing, to be determined on the basis of the new record put before the [Tribunal]”. In Canada Thanabalasingham, 2004 FCA (CanLII), [2004] FCR 572 the Federal Court of Appeal said this (para. 6): “I think it is important to first clarify the use of the term de novo. Strictly speaking de novo review is review in which an entirely fresh record is developed and no regard at all is had to prior decision”. As indicated in Johnson this does not necessarily mean that no prior evidence from the hearing below can be used. Indeed, to get the within matter moving, it made abundant sense to use the evidence from the Board hearing and any new evidence provided. But this does not obviate the requirement that the Tribunal view that body of evidence with fresh eyes, as opposed to simply conducting review of the decision below. Racic Moose Jaw Family Services Inc., 2015 CanLII 60882 (Sask LRB): At para. 21 Mr. Love, Q.C. stated: “The Adjudicator is required to conduct de novo hearing. de novo hearing, as the name suggests, requires that the person hearing the matter, must hear it afresh and consider only evidence presented to her at that hearing”. RK and CK Canada, 2015 FC 1304 (CanLII): The central and dispositive issue was whether the reviewing body failed to carry out true de novo hearing (as required) rather than review on the record. There, the review hearing proceeded on the record but some new evidence was accepted. It was held (para. 34) that this ought to have impelled the reviewing body to hold an entirely new hearing based on all the evidence now before it. There cannot be partial de novo proceeding. useful and concise definition of such hearing was adopted at para. 36, where de novo hearing was termed “an altogether fresh or new hearing and not limited to an inquiry to determine if the tribunal acted properly and correctly on the evidence before it”. The reviewing body is not fettered by the lower tribunal’s decision, but is free to substitute or impose its own view for that of the tribunal below, based on the entirety of the evidence presented at the new hearing. Recently, Justice Scherman dealt with the nature of de novo appeal hearing in Humboldt Electric Ltd. Saskatchewan (Workers’ Compensation Board), 2016 SKQB 234 (CanLII). At paras. 35 to 38 he notes that such hearing is to be “open-ended”, and to be ruled upon “as if the decision was being made in the original instance” (para. 35). [75] The appellant says the Tribunal in this case did not conduct the appeal in this way, and therefore failed to conduct it properly. The respondent says the opposite. [76] As alluded to above, from the reasons themselves there appears to have been some confusion within the Tribunal itself as to the nature of the appeal before it. [77] The Tribunal cited s. 11(1) of the Regulations at para. of its decision and noted that the appeal was proceeding de novo. However, in the very next paragraph the Tribunal makes an equivocal, and for the purposes of the within appeal troubling, statement as to what was transpiring: 5. There were no objections by either party to this appeal with respect to the Tribunal’s jurisdiction to hear this matter. There was also no objection by either party that the nature of this appeal is hearing de novo pursuant to Section 11(1) of the Regulations; however, both parties agreed to proceed with hearing on the record and no witnesses were called as it was an expedited appeal (as requested in the Notice of Appeal). Both the Respondent and the Appellant were represented by counsel. Both counsel agreed to proceed with the appeal by providing oral and written submissions to the Tribunal and no viva voce evidence was presented to the Tribunal on the hearing date of September 16, 2015. [Emphasis added]. [78] This statement is not entirely accurate, and may well be reflective of misapprehension by the Tribunal members of the task before them and the nature of the appeal being argued. say this for two reasons. [79] First, while it is technically correct that “no viva voce evidence was presented” it is incorrect that no new evidence was presented. There was no dispute that the appellant herein was entitled to file the July 31, 2015 opinion of Dr. Olatunbosun. That letter dealt with process issues and with the PowerPoint presentation to the Board below that the appellant and his lawyers first saw at that Board hearing, and had no opportunity to rebut. Inarguably that was new evidence. Having accepted new evidence (see para. 6(h) of the Tribunal decision), albeit entirely in writing, the Tribunal was clearly operating in the territory of de novo hearing and was obligated to reassess the entirety of the evidence now before it, both old and new. The decision as whole and as set out on this specific point at para. discloses an error in appreciating the evidentiary situation now before the Tribunal. [80] Secondly, it was incorrect for the Tribunal to conclude that both parties agreed to proceed as an appeal on the record. While appellant’s counsel initially used that phrase during the preliminary discussions in front of the Tribunal, she was abundantly clear just moments later. These facts are set out above but bear repeating. In response to an inquiry from the Tribunal Chair as to number of witnesses, appellant’s counsel advised that this was an appeal on the record for the purposes of expediting the appeal (Appeal Book, Volume V, Tribunal Transcript, pages to 8). However, in the preliminary phase of the Tribunal hearing, appellant’s counsel also made it abundantly clear to the Tribunal that the nature of the appeal remained de novo hearing (Appeal Book, Volume V, Tribunal Transcript, pages 14 to 15): MS. GLAZER: Actually, would expect that because it is trial de novo or hearing de novo that Mr. Boychuk would present first, and we would present second in the same fashion that occurred before the Board because you are essentially hearing this case anew. In my experience, that is what we have done in the past, the Health Region makes its case, and we respond. Even though it is an appeal and we are the appellant, the trial de novo contemplates hearing that is basically new hearing. So it is not that you are THE CHAIRPERSON: understand. MS. GLAZER: reviewing the decision per se, although the decision is relevant in your deliberation of whether it is correct and whether you agree with parts or any of it. The hearing should proceed in the same fashion as it proceeded before the Board. [Emphasis added]. [81] am unsure how appellant’s counsel could have put her position more clearly than this. The Tribunal was specifically advised that its proceeding was “basically new hearing”, that it was not simply “reviewing the [Board] decision per se”, and that the hearing ought to follow the same process as before the Board, with the respondent herein going first to prove its case and the appellant going second to respond to that case. For the Tribunal to say that the Regulations make this de novo appeal but that the parties agreed to proceed with hearing on the record is more than mere misnomer, it is an error on the face of the Tribunal’s record. [82] Further, the respondent argues that the Tribunal decision is framed the way it is because that is how the appellant framed the issues in its notice of appeal to the Tribunal. The respondent states the Tribunal was therefore simply responding to the grounds of appeal as framed by Dr. Abouhamra. With respect, that is not an answer to the concerns of the appellant. First and foremost, the Tribunal (indeed, any judge or adjudicator) has an overarching duty to “get it right”. This pertains irrespective of how counsel frame or even argue the issues. For example, if lawyer argues point but fails to refer to the leading authority on that point, the adjudicator still has to deal with that authority. Similarly, in jury trial the trial judge has gatekeeping function to ensure the jury only hears admissible evidence, even if one lawyer fails to object to same. The fact that the appellant may have chosen to frame the grounds of appeal in certain way did not eliminate the duty of the Tribunal to conduct and rule upon this appeal in de novo fashion. [83] As well, from the Tribunal’s own decision, it is clear the members did not feel constrained by the manner in which the appellant framed the issues or grounds. At page 15 of the Tribunal decision, para. E.a (just prior to para. 26), the Tribunal chooses to actually reword the ground of appeal advanced by Dr. Abouhamra. The Tribunal was, or ought to have been, alive to the notion that it was not bound to decide the case on the strict wording or manner in which the appellant had chosen to cast the grounds of appeal. [84] Finally, and most importantly, the Tribunal decision as whole has been analyzed from the perspective of determining whether the Tribunal truly conducted the matter as de novo hearing, or considered the appeal as review of the Board decision. For the following reasons have determined the Tribunal erred by considering the matter as review: (a) As referenced above, paras. and of the Tribunal decision disclose an error as to the manner in which the Tribunal viewed the evidence. The Tribunal did not overtly refer to the July 31, 2015 opinion of Dr. Olatunbosun as new evidence. Clearly it was. This ought to have triggered for the Tribunal consideration of its role as fresh reviewer of the totality of the evidence adduced before it. (b) The decision does not disclose genuine and fresh review of all the evidence. major example of this is the failure to conduct an analysis of the competing expert opinions. Those opinions do not agree in all instances. There is duty on an adjudicator to resolve conflicts within the evidence and explain how they were resolved, and why some evidence is preferred over other evidence. While this point ties into the “adequacy of reasons” and “wrong time focus” issues explored below, the Tribunal decision also does not illustrate that the required independent analysis of all of the evidence was actually conducted by the Tribunal. (c) It is beyond dispute that the Tribunal had at least one piece of new evidence before it, evidence that the Board did not have. That is the July 31, 2015 opinion of Dr. Olatunbosun. The Tribunal mentions the existence of that piece of evidence at para. 6(h) of its decision. That is all the Tribunal did with that evidence. For example, para. 37 of the Tribunal decision deals with procedural aspects relating to the suspension of the appellant, yet the opinion of Dr. Olatunbosun is not even discussed in the decision. In fact, other than noting the existence of this new evidence at para. 6(h), that new opinion is not discussed or dealt with by the Tribunal. This is demonstrative of the fact that the Tribunal misapprehended its scope of review and treated the appeal purely as an appeal on the record instead of the de novo appeal, the fresh approach, that it was supposed to be. (d) The appellant forcefully makes the point that the construction of the Tribunal decision illustrates the errors in its mode of analysis of the evidence. Paragraph 29 of the Tribunal decision is cited as an example. There, the Tribunal used language such as “the Board found” or “the Board noted”. This is not an argument of form over substance. Rather, it is an analysis that suggests the Tribunal was simply conducting review of whether the Board’s analysis, findings and reasons were appropriate. agree fully with this argument of the appellant. Paragraph 29 is only one example of this mode of proceeding by the Tribunal. review of the entire decision, especially paras. 26 to 45, reveals the flaws in the Tribunal’s underlying supposition when conducting its analysis. These flaws are explored in detail at paras. 92 to 94 of the appellant’s factum filed herein. agree with the appellant’s analysis of the impugned decision. There is nothing in the decision to indicate the Tribunal undertook an independent review of the evidence before it in order to reach its own conclusions and make its own findings based on that evidence. There is every indication it simply reviewed the Board’s conclusions. The Tribunal missed the point that it owed no deference to the Board, nor on this type of appeal is there any assumption that the Board was correct and the appellant had the onus of convincing the Tribunal otherwise. That is not how it works on this type of appeal. (e) That the Tribunal had no appetite for an in-depth review of the evidence is reflected elsewhere in its decision. At para. the Tribunal gently chastised counsel for the lack of organization of materials presented, noting in footnote that the presentation lacked consistency. After noting the lack of organization in the material, the Tribunal concluded by saying “As result, it became challenging task for the Tribunal to set out an accurate chronology of events leading up to the suspension of Dr. Abouhamra, which therefore necessitated lengthy and in-depth review of the materials prior to reviewing same for the purposes of writing this decision”. This was de novo appeal. “lengthy and in-depth review” of the evidence before the Tribunal (not merely the material the SMO had at the time of suspension, or even the material before the Board) was clearly called for in this case. The balance of the decision does not reveal that such detailed review of all of the evidence before the Tribunal was conducted. As this was de novo hearing, it ought to have been done. (f) From the decision itself, there is no indication that the Tribunal did what the legislation directs it to do: conduct the hearing as de novo matter; consider all the evidence before the Tribunal, not limiting same; and deciding independently whether the SMO’s decision to suspend should be upheld. Instead, it merely conducted review of the Board’s decision for error, effectively placing the onus on the appellant. (g) The failure of the Tribunal to conduct this matter as fresh review of the evidence and draw its own conclusions from that evidence compounds, and is compounded by, the issue of the alleged error as to timing. The Tribunal concluded the relevant time for its review was as at the date the SMO decided to suspend, and that the evidence before the SMO was what the Tribunal was to focus upon. As will be seen below this was wrong, but that erroneous conclusion informed perhaps misinformed the Tribunal’s view of the manner in which it was to analyze the evidence. [85] In the course of oral argument respondent’s counsel conceded that the Tribunal was obliged to consider all the evidence before it when assessing whether the SMO had properly applied the test for interim suspension under s. 76 of the Bylaws. This was an entirely appropriate position to take, given the law. The respondent went on to argue that the Tribunal’s review of the evidence was sufficient. respectfully disagree. [86] It is clear from plain and full reading of the Tribunal decision that it made an error in the way the hearing was conducted and the way the evidence was analyzed. The Tribunal took the view that deference was owed to the Board; that it was the appellant’s task to convince the Tribunal that the Board had erred; that the Tribunal only had to look at the evidence before the Board or (worse yet) before the SMO at the time of suspension; and that it was not obligated to deal with and reconcile the conflicting expert evidence independent of any prior assessment of same. All of those constituted errors on the part of the Tribunal. [87] As a result, I conclude the Tribunal erred in failing to conduct the hearing and analyze all the evidence before it as a de novo hearing. 