MYLO KATHIRGAMANATHAN FIRST APPELLANT AND: DR. M. KATHIRGAMANATHAN PMC (2012) INC. SECOND APPELLANT AND: WESTERN REGIONAL INTEGRATED HEALTH AUTHORITY FIRST RESPONDENT AND: DARRELL BOONE SECOND RESPONDENT, 2023 NLCA 34

IN THE COURT OF APPEALOF NEWFOUNDLAND AND LABRADOR Citation: Kathirgamanathan v. Newfoundland and Labrador (WesternRegional Integrated Health Authority), 2023 NLCA 34Date: November 22, 2023Docket Number: 202101H0048 BETWEEN: MYLO KATHIRGAMANATHAN FIRST APPELLANT AND: DR. M. KATHIRGAMANATHAN PMC(2012) INC. SECOND APPELLANT AND: WESTERN REGIONAL INTEGRATEDHEALTH AUTHORITY FIRST RESPONDENT AND: DARRELL BOONE SECOND RESPONDENT Coram: W.H. Goodridge, G.D. Butler and F.J. Knickle JJ.A.

Court Appealed From: Supreme Court of Newfoundland and Labrador, General Division (2021 NLSC 89) Appeal Heard: June 15, 2023Judgment Rendered: November 22, 2023 Reasons for Judgment by: G.D. Butler J.A.Concurred in by: W.H. Goodridge and F.J. Knickle JJ.A. Counsel for the Appellants: Bernard M. Coffey, KCCounsel for the Respondents: Twila E. Reid & Giles W. Ayers Authorities Cited: CASES CITED: Kathirgamanathan v. Western Regional Integrated Health Authority, 2021 NLSC 123; Corporate Express Canada Inc. v. Memorial University of Newfoundland, 2015 NLCA 52, 371 Nfld. & P.E.I.R.137; Nagase v.

Entwistle, 2016 BCCA 257; Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27; F.(M.) v. Dr. Sutherland, (ON CA); Horne v. Queen Elizabeth II Health SciencesCentre, 2018 NSCA 20; Rosenhek v. Windsor Regional Hospital, 2010 ONCA 13, leave to appeal to SCC refused, 33608 (21 October 2010); Donovan et al. v. Canada (Attorney General), 2008 NLCA 8, 273 Nfld. &P.E.I.R. 116; Walsh v. TRA Co. et al., 2007 NLCA 50, 268 Nfld. &. P.E.I.R. 111; Drummond-Jackson v. British Medical Association, [1970] 1 All E.R. 1094 (C.A.); Andrews et al. v. Canada (Attorney General), 2014NLCA 32, 354 Nfld. & P.E.I.R. 42; Apotex Inc. v.

Allergen Inc., 2011 FCA 134; Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263; Kavanagh v. Newfoundland (Minister of Education) et al., 2000 NFCA 2,183 Nfld. & P.E.I.R. 282; Montreal Trust Co. of Canada v. Hickman et al., 2001 NFCA 42, 204 Nfld. & P.E.I.R. 58; Roberts v. Browning Ferris Industries Ltd. (1998), (NL CA), 170 Nfld. & P.E.I.R.228 (C.A.). STATUTES CONSIDERED: Evidence Act, RSNL 1990, c. E-16,

section 8.1; Patient Safety Act, SNL 2017, c. P-3.01, sections 4, 2(i), 2(r), 12, 13, 7; Regulated Health Professions Act, 1991, SO 1991, c. 18, section36(3); Evidence Act, RSBC 1996, c. 124, section 51(2)(b). RULES CONSIDERED: Rules of the Supreme Court 1986, SNL 1986, c. 42, Sch. D, rule 14.24. TEXTS CONSIDERED: David M. Paciocco, Palma Paciocco & Lee Stuesser, The Law of Evidence, 8th ed (Toronto: Irwin Law Inc., 2020); Ruth Sullivan, The Construction of Statutes, 7th ed (Toronto, ON: LexisNexisCanada, 2022). G.D. Butler J.A.:INTRODUCTION[1] On this appeal, the Court must address whether the applications judge erred in his

interpretation of

section 8.1 of the Evidence Act, RSNL 1990, c. E-16. This

section creates a statutory privilege the effect of

which is to exclude from legal proceedings specified evidence related to quality assurance committees. [ 2 ] On an application by Western Regional Integrated Health Authority in Corner Brook, Newfoundland and Labrador (the “Hospital”) to strike portions or, alternatively, all of the Appellants’ statement of claim, the applications judge was required to interpret

section 8.1 relative to the admissibility of evidence associated with proceedings of the Hospital’s quality assurance committee (the “committee”). BACKGROUND [ 3 ] Mylo Kathirgamanathan (professionally known as “Dr. Kathir”) is a general surgeon who practiced at the Hospital and the Second Appellant is his professional corporation. In February 2016, the Department of Perioperative (Anesthesiology) Medicine withdrew all anesthesiology services from Dr. Kathir alleging patient safety concerns. [ 4 ] To address these allegations, the quality assurance committee, chaired by Dr.

Boone, was established. [ 5 ] The committee delivered a report (the “Report”) to the Hospital in June 2018 and the findings and recommendations of the committee were accepted by the Hospital. Dr. Kathir asserts that this had the effect of negating his admitting and operating privileges at the Hospital and he subsequently resigned. [ 6 ] Dr. Kathir participated in the quality assurance process and received a copy of the Report. He was aware of the complaints made, the constitution of the committee, the evaluation made of his performance, and the committee’s recommendations. [ 7 ] Dr.

Kathir commenced three actions in the Supreme Court against the Hospital, the physicians involved in the anesthesia group, as well as the committee Chair. In ordering that the three actions be heard together, a different Supreme Court judge described these actions as follows: In February, 2016 a group of anesthesiologists decided to withdraw anesthesia services from the Plaintiffs allegedly in response to patient safety concerns. As a result, on September 21, 2016, the Plaintiffs brought an action, K1, against Western Health alleging that it improperly acquiesced in the actions of the anesthesiologists.

On February 14, 2018 the Plaintiffs brought an action, K2, against the eight individual anesthesiologists who had withdrawn anesthesia services from the Plaintiffs. On June 5, 2019 the Plaintiffs commenced an action, K3, against Western Health and Darrell Boone. In that action the Plaintiffs claimed that both Defendants were in breach of their public duty to fairly, and expeditiously, determine the Plaintiff’s matter. In addition, it is alleged that Darrell Boone committed fraud by issuing a false document. ( Kathirgamanathan v.

Western Regional Integrated Health Authority , 2020 NLSC 123 , at paras. 3-5 .) [ 8 ] This appeal relates solely to claims made in what the judge described as K3 ( Kathirgamanathan v. Western Regional Integrated Health Authority , 2021 NLSC 89 , the “Decision”). In this action, Dr. Kathir alleges irregularities within the quality assurance process undertaken by the Hospital. Dr. Kathir asserts that the Hospital breached common law and/or statutory duties owed to him, (including a duty to act in good faith), and committed the tort of misfeasance in public office. Dr. Kathir made similar assertions against Dr.

