Brian Nadler Appellant v. College of Medicine, University of, 2017 SKCA 89

Court of Appeal for Saskatchewan Docket: CACV2900 Citation: Nadler v College of Medicine, University of Saskatchewan , 2017 SKCA 89 Date: 2017-10-20 Between: Brian Nadler Appellant And College of Medicine, University of Saskatchewan Respondent Before: Jackson, Whitmore and Ryan-Froslie JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Madam Justice Jackson In concurrence: The Honourable Mr.

Justice Whitmore The Honourable Madam Justice Ryan-Froslie On Appeal From: QBG 179 of 2016, Saskatoon Appeal Heard: March 6, 2017 Counsel: Kim Doniger for the Appellant Ian Wagner for the Respondent Jackson J.A. I. Introduction [ 1 ] Dr. Brian Nadler is a resident pursuing postgraduate medical studies in the General Internal Medicine Program at the College of Medicine at the University of Saskatchewan. In 2015, his supervisor filed a complaint against him. An Investigation Committee was struck to investigate the complaint. Following a hearing, the Investigation Committee granted Dr.

Nadler what it called a “second chance” by placing him on probation rather than recommending his removal (decision dated October 22, 2015). Dr. Nadler was not satisfied with this decision. [ 2 ] Complaints against medical residents are considered under bylaws passed by the Council of the University of Saskatchewan. [1] The bylaws provide the policies and procedures pertaining to the status of postgraduate trainees, including medical residents, and establish rights of appeal from discipline decisions. Dr.

Nadler exercised his right of appeal under the bylaws by appealing to the Appeal Adjudication Board on November 27, 2015. That appeal process is ongoing. [ 3 ] As a result of dissatisfaction with an interlocutory decision of the Appeal Adjudication Board, and concerned about the remedies that would be available to him under the bylaws, Dr. Nadler applied on February 1, 2016, by way of originating application, to the Court of Queen’s Bench for an order quashing the Investigation Committee’s decision.

He asserted that the Court of Queen’s Bench should assume jurisdiction on the basis that the decision of the Investigation Committee is null and void as it had proceeded with six members rather than the seven required by the bylaws. An amended application was filed in the Court of Queen’s Bench on March 23, 2016, expanding upon the relief sought. [ 4 ] Following receipt of Dr. Nadler’s first application, the University of Saskatchewan and the College of Medicine (collectively, “the College”) applied to strike the application on the footing Dr.

Nadler was required to exhaust all of the rights of appeal available to him under the bylaws before seeking judicial review by the Court of Queen’s Bench. Dr. Nadler and the College agreed to adjourn his originating application sine die so as to permit the College’s application to be heard first. [ 5 ] On the return date of the hearing of the College’s application to strike, Dr. Nadler applied to examine a number of physicians, including the members of the Investigation Committee. Dr.

Nadler argued that the College’s application was an abuse of process as no authority existed in The Queen’s Bench Rules to strike an originating application and, further, that the proper procedure would have been for his application and the College’s application to have been heard together. [ 6 ] In a reserved fiat, the Chambers judge dismissed Dr. Nadler’s originating application, holding that it was premature, but granted him permission to pursue it at an appropriate time. The Chambers judge also dismissed Dr. Nadler’s application for an order for the examination of witnesses. Dr.

Nadler now appeals to this Court. [ 7 ] In my view, the conclusion of the Chambers judge is sound. Dr. Nadler is required to exhaust his remedies under the bylaws, and obtain a final decision within that process, before seeking a court’s intervention. This is what the Chambers judge found and I see no basis upon which this Court should interfere with that conclusion. Thus, I would dismiss Dr. Nadler’s appeal. II. Background [ 8 ] Since Dr.

Nadler’s complaint concerns principally the process leading to the Investigation Committee’s decision, it is not necessary to detail the complaints that had been made against him or to review the substance of that decision. [ 9 ] It is, however, important to understand that, according to ss. 2 and 3 of the bylaws, quorum for an Investigation Committee

requires six nominees from various departments and agencies within the University of Saskatchewan, plus the department head: Investigation Committee … 2. The Investigation Committee will be chaired by the Department Head of the departmental home for the resident’s training program. In extenuating circumstances, such as where there is direct involvement of the Department Head in the situation such that it would/could create conflict of interest, a cognate Department Head may chair the investigation committee.

Committee members will be appointed by the Department Head from each of the following categories, except when designated by the partner organization: 2.1. The Resident Assessment Subcommittee of the Residency Program Committee (or the Residency Program Committee) – one member (who should not have been directly involved in the incident) 2.2. Program Director and/or Site Coordinator (unless where there is direct involvement of the Program Director/or Site Coordinator in the situation that it could/would create conflict of interest).