2. Did the Tribunal err in law by failing to provide adequate reasons for its decision? [88] This ground of appeal is listed as ground 4(l) in the notice of appeal. The appellant takes the position that the reasons of the Tribunal are wholly inadequate. In particular, the appellant argues the Tribunal gave no reasons or insufficient reasons for the following: (a) Rejecting or ignoring the appellant’s evidence as to lack of procedural fairness in the pre-suspension period; (b) Dismissing expert evidence (i.e. the July 31, 2015 Dr. Olatunbosun opinion letter) and legal submissions as to the appropriate process to follow where physician’s competence has been impugned; (c) Rejecting or ignoring evidence, including expert evidence, for all five of the cases reviewed and failing to determine the factual basis (or lack of same) for the SMO’s decision to suspend the appellant; (d) Failing to analyze or address the appellant’s submissions on issues that were central to the disposition of the appeal. [89] These arguments of the appellant presuppose that some of the other grounds are made out, such as those alleging lack of procedural fairness or notice on the part of the SMO. As will be discussed below, find that not all of those grounds succeed. In analyzing this specific ground of appeal have been careful to make this differentiation. [90] The respondent argues that the reasons of the Tribunal were adequate, insofar as they disclose the rationale for the Tribunal reaching its decision. [91] It is my finding that the Tribunal’s reasons were not sufficient in these circumstances. Again, there is an interplay between this ground of appeal and several others. [92] The appellant cites Casavant Saskatchewan Teachers’ Federation, 2005 SKCA 52 (CanLII), 262 Sask 195, to support its argument that the reasons of the Tribunal are inadequate. agree that the instant case is akin to Casavant, insofar as there is an obligation on the Tribunal to provide “a meaningful explanation of the basis and rationale of the ... decision” (para. 29). further agree that the purposes outlined at paras. 31 to 35 are to be engaged by the Tribunal’s work. Full written reasons inject rigour into the decision-making process; they elevate confidence in the integrity of that process; they allow non-parties to assess and modify their own conduct to bring it in line with the law; and they allow for an appropriate appeal process, enabling an appellate reviewer to understand and potentially correct the decision. [93] If discipline committee must provide full and meaningful reasons, surely the Tribunal shares such an obligation. The effect of immediate (and then extended) interim suspension on physician seems obvious but is specifically recognized in the case law. Cited by the appellant in this regard is Trinh Acadie-Bathurst Health Authority, 2005 NBQB 103 (CanLII), 287 NBR (2d) 150, where at paras. 33 and 34 it was stated: [33] Clearly for any medical doctor, the loss of hospital privileges is very serious. It may mean the loss of some or all of his practice or income. It will most certainly affect his professional standing which may be very difficult to re-establish. The loss or restriction of privileges can have devastating effect on the personal and professional life of medical doctor. [34] The consequences for Dr. Trinh are no exception. Clearly any suspension or revocation of his hospital privilege could have grave and permanent consequences on his professional career, as well as on his person life. [94] There is no doubt that Dr. Abouhamra is in much the same position. At the time of this writing he has been on “interim” suspension for over 18 months. The court accepts his lawyers’ submissions that this must have wreaked havoc on his life. That is not the test on any of these grounds of appeal. Rather, this highlights the need for the Tribunal to provide clear and cogent reasons for its decision. [95] Three Supreme Court of Canada cases are seminal regarding the sufficiency of reasons for decision: Sheppard, 2002 SCC 26 (CanLII), [2002] SCR 869; Braich, 2002 SCC 27 (CanLII), [2002] SCR 903; and Dinardo, 2008 SCC 24 (CanLII), [2008] SCR 788. In Sheppard (para. 28) the court commented on factors that might point to inadequate reasons, including the failure of the decision to give basis for resolving significant inconsistencies or conflicts in the evidence. Given the conflict amongst the experts, discussed below, the Tribunal decision fails to adequately explain the findings made. While the Tribunal decision in this regard is partially explained by the fact that it selects the information before the SMO at the time of the decision to suspend as the operative moment (which is an error in itself) there is further meaningful discourse as to the conflicts in the expert evidence that was before the Tribunal. [96] In Dinardo Justice Charron stated: 24. In R. v. Sheppard, ... this Court confirmed that courts have duty to give reasons. Reasons serve many purposes; in particular, they explain the court’s disposition of the case and facilitate appellate review of findings made at trial. The content of the duty will, of course, depend upon the exigencies of the case. As this Court has noted, “the requirement of reasons is tied to their purpose and the purpose varies with the context” (Sheppard, at para. 24). 25 Sheppard instructs appeal courts to adopt functional approach to reviewing the sufficiency of reasons (para. 55). The inquiry should not be conducted in the abstract, but should be directed at whether the reasons respond to the case's live issues, having regard to the evidence as whole and the submissions of counsel (R. v. D. (J.J.R.) (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.), at para. 32). An appeal based on insufficient reasons will only be allowed where the trial judge's reasons are so deficient that they foreclose meaningful appellate review: Sheppard, at para. 25. 26 At the trial level, reasons “justify and explain the result” (Sheppard, at para. 24). Where case turns largely on determinations of credibility, the sufficiency of the reasons should be considered in light of the deference afforded to trial judges on credibility findings. Rarely will the deficiencies in the trial judge's credibility analysis, as expressed in the reasons for judgment, merit intervention on appeal. Nevertheless, failure to sufficiently articulate how credibility concerns were resolved may constitute reversible error (see R. v. Braich, ... at para. 23). As this Court noted in R. v. Gagnon, [2006] S.C.R. 621, 2006 SCC 17 (CanLII), the accused is entitled to know “why the trial judge is left with no reasonable doubt”: Assessing credibility is not science. It is very difficult for trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. That is why this Court decided, most recently in H.L., that in the absence of palpable and overriding error by the trial judge, his or her perceptions should be respected. This does not mean that court of appeal can abdicate its responsibility for reviewing the record to see whether the findings of fact are reasonably available. Moreover, where the charge is serious one and where, as here, the evidence of child contradicts the denial of an adult, an accused is entitled to know why the trial judge is left with no reasonable doubt. [paras. 20-21] 27 Reasons “acquire particular importance” where the trial judge must “resolve confused and contradictory evidence on key issue, unless the basis of the trial judge’s conclusion is apparent from the record” (Sheppard, at para. 55). Here, the complainant’s evidence was not only confused, but contradicted as well by the accused. As I will now explain, it is my view that the trial judge fell into error by failing to explain how he reconciled the inconsistencies in the complainant's testimony on the issue of whether she invented the allegations. also conclude that the trial judge's failure to provide such an explanation prejudiced the accused’s legal right to an appeal. [Emphasis added]. [97] The Saskatchewan Court of Appeal has dealt with sufficiency of reasons, albeit in the criminal law context, in C.R.C., 2009 SKCA 13 (CanLII), 324 Sask 37. The accused’s appeal was allowed based on the trial judge giving insufficient reasons for the conviction: [25] No issue is taken with the principle trial judge is not obligated to comment on every aspect of the evidence, nor is trial judge required to expressly indicate all relevant considerations which were taken into account. trial judge does not err simply because he or she does not give reasons for deciding one way or the other on problematic points. Further trial judge is not required to demonstrate he or she knows the law and has considered all aspects of the evidence; nor is the trial judge required to give reasons so detailed as to allow an appeal court to retry the entire case. There is also no need to prove the trial judge was alive to and considered all of the evidence or answer each and every argument of counsel. However, the trial judge is required to give sufficient reasons to allow for meaningful appellate review. failure to sufficiently articulate how credibility concerns were resolved may constitute reviewable error. This requirement for sufficient reasons must always be considered in the context of the high level of deference to be granted to trial judges in their assessment of credibility. The requirement for sufficient reasons is also not an open “invitation to an appellate court to substitute its perceptions of what should have been the factual and credibility findings of the trial judge when reasonable basis for the trial judge’s conclusions exists”. [26] However, the Appellant is entitled to know “why the trial judge is left with no reasonable doubt”. In R. v. D.(S.J.), the appellant was convicted of sexual touching in relation to his adopted daughter. The trial judge did address some of the inconsistencies in the complainant's evidence and whether she had motive to fabricate, but failed to analyze the appellant's evidence or explain why she rejected his denials that the incidents occurred. In setting aside the convictions and ordering new trial, the Court of Appeal said: [23] Sheppard warns against conclusory credibility findings. Implicitly it cautions that credibility findings without explanations for them run the risk of losing the appellate deference they ordinarily command. As hard as it may sometimes be to explain why the evidence of one witness is accepted and the evidence of another rejected, Sheppard calls on trial judges to try to do so. ... In some cases judge’s first instincts about case, even judge’s initial credibility assessments, may not stand up to reasoned analysis. Putting pen to paper articulating the “path” to one's findings may disclose flaw in one’s reasoning. In this sense, writing reasoned reasons is safeguard against both wrongful convictions and acquittals. [27] In Dinardo the Supreme Court referring to Sheppard said: [27] Reasons “acquire particular importance” where the trial judge must “resolve confused and contradictory evidence on key issue, unless the basis of the trial judge’s conclusion is apparent from the record” (Sheppard, at para. 55). Here, the complainant’s evidence was not only confused, but contradicted as well by the accused. As I will now explain, it is my view that the trial judge fell into error by failing to explain how he reconciled the inconsistencies in the complainant's testimony on the issue of whether she invented the allegations. also conclude that the trial judge’s failure to provide such an explanation prejudiced the accused’s legal right to an appeal. [98] As well, in Major, 2004 SKCA 32 (CanLII), 241 Sask 306, Tallis J.A. provided cogent and concise commentary on the extent of reasons at para. [12] In our opinion, the extent and substance of the reasons must depend upon the circumstances. They need not be elaborate or lengthy in every case. But they should be such as to tell person in broad terms why the decision was reached. What will be sufficient to constitute the reasons is matter distinct from the obligation to give reasons. There can clearly be circumstances where lengthy reasons may be necessary to address the issues raised by evidence and application of the law to the evidence. In other circumstances the issue may require only minimal explanation. [Emphasis added]. [99] Further, in May of this year the Court of Appeal rendered its decision in Pelletier, 2016 SKCA 62 (CanLII). There, the trial judge’s reasons were held to be sufficient but in writing for the Court at para. 38 Justice Lane provided an important reminder of the Sheppard approach to testing for sufficiency of reasons: [38] trial judge is not required to explain every indicia of reliability or explain away every indicia of unreliability. am satisfied the trial judge’s reasons meet the test for sufficiency as set out in Sheppard: D) Proposed Approach [55] My reading of the cases suggests that the present state of the law on the duty of trial judge to give reasons, viewed in the context of appellate intervention in criminal case, can be summarized in the following propositions, which are intended to be helpful rather than exhaustive: 1. The delivery of reasoned decisions is inherent in the judge’s role. It is part of his or her accountability for the discharge of the responsibilities of the office. In its most general sense, the obligation to provide reasons for decision is owed to the public at large. 