Docket: CACV2358 Dr. Darius Tsatsi Prospective Appellant (Plaintiff) - v. -, 2013 SKCA 73

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 73 Date: 2013-07-04 Between: Docket: CACV2358 Dr. Darius Tsatsi Prospective Appellant (Plaintiff) - and - Tony Merchant Prospective Respondent (Defendant) Before: Ottenbreit J.A. (in Chambers) Counsel: Barclay Johnson for the prospective appellant Rodney Rath , Q.C., for the prospective respondent Reginald Watson, Q.C., for Sunrise Health Region Kevin Williams for the College of Physicians and Surgeons Jeffrey Brick for Don McMorris Application: From: 2012 SKQB 498

Heard: June 26, 2013 Disposition: Application dismissed Written Reasons: July 4, 2013 By: The Honourable Mr. Justice Ottenbreit Ottenbreit J.A. [1] Darius Tsatsi seeks leave to appeal the decision of the Chambers judge found at 2012 SKQB 498 ordering that two actions, beingQ.B.G. 1607 of 2009 and Q.B.G. 1008 of 2011 be tried one immediately after the other in the manner determined by the trial judgepursuant to Rule 41(2) of The Queen’s Bench Rules. [2] Q.B.G. 1607 of 2009 is a defamation action between Dr. Tsatsi and Tony Merchant based on statements that Dr. Tsatsi allegeswere made by Mr.

Merchant on June 1, 2009. These statements concern specific allegations about Dr. Tsatsi’s failure to properly readan x-ray, he having failed a certification exam and the knowledge of Government health officials that he should not be doing the work hewas doing. In response, Mr. Merchant has pleaded the defence of responsible communication on a matter of public interest. [3] Q.B.G. 1008 of 2011 is also a defamation action and relates to statements made about the competence of Dr. Tsatsi as aradiologist, which Dr. Tsatsi says were published both before and after June 1, 2009. In that action, Dr.

Tsatsi sues the College ofPhysicians and Surgeons of Saskatchewan, The Sunrise Health Region and Don McMorris. In that action, the defendants pleadjustification as a defence. Counsel for each of these defendants also spoke to the application for leave. [4] In the Court below, Mr. Merchant applied under Rule 41(2)(

b) to have the two actions tried together because there were commonissues of fact between the two actions, it was in the interests of judicial economy and it avoided the possibility of conflicting findingsrespecting Dr. Tsatsi’s competence. Dr. Tsatsi argued that the two actions were substantially different, both with respect to factual issuesgenerally and the issue of the competence of Dr. Tsatsi. [5] The Chambers judge made the following determination with respect to his application: [8] In this case, there are common questions of fact between the two actions at issue.

The statement of claim in this action engagesthe issue of competence and the position taken by “health officials”. The plaintiff’s competence is also at issue in the College Action.Further, the publication of the statements at issue in the College Action may have damaged the plaintiff’s reputation prior to thestatements at issue in this action. There is a risk of inconsistent findings if these matters are not tried together, or at the same time.Judicial economy is also at stake. For these reasons, an order pursuant to Rule 41(2) is appropriate. [Q.B.G.

No. 1607 of 2009, 2012SKQB 498] The two actions were ordered tried one after the other. [6] Dr. Tsatsi’s proposed grounds of appeal are as follows: (

a) The learned Justice erred in finding that “there are common questions of fact between the two actions at issue.” (

b) The learned Justice erred in finding that “there is a risk of inconsistent findings if these actions are not tried together.” (

c) The learned Justice erred in finding that trying these actions separately would put judicial economy at stake. [7] On the application for leave and in support of his proposed appeal not only does Dr. Tsatsi argue that the Chambers judge erredby finding that there are common questions of fact between the two actions, but also that the mere fact the two actions share a commonparty and arise out of some of the same circumstances does not justify consolidation. Dr. Tsatsi argues that the two actions are notconnected in any factual or legally significant way.

The basis for this argument is that the two actions deal with different statements bydifferent parties, because in Q.B.G. 1008 of 2011 the defamatory statements were general and dealt with his overall level of skill andcompetence as a radiologist, and in Q.B.G. 1607 of 2009 the defamatory statement specifically dealt with a single individual and, in thiscontext, contrary findings would not be necessarily inconsistent findings. Dr. Tsatsi also argues that the Chambers judge provided noreasons as to why judicial economy is at stake and why trying the actions separately would negatively affect judicial economy.