In this situation a member of the Residency Program Committee will be chosen who should not have been directly involved in the incident. 2.3. At least one faculty member with no involvement in the incident (university or community based, may be from a distributed site, or cognate department) 2.4. A resident (PAIRS representative, chosen by PAIRS) 2.5. A representative of the relevant health region (designated by the health region) 2.6. A representative from the College of Physicians and Surgeons of Saskatchewan (CPSS) (designated by the CPSS) 3.

The investigation committee will be comprised of at least six members in addition to the department head . (Emphasis added, at AB34) [ 10 ] Unfortunately, on September 17, 2015, when the Investigation Committee convened, only six members were present. According to Dr. Nadler, he was informed that Dr. Marciniuk had been appointed as the seventh member but was not present. Dr. Nadler believed that Dr. Marciniuk had been appointed and had been involved in all matters up to that date, but simply was unavailable on the day in question.

In light of what he believed and knew at the time, he agreed to proceed. [ 11 ] Subsequently, Dr. Nadler learned that Dr. Marciniuk had allegedly never been appointed and had played no

part in any of the process. For Dr. Nadler, this is a significant fact. It is the primary basis upon which he sought relief from the Court of Queen’s Bench when he filed his February 1, 2016, originating application seeking judicial review. This application was returnable on April 5, 2016. [ 12 ] On March 11, 2016, the College filed a notice of application returnable March 29, 2016. The application asks that the Court strike the originating application on the ground that Dr.

Nadler had not exhausted all avenues of appeal available to him and cites Rules 1, 6-5 and 7-9 of The Queen’s Bench Rules as being the applicable rules. In the accompanying letter, counsel for the College wrote the following: “Please note that the return date of the Notice of Application is set for March 29, 2016. The parties agree to adjourn it to April 5, 2016” and “the parties consent to adjourn the Originating Application for April 5, 2016, sine die ”. [ 13 ] On March 23, 2016, Dr.

Nadler filed an amended originating application, particularizing the relief by requesting orders for certiorari, mandamus and prohibition based on declarations of loss of jurisdiction. Specifically, he sought this relief: II. REMEDY SOUGHT: An Order for Certiorari, Mandamus and Prohibition for the following: 20. A declaration that the IC lost its jurisdiction on the following grounds: A. The IC knowingly or shown [sic] have known that it convened without Dr. Marciniuk and knowingly or shown [sic] have known it withheld this information from Dr. Brian Nadler and his counsel. B.

The IC knowingly or shown [sic] have known that it misrepresented the status of Dr. Marciniuk on the day of the hearing of Dr. Nadler and elicited consent from Dr. Nadler that might not have been given if the truth were known to Dr. Nadler. C. IC members, who are expressly and impliedly objective with respect to hearings , knowingly or shown [sic] have known it advised witnesses not to speak to Dr. Nadler or counsel when the IC members knew Dr. Nadler was trying to construct an appeal. 21. The Decision of the IC is rendered null and void for the above reasons. 22.

An Order for a Writ of Prohibition that the IC and all the members therein be prevented from sitting further on any matters with respect to Dr. Nadler . 23. An Order for a Writ of Prohibition that the IC members and the Complainant Dr. Ward be prohibited from further contacting residents or witnesses and advising them not to speak to Dr. Nadler or counsel. 24. Judicial review of Dr. Saxena’s inadequate response to Dr. Nadler’s queries with respect to transfer, depriving him of the right to an appeal. 25. A declaration Dr. Saxena acted without jurisdiction when he suspended Dr. Nadler for the following reasons: A.

Dr. Saxena did not hold a vote of the RPC for Dr. Nadler’s leave of absence or his suspension.

B. Dr. Saxena, for fourteen months, did not respond to Dr. Nadler’s repeated requests for transfer, obstructing him procedurally. C. When Dr. Saxena finally did respond and denied the request, he did not give intelligible reasons for the decision but did indicatethat he exercised his discretion when he did so. 26. An Order for a Writ of Mandamus directing Dr. Saxena to contact the Health Region or the requisite government health fundingbody and request additional resident funding so that Dr. Nadler may transfer with appropriate funds. 27. An Order that the suspension and probation status of Dr.

Nadler be quashed and returned to his status as a fellow in goodstanding. (Double underlining are amendments to the earlier originating application) [14] The March 23, 2016, amended originating application shows a return date of April 5, 2016, which is crossed out with thewords “adjourned sine die” added in handwriting. [15] On March 31, 2016, Dr. Nadler also filed a notice of application, dated March 22, 2016, returnable April 5, 2016, for an orderto examine certain specified witnesses. All but two of the individuals, with respect to whom Dr. Nadler sought this order, were membersof the Investigation Committee.