2. An accused person should not be left in doubt about why conviction has been entered. Reasons for judgment may be important to clarify the basis for the conviction but, on the other hand, the basis may be clear from the record. The question is whether, in all the circumstances, the functional need to know has been met. 3. The lawyers for the parties may require reasons to assist them in considering and advising with respect to potential appeal. On the other hand, they may know all that is required to be known for that purpose on the basis of the rest of the record. 4. The statutory right of appeal, being directed to conviction (or, in the case of the Crown, to judgment or verdict of acquittal) rather than to the reasons for that result, not every failure or deficiency in the reasons provides ground of appeal. 5. Reasons perform an important function in the appellate process. Where the functional needs are not satisfied, the appellate court may conclude that it is case of unreasonable verdict, an error of law, or miscarriage of justice within the scope of s. 686(1) (a) of the Criminal Code, depending on the circumstances of the case and the nature and importance of the trial decision being rendered. 6. Reasons acquire particular importance when trial judge is called upon to address troublesome principles of unsettled law, or to resolve confused and contradictory evidence on key issue, unless the basis of the trial judge’s conclusion is apparent from the record, even without being articulated. 7. Regard will be had to the time constraints and general press of business in the criminal courts. The trial judge is not held to some abstract standard of perfection. It is neither expected nor required that the trial judge’s reasons provide the equivalent of jury instruction. 8. The trial judge’s duty is satisfied by reasons which are sufficient to serve the purpose for which the duty is imposed, i.e., decision which, having regard to the particular circumstances of the case, is reasonably intelligible to the parties and provides the basis for meaningful appellate review of the correctness of the trial judge’s decision. 9. While it is presumed that judges know the law with which they work day in and day out and deal competently with the issues of fact, the presumption is of limited relevance. Even learned judges can err in particular cases, and it is the correctness of the decision in particular case that the parties are entitled to have reviewed by the appellate court. 10. Where the trial decision is deficient in explaining the result to the parties, but the appeal court considers itself able to do so, the appeal court’s explanation in its own reasons is sufficient. There is no need in such case for new trial. The error of law, if it is so found, would be cured under the s. 686(1)(b)(iii) proviso. [100] One year earlier similar discussion was set out in Kennedy, 2015 SKCA 32 (CanLII), at paras 32 and 33, 457 Sask 182. [101] Granted, many of these decisions consider the adequacy of reasons issue in the criminal context. These principles are no less applicable in civil or regulatory matters, especially where there are allegations of breaches of ethics, discipline or professional standards. See, for example, Hill Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41 (CanLII), [2007] SCR 129, which analyzed the Sheppard principles in the context of civil disputes: 100 The question is whether the reasons are sufficient to allow for meaningful appellate review and whether the parties’ “functional need to know” why the trial judge’s decision has been made has been met. The test is functional one: R. v. Sheppard, [2002] S.C.R. 869, 2002 SCC 26 (CanLII), at para. 55. 101 In determining the adequacy of reasons, the reasons should be considered in the context of the record before the court. Where the record discloses all that is required to be known to permit appellate review, less detailed reasons may be acceptable. This means that less detailed reasons may be required in cases with an extensive evidentiary record, such as the current appeal. On the other hand, reasons are particularly important when “a trial judge is called upon to address troublesome issues of unsettled law, or to resolve confused and contradictory evidence on key issue”, as was the case in the decision below: Sheppard, at para. 55. In assessing the adequacy of reasons, it must be remembered that “[t]he appellate court is not given the power to intervene simply because it thinks the trial court did poor job of expressing itself”: Sheppard, at para. 26. [102] Also see Gibson Insurance Corp. of British Columbia, 2008 BCCA 217 (CanLII) at paras 22, 23 and 25, 255 BCAC 98: [22] True, these conclusions do touch upon each of the principal issues of fact before the trial judge, but they offer nothing of the reasoning process in which the trial judge engaged in arriving at them. [23] In the context of the metaphor often used in the adequacy of reasons analysis, the trial judge takes us to the final destination, but we are left to wonder why which pathway he led us there. [25] We have the benefit of the trial judge’s conclusory findings on each of these issues, but we do not enjoy an indication of the reasoning process, the evidentiary analysis, or discussion of the acceptance and rejection of the evidence of the numerous experts, in which the trial judge had to engage in arriving at these conclusions. [Emphasis added]. [103] Consideration of this ground of appeal, in light of the twelve other grounds advanced by the appellant, is complex. Can it be said that appellate review is not possible due to scant reasons? In this case, the answer is “sometimes”. There are some grounds, such as whether the tribunal conducted an appeal de novo or whether the proper s. 76 test or assessment was done, that are reviewable. Those reasons and the corresponding grounds of appeal can stand on their own. But in several respects there remain problems with the depth of analysis in the Tribunal’s reasons. In particular, the review and resolution of the totality of the evidence (including, but not limited to, the conflicting expert opinions) received short shrift in the Tribunal’s analysis and reasons. [104] What has been termed the “core question” is this: “Do the reasons, read in context, show why the judge decided as he did on the counts relating to the complainant?”: Vuradin, 2013 SCC 38 (CanLII), para 15, [2013] [105] In Gale College of Physicians and Surgeons of Ontario (2003), 2003 CanLII 30486 (ON SCDC), 178 OAC 88 (Ont Sup Ct), discipline proceedings were in issue. The doctor appealed findings of guilt for unprofessional conduct. In his defence he had called numerous medical experts who took the view he had not fallen below the standard of practice. The discipline committee rejected their evidence and, according to the doctor, had simply ignored the evidence of highly qualified expert witness. The court determined that an error had been made by the discipline committee in failing to properly analyze the different expert opinions, finding the opinion of the leading expert so central to the doctor’s case that failing to deal with it rendered the committee’s decision unreasonable. [106] In fairness it must be noted Gale is now somewhat dated and precedes Sheppard and Dinardo. However, Gale has been considered and applied as recently as two years ago: Swart College of Physicians and Surgeons of Prince Edward Island, 2014 PECA 20 (CanLII) at paras 83 and 84, 361 Nfld. PEIR 5: [83] Reasons being required, the question turns to the adequacy of reasons. Reasons do not need to be counsel of perfection. Courts recognize that since reasons of disciplinary tribunals are typically prepared by lay persons, courts should not be overly critical of the language employed and should not seize on few words as destroying the entire disciplinary process. It is not fatal, per se, to decision if no specific mention is made of certain evidence, or if specific reasons are not given for rejection of evidence. However, statutory requirement that discipline committee report its findings and recommendations has been held to mean that the content of the report has to include meaningful explanation, otherwise it is not compliant (Pasivant (sic) v. STF, 2005 SKCA 52 (CanLII) (Sask.C.A.)). [84] Reasons have been found to be inadequate where they did not disclose whether tribunal took into account various mitigating factors, and where the tribunal did not address the serious and detailed submissions of the affected party (Fedoriuk v. Canada (Commissioner of Royal Canadian Mounted Police (1988), 1988 CanLII 5621 (FCA), 54 D.L.R. (4th) 168 (Fed.C.A.)); where they failed to identify the particular standard that licensed practical nurse failed to meet (Walsh v. Council for Licensed Practical Nurses, 2010 NLCA 11 (CanLII); and where the reasons indicated that tribunal misconstrued the evidence of key witness (Gale v. College of Physicians and Surgeons Ontario, 2003 CanLII 30486 (ON SCDC), [2003] O.J. No. 3948 (Ont.Div.Ct.)). Addressing the degree of departure from the standard is essential (Sussman v. College of Alberta Psychologists, 2010 ABCA 300 (CanLII)). [107] Thus turn to the central issue on this ground of appeal. From the Tribunal’s decision, can I tell how it reconciled the conflicting expert reports? Does the Tribunal’s decision tell me, in broad terms, how it was reached regarding the evidence as whole or even the conflicting evidence? As set out in Vuradin, do the reasons show why the Tribunal decided as it did on this evidence? [108] I find I must answer all these related questions in the negative. Dr. Olatunbosun is specialist. He provided his expert opinion on the five cases reviewed and relied upon by the SMO in levying the suspension and, later, the Board in upholding same. His evidence was critical to the appellant’s case as presented to every review body. Yet the Tribunal does not give his opinion any attention in its reasons. The Tribunal simply says the SMO’s decision to suspend was reasonable. It does not say why, other than saying it is only (and, in my view, myopically) looking at the SMO’s decision based on what the SMO had in front of him at the time. [109] But that very clearly is not the test. The review process in front of the Board is designed for there to be determination of whether the interim suspension by the SMO is to be continued. Section 77 of the Bylaws states that the Board is to “review the immediate suspension of appointment or privileges”. Section 80 of the Bylaws provides the Board may overturn the immediate suspension, or confirm it for specified time; or confirm it in general, with referral of the matter for discipline. Quite clearly the Board is to review the SMO’s decision with the response of the suspended doctor, connoting that the physician may adduce evidence. The fact that the statutory appeal to the Tribunal is in the nature of de novo hearing mandates two important things: that the Tribunal review the original decision, i.e. whether the SMO’s suspension of the physician was proper; and that the Tribunal must take its own view of the evidence not just evidence the SMO had, or the Board had, but evidence that is placed in front of the Tribunal even if that evidence is “new” in the sense that the SMO and/or the Board did not have it when making their decisions. [110] The Tribunal’s fundamental misapprehension of its task caused number of problems. Amongst those, this caused the Tribunal to maintain an overly narrow focus on evidence the SMO had at the time of suspension, as opposed to evidence squarely before the Tribunal. Had the Tribunal properly considered all the evidence it could have provided cogent reasons for why it preferred the evidence of the SMO and the experts he had review the five case files over the evidence on the same topic from the appellant’s experts. [111] This decision does not tell the reader why the SMO’s opinion was accepted. It does not deal at all, much less squarely or adequately, with the contrary evidence from the appellant’s experts. No reasons are given for this, much less sufficient reasons. [112] This ground of appeal must also succeed. The Tribunal breached its duty to properly consider all the evidence in the proper context and to provide proper reasons for its decision. 