Boone and alleged that the Hospital was vicariously liable for Dr. Boone’s actions. Dr. Kathir (or his professional corporation) sought damages, interest and costs. [ 9 ] The Respondents applied to strike all, or alternatively portions, of the statement of claim under rule 14.24 of the Rules of the Supreme Court, 1986 , SNL 1986, c. 42, Sch. D . They asserted that all evidence of the committee proceedings was inadmissible by virtue of

section 8.1 of the Evidence Act and that Dr. Kathir could not therefore succeed in his claim. [ 10 ] It is not disputed that

section 8.1 applies to the committee and that by virtue of this, specified evidence was inadmissible in the legal proceeding. However, in defending the application, Dr. Kathir challenged the extent of the exclusion of evidence under the privilege and in particular asserted that those portions of his statement of claim that alleged fraudulent, dishonest and/or bad faith conduct did not rely upon evidence protected by the privilege. [ 11 ] The applications judge agreed with the Respondents that it was appropriate to take a broad

interpretation to

section 8.1 (para. 29). He also found that Dr. Kathir’s allegations did not amount to fraud (para. 49). He concluded: [82] Finally, having found that the proceedings of the PRC [the committee] were inadmissible in this action, the only question remaining was whether the Statement of Claim should be struck in whole or in part. I agreed with the Defendants, that matters which arose before the PRC was formally commenced, but were properly a part of the initiating phase of the process, were covered by the protection. I was satisfied that striking parts of the Statement of Claim covered by

section 8.1 would leave no cause of action remaining. Therefore the entire Statement of Claim is struck and the action is dismissed. [ 12 ] Dr. Kathir appeals. ISSUES [ 13 ] I would frame the issues to be determined on this appeal as follows: 1. Did the applications judge err in his determination of the nature and extent of the statutory privilege under

section 8.1(3) of the Evidence Act for evidence related to quality assurance committees? 2. Did the applications judge err in striking the entirety of the statement of claim? 3. What is the appropriate relief? THE STATEMENT OF CLAIM [ 14 ] Dr. Kathir’s statement of claim pleads the following facts. [ 15 ] For more than fifteen years prior to February 2016, Dr. Kathir was a general surgeon at the Hospital. In 2015 and 2016, allegations were made respecting Dr. Kathir’s competence as a surgeon and on February 18, 2016, all members of the Perioperative (Anesthesiology) Department withdrew their services for Dr.

Kathir. Dr. Kathir was provided with two lists of patients for whom concern with Dr. Kathir’s treatment had been raised. The Hospital referred the allegations to the committee in June 2016. In July 2016, Dr. Kathir voluntarily withdrew from clinical practice. Between September 2016 and May 2017, Dr. Kathir provided responses to the allegations of incompetence and replied to Hospital communications to him concerning the allegations. [ 16 ] Between September 1, 2016 and June 29, 2018, Dr. Kathir made in excess of thirty enquiries respecting the status of the committee proceedings. On July 20, 2018, Dr.

Kathir received a copy of the committee’s Report and on August 14, 2018, he was advised that the Hospital had decided to accept the recommendations contained in the committee’s Report. The Hospital advised that Dr. Kathir’s privileges were temporarily suspended until he complied with remedial measures outlined in the committee’s Report (Appeal Book, Tab 4, pages 39-49, paras. 1-26). [ 17 ] Relying on these facts, Dr.

Kathir pleads that the Hospital was required to act in good faith (para. 27), to monitor and evaluate the delivery of medical services, which includes quality assurance initiatives (para. 28) and to establish and maintain a quality assurance committee (para. 30). He references the Hospital’s by-laws (para. 33) and, in particular, those portions thereof which address physician peer review and/or investigation (paras. 34-36). [ 18 ] Dr.

Kathir pleads details of the Hospital’s alleged failure to follow the quality assurance committee process (paras. 37-39, 46, 49), which included inordinate delay in the proceedings and failure to deliver the Report in the time required. Dr. Kathir asserts that these failures caused him to be withdrawn from clinical practice for more than three years with serious negative impacts on his professional livelihood (para. 40) and that he and/or his professional corporation had suffered damages (paras. 41-43).

He alleges that the Hospital by-laws did not permit reliance upon opinions of members of the Perioperative Department (who made the complaint) to determine the competency of a general surgeon (para. 49). [ 19 ] Respecting Dr. Boone’s role as Chair of the committee, Dr. Kathir alleges that Dr. Boone breached his duty to deliver the Report in accordance with the Hospital’s by-laws and that the Hospital breached its duty to ensure that the committee acted in accordance with the by-laws. Dr. Kathir alleges that Dr.

Boone had presented the Report to the Hospital unapproved and unsigned by the other two committee members. He claims that Dr. Boone had delivered the Report knowing that it was a false document that would be relied upon by the Hospital and would cause damages to Dr. Kathir (para. 47). [ 20 ] At paragraphs 51-55, Dr. Kathir pleads the tort of misfeasance in public office. He alleges that in the quality assurance process, the Hospital and Dr. Boone were exercising a statutory power and owed Dr. Kathir a public duty of care which was breached.

ANALYSIS ISSUE 1: Did the applications judge err in his determination of the nature and extent of the statutory privilege under

section 8.1(3) of the Evidence Act for evidence related to quality assurance committees? The applications judge’s

interpretation of

section 8.1(3) [ 21 ] The applications judge’s

interpretation of the Evidence Act is a question of law subject to review on a standard of correctness ( Corporate Express Canada Inc. v. Memorial University of Newfoundland , 2015 NLCA 52 , 371 Nfld. & P.E.I.R. 137, at para. 16 ). [ 22 ]

Section 8.1 addresses inadmissible evidence. Relevant portions of

section 8.1 in force when Dr. Kathir commenced his action in the Supreme Court read:

(1) In this

section (a) "legal proceeding" means any civil proceeding, inquiry, arbitration, judicial inquiry or proceeding in which evidence is or may be given before a (

i) court, tribunal, board or commission, (ii) person or committee, including a disciplinary committee, mandated to review the clinical competency of a health care provider of a regional health authority established under Regional Health Authorities Act , or (iii) committee, including a disciplinary committee, of a governing body of a regulated health profession, and includes an action or proceeding for the imposition of punishment by way of fine, damages or penalty for the violation of an enactment but does not include an inquiry ordered under the Fatalities Investigation Act , the Provincial Offences Act or the Public Inquiries Act, 2006 ; …

(2) This

section applies to the following committees:

(

a) a quality assurance committee as defined under the Patient Safety Act; …

(3) The following shall not be disclosed in or in connection with a legal proceeding:(

a) a report, statement, evaluation, recommendation, memorandum, document or information of, or made by, for or to, a committee to which this

section applies; and(

b) a report or notice made under

section 4 or 7 of the Patient Safety Act.

(4) Where a person appears as a witness in a legal proceeding, that person shall not be asked and shall not (

a) answer a question in connection with proceedings of a committee to which this

section applies; (

b) produce a report, evaluation, statement, memorandum, recommendation, document or information of, or made by, for or to, a committee to which this

section applies; or (

c) produce a report or notice made under

section 4 or 7 of the Patient Safety Act.(5) Subsections (3) and (4) do not apply to original medical or hospital records pertaining to a person.