The remaining two witnesses are Dr. Marciniuk and Dr. Saxena. The latter is the physician who madethe decision to suspend Dr. Nadler, pending the inquiry before the Investigation Committee. [16] In addition, it should be noted that on March 28, 2016, Dr. Nadler filed a personal affidavit and one from his wife. III. Record before the Chambers Judge [17] All of the above applications pertain to the same Court of Queen’s Bench file: QB Number 179 of 2016. To summarize, thatfile reflects the following active applications relevant to this appeal: (

a) the College’s notice of application, requesting that the originating application be struck in its entirety, returnable by consentto April 5, 2016; (

b) Dr. Nadler’s amended originating application, showing that it has been adjourned sine die; and (

c) Dr. Nadler’s notice of application, requesting an order with respect to the examination of witnesses, returnable April 5, 2016. [18] In the College’s notice of application, it claimed as the grounds for making its application the following: Grounds for making this application: 2. That the remedies sought by the Applicant are not available to him as he has yet to exhaust all avenues of appeal available to himwithin the academic process from which he is seeking relief. [19] In support of its application, the College stated that it was relying, by way of material for its order, on the “Affidavit ofDr.

George Pylypchuk”, the originating application, and a brief of law. Dr. Pylypchuk was the chair of the Investigation Committee. Heattached the bylaws as Exhibit A to his affidavit. While not mentioned in the notice of application, it appears that the College also filedthe Investigation Committee’s decision, which appears on the Court file. [20] In its brief of law, the College made these assertions: 1. The relief afforded by the prerogative writs of mandamus and certiorari is not available to the Applicant at this juncture. … 2.

This action discloses no reasonable cause of action and is an abuse of process. [21] Counsel for the College then set forth principles upon which he relied, referring to Harelkin v University of Regina, (SCC), [1979] 2 SCR 561 at 586 [Harelkin], among other decisions. [22] In his brief of law, Dr. Nadler argued the following: (

a) Rule 7-9(2) of The Queen’s Bench Rules does not grant the Court the authority to strike an originating application forjudicial review because such an application is neither a statement of claim nor an “action”; (

b) in any event, the application to strike is not proper because the Investigation Committee’s decision is void as having beenmade without proper quorum, and no right of appeal lies from a nullity; and (

c) even if his application for judicial review could not be granted in its entirety, he could be granted the orders that he soughtby way of mandamus. [23] In his conclusion, Dr. Nadler asked that the College’s application be dismissed, with costs being awarded to him on a

solicitor–client basis. IV. Decision of the Chambers Judge [24] In his April 22, 2016, fiat, the learned Chambers judge found it unnecessary to consider whether the College’s application tostrike could be dealt with under Rule 7-9 and instead dismissed Dr. Nadler’s application for judicial review saying the following: DECISION ON JUDICIAL REVIEW APPLICATION [9] I agree with the respondents that this application for judicial review is premature. Accordingly the application is dismissed, butwithout prejudice so that Dr.

Nadler can bring such an application subsequent to the conclusion of all governing appeals or other reviewmechanisms contained in Exhibit A attached to Dr. Pylypchuk’s affidavit. As a result, it is not necessary to consider the respondent’srequest to strike under Rule 7-9. (Emphasis added) [25] In his reasons for decision, the Chambers judge agreed with the College and adopted part of the College’s brief: [11] Further in this regard I note the respondents’ argument found in their brief as follows: 7. The decision to place Dr.

Nadler under probation by the Investigation Committee can be appealed by the program residents. Thegrounds of appeal include “process irregularity(ies)” such as alleged by Dr. Nadler in the Originating Application. 8. The decision of the Investigation Committee can be appealed four times:[2] beginning with the Residency Training Committee at theCollege Level and ultimately at the University Level. All levels of appeal can deal with procedural irregularities. 9.

A resident appealing a decision of an Investigation Committee must not only show that a process irregularity occurred but that the“magnitude of the irregularity is such that the original decision should be overturned” in order to obtain the same remedy that Dr. Nadleris requesting this Honourable Court to impose: overturning the probation. The rules governing Appeals allow for jurisdictional errors tobe brought forward. 10. This Originating Application for judicial review has been issued despite an appeal being initiated by the Applicant.

The Universityappeal process can grant the exact remedy(ies) that the Applicant has requested from this Court [footnotes omitted]. (Emphasis added) [26] Following the recitation of the above paragraphs, the Chambers judge wrote the following: “I am in agreement with the aboveconclusions reached in the respondents’ brief” (at para 12). [27] The Chambers judge also agreed with this aspect of the College’s brief: [13] In regards to jurisdictional issues raised by Dr. Nadler, I also turn to the respondents’ argument in their brief and find it to be correctwhen Mr. Wagner states: 12.