3. Did the Tribunal err in law by upholding the suspension by failing to conduct proper evidentiary analysis of the cases under review, including the conflicting expert opinions and affidavit evidence filed on behalf of the appellant, as required by s. 80 of the Bylaws, to determine whether the suspension imposed by the SMO pursuant to s. 76 of the Bylaws should be overturned? [113] This was set out as item 4(k) in the appellant’s notice of appeal to this court. In many respects this ground of appeal is intertwined with the two grounds of appeal just discussed above. It also intersects with ground 4(h) as to the selection of the date of the suspension as the relevant time to consider the extant evidence, and with grounds 4(f) and (j), which are discussed below. [114] It is trite law that trier of fact may accept all, some or none of the evidence of witness or source. However, as the cases set out above illustrate, where there is significant conflict on relatively important issue, the trier of fact needs to consider all the evidence on that point and provide adequate reasons why some evidence is accepted and some rejected, then go on to make findings based on due consideration of the totality of the accepted evidence. [115] Here, the Tribunal did not do that. From the decision itself and from the determination that it was assessing matters as they stood before the SMO in December 2014, the Tribunal could not have even proceeded to consider the appellant’s evidence and expert evidence. But the whole point of the Board and Tribunal review processes is to afford the suspended physician an opportunity to respond to the SMO’s position and the evidence the SMO relied upon to institute the suspension. By refusing or omitting to consider the appellant’s evidence, the Tribunal essentially continued to hear only one side of the story the SMO’s. This is not the balanced approach contemplated by the Bylaws and the legislation. This was not the legal task facing the Tribunal. [116] This ground also engages detailed review of the five cases selected by the SMO. That review is analyzed below when grounds 4(f) and (j) (listed in this judgment as issues #10 and #13) are discussed. [117] am therefore satisfied that the analysis of the five cases under review as well as the analysis of the expert opinions proffered by each side was entirely inadequate. This ground of appeal also succeeds. 4. Did the Tribunal err in law in failing to apply the appropriate legal test to support an interim suspension pursuant to ss. 76 and 80 of the Bylaws? 5. Did the Tribunal err in law in finding that the relevant time for determining if the suspension was reasonable was at the date of the suspension when no response to the concerns or input from the appellant was possible having received no notice of the SMO’s concerns until receiving the reasons for suspension on December 22, 2014? [118] These are items 4(m) and 4(h), respectively, in the appellant’s notice of appeal to this court. These grounds are interrelated and can be analyzed together. In some respects, the previous analysis herein has already touched upon these issues. [119] First, ground 4(h). There is no doubt the Tribunal appeal was de novo hearing carrying with it the requirement that the Tribunal independently assess all of the evidence placed before it. The purpose of such an analysis is to assess the evidence from both sides in order to decide whether the SMO’s interim suspension of the appellant was, in fact, warranted. [120] The Tribunal did not do this. At para. 27 of the Tribunal decision, the Tribunal said “The key time frame is at the date of the suspension”. Further in that paragraph, the Tribunal decided that the SMO’s opinion and decision to suspend was reasonable “... based on the information before him at the time”. Yet further, at para. 40 the Tribunal baldly states: “The relevant time is the date of the suspension”. Finally, at para. 42 the decision states “At the time of the suspension, the SMO is found to have had reasonable opinion that patient safety was at risk.” [121] No authority is cited by the Tribunal to support such proposition. No cases or previous decisions to this effect were provided by counsel. This is not surprising, given the de novo nature of the appeal. It does not appear that any such authority exists, as such authority would support proposition that is wrong at law. [122] Bearing in mind the apposite standard of review, what is the effect of this erroneous decision on the part of the Tribunal? The effect is that in maintaining its focus on the SMO’s information at the time of suspension, the Tribunal effectively barred itself from giving the evidence full and fair consideration. As indicated above, the Board and Tribunal hearings operate as checks and balances on the power and discretion of the SMO. An SMO operates only on information that he or she has garnered. There may exist other relevant information on points germane to whether physician should be suspended. The Board and Tribunal hearings allow the impugned physician to make his or her own submissions and provide his or her own evidence to the reviewing body, to provide that body with more complete and balanced picture as to what has transpired. That is the regulatory framework established by ss. 78 to 80 of the Bylaws, framework that not only allows the suspended doctor to know the case against him and respond to same, but expressly provides that the Board and Tribunal must consider the evidence and representations supplied by the doctor. [123] In fact and at law, the “key time frame” quite clearly was not the time the SMO decided to suspend Dr. Abouhamra. Such determination effectively precluded the Tribunal from conducting the analysis required. Such determination renders the Tribunal decision unreasonable, as it cannot lead to decision that is within range of acceptable, reasonable outcomes. [124] turn to ground 4(m), in which the appellant suggests the Tribunal failed to apply the appropriate legal test to determine whether the interim suspension could be supported under ss. 76 and 80 of the Bylaws. [125] The test in this regard was the same before both the Board and the Tribunal, as the Tribunal appeal was of de novo nature. Section 80 of the Bylaws directs the Board (and, correspondingly, the Tribunal) to review the SMO’s decision to immediately suspend the physician and in doing so to consider the evidence and arguments of that physician as given to the reviewing body not as given to the SMO, if such items were even supplied to the SMO. Given the nature of the SMO’s process, it is unlikely the SMO would be equipped with much information from the impugned physician. [126] Both the Board and the Tribunal were obligated to consider all of the evidence before each body and ask two fundamental questions, questions grounded squarely in s. 76(1)(a) and (b): 1. Does the whole of the evidence establish that Dr. Abouhamra’s conduct, performance or competence exposed, or was reasonably likely to expose, patients or others to harm or injury, or is reasonably likely to be detrimental to the delivery of quality patient care?; and 2. Does the whole of the evidence establish that immediate action was required to protect the patients or to avoid detriment to the delivery of quality patient care? [127] There are problems with the Tribunal’s analysis in this regard. [128] First, it does not appear that the Tribunal genuinely passed upon these two questions in the sense of determining whether the whole of the evidence established both criteria. In large measure this is due to the errors set out above. The Tribunal therefore failed to carry out its core function, rendering its decision unreasonable. [129] Second, the Tribunal simply assessed the Board’s finding and ultimately adopted and repeated same. No analysis is displayed as to whether the evidence now before the Tribunal, reviewed as whole, was capable of supporting the two s. 76 criteria. The Tribunal in effect abdicated its fact-finding function in favour of the Board when considering this issue. For example, in para. 29 of its decision the Tribunal said repeatedly “the Board found”. What the Board found or did not find is not the central issue in the Tribunal appeal. The Tribunal must operate in fully independent fashion to come to its own findings. am not saying the Tribunal cannot consider the Board’s decision. It can. But it cannot forego its own review, analysis and conclusions (especially regarding new evidence adduced which neither the SMO nor Board had) and simply purport to rely upon what the Board found. [130] Third, the Tribunal did not adequately consider whether the s. 76 test for suspension was made out in light of the existing case law, which provides guidance to the Tribunal. The harsh and difficult effects of such suspensions are well-noted. [131] Saskatchewan decisions, as well as those from other jurisdictions, have been quite consistent in finding that the immediate suspension of professional person (or even of other privileges) is drastic step that should be taken only as last resort and even then only after careful consideration of whether other measures might suffice. In this regard have considered: (a) Re: Fairbairn (1957), 1957 CanLII 146 (SK QB), 11 DLR (2d) 709 (Sask QB) (QL): This case involved the power that at that time the Highway Traffic Board had to suspend person’s operating license without hearing for limited time. [31] Nevertheless, it is, think, apparent that in the exercise of the power given to the Highway Traffic Board, which may in some cases seriously affect the individual whose licence is being dealt with, the board should recognize and apply the well-recognized and well-settled principles governing the exercise of such discretionary power. It is obvious that the apparent practice of the board of suspending or revoking the licence for minimum period of two months without any hearing may, to some affected thereby, be but an inconvenience but to others may cause financial loss, and, in some cases, even the loss of employment. There are numerous vocations in which the use of motor car is essential to the earning of livelihood. Again, the seriousness and degree of blameworthiness connected with the commission of an offence under sec. 223 of the Criminal Code may differ in the cases that are being dealt with and the board should, in the exercise of its discretionary power, give consideration to these in determining the measure of penalty that should be imposed as result. [32] The power of the board is by no means limited to suspension of licence for two months. It is empowered to revoke licence, to suspend one for any stated period and to refuse new licence. These are wide powers and should be exercised with discretion and fairness. [Emphasis added] (b) Park Institute of Chartered Accountants of Alberta, 2002 ABQB 880 (CanLII), 326 AR 342: chartered accountant received an interim suspension from his governing body, and successfully applied for an order staying same. The power of suspension pending full inquiry into the member’s conduct was described as “draconian power” (para. 30). Also see Gould Law Society of Alberta (1990), 206 AR 396 (Alta CA), leave to appeal denied at [1990] SCCA No. 379 (QL). (c) Huerto College of Physicians and Surgeons of Saskatchewan, 2004 SKQB 423 (CanLII), 256 Sask 293. While that decision dealt with the College’s proceedings, Justice Foley’s commentary on the nature of suspensions applies here. See para. 22: [22] Total suspension is matter of last resort and prior to imposition warrants careful reasonable examination in the context of the harm said to have been caused, the nature of the impugned conduct and the circumstances in which and when it is said to have occurred. In short, what is it that mandates total suspension without investigation, sworn testimony and finding of guilt? As matters currently stand, Dr. Huerto pays, on daily basis, the same price of total suspension from practice that could arise if he were eventually found to be guilty. Guilt has in no way been established, no charges have been laid, nor is any investigation underway. The Committee had before it only unsworn allegations from sources the credibility of which remains to be tested. (d) Van der Merwe Regina Qu’Appelle Regional Health Authority, Practitioner Staff Appeals Tribunal, 2011: This case was cited to the court by the appellant. At para. 44 of the decision: [44] The majority of this Tribunal believes that Section 86 of the Bylaws is severe measure and should not be implemented without careful consideration of all steps which might be taken to avoid the use of this extreme power. (e) Also cited by the appellant was Patton College of Dental Surgeons of British Columbia, [1996] BCJ No 2864 (QL) (BCSC), para. 30: [30] think it plain, considering the consequences attendant upon the summary suspension of professional person, that extraordinary action to protect the public requires extraordinary circumstances to serve as foundation for such step. (f) case decided only this past April was Scott College of Massage Therapists of British Columbia, 2016 BCCA 180 (CanLII). There was complaint of sexual impropriety during therapeutic massage session leading to the imposition of interim measures against the therapist under s. 35 of applicable provincial legislation. At para. 41 the court noted: [41] The cases suggest that it must always be remembered that an interim suspension of the right to practice one’s profession is an extraordinary remedy that ought to be used sparingly. And when considering the submissions supporting the interim action, the court further noted at para. [50] do not agree completely with the thrust of this submission because it does not appear to properly acknowledge, as it should, that an interim suspension or the imposition of onerous conditions on continued practice are potentially devastating for the professional. Hence the admonition that the risk of harm must be real and the s. 35 remedy (at least at these extremes) is extraordinary and to be resorted to sparingly. [132] There is no gainsaying that the weight of judicial authority is that the harsh remedy of interim suspension is to be used sparingly and carefully, and must rest upon proper factual foundation. That was not the case here. Certainly, the Tribunal failed to act reasonably when pursuant to the Bylaws it reviewed the suspension without paying attention to all the evidence before it. [133] In determining (a) to focus upon the evidence or information that the SMO had collected as at December 2014 rather than assessing all the evidence placed before the Tribunal and (b) misconstruing the legal test or the task before it, the Tribunal erred and ultimately, the Tribunal’s decision is unreasonable and cannot be upheld. Both of these grounds of appeal must succeed. 6. Did the Tribunal err in law by ignoring or failing to consider uncontroverted evidence showing lack of procedural fairness in the SMO’s investigation of the five cases under review? 