(6) Where a person is a witness in a legal proceeding notwithstanding that he or she (

a) is or has been a member of; (

b) has participated in the activities of; (

c) has made a report, evaluation, statement, memorandum or recommendation to; or (

d) has provided information or a document toa committee set out in subsection (2) that person is not, subject to subsection (4), excused from answering a question or producing a document that he or she is otherwise bound to answer or produce.[23] The applications judge considered the purpose of subsections 8.1(2) and (3) and concluded that it was “to ensure the high standards of patient care and professional competency” by granting “the requisite degreeof confidentiality that permits a full and open examination of the issues that may come before bodies such as Peer Review Committees” (Decision, at para. 34).[24] The Respondents referred to jurisprudence that supported their view that a broad

interpretation had been given to similar sections in comparable legislation in other Canadian regions. The applications judgeagreed and relying in part upon Nagase v. Entwistle, 2016 BCCA 257, he interpreted

section 8.1(3) broadly, concluding that “anything which was associated with the Peer Review Committee would be protected by section8.1” (Decision, at paras. 29-30). The applications judge’s conclusion on the fraud and bad faith claims[25] As the applications judge noted, Dr. Kathir had asserted that the exclusion of evidence under the privilege created by

section 8.1 “should not apply in this case, because the Statement of Claim raises allegationsthat imply fraud, or something analogous to fraud.” Dr. Kathir argues that the presence of conduct amounting to fraud, “should negate the protections afforded by

section 8.1” (Decision, at para. 4).[26] The applications judge acknowledged three allegations in the statement of claim in support of Dr. Kathir’s claims of fraud (Decision, at para. 37) but subsequently determined that the allegations did not raise asuspicion of fraud, dishonesty or malicious conduct (Decision, at paras. 50, 80). In light of this finding, it was unnecessary for the applications judge to go further; nevertheless he determined that even if the claims hadraised fraud, there was no exception for fraud in

section 8.1 that would permit such evidence to be used in the civil action (Decision, at paras. 68-70).The nature of the statutory privilege[27] Subject to exclusionary rules, all relevant evidence is admissible in a legal proceeding. One of those exclusionary rules applies to privileged information and

section 8.1 creates a category of privilegedinformation.[28] “Where evidence is privileged, it is not admissible. Unlike most other rules of exclusion, privilege rules are not designed to facilitate the truth-finding process. They operate where there is an overriding publicpolicy interest in excluding relevant, reliable evidence…”(David M.

Paciocco, Palma Paciocco & Lee Stuesser, The Law of Evidence, 8th ed (Toronto: Irwin Law Inc., 2020), at 287.)[29] As The Law of Evidence states at page 288:“Ordinarily, privileges function solely as rules of evidence offering only ‘procedural protection’ – that is, protection from procedures for the collection or presentation of information in a proceeding”.[30]

Section 8.1(3) therefore creates a privilege and prohibits admissibility of the specified evidence in or in connection with a legal proceeding.The extent of the statutory privilege in

section 8.1The modern approach to statutory

interpretation[31] Identification of the extent of the privilege created in

section 8.1(3) requires application of the modern approach to statutory

interpretation (Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1S.C.R. 27, at para. 21).[32] In The Construction of Statutes, 7th ed (Toronto, ON: LexisNexis Canada, 2022) at pages 10 and 11, Ruth Sullivan suggests that application of this principle requires a court to address the following questions: ● What is the meaning of the legislative text?• What did the legislature intend? That is, when the text was enacted, what law did the legislature intend to adopt? What purposes did it hope to achieve? What specific intentions (if any) did it have regarding factssuch as these?• What are the consequences of adopting a proposed

interpretation? Are they consistent with the norms that the legislature is presumed to respect?[33] I would summarize Ruth Sullivan’s second question as requiring identification of the overriding policy concern underlying the statutory privilege and I will address this question first.Legislative intent and the overriding policy concern underlying the statutory privilege[34] Identification of the overriding policy concern or value warranting the inadmissibility of records related to the committee requires consideration of the relevant provisions of the Patient Safety Act, SNL 2017, c.P-3.01, referenced in

section 8.1(2)(a), at the pertinent time.[35]

Section 4 of the Patient Safety Act requires a report of an “occurrence” to a regional health authority. The Patient Safety Act defines “occurrence” in

section 2(

i) as “an undesired or unplanned event that does notappear to be consistent with the safe provision of health services.” It defines “quality assurance committee” in s. 2(

r) as “a committee established under

section 12”.

Section 12 is contained in

Part II of the Patient SafetyAct which Part deals with quality assurance committees and patient safety plans. It requires every regional health authority to establish and maintain a quality assurance committee.[36]

Section 13 of the Patient Safety Act outlines the duties and responsibilities of a quality assurance committee as follows:13. A quality assurance committee shall(

a) establish or designate quality assurance activity committees to carry out quality assurance activities in order to maintain or improve the quality of health services carried out, provided or undertaken by or under theauthority of the regional health authority;(

b) monitor and report to the board of trustees on the quality of health services carried out, provided or undertaken by or under the authority of the regional health authority;(

c) consider and make recommendations to the board of trustees respecting patient safety and quality improvements;(

d) maintain confidentiality of all quality assurance information with which it has been provided or to which it has access unless otherwise provided in this Act or the regulations; and(

e) carry out any other duties and responsibilities prescribed in the regulations.[37] The Hospital described its committee as a “Western Health Peer Review Committee (“PRC”) in accordance with [the Hospital’s] Medical By-laws” (Appeal Book, Tab 4, page 38, para. 15).[38] Presumably in reliance on the title the Hospital gave to the committee, the applications judge’s decision refers to it throughout as the Peer Review Committee or PRC.[39] The title of the committee however cannot change its character. The committee was a quality assurance committee as defined in

section 2(

r) of the Patient Safety Act, established to carry out “quality assuranceactivities in order to maintain or improve the quality of health services” by the Hospital (Patient Safety Act, s. 13(a)).[40] The applications judge had concluded that the purpose of subsections 8.1(2) and (3) was “to ensure high standards of patient care and professional competency” which would be achieved by granting “therequisite degree of confidentiality that permits a full and open examination of the issues that may come before the bodies such as Peer Review Committees” (Decision, at para. 34).[41] While it may be implied in the applications judge’s conclusion, I would stress that the purpose of subsections 8.1(2) and (3) is to ensure that an occurrence or incident referred to a quality assurance committee isfully investigated and fairly decided (F.(M.) v.

Dr. Sutherland, (ON CA), at para. 29).[42] The “requisite degree of confidentiality” (or extent of the privilege) created by

section 8.1(3) requires assessment of Sullivan’s first question, namely, the meaning of the legislative text. I address this below.The meaning of the legislative text(

i) The language of

section 8.1(3)

[ 43 ] The impugned

section of the Evidence Act prohibits disclosure of two categories of evidence. Addressing 8.1(3)(

b) first, the legislation is clear that “a report or notice made under

section 4 or 7 of the Patient Safety Act ” shall not be disclosed in a legal proceeding. The parties concede that this would apply to the complaint. [ 44 ]

Section 8.1(3)(

a) addresses a broader category of evidence than the initial report or complaint. It states: (

a) a report, statement, evaluation, recommendation, memorandum, document or information of, or made by, for or to, a committee to which this

section applies. [ 45 ] Comparable legislation containing a similar provision was interpreted in Sutherland . [ 46 ] At issue in Sutherland was the

interpretation of section 36(3) of the Regulated Health Professions Act, 1991 , SO 1991, c. 18 , which provided that: Evidence in civil proceedings

(3) No record of a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act , no report, document or thing prepared for or statement given at such a proceeding and no order or decision made in such a proceeding is admissible in a civil proceeding other than a proceeding under this Act , a health profession Act or the Drug and Pharmacies Regulation Act or a proceeding relating to an order under

section 11.1 or 11.2 of the Ontario Drug Benefit Act 1991, c. 18, s. 36 (3) ; 1996, c. 1 , Sched. G, s. 27 (2). [ 47 ] In Sutherland , the above

section was interpreted to mean that the patient’s complaint (and subsequent recantation of a claim of sexual abuse) were inadmissible in a related civil action between Dr. Sutherland and the patient. However, Laskin J.A. added three qualifying comments: [44] I add three qualifying comments. First, my reasons turn on my view that s. 36(3) of the RHPA is an absolute bar to the admissibility of the complaint and the sworn recantation in the civil action.

Had I been of the view that either the complaint or the recantation might be admissible despite the language of s. 36(3), I would of course have left their admissibility to be determined by the trial judge. [45] Second s. 36(3) refers to a “report, document or thing,” suggesting a distinction between, for example, a written complaint and the fact of a complaint having been made. The document, the written complaint, is inadmissible, but the fact a complaint was made may be provable at trial. That distinction, however, does not arise in Dr.