Furthermore, if the Investigation Committee lack jurisdiction from the outset the authority to set aside the decision lies within theUniversity appeal process. If an appealable route exists within the organization then a superior court judicial review is still inappropriateuntil the appeal process is exhausted. Beetz.

J. further wrote in Harelkin: Furthermore, and even if it can be said that the decision of the council committee was a nullity, I believe it was still appealable to thesenate committee for the simple reason that the senate committee was given by statute the power to hear and decide upon appeals fromthe decisions of the council, whether or not such decisions were null [footnotes omitted]. [28] The Chambers judge concluded his discussion of what the parties called jurisdictional issues with the following: [14] In short, I agree with the respondents’ argument that Dr.

Nadler is premature in bringing his request for judicial review. Thereappears to be an appeal pending. In such circumstances it is inappropriate for the Court to intervene at this point (see Harelkin vUniversity of Regina, (SCC), [1979] 2 SCR 561; Bikey v The University of Saskatchewan, 2009 SKQB 340; and King vUniversity of Saskatchewan, (SCC), [1969] SCR 678). (Emphasis added) [29] The Chambers judge awarded the College costs of its application: [17] Dr. Nadler brought two applications and was unsuccessful on both. The respondents brought one application and were successful onthat application.

In my view there should be an award of costs to the respondents but for only one application, even though ultimatelyboth of the applicant’s applications were dismissed. Costs shall be also awarded as though the respondents were one party as opposed totwo. V. Positions of the Parties [30] Dr. Nadler asserts that he was denied natural justice and procedural fairness by the Chambers judge. In support of theseassertions, Dr. Nadler makes these arguments:

(

a) the Chambers judge advised the parties that he was going to hear the application to strike only – he was not going to considerthe application for judicial review; (

b) in his reasons, however, the Chambers judge thought better of the matter and decided to consider the judicial reviewapplication and dismissed it – even though it was not before him; (

c) the Chambers judge did not address Dr. Nadler’s fundamental concern, which was that there could be no appeal from theInvestigation Committee’s decision because it was void; (

d) as to the one paragraph pertaining to jurisdictional error, the Chambers judge misread Harelkin; (

e) the Chambers judge awarded the College costs for its application when earlier in his reasons, at paragraph 10, he had statedhe need not consider the College’s application under Rule 7-9; and (

f) neither party made any submissions with respect to Dr. Nadler’s application for examination of witnesses, but nonetheless,the Chambers judge dismissed that application. [31] Dr. Nadler asserts that the reasons of the Chambers judge are not adequate as they do not address the arguments he had madein his brief of law. He also alleged a reasonable apprehension of bias because, in Dr. Nadler’s opinion, the Chambers judge acted on hisown motion to dismiss applications that were not before him. [32] The College supports the decision of the Chambers judge: (

a) The Queen’s Bench Rules permit applications to strike to be brought prior to the hearing of a judicial review application; and (

b) the Chambers judge properly granted the remedy that it sought. VI. Analysis [33] In assessing Dr.

Nadler’s arguments, it is important to reiterate that he sought judicial review of a first level decision forwhich not only one right of appeal was available to him but, if he were not satisfied with that decision, a further appeal provided apossible additional avenue for relief. [34] When an applicant seeks judicial review of a tribunal’s decision instead of, or in addition to, a right of appeal pertainingspecifically to the tribunal in question, reviewing courts are generally reluctant to take up the matter until any such appeal is exhausted.In Canada (Border Services Agency) v C.B.

Powell Limited, 2010 FCA 61, 400 NR 367 [Powell], leave to appeal refused [2011] 3 SCRvi, Stratas J.A. describes the normal rule that applies in cases of this nature in these terms: [30] The normal rule is that parties can proceed to the court system only after all adequate remedial recourses in the administrativeprocess have been exhausted. The importance of this rule in Canadian administrative law is well-demonstrated by the large number ofdecisions of the Supreme Court of Canada on point: Harelkin v. University of Regina, (SCC), [1979] 2 S.C.R. 561(S.C.C.); Canadian Pacific Ltd. v.

Matsqui Indian Band, (SCC), [1995] 1 S.C.R. 3 (S.C.C.); Weber v. Ontario Hydro, (SCC), [1995] 2 S.C.R. 929 (S.C.C.); R. v. Consolidated Maybrun Mines Ltd., (SCC), [1998] 1S.C.R. 706 (S.C.C.) at paragraphs 38–43; Regina Police Assn. v. Regina (City) Police Commissioners, [2000] 1 S.C.R. 360, 2000 SCC14 (S.C.C.) at paragraphs 31 and 34; Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460, 2001 SCC 44 (S.C.C.) at paragraph14–15, 58 and 74; Goudie v. Ottawa (City), [2003] 1 S.C.R. 141, 2003 SCC 14 (S.C.C.); Vaughan v. R., [2005] 1 S.C.R. 146, 2005 SCC11 (S.C.C.) at paragraphs 1–2; Okwuobi c. Lester B.