7. Did the Tribunal err in law in finding that the appellant’s attendance at quality assurance meetings and/or critical incident reviews for the cases under review provided adequate notice of the SMO’s concerns and that the appellant was not entitled to any further notice or procedural fairness under the Bylaws or at law? 8. Did the Tribunal err in law in finding that the appellant’s attendance at quality assurance meetings and/or critical incident reviews for the cases under review satisfied the notice and other requirements of procedural fairness while concurrently confirming the Board’s decision not to order production of the minutes/reports generated from such meetings on the basis of the privilege asserted by the SMO? 9. Did the Tribunal err in law in finding that the requirements of procedural fairness were met by the appellant’s attendance at quality assurance meetings and/or critical incident reviews when the uncontroverted evidence is that the SMO did not himself attend the quality assurance meeting in regard to the fourth case under review and that no quality assurance meeting occurred with respect to the fifth and final case under review? [134] These four issues have been grouped together by me. In the appellant’s notice of appeal to this court they are set out as grounds 4(b), (c), (d) and (e). They were argued separately by the appellant. [135] In general, find these four grounds of appeal less compelling than others. [136] The first argument (issue #6 herein) was argued in four parts. Throughout, it appeared to be assumed that the SMO was under an extensive duty of fairness and transparency during the investigative phase of his actions. am not as sure as the appellant that the SMO was under such duty, at least as same is argued and defined by the appellant especially to notify the appellant of concerns and garner his input prior to levying the interim suspension. [137] accept that there is general duty of fairness owed to persons in the appellant’s position during the investigative stage of the SMO. But the nature and extent of same is not as the appellant envisages it. This duty does not fall into broad “one size fits all” category of fairness. As stated by Keith R. Hamilton at 5.2 of his work Self-Governing Professions: Digests of Court Decisions, looseleaf (Rel 40, March 2015) (Toronto: Thomson Reuters, 2015): In investigating an allegation against member, governing body has general legal duty to act fairly. Exactly what that means will depend on number of factors, including the wording of the applicable legislation, regulations and internal rules, the nature of the complaint and the stage of the investigation or adjudication process. [138] While the appellant was not being investigated by his regulator, as such, the process is similar and case law within the professional regulatory context is useful to the within analysis. Indeed, the parties hereto used numerous professional regulation cases to argue their respective positions. [139] The construction of the Bylaws, insofar as they pertain to interim suspension, shows they are designed to be used in the event of emergent circumstances. There must be clear and present danger to patients or proper ongoing care delivery prior to suspending physician. But this does not equate to process whereby the SMO must advise the doctor of his concerns, consult with the doctor, get his or her side of the story, and then make decision using all of that input. In an ideal world, where emergent circumstances do not exist, that would be the best thing to do. But these sections of the Bylaws, by definition, do not deal with ideal situations. Quite the contrary. They deal with situations where physician appears to have “gone off the rails” and something needs to be done, some drastic intervention is required, before something catastrophic occurs. [140] Examples may illustrate this point. In situation where an emergency room doctor is consistently showing up for shifts while under the influence of drugs or alcohol, must an SMO obtain that doctor’s input and take time to discuss matters with that doctor prior to acting? If an aging neurosurgeon with progressive disease such as Parkinson’s or multiple sclerosis is no longer fit to operate but shows up for scheduled brain surgery insisting the patient is his and that he and only he will conduct the procedure, must the SMO take care to explain the concerns, or obtain input and opinions from that surgeon, prior to instituting an immediate interim suspension? do not believe so. [141] Part of the difficulty in this case is that those sorts of drastic situations were not facing the SMO in this case. agree with the appellant in that respect. In that regard this instant case is similar to Justice Foley’s 2004 decision in Huerto. But that does not mean that the SMO in this case, or in other cases yet to come, must labour under some additional duty. [142] further difficulty have with the appellant’s position in this regard is that at best the authorities appear to be split as to whether the principles of fundamental justice apply to the process leading to an interim suspension, i.e. the investigation. In Gould, those principles were held not to apply at that stage because the interim suspension of lawyer does not amount to final disposition of the issue. Other cases hold the opposite view. And in at least one case reviewed (Mohan College of Physicians Surgeons of Ontario (1991), 1991 CanLII 8328 (ON SC), 81 DLR (4th) 108 (Ont Ct J) the court acknowledged that any duty of fairness applicable to interim suspension proceedings must be tempered by the practicalities and exigencies of the matter at hand. This is, in part, because that decision is interim only, and full airing of the matter is prescribed by the governing legislation. In these situations where the impugned order or action is only interim in nature, it “… must be reviewed in different light than in cases where there is final determination of the individual’s rights” (see p. 118). [143] Under the Bylaws, an interim suspension is subject to two independent reviews then an appeal to this court. While in no way do minimize the effects of such suspension upon physician, the Bylaws and Act provide for relatively quick reviews of the SMO’s actions. Undoubtedly in those review and appeal proceedings, fairness and natural justice apply. As well, in considering the construction of the Bylaws, those reviews are supposed to occur relatively quickly. For example, under s. 77 of the Bylaws the Board’s review hearing must be set “within fourteen (14) days from the date of the immediate suspension”. [144] have considered number of authorities in determining that the duty of investigative fairness is not as broad as the appellant urges, including: (a) Hawrish Cundall (1989), 1989 CanLII 4618 (SK QB), 76 Sask 208 (QB): member of the Law Society took issue with how an investigation committee conducted its investigation. The process was upheld by this court on the basis that the investigators were not exercising quasi-judicial function, which would be exercised by another body before which the member had full right of answer and defence. Justice Gerein stated at paras. [18] In this jurisdiction, any discussion of the nature and role of an investigation committee should begin with Samuels v. Council of College of Physicians and Surgeons of Saskatchewan et al. (1966) 1966 CanLII 352 (SK QB), 57 W.W.R.(N.S.) 385. In that case preliminary inquiry committee was appointed pursuant to the Medical Profession Act, R.S.S. 1965, c. 303, to investigate allegations of professional misconduct on the part of the applicant doctor. The committee summoned the applicant to appear before it and in time laid two charges before the discipline committee. The applicant, inter alia, objected to the manner in which the committee conducted its investigation. [19] In deciding against the applicant on this point, Disbery, J., held that the committee was not performing judicial or quasi-judicial function and was free to conduct its investigation in the manner it deemed proper. At p. 403 of the report he said: The sections of the Act relevant to the preliminary inquiry committee must be read and construed along with the other disciplinary sections of the Act. The Act clearly sets forth that the first duty of the committee is to investigate the suspected misconduct, and in so doing it 'may take such steps as it deems proper'. At this stage the members of the committee are performing services akin to those of police detectives; they are gatherers of information. When they have gathered the information then, if in the “opinion” of the committee there are reasonable grounds for believing that the investigated member may have been guilty of misconduct, the statute directs the committee to lay charge before the discipline committee. In arriving at their “opinion” the members of the committee must, of course, act in good faith and not capriciously or prompted by extraneous considerations or improper motives. If members of committee do not act in good faith then they forfeit the immunity given by s. 48 of the Act. It is to another statutory committee, the discipline committee, that the legislature has given the power to hear and adjudicate upon charges of misconduct against members of the college. am satisfied from reading of the disciplinary sections alone, without reference to the cases, that preliminary inquiry committee has not been given any judicial or quasi-judicial powers by the legislature. Therefore, as the committee is not tribunal exercising judicial or quasi-judicial powers in determining questions affecting the rights of subjects, it is not tribunal to which this court should direct writ of certiorari requiring it to bring its records in this matter before this court. From study of the cases reach the same conclusion. This preliminary inquiry committee had no power to decide whether Dr. Samuels had been guilty of misconduct; it had no power to affect any of his legal rights in any way whatever; and it had no power to impose any penalty or obligation upon him. Having no power to adjudicate anything it was not, when conducting its investigation, acting in judicial or quasi-judicial capacity. The application for writ of certiorari directed to said committee or its members, the respondents Weder, Boyd and McAlpine is refused. (b) Swanson Institute of Chartered Accountants of Saskatchewan, 2007 SKQB 480 (CanLII), 308 Sask 32: Amongst other cases, Hawrish was reviewed. At paras 63 to 66 Justice Currie acknowledged the duty of fairness at the investigative stage but considered the “nature of that duty of fairness” (para. 64) within the context of the legislation and internal rules and overall disciplinary scheme. (c) Maxwell Law Society of New Brunswick (1990), 1990 CanLII 8018 (NB QB), 65 DLR (4th) 754 (NBQB): The court dismissed member’s argument that there ought to have been chance to respond and provide input before formal hearing was directed to adjudicate the complaint. (d) Mondesir Manitoba Association of Optometrists (1998), 1998 CanLII 19440 (MB CA), 163 DLR (4th) 703 (MBCA), leave to appeal to SCC refused, [1999] SCR xi. competitor of the impugned optometrist was instrumental in launching the complaint and providing investigative assistance regarding same. The Manitoba Court of Appeal allowed the Association’s appeal, holding that even if there was bias or an appearance of bias within the investigative process, any prejudice arising therefrom could be properly dealt with within the hearing process in the disciplinary structure. The hearing body’s composition was different from, and independent of, the investigative branch. The Court of Appeal stated: [24] There is no issue that all hearing bodies, be they described as administrative or as quasi-judicial or as judicial, owe duty of fairness to those affected by their decisions. However, finding of irregularity at the inquiry stage does not necessarily result in the court’s intervention in the administrative process. The extent of the duty fluctuates in relation to the power of the administrative body. ... [26] Generally, the courts have concluded that mistakes made by first-stage investigative committee can be remedied or addressed at the second-stage hearing before discipline committee. ... However, where an investigative body has erred and the error has not resulted in real and substantial prejudice to its member, then the courts will be slow to intervene in the administrative process, especially when that process provides for judicial review at its conclusion. (e) similar result to that in Mondesir was reached in Histed Law Society of Manitoba, 2006 MBCA 89 (CanLII), 208 Man (2d) 44, leave to appeal to SCC refused, [2007] 48. As noted at the outset of my reasons, have concluded that any reasonable apprehension of bias that may have existed at the time the CIC decided to issue the citation was cured by the discipline hearing at which the appellant was given full opportunity to answer the charges against him. While the appellant has many objections about the rulings and decisions made by the panel, he makes no complaint as to the constitution of the panel or the fairness of the discipline hearing. As will be seen, fundamental to my conclusion is my determination that the CIC’s function was investigative in nature, and not adjudicative, as argued by the appellant. reasonable apprehension of bias at an early investigative stage of proceedings can be cured by subsequent hearing that adheres to the principles of natural justice. 49. The principle that tribunal can cure its procedural defects was recognized in King v. University of Saskatchewan, 1969 CanLII 89 (SCC), [1969] S.C.R. 678. In King, the university had refused to grant the applicant law degree. The applicant’s appeal was considered by several committees, but he and his counsel were only allowed to be present at the final hearing before committee of the senate of the university. Spence J. noted that breaches of natural justice had occurred in the earlier hearings, but he found that the final hearing before the senate committee was sufficient to rectify the defects: “If there were any absence of natural justice in the inferior tribunals, it was cured by the presence of such natural justice before the senate appeal committee” (at p. 689). 