Sutherland’s pleading because he has pleaded the written complaint and the sworn recantation and their contents to support his defence, and it is these documents he seeks to prove at trial. Moreover, Dr. Sutherland did not draw this distinction in his submissions to this court. [46] Third, my decision is not meant to preclude the trial judge from considering whether either Ms. F.’s complaint or her sworn recantation may be used to challenge her credibility on cross-examination. … [ 48 ] The first two of these qualifying statements pertain here. [ 49 ] Similar to section 36(3) of the Ontario legislation,

section 8.1(3) (

a) references “a report, statement, evaluation, recommendation, memorandum, document or information”. I agree with Laskin J.A.’s conclusion that the language supports a distinction between the substance of a complaint and the fact that a complaint was made. This distinction (which Laskin J.A. found not to be relevant in Sutherland ) is relevant here. If Dr. Kathir pleads the content of either the complaint or the Report, such evidence would be inadmissible but the fact that a complaint was made and the Report was provided, may be provable at trial. [ 50 ] Dr.

Kathir had raised this distinction in his memorandum of fact and law provided to the applications judge. He argued that implicitly the Respondents had not considered assertions of a factual nature (i.e. that a complaint was made) to be privileged because they had relied on these in their own defence to one of the other actions (Appeal Book, Tab 7, page 115, paras. 15-16). [ 51 ] Relying in part on Nagase , the applications judge interpreted

section 8.1(3) broadly and found that “anything which was associated with the Peer Review Committee would be protected by

section 8.1 ” (Decision, at para. 29). I would conclude that the applications judge erred in failing to consider the language used by the legislature in his determination of the nature and extent of the privilege. As a result, he did not appreciate that

section 8.1(3) did not create an absolute bar for all evidence relating to the committee. Nor did he recognize the distinction identified by Laskin J.A. in Sutherland between the substance of a complaint and the fact that a complaint was made. [ 52 ] Nagase involved an action in defamation by a plaintiff physician against the medical director and chief of staff of a health authority. The medical director and chief of staff had sent correspondence to other personnel within the health authority and at other health authorities regarding the plaintiff’s conduct. The plaintiff sought production of the correspondence and the defendants resisted citing section 51(2) (

b) of the British Columbia Evidence Act , RSBC 1996, c. 124 , which provided, in relevant part, that a witness in a legal proceeding “must not be asked to produce nor be permitted to produce, in the course of the legal proceeding, a record … compiled or made by the witness for the purpose of producing or submitting it to a committee”. [ 53 ] The defendants in Nagase supported a broad

interpretation to section 51(2)(b). They took the position that the chief of staff and medical director had roles on the health authority’s Medical Advisory Committee and therefore had duties in relation to suspension and regranting of privileges. They contended therefore that the correspondence was preliminary to their work on the committee. [ 54 ] It was in this context that the British Columbia Court of Appeal held that section 51(2) (

b) should be interpreted broadly in order to protect the sanctity of the peer review process (at paras. 62-64). [ 55 ] The applications judge, relying on Nagase , determined that matters arising before commencement of the peer review process were also protected by the privilege (Decision, at paras. 71-72). [ 56 ] I would agree that documents created before the committee was formed and which are subsequently provided to the committee may be covered by the privilege. However, the context in this case is entirely different from Nagase . Dr.

Kathir is not seeking access to a document that ultimately came into the committee’s possession. He seeks redress for allegations of a flawed process. Nagase stands for the proposition that the initial complaint (or correspondence) could not be compelled for production under the British Columbia Evidence Act . It does not assist on the question of whether evidence that a complaint was made, evidence respecting the manner and period during which it was addressed, and/or evidence that a Report was provided, falls within the privilege in

section 8.1 . (ii) The language of sections 8.1(1)(a), 8.1(4), 8.1(5) and 8.1(6) [ 57 ] The applications judge gave no consideration to the language of subsections 8.1 (1)(a), 8.1(4), 8.1(5) or 8.1(6) in his

interpretation of

section 8.1(3). I would conclude that these subsections constrain the privilege created in subsection 8.1(3). [ 58 ] The definition of “legal proceeding” in subsection 8.1(1)(

a) includes hearings before a court and specified committees including discipline committees but not inquiries. The privilege created by

section 8.1(3) therefore does not extend to evidence before an inquiry. [ 59 ] Subsection 8.1(5) directs that subsections 8.1(3) and (4) do not apply to original medical or hospital records pertaining to a person.

This confirms that such records can be evidence in a legal proceeding notwithstanding that they are utilized or referenced during proceedings of a quality assurance committee. [ 60 ] Finally, subsection 8.1(6) explains that where a person is a witness in a legal proceeding, notwithstanding that he or she has participated in a quality assurance committee proceeding (subject to subsection 8.1(4)), he or she is not excused from answering a question or producing a document “that he or she is otherwise bound to produce.” This phrase could apply to many categories of evidence falling outside of quality assurance activities. [ 61 ] These subsections inform the extent of the privilege created by

section 8.1(3) . The legislature did not intend to exclude all testimony or documents previously provided to a quality assurance committee, from a legal proceeding. By means of examples, a witness in a medical malpractice action or discipline proceeding is entitled to testify and produce records related to an incident that may have come before a quality assurance committee. Similarly, in his legal action, Dr. Kathir is only precluded from testifying and referencing records if such evidence specifically violates subsection 8.1(4). [ 62 ] I would conclude that the applications judge erred in failing to consider these subsections in his

interpretation of

section 8.1(3). The consequences of adopting a proposed

interpretation [ 63 ] I turn now to consider Sullivan’s third question. [ 64 ] In concluding as he did, the applications judge did not consider whether the consequences of the broad

interpretation he adopted were consistent with the overriding policy concern or value that was intended to be addressed by

section 8.1(3). These consequences become clear when consideration is given to the documents that Dr. Kathir must rely upon to establish his claims. [ 65 ] To support his assertions of procedural irregularities and the Respondents’ breach of duties of care and good faith alleged to be owed by them to Dr. Kathir, the statement of claim suggests that Dr. Kathir will rely largely upon the following: • portions of the Hospital’s by-laws respecting the constitution of the committee and timelines for the performance of its duties (paras. 29, 33-37, 41, 44, 50, 53, 57); • evidence of the dates when Dr.

Kathir learned of the complaint and when the Report was provided to the Hospital, the credentials of the committee members and whether the Report was unapproved, unsigned by two members, and/or undated (paras. 7-25); and • enquiries made on Dr. Kathir’s behalf by legal counsel for the College and replies thereto by the Hospital between 2017 and 2018 largely respecting the status of the committee proceedings (para. 26). [ 66 ] The Respondents had the burden of proof on their application to strike. The applications judge did not address how the admission of this evidence would offend the policy underlying

section 8.1(3) . [ 67 ] If establishment of Dr. Kathir’s assertions of procedural irregularities and breach of duties owed to him in the quality assurance process required reliance upon the content of the complaint itself (prohibited by subsection 8.1(3)(b)) or documents such as evaluations made of his performance by witnesses, or the Report of the committee (both prohibited under subsection 8.1(3) (a)), the evidence would be inadmissible. [ 68 ] However, if evidence such as: (

a) the dates on which the quality assurance process started, the committee was constituted and its Report was submitted; (

b) whether the Report was dated and/or signed by all members; (

c) the credentials of the committee members; (

d) emails forwarded to the Hospital enquiring about the status of the quality assurance process; or (

e) relevant portions of the by-laws, were privileged and inadmissible, Dr. Kathir would be unable to establish the factual foundation for his allegations of a flawed quality assurance process, duties owed and breached, and whether he was treated fairly. [ 69 ] The applications judge erred in failing to address or explain how the evidence that Dr. Kathir must rely upon to establish the factual foundation for his allegations of a flawed quality assurance process offended

section 8.1(3). [ 70 ] Further, if Dr. Kathir’s assertions of duty and breach of duty are made out, he must also establish causation. Dr. Kathir addresses this at paragraph 56 of his statement of claim. In such a case, paragraphs

addressing causation and damages would remain relevant. [ 71 ] Returning to Laskin J.A.’s first qualifying statement in Sutherland , since

section 8.1(3) does not contain an absolute bar to admissibility of evidence related to Dr. Kathir’s claims of procedural irregularities, breach of duties alleged to be owed to him in the quality assurance process, or damages suffered, admissibility of such evidence must be determined by the trial judge. The fraud, dishonesty, malicious conduct and/or bad faith claims [ 72 ] The applications judge acknowledged that a physician may successfully establish claims of fraud or bad faith against a Hospital (Decision, at paras. 38-40, citing Horne v.