Pearson (Commission scolaire), [2005] 1 S.C.R. 257, 2005 SCC 16 (S.C.C.) atparagraphs 38–55; Canada (House of Commons) v. Vaid, [2005] 1 S.C.R. 667, 2005 SCC 30 (S.C.C.) at paragraph 96. (Emphasis added) [35] Prematurity is the term usually used to describe the doctrine applied when an applicant seeks judicial review of aninterlocutory decision in the administrative law context before the tribunal renders its decision or before the process can otherwise beconsidered at an end (see McDowell v Automatic Princess Holdings, LLC, 2017 FCA 126 at para 26).

The law that applies here, whereadministrative appeal remedies exist, is usually described as the doctrine of exhaustion. But, as Stratas J.A. describes in Powell, the labelsare immaterial to the analytical framework: [31] Administrative law judgments and textbooks describe this rule in many ways: the doctrine of exhaustion, the doctrine of adequatealternative remedies, the doctrine against fragmentation or bifurcation of administrative proceedings, the rule against interlocutoryjudicial reviews and the objection against premature judicial reviews.

All of these express the same concept: absent exceptionalcircumstances, parties cannot proceed to the court system until the administrative process has run its course. This means that, absentexceptional circumstances, those who are dissatisfied with some matter arising in the ongoing administrative process must pursue alleffective remedies that are available within that process; only when the administrative process has finished or when the administrativeprocess affords no effective remedy can they proceed to court.

Put another way, absent exceptional circumstances, courts should notinterfere with ongoing administrative processes until after they are completed, or until the available, effective remedies are exhausted. (Emphasis added) [36] In Halifax (Regional Municipality) v Nova Scotia (Human Rights Commission), 2012 SCC 10, [2012] 1 SCR 364, the

Supreme Court cited paragraphs 30 to 33 from Powell, saying that when judicial intervention is sought before an administrative processhas run its course, “courts, while recognizing that they have discretion to intervene, have shown restraint in doing so …” (emphasisadded, at para 35). [37] Then in Strickland v Canada (Attorney General), 2015 SCC 37, [2015] 2 SCR 713 [Strickland], the Supreme Court, againmentioning Powell, provides this guidance to courts hearing applications for judicial review when alternative remedies exist: [42] The cases identify a number of considerations relevant to deciding whether an alternative remedy or forum is adequate so as tojustify a discretionary refusal to hear a judicial review application.

These considerations include the convenience of the alternativeremedy; the nature of the error alleged; the nature of the other forum which could deal with the issue, including its remedial capacity; theexistence of adequate and effective recourse in the forum in which litigation is already taking place; expeditiousness; the relativeexpertise of the alternative decision-maker; economical use of judicial resources; and cost: Matsqui, at para. 37; C.B.

Powell Limited v.Canada (Border Services Agency), 2010 FCA 61, [2011] 2 F.C.R. 332, at para. 31; Mullan, [“The Discretionary Nature of JudicialReview”] at pp. 430–31; Brown and Evans, [Judicial Review of Administrative Action in Canada] at topics 3:2110 and 3:2330; Harelkin,at p. 588. In order for an alternative forum or remedy to be adequate, neither the process nor the remedy need be identical to thoseavailable on judicial review.

As Brown and Evans put it, “in each context the reviewing court applies the same basic test: is thealternative remedy adequate in all the circumstances to address the applicant’s grievance?”: at topic 3:2100 [italic emphasis added byCromwell J.]. [43] The categories of relevant factors are not closed, as it is for courts to identify and balance the relevant factors in the context of aparticular case: Matsqui, at paras. 36–37, citing Canada (Auditor General), [2014 SCC 24 ] at p. 96.

Assessing whether there is anadequate alternative remedy, therefore, is not a matter of following a checklist focused on the similarities and differences between thepotentially available remedies. The inquiry is broader than that. The court should consider not only the available alternative, but also thesuitability and appropriateness of judicial review in the circumstances. In short, the question is not simply whether some other remedy isadequate, but also whether judicial review is appropriate.

Ultimately, this calls for a type of balance of convenience analysis: Khosa,[2009 SCC 12] at para. 36; TeleZone, [2010 SCC 62] at para. 56. As Dickson C.J. put it on behalf of the Court: “Inquiring into theadequacy of the alternative remedy is at one and the same time an inquiry into whether discretion to grant the judicial review remedyshould be exercised.