50. The often cited decision of Harelkin v. University of Regina, 1979 CanLII 18 (SCC), [1979] S.C.R. 561, re-affirmed King. Here, student was required by university authorities to withdraw from his studies. The student appealed to committee of the university council, which heard only the university’s side of the dispute, and decided against the student. The student sought prerogative relief. The majority of the Supreme Court decided against the student, because the student had further right of appeal within the administrative scheme of the underlying legislation. 51. Mondesir v. Manitoba Association of Optometrists (1998), 1998 CanLII 19440 (MB CA), 129 Man.R. (2d) 96 (C.A.) (leave to appeal refused, [1998] S.C.C.A. No. 405 (QL)), is the leading case in this province for the principle that procedural defects can be cured in multi-stage administrative process. This decision warrants close examination because of its similarities to this appeal. [145] Accordingly, find cannot agree with the appellant when he contends that the SMO had duties of fairness which included duties to disclose, review, discuss and garner input from the appellant prior to levying the interim suspension. The duty of fairness that imbues the investigative stage of this process, in my view, is simply not as far-reaching as the appellant argues given the nature of the reviews (culminating in appeal by way of judicial review) available to the appellant subsequent to that investigation. [146] In reaching this conclusion have also come to take different view from the appellant as to Dr. Olatunbosun’s opinion letter of July 31, 2015 which was in evidence before the Tribunal but not the Board. In fact it was obtained in reaction to the SMO’s PowerPoint presentation made to the Board without notice to the appellant. The appellant takes the view that Dr. Olatunbosun is “eminently qualified” to provide an opinion as to how an SMO should properly conduct his duties. The appellant views this opinion as compelling evidence which illustrates how the SMO mishandled this case. don’t think that’s right. Here’s why. [147] First, Dr. Olatunbosun was initially retained due to his ob/gyn medical specialty. He was asked to provide opinions on the five reviewed cases, presumably to rebut the opinions amassed by the respondent. On reviewing his material have no hesitation in saying would most likely qualify him as an expert in obstetrics and gynecology in trial setting, permitting him to provide expert opinion evidence on those topics. [148] The same cannot be said of his opinions as to how an SMO is to conduct his or her duties. There is no broad demonstrated expertise and experience such that the opinions of Dr. Olatunbosun on those matters would be intrinsically more valuable than those of anyone else with knowledge of the health care system. His opinions, at least in part, involve legal interpretation of the Act and the Bylaws and how they are supposed to work. There is nothing in the material to indicate that he has any expertise in statutory interpretation and in any event that is within the court’s purview. Based on the material presently before me, in trial setting likely would not allow Dr. Olatunbosun to provide expert opinion testimony on how an SMO is to fulfill the functions of that position. At best that is matter of mixed fact and law. [149] Further, on factual basis, while Dr. Olatunbosun was SMO in another health region for ten years this does not mean that his opinions on how to conduct those duties govern anyone else. It was not established in evidence that his tenure as SMO was stellar. Perhaps it was, but do not know that, and neither did the Tribunal. [150] Finally, Dr. Olatunbosun’s opinion letter amounts to him taking on the role of an advocative wolf dressed up in the sheep’s fleece of an impartial expert. While not phrased this way, agree with respondent’s counsel when he makes this argument. Dr. Olatunbosun’s letter, on any plain reading, amounts to advocating position which favours the appellant and diametrically opposes the SMO. That is not the case with Dr. Olatunbosun’s comments on the five reviewed cases or the opinions of the other medical experts. There, he demonstrates objectivity and impartiality, and appears to be genuinely trying to assist the adjudicators in reaching proper decision. [151] An expert’s duties were recently refined by the Supreme Court of Canada in White Burgess Langille Inman Abbott and Haliburton Co., 2015 SCC 23 (CanLII), [2015] SCR 182. More specifically, the case deals with providing revised framework for assessing bias and propriety in expert opinions tendered. This is not just an issue of weight, it is matter of admissibility. The court has gatekeeping role to ensure improper expert opinions are not placed before trier of fact. Judges (and, by implication, other adjudicators) must fulfill their duty to ensure expert witnesses provide opinion evidence that is fair, objective and non-partisan. The experts need to acknowledge they are aware of this duty and confirm they will honour same. If this threshold is not met the expert opinion should be rejected. Even if accepted into evidence, any remaining questions as to the expert’s impartiality or independence should be taken into account when the trier of fact determines the weight to be attributed to that opinion. [152] Here, with his July 31, 2015 opinion Dr. Olatunbosun crossed (or at the very least blurred) the line between impartial expert and advocate. have not been asked to rule upon whether his opinion was properly before the Tribunal. would not have attributed much weight to that opinion and it seems the Tribunal did not do so. However, the Tribunal was still under duty to deal with his evidence and if it was to be rejected or discounted, to provide reasons therefore. The breach of that duty is discussed above under the adequacy of reasons ground of appeal. [153] To summarize this point, the appellant essentially suggests that because Dr. Olatunbosun was an SMO within Saskatchewan’s health care system his opinions as to the way to do that job are virtually definitive, and the Tribunal ought to have adopted same. They are not, and while having admitted his evidence the Tribunal clearly should have reviewed and assessed his opinions on proper SMO governance in determining the issues (even if this opinion was ultimately entirely discounted), the Tribunal was in no way obligated to accept all or some of what Dr. Olatunbosun had to say in this regard. [154] am somewhat more accepting of the third tranche of the appellant’s arguments in this regard, insofar as there appeared to be no consideration of alternatives to suspension, or at least inadequate consideration in such regard. However, the appellant’s supporting cases tend to be those where suspension is levied by an administrative body as opposed to one corporate officer acting alone, or those where relief is being sought in different context from the Act and Bylaws as in this case. For example the appellant relies on Chiropractors’ Association of Saskatchewan Potapinski, 2001 SKQB 194 (CanLII), 205 Sask 185, as support for the proposition that “. the SMO was similarly obliged to balance any existing risk to patient safety against the impact on the physician” (para. 177, appellant’s factum). However, in that case the investigator was seeking temporary restraining order pursuant to legislation, which was assessed by the court on the same basis as an application for an interim injunction. That is markedly different from the SMO’s function. [155] The appellant also relies on Tanaka Certified General Accountants’ Association (Northwest Territories), [1996] NWTR 301 (NWTSC). do not disagree that administrative bodies can owe duty of fairness during an investigation but that case contemplates situation where conclusions as to the subject individual’s rights are determined. That is not so here. The rights are ultimately determined by the Board, Tribunal and this court. The SMO’s interim suspension is, and is intended to be, stopgap measure for the purpose of protection of the public. [156] Tanaka has not been universally accepted. For example in Graham United Church of Canada, 2002 SKQB 456 (CanLII), 226 Sask 40, it was held that even if there was procedural defect within the investigative process, that did not prohibit further investigations and hearings (para. 18). In the case at bar, sending the matter back for new investigation and re-commencing this entire process does not strike me as palatable situation for Dr. Abouhamra. [157] Tanaka was also considered in Sawchuk Manitoba Pharmaceutical Association, 2002 MBQB 248 (CanLII), 168 Man (2d) 256. At paras. 10 and 11 the multi-faceted role of the investigator was disapproved of, but there is distinction between those cases and the case at bar. In the instant case the SMO acts as investigator and (after fashion) the “prosecutor”, but that is expressly countenanced by the Act and Bylaws. As well, the SMO does not select the people constituting the adjudicators. The SMO certainly does not select the Board members, and it is the Board conducting the initial review under the Bylaws. The SMO does not select the members of the Tribunal. And the SMO certainly does not select which member of this court conducts the appeal. [158] agree with respondent’s counsel that the cases relied upon by the appellant deal with decisions made within different processes or before different types of decision-making bodies, and therefore are distinguishable from the case at bar. The appellant’s cases cited do not squarely deal with the processes set out in the Bylaws. [159] The mere fact that the SMO wears more than one hat is not dispositive. In rural Saskatchewan RCMP members frequently investigate offences, bring charges, serve the accused with the court notice, and act as the Crown agent in prosecuting the matter. They are not disqualified because of doing so, nor are the subject charges nullities. If they crossed the line into selecting or improperly influencing the adjudicator, that would be different. They do not. Neither did the SMO. [160] In reviewing the Bylaws, it is my view that under s. 76 the SMO is gatekeeper or sentinel, guarding against emergency situations that imperil patient safety or proper delivery of public health care. An SMO will sometimes have to act swiftly to fulfill that mandate. An SMO will not always have the time or ability to act with transparency and in consultative or collegial manner when the SMO genuinely (even if incorrectly) perceives that public safety is at risk. am not prepared to impose or read into s. 76 restrictions that in my view do not presently bind persons in the position of the SMO. [161] In coming to this conclusion have duly considered the highly capable arguments of appellant’s counsel, and have been mindful throughout of the dire personal and professional consequences an interim suspension can have for physicians. Nevertheless, imposition of the requirements proposed by the appellant in my view would not be in keeping with the true intent behind the Act and Bylaws. [162] This conclusion on issue #6 (i.e. that the SMO does not have full duty of fairness, consultation and transparency during the investigation) eliminates consideration of the remaining issues in this group (#7 to #9). However, if am incorrect in my determination of issue #6, do agree with the appellant that his attendance at quality assurance meetings and/or critical incident reviews do not constitute the required notice from the SMO. have no hesitation in coming to that conclusion. [163] The critical incident reviews and reports are privileged. am, frankly, unsure as to how the SMO could oblige the appellant to take part in such reviews, purport to use them to partially ground his decision to suspend the appellant, treat that mandatory participation as some form of notice of his intention to investigate and possibly suspend the appellant, then claim privilege under s. 58 of the Act. That is manifestly unfair. [164] have determined that in these circumstances the SMO did not have duty to provide notice to the appellant during the investigative process. That duty only arose at the conclusion of the SMO’s investigation. However, if the SMO was under such duty, the requirement for notice is not met through the appellant’s attendance at the quality assurance and critical incident sessions. The concept of providing notice involves, inter alia, the conveyance to the recipient of such notice that he or she potentially faces some jeopardy. agree with the appellant’s submissions and do not accept that his attendance at such meetings effectively accomplishes this. say this for several reasons: (a) As stated, the privilege that attaches to those meetings prevents what was said at those meetings from being used for other purposes, including s. 76 suspension. Section 10 of The Evidence Act, SS 2006, E-11.2, and s. 58 of The Regional Health Services Act effectively bar such use. (b) Case law consistently upholds this privilege as mandatory statutory privilege. See Kerr Saskatchewan (Minister of Health) (1994), 1994 CanLII 4586 (SK CA), 123 Sask 63 (Sask CA); MacKenzie Kutcher, 2003 NSSC 76 (CanLII), 213 NSR (2d) 288; Lancaster Minnaar, 2006 SKQB 380 (CanLII), 288 Sask 31; Dawe Evans, 2009 ABQB 724 (CanLII), 483 AR 72; Pryznyk Gilliland, 2015 SKQB 285 (CanLII); Gordon Estate Regina Qu’Appelle Regional Health Authority, 2015 SKQB 147 (CanLII), 475 Sask 142. (c) Strangely, despite this privilege (which was described by Zarzeczny J. at para. 20 of Gordon Estate as “comprehensive and all-encompassing”) the SMO breached or waived same when disclosing events from those meetings at the Board hearing. It is not the SMO’s privilege to waive, nor even the Health Authority’s. It is statutory protection. [165] agree with the appellant that the SMO, Board and Tribunal did not properly apply the statutory privilege. Whatever was said at quality assurance and/or critical incident meetings cannot be held to have been effective notice to the appellant that his practice was being reviewed in different context, in particular the s. 76 immediate interim suspension context. The respondent and its SMO need to review their own practice and outlook in this regard. [166] However, having found that within the structure of the Act and Bylaws the SMO’s investigation is not subject to an overriding duty of fairness and transparency as same is defined by the appellant, these grounds of appeal cannot succeed. 