Queen Elizabeth II Health Sciences Centre , 2018 NSCA 20 and Rosenhek v. Windsor Regional Hospital , 2010 ONCA 13 , leave to appeal to SCC refused, 33608 (21 October 2010)). In this regard he addressed three specific allegations made in the statement of claim (Decision, at para. 37). [ 73 ] The first was the assertion in paragraph 8 that in a meeting between Dr. Kathir and Dr. Boone in December 2015, Dr. Blackwood had said ( inter alia ) that if Dr. Kathir resigned, Dr. Blackwood (and others) would make the allegations against Dr. Kathir “go away”.

The applications judge concluded that paragraph 8 of the statement of claim did not allege circumstances amounting to fraud, on the part of the Respondents, and that evidence of the meeting could instead “demonstrate a clumsy way to deal with a problem of competence” (Decision, at para. 40). [ 74 ] The other two allegations of this nature identified by the applications judge were that the Hospital failed to deliver the Report within the required 10 days of completion of its deliberations and that the Report provided to Dr.

Kathir in January 2019 did not contain the signatures of two of the committee members (Decision, at paras. 43-44). [ 75 ] With respect to these two allegations, the applications judge recognized that “determining the existence of fraud or dishonesty is highly fact-specific”.

He nevertheless concluded that “[i]n order to argue that the conduct of the Defendants amounted to fraud, allegations of animosity, maliciousness or something analogous, would be required” and that “[t]he allegations in the Statement of Claim do not rise to that level” and “may be evidence of inefficient or sloppy management” (Decision, at para. 49). [ 76 ] Respecting the applications judge’s conclusion that the three identified allegations did not amount to fraud, I would conclude that the applications judge erred by applying inappropriate considerations.

Having acknowledged that the statement of claim contained allegations in the nature of fraud, dishonesty, malicious conduct or bad faith restricted to the quality assurance process (as opposed to substantive matters), and that the jurisprudence supported successful claims of this nature by physicians against hospitals, it was not the applications judge’s task on an application to strike to speculate on what conclusion the trial judge may draw from this evidence at trial and whether what was alleged, would actually “amount to” either ( Sutherland , at para. 44 ). [ 77 ] In order for Dr.

Kathir to establish fraud or bad faith within the quality assurance process, he must plead the necessary facts. Whether he can establish at trial that the committee provided a Report that was fraudulent or that the Hospital acted in bad faith, are matters falling within the responsibility of the trial judge. Is there an exception to the privilege created in

section 8.1(3) for allegations of fraud, dishonesty, malicious conduct and/or bad faith? [ 78 ] In light of his finding that there was nothing in the statement of claim that would raise a suspicion of fraud, dishonesty or malicious conduct, it was unnecessary for the applications judge to go further. Nevertheless he determined that there was no exception for fraud in

section 8.1 (Decision, paras. 51-70). [ 79 ] Dr. Kathir asserts that those portions of his statement of claim that alleged conduct of this nature did not rely upon evidence protected by the privilege in

section 8.1(3) . [ 80 ] The Respondents, relying upon Sutherland at paragraphs 29-30 , assert that reading a fraud or bad faith exception into the statutory privilege would undermine the purpose of

section 8.1(3) , being to encourage the reporting of complaints against members of a health profession. [ 81 ] The relevant facts in Sutherland were summarized by Laskin J.A. for the majority: [ 2] The respondent, M.F. was a patient of the appellant, Dr. Norman Sutherland. She made a written complaint to the College of Physicians and Surgeons alleging that he had sexually abused her. She also sued him for damages for sexual assault and breach of fiduciary duty. The civil action was settled on Dr. Sutherland agreeing to pay Ms. F. $500,000, by a series of payments over time. When the action was settled Ms.

F. signed a sworn statement recanting her allegations of sexual abuse. The College was advised of the recantation and the complaint against Dr. Sutherland was withdrawn. He then refused to make any more payments under the settlement. [3] Ms. F. issued a statement of claim for the balance owing. Dr. Sutherland delivered a statement of defence and counterclaim in which he alleged that Ms. F.’s complaints of sexual abuse were made fraudulently and in bad faith and that the settlement was void. In several paragraphs of his pleading he referred to Ms.

F.’s written complaint to the College and her subsequent recantation. She brought a motion to strike out these paragraphs. Sanderson J. granted the motion, relying on s. 36(3) of the Act. Her decision was upheld by the Divisional Court. Dr. Sutherland appeals to this court with leave. His two main arguments are that the admissibility of the complaint and recantation should be left to the trial judge and that s. 36(3) does not apply when fraud or bad faith is alleged. … [ 82 ] In essence, Dr. Sutherland was asserting that Ms.

F’s allegations against him in her disciplinary complaint and the previous civil action were part of a fraudulent scheme on her part. [ 83 ] It was in this context that the majority of the Ontario Court of Appeal determined that Ms. F.’s recantation had been “prepared for use in a discipline proceeding against Dr.

Sutherland” (para. 22 ) and that the purpose of section 36(3) of the Regulated Health Professions Act was “to encourage the reporting of complaints… against members of a health profession, and to ensure that those complaints are fully investigated and fairly decided without any participant in the proceedings – a health professional, a patient, a complainant, a witness or a College employee – fearing that a document prepared for College proceedings can be used in a civil action” (para. 29). [ 84 ] The majority of the court in Sutherland concluded that a fraud or bad faith exception to the absolute protection afforded to documents prepared for College proceedings might result in patients being discouraged from reporting or not encouraged to report, complaints of sexual abuse (para. 30). [ 85 ] Our provincial legislature did not write an exception for claims of fraud or bad faith in

section 8.1 and I would agree with the majority of the court in Sutherland that reading a fraud or bad faith exception into

section 8.1 could offend the policy underlying the privilege. Mere allegations of fraud do not make otherwise statutorily inadmissible evidence, admissible. [ 86 ] However, I have earlier concluded that the privilege created in

section 8.1 is limited to substantive evidence, not factual or procedural evidence. If Dr. Kathir claimed fraud, dishonesty, malicious conduct and/or bad faith in relation to either his former patients, the complainant physician, the anesthesiologists who withdrew their services as a result of concerns with Dr. Kathir’s practice, or other witnesses before the committee, he may have to rely upon evidence that could fall within the privilege in

section 8.1 to establish his claims. [ 87 ] In comparison, to the extent that Dr. Kathir makes claims of this nature only with regard to the actions or inactions of the Hospital and Dr. Boone restricted to an allegedly flawed procedure, he may not need to rely upon privileged evidence. By means of example, to establish Dr. Kathir’s assertion that the submission of the Report to the Hospital, unapproved and unsigned by two of three committee members, was fraudulent, dishonest, malicious or in bad faith, Dr.