It is for the courts to isolate and balance the factors which are relevant …” (Canada (Auditor General), at p. 96). [44] This balancing exercise should take account of the purposes and policy considerations underpinning the legislative scheme in issue:see, e.g., Matsqui, at paras. 41–46; Harelkin, at p. 595. David Mullan captured the breadth of the inquiry well: While discretionary reasons for denial of relief are many, what most have in common is a concern for balancing the rights of affectedindividuals against the imperatives of the process under review.

In particular, the courts focus on the question of whether the applicationfor relief is appropriately respectful of the statutory framework within which that application is taken and the normal processes providedby that framework and the common law for challenging administrative action. Where the application is unnecessarily disruptive ofnormal processes … the courts will generally deny relief [emphasis added by Cromwell J., p. 447]. [45] The factors to be considered in exercising this discretion cannot be reduced to a checklist or a statement of general rules.

All relevantfactors, considered in the context of the particular case, should be taken into account. (Italic emphasis added by Cromwell J., underline emphasis added) [38] Thus, the law the Chambers judge was required to apply is clear: Dr. Nadler would not be able to proceed with his originatingapplication unless he could persuade the Chambers judge to exercise his discretion to do so.

Courts generally dismiss applications forjudicial review, when alternative appeal processes have not been exhausted, if the alternative process allows the issues to be raised andan effective remedy to be granted. [39] With that as the framework, I must say that Dr. Nadler’s grounds of appeal misinterpret the College’s application and thereasons of the Chambers judge. In order to demonstrate my conclusions in that regard, I will now turn to address each of his arguments. [40] Dr.

Nadler argued that the College’s application itself was an abuse of process because Rule 7-9 cannot be used to strike anoriginating application because “a judicial review application claim is not properly an ‘action’ as an action involves, once the pleadingsare filed, discovery of documents”. [41] In light of such authorities as Fisher v Fisher Estate, 2007 SKQB 407, 309 Sask R 62, affirmed 2008 SKCA 165, 376 Sask R237; Point2 Technologies Inc. v Vendasta Technologies Inc., 2009 SKQB 199, [2009] 10 WWR 306; and Monture v 101036561Saskatchewan Ltd, 2013 SKQB 101, 418 Sask R 68, it is questionable whether Dr.

Nadler has correctly interpreted Rule 7-9. In anyevent, the College did not rely solely on Rule 7-9 of The Queen’s Bench Rules. The College also relied on Rules 1 and 6-5. Rule 6-5 isdirected to the form of the application, but Rule 1-4(3) makes it clear that “[n]othing in these rules prevents or is to be interpreted aspreventing the Court, as a superior court, from exercising its inherent jurisdiction”. The Chambers judge recognized the distinction anddismissed Dr.

Nadler’s application as opposed to striking it. [42] While some courts may have specific rules governing the procedure for an application to dismiss on the basis of prematurity,a court that dismisses a premature judicial review application calls upon its inherent jurisdiction to do so. Several Saskatchewan casesdemonstrate the exercise of the Court’s inherent jurisdiction to postpone a judicial review application until the administrative tribunal’sprocess has run its course.

For example, in Saskatchewan Union of Nurses v Sherbrooke Community Centre (1996), (SK CA), 144 Sask R 15 (CA), Vancise J.A. stated the following: “In our opinion the chambers judge erred … he ought to have declinedto hear the application as being premature” (at para 2). Other decisions of this Court have confirmed the authority of the Court ofQueen’s Bench to dismiss applications for judicial review of interlocutory tribunal decisions: Walmart Canada Corp. v United Food and

Commercial Workers, Local 1400 , 2010 SKCA 89 , 321 DLR (4th) 397 [ Walmart ]; and Mosaic Potash Colonsay ULC v United Steelworkers Local 7656 , 2016 SKCA 78 , 480 Sask R 306 [ Mosaic ]. [ 43 ] Looking further afield, I note that in Esgenoôpetitj (Burnt Church) First Nation v Canada (Human Resources and Skills Development) , 2010 FC 1195 , 19 Admin LR (5th) 335, de Montigny J. stated the following: “First of all, this Court is clearly empowered to summarily dismiss an improper notice of application, either as an exercise of its inherent jurisdiction or on the basis of Rule 4 of the Federal Courts Rules ” (emphasis added, at para 32).

Rule 4 of the Federal Court Rules , SOR/98-106 , is a procedural rule and reads as follows: Matters not provided for 4 On motion, the Court may provide for any procedural matter not provided for in these Rules or in

an Act of Parliament by analogy to these Rules or by reference to the practice of the superior court of the province to which the subject-matter of the proceeding most closely relates. [ 44 ] Dr. Nadler asserted further that the proper procedure would have been for the Chambers judge to have heard his originating application and the application to strike at the same time. For this proposition, he relied upon Eidsvik v Canada (Fisheries and Oceans ), 2011 FC 940 at para 20 .