10. Did the Tribunal err in law in upholding the interim suspension in light of the conflicting expert medical opinions, including the opinions of specialists in obstetrics and gynecology who found that the appellant had met the standard of care in the cases under review? 13. Did the Tribunal err in law by ignoring or failing to consider the long-accepted legal principle that, where there is more than one recognized method of diagnosis or treatment, physician is not negligent in selecting one of the recognized options even though such approach may not be favoured by certain practitioners? [167] These are grounds 4(f) and (j) in the appellant’s notice of appeal to this court. [168] Appellant’s counsel spent considerable time during this two-day hearing reviewing the five cases which the SMO had selected to review. Her passionate presentation was compelling, but there is an initial jurisdictional threshold to consider. [169] Section 45(4) of The Regional Health Services Act provides that any appeal to this court is “on question of law or jurisdiction”. There is some room to argue that these grounds of appeal engage review of factual determinations made by the Tribunal. [170] similar right of appeal to this court exists in The Residential Tenancies Act, 2006, SS 2006, R-22.0001. In Reich Lohse (1994), 1994 CanLII 4691 (SK CA), 123 Sask 114 (CA), the scope of such appellate review was defined in passage that remains good law today: 18 Our jurisdiction and that of the Queen’s Bench on an appeal from the rentalsman is simply supervisory one with respect to the interpretation of the law and the rentalsman’s jurisdiction. It is not our task to pass judgment on the behaviour of either tenants or landlords as it relates to the exercise of their right. That is the function of the rentalsman. [171] Reich has been considered many, many times. Consistently it has been held to mean that on such an appeal this court does not have any ability to rehear the evidence or consider the matter anew. It is supervisory appeal. [172] This approach has been confirmed in different contexts. Recently, in Milan Consulting and Construction Ltd. City of Regina, 2016 SKQB 31 (CanLII), Justice Schwann considered the nature and scope of an appeal pursuant to s. 329 of The Cities Act, SS 2002, C-11.1. The language of that statutory review mirrors the within appeal. Justice Schwann canvassed the nature and scope of such an appeal at paras. 24 to 40 of her judgment. She confirmed it is limited in scope and is supervisory in nature. [173] further example of the interpretation of such right of appeal is found in City of Saskatoon North Ridge Development Corporation, 2015 SKCA 13 (CanLII), 451 Sask 265. That case involved an appeal on questions of law and jurisdiction pursuant to s. 33.1 of The Municipal Board Act, SS 1988-89, M-23.2. That right of appeal had the added requirement of leave, which is not of concern in the case at bar. At paras. 43 and 45 of that decision, it is confirmed that such right of appeal is limited. At para. 45: 45 Section 33.1 does not grant general right of appeal to the Court of Appeal as exists with respect to appeals from the Court of Queen's Bench. An appeal under s. 33.1 is restricted to questions of law or jurisdiction only. If the Chambers judge grants leave under s. 33.1, the Court that hears the appeal will not consider the correctness of the Committee's decision, except insofar as the decision turns on the identified questions of law or jurisdiction; nor will the Court weigh the evidence to consider the reasonableness of the decision or any finding of fact. The Court’s task is to consider the decision only as it relates to the questions of law or jurisdiction. [Emphasis added] [174] Finally in this regard, have considered the guidance offered in cases such as Housen Nikolaisen, 2002 SCC 33 (CanLII), [2002] SCR 235, as to the distinctions amongst questions of fact, questions of law, and questions of mixed fact and law. At para. 101 those categories were described: Put briefly, questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests. [175] In some cases question appearing to be question of mixed fact and law can actually be question of law. This was expanded at para. 27 of Housen, where the Supreme Court drew upon an earlier decision as an example: ... if decision-maker says that the correct test requires him or her to consider A, B, C, and D, but in fact the decision-maker considers only A, B, and C, then the outcome is as if he or she had applied law that required consideration of only A, B, and C. If the correct test requires him or her to consider as well, then the decision-maker has in effect applied the wrong law, and so has made an error of law. [176] Case law also notes that factual findings may constitute reviewable questions of law if those findings are unreasonable because they ignore relevant evidence, consider evidence not relevant, mischaracterize relevant evidence, and/or draw inferences from the facts which are unsupportable or irrational. In this regard see P.S.S. Professional Salon Services Inc. Saskatchewan (Human Rights Commission), 2007 SKCA 149 (CanLII), 302 Sask 161. At paras. 60 to 65 Justice Cameron set out how findings of fact may be subject to review as errors of law: 60 It is clear that the appeal against the decision of the tribunal comes down to its findings of fact. This is not to say that there is, therefore, no tenable ground for review of the decision, but it must be understood that the decision is only reviewable to the extent the findings of fact upon which it rests are attended by error of law. 61 The import of this was remarked upon in City of Regina et al. v. Kivela, 2006 SKCA 38 (CanLII), (2006), 266 D.L.R. (4th) 319 (Sask. C.A.), case involving an appeal from the decision of human rights tribunal. Speaking for the Court Smith J.A. said: The traditional view, in these circumstances, is that the tribunal's factual determinations are subject to review only if and to the extent that findings constitute errors of law, as when there was no evidence before the tribunal that, viewed reasonably, was capable of supporting the tribunal's finding. 62 This ties in with the notion that “an unreasonable finding of fact” falls to be categorized as an error of law for the purposes of judicial review in the classical sense, and with the associated notion that when errors of law are open to judicial review unhindered by privative clause then “unreasonable errors of fact”, though no others, are subject to review: Blanchard v. Control Data Canada Ltd., 1984 CanLII 27 (SCC), [1984] S.C.R. 476 at 494-95. It also ties in with the further notion that tribunal “errs in law” if it ignores relevant evidence or evidence it is required to consider: Woolaston v. Minister of Manpower and Immigration, 1972 CanLII (SCC), [1973] S.C.R. 102; Canada (Director of Investigation and Research, Competition Act) v. Southam, 1997 CanLII 385 (SCC), [1997] S.C.R. 748 at para. 41: “If the Tribunal did ignore items of evidence that the law requires it to consider, then the Tribunal erred in law.” 63 Similar notions were acted upon in Metropolitan Entertainment Group v. Nova Scotia (Workers Compensation Appeals Tribunal), 2007 NSCA 30 (CanLII), (2007), 278 D.L.R. (4th) 674 (N.S.C.A.). In that case the right of appeal was confined to questions of law or jurisdiction, and there, as here, the appeal challenged the findings of fact upon which the decision came to rest. This gave rise to the issue of whether the findings were subject to review in light of the limit upon the right of appeal. In addressing the issue, the Nova Scotia Court of Appeal said this: 15 ... there are however, situations where mis-stating evidence or making egregious factual errors will amount to an error in law. Southam Inc. v. Canada (Director of Investigation Research), supra. Findings, inferences, and conclusions which are seen to be so flawed as to be patently unreasonable, are transferred into errors of law. See, for example, Nova Scotia (Director of Assessment) v. Gatsby’s Bar and Eatery Limited, [2004] N.S.J. No. 145 (QL), 130 A.C.W.S. (3d) 448 (C.A.); McCarthy v. Nova Scotia (Workers’ Compensation Appeals Tribunal), [2001] N.S.J. No. 175 (QL), 105 A.C.W.S. (3d) 658 (C.A.) and Stulac v. Nova Scotia (Workers’ Compensation Appeals Tribunal), [2001] N.S.J. No. 132 (QL), 104 A.C.W.S. (3d) 247 (C.A.). 64 To the extent this passage refers to “patently unreasonable” findings and inferences of fact as amounting to errors of law, it draws upon the language of the standards of review. mention this because at the stage of deciding whether impugned findings of fact are subject to review, rather than at the stage of selecting the standard of review, it would seem preferable to speak only of “unreasonable” findings of fact as constituting errors of law, as in Blanchard v. Control Data Canada Ltd. 65 In any event, it is evident from the foregoing that findings of fact are capable of giving rise to question of law for the purposes of right of appeal so confined. It is instructive in this regard to recall that the facts as found are one thing, the process by which they are found is another, and it is here where decision is most apt to be seen as giving rise to question of law. Why? Because the fact-finding process, or method by which facts in dispute are determined in judicial and quasi-judicial settings, is underpinned by principle, as supplied by both statutory implication and common law. In this instance, the underpinning of principle is supplied in the main by The Saskatchewan Human Rights Code. [Emphasis added] [177] What is the court actually dealing with regarding these two grounds of appeal (4(f) and (j))? Is the appellant dissatisfied with, and taking issue with, factual findings per se or is he impugning the process by which the Tribunal arrived at those factual findings? This is an important issue as it determines whether this court can even consider the extensive arguments pertaining to the evidence surrounding the five reviewed patient cases. [178] am not prepared to revisit and make any new findings of fact. On this type of appeal, that is not this court’s role. It was, however, the precise role of the Tribunal; at least, the Tribunal had to take an independent and fresh view of the evidence before it to reach conclusions on all matters in issue. The Tribunal was not to simply defer to or accept the Board’s rulings and findings, nor was the Tribunal to simply review the Board’s determinations on the basis of correctness or reasonableness. [179] Accordingly, have limited my approach to factual matters under appeal to determination of whether the Tribunal properly conducted review of the evidence to decide what the facts were and whether, on those facts, the SMO’s suspension of the appellant was sustainable. [180] As already found above, the Tribunal did not carry out this mandate. Additionally, the Tribunal’s decision was neither correct nor reasonable in several other respects when considering the evidence before it. [181] Specifically, the Tribunal went astray as follows. express no view as to which experts’ opinions should be accepted as correct. In the context of this appeal do not have to determine that issue. But the Tribunal did. The Tribunal was obliged to give due consideration to the medical opinions, review and attempt to resolve the obvious conflicts in same, consider same in the broader context of all the evidence, and then come to conclusion while providing reasons therefore. The Tribunal did not do this. This failure renders the Tribunal’s decision unreasonable. Accordingly, issue #10 (ground 4(f) in the appellant’s notice of appeal) meets with success. [182] In issue #13 (ground 4(j)) the appellant suggests that the Tribunal failed to recognize that because the expert medical opinions illustrate that there were numerous modes of treatment available to the appellant, he was not negligent because of choosing one of those modes even if some of the experts would not have chosen that treatment option. Maybe so. But negligence, per se, is not the test the Tribunal was dealing with. The issue for the SMO, the Board and the Tribunal was whether the s. 76 interim suspension test was met or, more properly, would be met or could be sustained given the evidence placed before the Board and, subsequently, the Tribunal. [183] The fact that Dr. Abouhamra chose from an array of available treatment options is not complete answer to that test. The options he chose, for example, in each of the five cases under review could have been acceptable medical options. The exact manner in which he delivered health services to each of those patients could still fall below the standard required or could still endanger patient safety. [184] In saying this am mindful (and agree with) the position put forth by appellant’s counsel that the SMO, Board and Tribunal were not entitled to look at this matter through result-oriented analysis. agree that in each of the five cases there were problems and/or poor medical results, but that in itself does not mean that the appellant’s delivery of medical care was poor. [185] Further, in saying this also acknowledge the authorities cited by the appellant. My conclusions are, in my view, in step with those authorities. The appellant cited ter Neuzen Korn, 1995 CanLII 72 (SCC), [1995] SCR 674 at para 38: 38. It is generally accepted that when doctor acts in accordance with recognized and respectable practice of the profession, he or she will not be found to be negligent. agree. However “acting in accordance with recognized and respectable practice of the profession” involves more than selection of an appropriate treatment option. Performance of procedures, assessment and management of the patient’s condition, and continuing application of skill and judgment are all required