Kathir may not need to rely upon the content of any documents or refer to any testimony before the committee. He may merely need to establish that the Report was provided in the alleged condition. Whether that evidence would support his allegations of fraud is a question for the trial judge. [ 88 ] This factual situation is quite distinguishable from the fraudulent assertions made by Dr. Sutherland against his former patient. Conclusion on Issue 1 [ 89 ] Applying the modern approach to statutory

interpretation with consideration given to the language used by the legislature, the policy concern underlying the privilege and

interpretation of parallel legislation, I would conclude that the privilege created by

section 8.1(3) of the Evidence Act is confined to substantive matters associated with the proceedings of the committee. The privilege does not extend to factual or procedural evidence such as the fact that a complaint was made or the committee was struck or the Report was provided. Nor does it prohibit evidence respecting the dates of such events. [ 90 ] Further, the language of

section 8.1(3) does not support inadmissibility of evidence relating to the alleged breach of duties owed to Dr. Kathir by the Hospital or Dr. Boone, including misfeasance in public office, allegations of bad faith or fraud relating to procedural irregularities (ie. the Hospital By-laws).

Section 8.1(3) does not contain a bar to the admission of evidence of this nature associated with a quality assurance process in a legal proceeding. Disclosure of such evidence would not discourage witnesses from participating in the quality assurance process and would not relate to patient safety. [ 91 ] I would agree that there is no exception to the privilege for assertions of bad faith and fraud related to substantive evidence associated with the quality assurance committee.

However, allegations of a fraudulent nature related solely to claims of a flawed process, may not necessarily fall within the privilege. [ 92 ] As a result, I would conclude that the applications judge erred in the application of the modern approach to statutory

interpretation and in concluding that

section 8.1 should be given so broad an

interpretation that “anything which was associated with the Peer Review Committee” would be protected (Decision, at paras. 29-30). ISSUE 2: Did the applications judge err in striking the entire statement of claim? Rule 14.24 of the Rules of the Supreme Court [ 93 ] Rule 14.24 states in relevant part: 14.24

(1) The Court may at any stage of a proceeding order any pleading, affidavit or statement of facts, or anything therein, to be struck out or amended on the ground that (

a) it discloses no reasonable cause of action or defence; (

b) it is false, scandalous, frivolous or vexatious; (

c) it may prejudice, embarrass or delay the fair trial of the proceeding; or (

d) it is otherwise an abuse of the process of the Court, and may order the proceeding to be stayed or dismissed or judgment to be entered accordingly. The application to strike [ 94 ] On September 4, 2020, the Respondents applied to strike the statement of claim in its entirety or alternatively, paragraphs 7, 9-11, 13-14, 26, 37-38 and 40-48 thereof, as disclosing no reasonable cause of action under rule 14.24(1)(a) (Appeal Book, Tab 5, pages 62, 64, paras. 1, 11). [ 95 ] The application was brought before the Respondents filed defences but after an examination for discovery of Dr. Kathir by the Respondents in a related action during which, in reliance of

section 8.1, Dr. Kathir had objected to questions put to him concerning the committee (Appeal Book, Tab 6, pages 69-70, para. 3). Denying leave to cross-examine on affidavits on the application to strike under rule 14.24 [ 96 ] Affidavits in support of the Respondents’ Application were filed by Drs. Dennis Rashleigh, Vice President of Medical Services and Peter Blackwood, Chief of Surgery, at the Hospital. These Affidavits established that the first of four occurrence reports respecting Dr. Kathir’s surgical performance had been made to Dr.

Rashleigh on February 16, 2016, followed by three more between February 17, 2016 and March 8, 2016. The Affidavits further established that as a result, a “Peer Review Committee” was created under section 45(1) of the Hospital’s by-laws, that a report was subsequently delivered by the committee to the Hospital, and that the Hospital accepted the Report’s findings and recommendations (Appeal Book, Tab 6, pages 70-71, at para. 5). [ 97 ] At the hearing before the applications judge, Dr. Kathir sought leave to cross-examine Drs. Blackwood and Rashleigh on their Affidavits. One of the grounds alleged by Dr.

Kathir was that paragraphs 6-13 of Dr. Rashleigh’s Affidavit were factually incorrect (Appeal Book, Tab 7, page 115, para. 18). Leave to cross-examine was denied by the applications judge on the basis that the contents of the Affidavits were not relevant

to the Respondents’ application to strike the statement of claim. The applications judge’s conclusion was based upon his finding that the focus of Dr. Kathir’s claim was the “peer review process” whereas, inferentially, the applications judge found that the Affidavits addressed matters of substance (Transcript, May 25, 2021, at page 15). [ 98 ] I have earlier concluded that Dr. Kathir’s claims relate to alleged procedural irregularities and breach of duties owed to him in the quality assurance process. I would therefore find no error in the applications judge’s characterization of the focus of Dr.

Kathir’s claim. [ 99 ] The procedure to be followed on an application under rule 14.24 is not fixed and varies with the circumstances. [ 100 ] As the applications judge noted, a rule 14.24 application generally proceeds on the basis of pleadings alone because “[i]f evidence is called, it runs the risk of being an inquiry on the merits, which is not appropriate at this stage” (Decision, at para. 22). [ 101 ] The applications judge’s denial of cross-examination on the Affidavits was an exercise of discretion and he provided a valid ground for his discretionary decision.

When reviewing an applications judge’s exercise of discretion on such a procedural matter, the Court cannot interfere as long as the applications judge had some valid grounds ( Donovan et al. v. Canada (Attorney General) , 2008 NLCA 8 , 273 Nfld. & P.E.I.R. 116, at para. 12 ). I would conclude that Dr. Kathir has not established that the applications judge’s denial of leave to cross-examine the physicians, was an error. [ 102 ] I would observe however that portions of the Affidavit of Dr. Rashleigh addressed matters of substance.

For example, it identified the original complainant by name and identified the concern this physician had expressed relative to a specific procedure conducted by Dr. Kathir on a specified date. The Affidavit also referred to three further reports from the same complainant disclosing “serious patient safety concerns” (Appeal Book, Tab 9, pages 134-135, paras. 6-10). [ 103 ] While Dr. Kathir had not objected to the admission of the Affidavits, paragraphs 6-10 of Dr. Rashleigh’s Affidavit contained, in my view, substantive evidence falling within “information… for or to” the committee which

section 8.1(3)(

a) states is not to be “disclosed in or in connection with a legal proceeding”. [ 104 ] Beyond identifying the Affidavits as addressing matters of substance, the applications judge did not explain why this substantive evidence was allowed to be disclosed in Dr. Rashleigh’s Affidavit when he ultimately concluded on the rule 14.24 application that “anything which was associated with the Peer Review Committee would be protected by

section 8.1” (Decision, at paras. 29-30). [ 105 ] This is a striking inconsistency and I would conclude that the applications judge erred in failing to address the content of paragraphs 6-10 of Dr. Rashleigh’s Affidavit. Any statements contained in either Affidavit that offended

section 8.1(3) should not have been disclosed on the application to strike. The test on an application to strike under rule 14.24 [ 106 ] The parties agreed that portions, or the entirety of, the statement of claim cannot be struck under rule 14.24 (1)(

a) unless it is clear that the claims made therein cannot succeed. This is a very high standard to meet ( Walsh v. TRA Co. et al. , 2007 NLCA 50 , 268 Nfld. & P.E.I.R. 111, at para. 13 ). [ 107 ] When, as here, an application to strike is brought at an early stage of the action, this Court in Walsh , at paragraphs 14 and 15 , approved the following principles stated in Drummond-Jackson v.