Clearly, there may be circumstances where it is useful and indeed, necessary, to hear the whole of the judicial review application before it can be determined that the application should be dismissed because it is premature. On the other hand, as the Federal Court jurisprudence indicates, circumstances will arise where, in the interests of judicial economy and proportionality, argument can and should be heard on a preliminary motion without the expense of hearing the whole of the application. [ 45 ] Here, Dr.

Nadler sought orders for certiorari, mandamus and prohibition entirely on the ground that the Investigation Committee had lost jurisdiction – thereby rendering its decision null and void because it was missing a seventh member of the panel, Dr. Marciniuk. While ancillary relief was also sought, granting that relief depended on the success or failure of the College’s application. Given the straightforward nature of Dr. Nadler’s claim, it was appropriate for the Chambers judge to consider the College’s application without hearing full argument on the amended originating application.

To do so was entirely in keeping with the purpose and intention of The Queen’s Bench Rules , which are “to provide a means by which claims can be justly resolved in or by a court process in a timely and cost effective way” (Rule 1-3(1)) and “to facilitate the quickest means of resolving a claim at the least expense” (Rule 1-3(2)(b)). In that regard, it is disingenuous for Dr. Nadler to assert that his originating application was not “before” the Chambers judge. Dr. Nadler’s originating application was “before” the judge in that an application had been made to strike it. [ 46 ] Dr.

Nadler argued in this Court that the Chambers judge did not address his fundamental concern, which was that there could be no appeal from the Investigation Committee’s decision because it was void. The Affidavit of Dr. George Pylypchuk was placed before the Chambers judge expressly for the purpose of demonstrating that alternative appeal mechanisms existed and to show their adequacy. While the Chambers judge does not mention this argument in the same words that Dr.

Nadler uses, he nevertheless does address the overarching issue, which is whether the lack of a quorum could be effectively remedied by the appeal process that the University of Saskatchewan provides in its bylaws. [ 47 ] Dr. Nadler’s argument on this point takes us to a consideration of the adequacy of the appeal process and the mandate and powers of the Appeal Adjudication Board: Mandate The mandate of the Appeal Adjudication Board is to address the grounds of appeal and process issues – not academic judgment or validity of educational assessments.

If a process irregularity is identified, the magnitude of such an irregularity will be assessed. The presence of a process irregularity alone will not necessarily mandate overturning the decision under appeal. The irregularity must be of sufficient magnitude to have, or likely have, meaningfully influenced the decision being appealed or the performance of the resident that led to the decision . (Emphasis added, at AB52) [ 48 ] The powers of the Appeal Adjudication Board are described as “options” and are listed as follows: Options available to the AAB 1.

Appeal Adjudication Boards will have the following options in reaching a determination about the appeal: 1.1. There is insufficient evidence of a process irregularity and the original decision of the RAS [Residency Assessment Subcommittee] or investigation committee is upheld. 1.2. There is, or may have been, one or more process irregularities but not of sufficient magnitude to materially affect the outcome and the original decision of the RAS or investigation committee is upheld . 1.3.

A significant process irregularity occurred or is likely to have occurred and the RAS or investigation committee should review its decision in the light of the process irregularity . Where the process irregularity can be corrected, the RAS or investigation committee may revisit the information leading to the original decision and make a revised recommendation. Where the process irregularity cannot be resolved, the relevant committee must revisit its decision in the light of the irregularity and make a revised recommendation. 1.4.

A significant process irregularity occurred or is likely to have occurred and the magnitude of the irregularity is such that the original decision should be overturned . (Emphasis added) [ 49 ] The post-appeal procedures also bear on the analysis:

Post-Appeal Procedures 1. If the Appeal Adjudication Board determines that a significant process irregularity has occurred and requests the RAS orInvestigation Committee to modify the decision and this is declined, the matter shall be referred to the Associate Dean of PostgraduateMedical Education who will review all of the evidence and make a recommendation to the Dean of Medicine.