Lastly,Dr. Tsatsi argued that to try the two actions together would result in a significant delay in the prosecution of the action against Mr.Merchant because it was virtually ready to go to trial, whereas the action of Dr. Tsatsi against the Government in Q.B.G. 1008 of 2011was far from ready to go to trial. [8] The test with respect to whether leave to appeal should be granted is well known: [6] The power to grant leave has been taken to be a discretionary power exercisable upon a set of criteria which, on balance, must beshown by the applicant to weigh decisively in favour of leave being granted: Steier v.

University Hospital, (SK CA),[1988] 4 W.W.R. 303 (Sask. C.A., per Tallis J.A. in chambers). The governing criteria may be reduced to two-each of which features asubset of considerations-provided it be understood that they constitute conventional considerations rather than fixed rules, that they arecase sensitive, and that their point by point reduction is not exhaustive. Generally, leave is granted or withheld on considerations of meritand importance, as follows:

First : Is the proposed appeal of sufficient merit to warrant the attention of the Court of Appeal? - Is it prima facie frivolous or vexations? - Is it prima facie destined to fail in any event, having regard to the nature of the issue and the scope of the right of appeal, for instance, or the nature of the adjudicative framework, such as that pertaining to the exercise of discretionary power? - Is it apt to unduly delay the proceedings or be overcome by them and rendered moot? - Is it apt to add unduly or disproportionately to the cost of the proceedings?

Second : Is the proposed appeal of sufficient importance to the proceedings before the court, or to the field of practice or the state of the law, or to the administration of justice generally, to warrant determination by the Court of Appeal? - Does the decision bear heavily and potentially prejudicially upon the course or outcome of the particular proceedings? - Does it raise a new or controversial or unusual issue of practice? - Does it raise a new or uncertain or unsettled point of law? - Does it transcend the particular in its implications? [ Rothmans, Benson & Hedges Inc. v.

Saskatchewan , 2002 SKCA 119 ; emphasis in original] [ 9 ] Counsel for Dr. Tsatsi acknowledges that the order of the Chambers judge is a procedural and discretionary order and that its effect is not to consolidate the actions but to have the actions heard one after the other. The standard of review with respect to an appeal of discretionary order is that the Chambers judge must have made an error in principle, disregarded material facts or made a material error of fact, failed to act judicially, or arrived at a decision that is so plainly wrong as to amount to an injustice ( Rimmer v.

Adshead , 2002 SKCA 12 , [2002] 4 W.W.R. 119). [ 10 ] Based on the standard of review and the arguments raised by Dr. Tsatsi in his proposed notice of appeal, I am not convinced that there is sufficient merit in the proposed appeal. In argument, Dr. Tsatsi’s counsel acknowledged that in both cases there was an issue of competence involved and the real question was the breadth of that issue in each action.

Counsel for the Health Region took the view that the issue of competence in Q.B.G. 1008 of 2011 was at least as broad as that in Q.B.G. 1607 of 2009. [ 11 ] Based on the applicable case law, sufficient commonality of the background evidence to place the issues in context will, on the basis of judicial economy, justify such an order. The Chambers judge on the whole of the evidence before him determined that the issues of fact and issues of competency raised by each action were sufficiently common to warrant having the matters tried one after the other.

Although he did not elaborate regarding judicial economy, this aspect is somewhat self-evident given his determination that crucial issues were common. [ 12 ] Given the high level of deference accorded to discretionary orders, Dr. Tsatsi will have an uphill battle with respect to his proposed appeal. In my view, his appeal based on the proffered grounds is prima facie destined to fail given the reasons of the Chambers judge and the fact that this is a discretionary order.

On the whole, he has not satisfied me that there is merit within the meaning of Rothmans , nor has he satisfied me that on the second branch of Rothmans the issues he raises on his proposed appeal are of sufficient importance to warrant the attention of the Court. Accordingly, his application for leave is dismissed. There will be no order as to costs. DATED at the City of Regina, in the Province of Saskatchewan, this 4 th day of July, A.D. 2013. “Ottenbreit J.A.” Ottenbreit J.A.