British Medical Association , [1970] 1 All E.R. 1094 (C.A.) : [14] … an application for the statement of claim to be struck out under this rule is made at a very early stage of the action when there is only the statement of claim without any other pleadings and without any evidence at all.

The plaintiff should not be ‘driven from the judgment seat’ at this very early stage unless it is quite plain that his alleged cause of action has no chance of success. (Emphasis by Wilson J.) and: That is the basis of the rule and practice on which one has to approach the question whether the plaintiff’s statement of claim in the present case discloses any reasonable cause of action.

It is not permissible to anticipate the defence or defences – possibly some very strong ones – which the defendants may plead and be able to prove at the trial , nor anything which the plaintiff may plead in reply and seek to rely on at the trial. (Emphasis by Wells C.J.N.L.) [15] … If it is plain and obvious that the action is certain to fail because it contains some such radical defect, then the relevant portions of the statement of claim may properly be struck out.

To allow such an action to proceed, even although it was certain to fail, would be to permit the defendant to be “vexed” and would therefore amount to the very kind of abuse of the court’s process that the rule was meant to prevent. But if there is a chance that the plaintiff might succeed, then that plaintiff should not be “driven from the judgment seat”. Neither the length and complexity of the issues of law and fact that might have to be addressed nor the potential for the defendant to present a strong defence should prevent a plaintiff from proceeding with his or her case.

Provided that the plaintiff can present a “substantive” case, that case should be heard. [ 108 ] Therefore, it is only those paragraphs which make claims that have no chance of success that may be struck. As long as Dr. Kathir’s statement of claim (after portions that offend

section 8.1(3) are struck), pleads facts on which a cause of action can reasonably be argued, it would be inappropriate to strike the remainder of the statement of claim. The applications judge’s decision to strike the entire statement of claim [ 109 ] The applications judge was first required to address whether, as a matter of law, the Respondents had established that the statement of claim (or portions thereof) disclosed “no reasonable cause of action”.

If so, the applications judge was then required to consider if he would exercise his discretion and strike portions or all of the statement of claim ( Andrews et al. v. Canada (Attorney General) , 2014 NLCA 32 , 354 Nfld. & P.E.I.R. 42, at para. 13 ). [ 110 ] On appeal, this Court must determine if the applications judge erred in his application of the principles stated above and/or in the exercise of discretion to strike the entire statement of claim. [ 111 ] I accept the following statement in Apotex Inc. v.

Allergen Inc. , 2011 FCA 134 , at paragraph 3 , on the standard of review applicable to an order to strike under rule 14.24 (a): On an appeal from an order disposing of a motion to strike a pleading, some deference is owed to the underlying decision. In Apotex Inc . v. Canada (Governor in Council) , 2007 FCA 374 , 370 N.R. 336, at paragraph 15 , this Court described the test to be applied in the following terms: The respondents correctly point out that the decision to grant or refuse a motion to strike is a discretionary one.

When the lower court judge has made a discretionary decision, it will usually be afforded deference by the appellate court. However, the latter will be entitled to substitute the lower court judge’s discretion for its own if the appellate court clearly determines that the lower court judge has given insufficient weight to relevant factors or proceeded on a wrong principle of law: Elders Grain Co. v. Ralph Misener (The) , [2005] F.C.J. No. 612, 2005 FCA 139 at paragraph 13 .

This Court may also overturn a discretionary decision of a lower court where it is satisfied that the judge has seriously misapprehended the facts, or where an obvious injustice would otherwise result: Mayne Pharma (Canada) Inc. v. Aventis Pharma Inc. , [2005] F.C.J. No. 215, 2005 FCA 50 , 38 C.P.R. (4th) 1 at paragraph 9 . [ 112 ] The applications judge correctly identified that the “purpose of Rule 14.24 is to eliminate actions which have no chance of success at any early stage, and avoid the sometimes protracted and costly process leading to a full trial”.

He also noted that the rule required him “to consider whether, in consideration of the elements of the pleadings, and the evidence to be presented, the action has a chance of success, even if that chance is remote” (Decision, at paras. 19-20). [ 113 ] Consideration of whether the action had a chance of success required the applications judge to conduct a paragraph by paragraph review of the statement of claim to assess whether what was alleged by Dr.

Kathir relied upon evidence that was inadmissible. [ 114 ] Instead of addressing the paragraphs individually, the applications judge relied upon the concluding paragraphs of Dr. Kathir’s statement of claim which he found represented the core claims. Paragraphs 54 and 55 of the statement of claim read (Appeal Book, Tab 4, pages 56-57): 54. Western Health through its officials and agents committed the tort of misfeasance in public office by exercising statutory authority or prerogative power, in the exercise of which they as a public officer owed a duty of care to Dr.

Kathir, and by making wrongful and unlawful decisions and associated refusals with knowledge or with reckless indifference or with willful blindness that the said decisions and associated refusals were wrongful and unlawful by reason of being beyond their legal powers or by reason of the said wrongful and unlawful decisions and associated refusals knowingly being made without lawful authority or being made with reckless indifference or with willful blindness to the said decisions and associated refusals being made without legal authority and/or based on irrelevant considerations, and with knowledge or with reckless indifference or with willful blindness that Dr.

Kathir would probably be harmed by the said decisions and associated refusals. Western Health's commission of the tort of misfeasance in public office caused Dr. Kathir to suffer damages, including harm to his professional reputation and loss of income. Western Health is vicariously liable to Dr. Kathir for the aforesaid commission of the tort of misfeasance in public office. 55. Dr. Boone committed the tort of misfeasance in public office by exercising statutory authority or prerogative power, in the exercise of which he as a public officer owed a duty of care to Dr.

Kathir, and by making wrongful and unlawful decisions and associated refusals with knowledge or with reckless indifference or with willful blindness that the said decisions and associated refusals were wrongful and unlawful by reason of being beyond his legal powers or by reason of the said wrongful and unlawful decisions and associated refusals knowingly being made without lawful authority or being made with reckless indifference or with willful blindness to the said decisions and associated refusals being made without legal authority and/or based on irrelevant considerations, and with knowledge or with reckless indifference or with willful blindness that Dr.

Kathir would probably be harmed by the said decisions and associated refusals. Dr. Boone's commission of the tort of misfeasance in public office caused Dr. Kathir to suffer damages, including harm to his professional reputation and loss of income. [ 115 ] The applications judge concluded that “nothing in these paragraphs, or anything else in the Statement of Claim alleging wrongdoing, can be proven except by presenting evidence which is covered by

section 8.1 of the Evidence Act . Since a Statement of Claim based on inadmissible evidence cannot stand, the entire claim will be struck out” (Decision, at para. 76). [ 116 ] Dr. Kathir’s statement of claim comprised fifty-nine paragraphs within twenty-four pages. The Respondents had identified the specified paragraphs that, in their view, referenced “a report, statement, evaluation, recommendation, memorandum, document or information of, or made by, for or to” the committee which were inadmissible and must not be disclosed pursuant to

section 8.1 (Appeal Book, Tab 5, pages 63-64, at para. 10). [ 117 ] For example, the Respondents sought to strike paragraphs 7, 9-11 and 13-14 in which Dr. Kathir pleads (in part) when the allegations were made against him, when he was notified, when the anesthesiologists withdrew their services and when Dr. Kathir received a list of patients for whom concern had been expressed related to his treatment. Neither of these paragraphs referenced the name of the complainant, content of the complaint, name of any patient, particulars of any treatment provided by Dr.