to fit within this phrase. [187] do not agree that the answer to the question posed to the Tribunal is as simple as the appellant argues here; that is, having chosen one of range of appropriate options, there is no way the appellant’s conduct could have brought him within the ambit of s. 76 of the Bylaws. In my view, there are numerous further considerations whereby s. 76 would have to be considered. [188] do agree that the Board and Tribunal gave somewhat short shrift to their respective considerations of the conflicting expert evidence before them. Faced with expert opinions which were admitted into evidence, it was incumbent upon the Tribunal to assess and resolve those conflicts within the context of the proper s. 76 consideration. In failing to do so and failing to give adequate reasons, the Tribunal failed to ultimately render decision that was reasonable. [189] am also concerned about the nature of some of the evidence presented by the SMO to the Board and subsequently to the Tribunal. In particular refer to his PowerPoint presentation. Appellant’s counsel went through that presentation in detail, with an analysis that compared and contrasted what the SMO said in his PowerPoint to what was actually established in the evidence. There were differences, some minute, but some substantial. This is problematic. Whether that PowerPoint presentation was treated as evidence or argument, it needed to be accurate and not be misleading. [190] In fact have determined that it was both inaccurate and misleading in number of respects. The conclusions or opinions set forth by the SMO in that presentation were not supported by the actual evidence before the reviewing bodies. The SMO failed to maintain accuracy in drawing those opinions and conclusions in his PowerPoint presentation. The PowerPoint was more than raw data or evidence. It referred to events but contained the subjective opinions and conclusions of the SMO, presented as fact. It was, as appellant’s counsel referred to it in oral argument, “distillation with message” (sometimes an inaccurate message) as opposed to being recitation of facts or evidence from which conclusion or inference could be drawn by the adjudicator. [191] Whether intended or accepted as evidence or argument, in either case the SMO had duty not to mislead the reviewing bodies, either intentionally or unintentionally. Correspondingly the Tribunal had the duty to deal with such evidence or arguments and ensure that the Tribunal’s determinations were made on the basis of actual and accurate evidence and arguments. It does not appear the Tribunal did so, or at least provided no cogent analysis of the use made of the impugned PowerPoint presentation. [192] Ultimately, the Tribunal decision is unreasonable for the reasons stated immediately above. 12. Did the Tribunal err in law by ignoring or dismissing the uncontroverted expert evidence that all of the cases under review fell within the practice area of obstetrics, which is distinct and separate area of medical practice from that of gynecology, and failing to consider that the suspension extended to the appellant’s gynecology privileges without any evidentiary support? [193] This is ground 4(i) of the notice of appeal. The appellant argues that the Tribunal should not have accepted the SMO’s evidence regarding the five obstetrics cases under review, insofar as he opined that they had equal application to the related (but distinct) medical specialty of gynecology. It is argued there was no factual or legal foundation for the suspension of gynecology privileges. One letter of opinion from Dr. Olatunbosun (April 7, 2015) speaks directly to this distinction (pages 298a to 299a, appeal book). In that letter Dr. Olatunbosun is clear that there is distinction between the two disciplines, and that suspension of privileges in one does not automatically mean suspension is required for the other. [194] Dr. Olatunbosun’s opinion is somewhat weakened by failure to cite any real sources. It appears based largely on anecdotal experience. For example, on page 299a he says: In my interaction with my colleagues across the country and in the U.S. the practice of keeping obstetric and gynecology privileges separate is similar with regard to physicians who for various reasons have their obstetric privileges suspended but have their gynecology privileges, based on the two specialty areas being distinct entities. The converse also applies to when gynecology privileges are suspended and the literature contains several examples of this prevailing practice. [195] am unsure as to what “literature” the doctor refers. In failing to cite any real sources, Dr. Olatunbosun’s opinion becomes just that bald opinion. How would counsel opposite cross-examine him on that opinion when the basis of same is not supplied? As well, it appears that again Dr. Olatunbosun has crossed the line from objective expert to advocate. [196] The further difficulty have is that there are cases which do not support the bright line distinction proffered by Dr. Olatunbosun. In Re Board of Management of Grace General Hospital of Ottawa and Burgess (1985), 1985 CanLII 2145 (ON SC), 51 OR (2d) 435 (WL) (Ont Div Ct), (SC), specialist’s privileges as an ob/gyn were rescinded due to concerns as to quality of care delivery, and abrasive interpersonal relationships with others. An appeal board reversed this decision in part, upholding the denial of obstetrics privileges but reinstating the physician regarding gynecology. further appeal to the court resulted in reversal of that decision. It was held there was no evidence to justify the board’s distinction as between obstetrics and gynecology. The court said this at paras 12-17: [12] have difficulty with the Board’s separation of obstetrics from gynaecology. Dr. Burgess’s appointment to the hospital was an appointment with privileges in “obstetrics and gynaecology”. He was appointed to the department of “obstetrics and gynaecology”. There was no evidence adduced which would justify or permit the Board to differentiate between obstetrics and gynaecology. There was no submission made to the Board that distinction should or could be drawn between obstetrics and gynaecology or that Dr. Burgess’s privileges with respect to the one should be treated any differently than his privileges with respect to the other, or that any difference could be described between his standard of care in treating gynaecological patients as compared to obstetrical. The first hint anyone associated with the case had that the Board was considering drawing dividing line between the practice of obstetrics and the practice of gynaecology in the way that they did occurred when it had already been done; that is to say, when the reasons of the Board were issued. [13] do not suggest that distinction may not be drawn between the practice of obstetrics and the practice of gynaecology. Dorland’s illustrated Medical Dictionary, 26th ed. (W. B. Saunders Company) illustrates that in the following definitions: Obstetrics: that branch of surgery which deals with the management of pregnancy, labour and puerperium (period or state of confinement after labour). Gynecology: that branch of medicine which treats of disease of the genital tract in women. have difficulty, however, in seeing how as practical matter that distinction can be justified in the circumstances of this case. [14] The 17th edition of Williams “Obstetrics” (Appleton-Century-Crofts) has this to say: Obstetrics is multifaceted subject, with close and numerous relations to other branches of medicine. It is so intimately related to the kindred subject of gynaecology that obstetrics and gynaecology are generally regarded as one specialty. Gynaecology deals with the physiology and the pathology of the female reproductive organs in the nonpregnant state, whereas obstetrics deals with the pregnant state in the broadest sense. Correct differential diagnosis in either obstetrics or gynaecology entails an intimate acquaintance with the clinical syndromes met in both; in addition, the methods of examination and many operative techniques are common to both disciplines. It is therefore obligatory that every obstetrician be experienced in gynaecology, and vice versa. [15] In “Principles of Gynaecology” by Sir Norman Jeffcoate (4th ed., Butterworths)) the following occurs: It may be added that, according to definition, obstetrics (the study of childbirth and its disorders) is merely one aspect of gynaecology and, in practice, the two cannot properly be separated. [16] It is of interest that those who created the title for the department to which Dr. Burgess had been appointed did not differentiate between obstetrics and gynaecology but combined them. No attempt to differentiate between them in relation to Dr. Burgess's competence or practice was made either by the M.A.C. on the two occasions on which it had to consider these questions, or the board of management. Yet board of three lay persons, that is, persons who are not members of the medical profession, rests decision of importance on presumed differentiation. [17] In terms of evidence there was no attempt made by anyone in the lengthy process anteceding the proceedings in this court to make that differentiation. The evidence put forward related to the totality of Dr. Burgess’s practice in the hospital. It is difficult to see how the evidence could be sifted by the Appeal Board in retrospect into two compartments. It is thus difficult to see how the Board could conclude that the doctor’s standard of practice in obstetrics was unacceptable and yet at the same time conclude that his standard of practice in gynaecology was acceptable. The Board makes no attempt to explain or justify it. Its bald statement that “the hospital has not made out sufficient case to deny Dr. Burgess’s privileges in gynaecology” does not assist. [197] This case suggests that while the distinction can be made, there must be sufficient evidence to do so. fully appreciate that in the instant case there is some evidence of such distinction, but the shortfalls in Dr. Olatunbosun’s opinion have already been identified. As with other aspects of this physician’s evidence, his opinions seem to be centred on what he would have done, how he views situation and how he would have handled matters, as opposed to providing objective and helpful information to the trier of fact. It is often pure opinion as opposed to true expert opinion. [198] As well, viewing all of the evidence on this point, it appears that obstetrics and gynecology were linked by both the appellant and respondent. Indeed, the appellant’s affidavit sworn May 9, 2015 links those terms throughout. His residency program (para. 5) was in both. His fellowship was obtained in the Royal College of Obstetrics and Gynaecology. At the May 20, 2015 hearing the appellant indicated that without hospital privileges his intention was to carry on his practice within his private clinic but did not indicate that he would limit himself to gynecology. Further, the SMO’s evidence was that the appellant’s conduct was not limited to either field, but intersected with both obstetrics and gynecology. There was at least some evidence which tended to show that the concerns of the SMO as to the appellant’s practice were not limited to the obstetrical side, and that there was an intersection between obstetrics and gynecology when all the SMO’s concerns as to patient care and management were considered. [199] Considering the evidence as whole cannot conclude the Tribunal’s decision on this point was unreasonable. This ground of appeal does not succeed. 14. If the appellant succeeds on any of these grounds, what is the appropriate remedy? [200] As indicated, the appellant meets with success on substantial number of his grounds of appeal. The court must now turn to the type of remedy to grant. [201] Dr. Abouhamra submits the remedy is to quash the Tribunal decision and reinstate his privileges. It is argued that by implication, this should bring the discipline proceedings to close because the suspension (as upheld) amounted to the referral for discipline and if that suspension is quashed, there is nothing to proceed before the discipline body. [202] The respondent argues that the matter could be referred back for adjudication. In support is cited Osteria De Medici Restaurant Ltd. Yaworski. [203] have carefully considered this issue and find that this is not an appropriate case for referral for further adjudication. That will add further delay for Dr. Abouhamra, who has already sustained substantial personal and professional prejudice from the erroneous and unreasonable findings of the Tribunal. Conclusion [204] Accordingly the decision of the Tribunal to uphold the interim suspension of privileges is quashed, and Dr. Abouhamra’s hospital privileges in obstetrics and gynecology are forthwith reinstated. [205] The appellant invited the court to also quash the pending discipline proceedings. It strikes me that this is beyond the strict jurisdiction of this court’s powers on this type of appeal. However, if the operative referral mechanism to discipline was the Board’s decision, and that has been overturned, it may well be that the discipline matter is at an end. That, however, is an argument for another day and make no direct ruling on same. [206] The parties have leave to speak to costs. J. R.W. DANYLIUK
HELD: The appeal was granted on the basis of the first two grounds as well as others. The court quashed the tribunal’s decision and reinstated the appellant’s hospital privileges. The court reviewed the transcript of the tribunal’s hearing and its written decision. With regard to the first two issues, it found that the tribunal had erred in law in the following ways: 1) by failing to conduct a de novo hearing as required. It did not refer to the expert opinion submitted by the appellant as new evidence at the hearing; and 2) by failing to explain its decision. It did not refer to the new evidence nor did it state how it had reconciled the conflicting expert opinion evidence offered by the appellant and the respondent. It merely accepted the evidence of the SMO’s experts.