Kathir, or the content of the Report. [ 118 ] The Respondents also sought to strike paragraph 26 which has seventy-two subparagraphs referring to dates of emails and other events between September 28, 2016 and March 7, 2019. Again, neither of these subparagraphs referenced the name of the complainant, content of the complaint, name of any patient, particulars of treatment provided by Dr. Kathir, or the content of the Report. The focus of paragraph 26 was Dr.

Kathir’s attempts over a two and a half year period to determine the status of the committee proceedings. [ 119 ] Finally, the Respondents sought to strike paragraphs 37-38 and 40-48. Paragraphs 37-38 specified that the Hospital had failed to follow section 42(2) of the Hospital’s by-laws and that the committee had failed to deliver its Report within the required days of the committee deliberations. Paragraphs 40-48 addressed Dr.

Kathir’s withdrawal from clinical practice, alleged breach of the committee’s public duty to deliver the report under section 48(1) of the Hospital by-laws, and knowledge that such failure would cause damages. Dr. Kathir asserted that the Report was not approved by all committee members before its delivery to the Hospital and that the Hospital’s acceptance of it was negligent. [ 120 ] Once again, these assertions do not reference substantive evidence associated with the committee; they allege only that certain events occurred within the committee process.

[121] I would conclude that to the extent that these impugned paragraphs referenced non-substantive evidence related to the committee, in the absence of an absolute bar to such evidence in

section 8.1(3), its admissibilitymust be determined by the trial judge.[122] Although the Respondents had not specifically identified paragraphs 51-55 of the statement of claim as offensive, it is nevertheless appropriate to address these in the context of the applications judge’s decision tostrike the entire statement of claim. [123] Paragraphs 51-54 address Dr. Kathir’s claims respecting the tort of misfeasance in public office. They would not, in my view, contrary to the applications judge’s conclusion, represent a

summary of the multipleclaims made by Dr. Kathir in the whole of the statement of claim. In these paragraphs, Dr. Kathir alleged that in the exercise of its statutory authority or prerogative power, the Hospital owed him a public duty of care. Heasserts that this duty was breached “by making wrongful and unlawful decisions and associated refusals with knowledge or with reckless indifference or with willful blindness” to the wrongful and unlawful decisions.[124] The decisions that Dr. Kathir references include the Hospital’s:• acceptance of the anesthesiologist’s refusal to provide services;• suspension of Dr.

Kathir’s hospital privileges;• refusal to reinstate his hospital privileges; and• failure to comply with the Hospital’s by-laws.(Appeal Book, Tab 4, pages 54-56, paras. 51-54)[125] At paragraph 55, Dr. Kathir made similar claims against Dr. Boone relative to the role he played in these allegedly wrongful and unlawful decisions.[126] The leading case on the tort of misfeasance in public office is Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263, which also involved an application to strike a statement of claim on the basis that itdisclosed no reasonable cause of action.

The Court explained that the tort is “broadly based on unlawful conduct in the exercise of public functions generally”, and is established where a public officer engages in suchconduct and is “aware both that [the] conduct was unlawful and that it was likely to harm the plaintiff.” Since the plaintiffs in Odhavji Estate alleged both elements of the tort, the application to strike was denied (at paras.17, 23).[127] In exercising its statutory power within the quality assurance process, the Hospital was performing a public function and was subject to public law review (Rosenhek, at paras. 21, 36). Dr.

Kathir’s statement ofclaim asserts the required elements of the tort (conduct, awareness, and knowledge of likely harm). Dr. Kathir seeks damages for this tort, and his memorandum of fact and law before the applications judge referencesjurisprudence supporting a physician’s claim to damages from a hospital for the tort of misfeasance in public office when the physician’s privileges were revoked mid-term (Rosenhek, at paras. 1, 36-43). [128] The applications judge erred in failing to address how these paragraphs relied upon evidence that was inadmissible under

section 8.1(3). Nor did he address why these paragraphs should otherwise be struck asdisclosing no reasonable cause of action.[129] The applications judge also erred in failing to address how the emails and letters referenced in paragraph 26 of the statement of claim that enquired about the status of the committee proceedings, could offendsection 8.1(3). While the emails and letters would be “documents” sent to the Hospital, I would conclude that in the unusual circumstances of this case, they are relied upon by Dr.

Kathir only to establish proceduralirregularities and would not offend concerns for patient safety or a witness’ reluctance to participate in the quality assurance process. The applications judge did not address how mere establishment that records of thisnature were exchanged would (as he suggested) “expose the [peer review committee] process to a disclosure that is not contemplated under the legislation…” (Decision, at para. 69).Conclusion on Issue 2[130] I would conclude firstly that the applications judge failed to conduct the review required to assess whether the specified paragraphs of Dr.

Kathir’s statement of claim relied upon inadmissible evidence and thereforedisclosed no reasonable cause of action under rule 14.24(1)(a).[131] The applications judge did not address how evidence respecting the basis for a duty owed to Dr. Kathir, sections of the Hospital by-laws, the dates when allegations were made, when he was notified, whenanesthesiology services were withdrawn, the date and/or condition of the Report, or the credentials held by the three committee members would violate

section 8.1(3). Since the applications judge did not conduct theparagraph by paragraph review required, he did not assess whether what remained of the statement of claim (after any offensive portions were struck) would support a cause of action. The applications judge erred in theapplication of the principles stated by this Court in Walsh (see Walsh, at paras. 13-15).[132] Secondly, the applications judge gave no consideration to whether any defects in Dr. Kathir’s pleading could be cured by appropriate amendment, an assessment that this Court has observed is a requirement on arule 14.24 application (Kavanagh v.

Newfoundland (Minister of Education) et al., 2000 NFCA 2, 183 Nfld. & P.E.I.R. 282, at para. 23; Montreal Trust Co. of Canada v. Hickman et al., 2001 NFCA 42, 204 Nfld. &P.E.I.R. 58, at paras. 9-17; Walsh, at paras. 6, 8, 12, citing Roberts v.

Browning Ferris Industries Ltd. (1998), (NL CA), 170 Nfld. & P.E.I.R. 228 (C.A.)).[133] As a result, I would conclude that the applications judge erred in striking the entire statement of claim, without conducting a paragraph by paragraph review of the statement of claim, identifying the evidence reliedupon to establish the facts alleged and determining if such evidence was inadmissible under

section 8.1(3). Until this is completed, neither the applications judge nor this Court can assess if what remains of the statementof claim discloses no reasonable cause of action. The applications judge also erred in failing to consider whether he should exercise his discretion to allow an amendment that could cure any defect. ISSUE 3: What is the appropriate relief?[134] In these circumstances, the matter must be remitted back to the Supreme Court to conduct the required review of the statement of claim with the benefit of the guidance provided herein on the extent of the statutoryprivilege under

section 8.1(3).CONCLUSION[135] I would therefore allow the appeal and remit the matter back to the Supreme Court to determine, with the benefit of this Court’s conclusion on the extent of the privilege under

section 8.1(3), what portions of thestatement of claim should be struck on the basis that they contain assertions that rely upon evidence that is inadmissible as a result of the statutory privilege and therefore are certain to fail. The assigned judge would thenbe required to consider if what remained of the statement of claim could support any of Dr. Kathir’s claims against the Hospital and Dr. Boone relative to the quality assurance process.[136] The assigned judge should also consider how those portions of the Affidavit of Dr. Rashleigh that reference evidence that is inadmissible under

section 8.1(3), should be addressed in the proceeding.COSTS[137] Dr. Kathir has been successful. I would therefore award Dr. Kathir’s his costs in this court. The applications judge awarded costs to the Respondents. I would reverse the applications judge’s costs order and orderthat costs be in the cause in the court below. _________________________________ G.D. Butler J.A. I Concur: _____________________________ W.H. Goodridge J.A. I Concur: _____________________________ F.J. Knickle J.A.