The Dean of Medicine willreview all of the evidence and render a decision. (at AB53) [50] The post-appeal bylaws provide further that if the resident is dissatisfied with the decision reached by the AppealAdjudication Board, he or she may appeal “through the University Secretary to the University Level as per Procedures for StudentAppeals in Academic Matters,

Section V (Appeals Dealing with Matters Other Than Substantive Academic Judgment) …”. [51] At the University Level, the available grounds of appeal are described as follows: Appendix 3 Grounds for an Appeal B. UNIVERSITY LEVEL APPEAL 1. Grounds for an Appeal (

a) A student may appeal as hereinafter provided a decision affecting her or his academic standing on the following grounds only: (

i) alleged failure to follow procedural regulations of the relevant college or the university dealing with assessment of students’academic work or performance or administrative decisions or alleged misapplication of regulations governing program or degreerequirements; (ii) alleged differential treatment of the student as compared to the treatment of other students in the course or program, where thealleged differential treatment affected assessment of the student’s academic work or performance; (iii) alleged discrimination or harassment, as set out in the University’s Policy on Discrimination and Harassment Prevention andprocedures for addressing issues of discrimination and harassment, where the alleged violation affected assessment of the student’sacademic work or performance; or (iv) alleged failure to implement the approved policy and procedures of the University dealing with accommodation of students withdisabilities, when the alleged failure affected assessment of the student’s academic work or performance. (Emphasis added, at AB56) [52] Appendix 3 continues with a direction to http://www.usask.ca/secretariat/student-conduct-appeals/StudentAcademicAppeals.pdf, which outlines, in detail, the rights of the student to be represented, to be heard and to callwitnesses at an appeal filed with the University Level Appeal Board. [53] The Chambers judge does not set out the provisions from the bylaws, but at paragraphs 11 and 12, he does adopt the College’sbrief with respect to the powers of the appeal bodies created by the bylaws.

In doing so, he must be taken to have found that the appealbodies established by the bylaws have the authority to consider process irregularities, including Dr. Nadler’s main ground for which hesought judicial review: the Investigation Committee’s lack of quorum. Most importantly, the Chambers judge agreed with the Collegethat the “University appeal process can grant the exact remedy(ies) that the Applicant has requested from this Court” (at paras 11 and12). From my review of the bylaws, this proposition is correct. [54] Each of the levels of appeal available to Dr.

Nadler has the authority to consider any alleged failure to follow proceduralregulations and to provide remedies that, in some respects, exceed those available to a court. Whether a failure to follow proceduralregulations extends to remedying a lack of quorum remains to be seen; but, as the Supreme Court stated in Strickland, a court consideringwhether to grant judicial review “should consider not only the available alternative, but also the suitability and appropriateness of judicialreview in the circumstances” (para 43).

In that regard, I note that the Appeal Adjudication Board has the authority to request theInvestigation Committee to modify its decision and, if this is declined, the matter must be reviewed by the Associate Dean ofPostgraduate Medical Education and thereafter by the Dean of Medicine. As well, the powers of the University Level Appeal Boardextend to finding the allegation was justified but nonetheless directing a re-evaluation of the student’s work and an assessment by anindependent third party. [55] In his brief of law, under a heading entitled “III. The Law”, Dr.

Nadler submitted to the Chambers judge that the College hadfailed “to distinguish jurisdictional error and lack of jurisdiction”. He argued Harelkin actually supported his position in that he was notasking the court to review the decision of the Investigation Committee, but rather to quash it on the basis that the InvestigationCommittee did not have jurisdiction because of the loss of quorum.

He relied further on Demaria v Law Society of Saskatchewan, 2013SKQB 178, 420 Sask R 230, affirmed 2015 SKCA 106 at para 21, [2016] 2 WWR 589; Holder v College of Physicians and Surgeons ofManitoba, 2000 MBQB 134 at para 5, [2001] 2 WWR 701 [Holder]; and Harris v The Law Society of Alberta, (SCC),[1936] SCR 88 at 92, in support of the proposition that a quorum requirement cannot be waived. (Note that Holder was actually reversed,see 2002 MBCA 135, 220 DLR (4th) 373.) Whether these authorities stand for the proposition for which Dr. Nadler suggests need not bedecided here.

The issue here is the adequacy of the appeal procedures under the bylaws to address Dr. Nadler’s complaint about quorumso as to determine whether the Chambers judge erred by finding the originating application to be premature. [56] The Chambers judge adopted the reasoning put forward by the College to the effect that a lack of quorum is a proceduralirregularity that an appeal board could address. How it will be addressed and the adequacy of the ultimate remedy can be consideredfurther after Dr. Nadler exhausts the remedies available to him. The Chambers judge correctly “dismissed” Dr. Nadler’s originating

application rather than striking it, which leaves open the possibility of renewal at a later date. It will still be open to Dr. Nadler to argue that the Investigation Committee lacked quorum and that this deficiency could not be remedied by the alternative appeal process, but this argument can be addressed in light of the decision of the final appeal body in that appeal process – if Dr. Nadler is dissatisfied with that body’s decision. [ 57 ] Finally, I must address Dr.

Nadler’s argument that the Chambers judge dismissed his application to examine the members of the Investigation Committee and others without hearing his arguments. Having dismissed Dr. Nadler’s application for judicial review, there would be no basis upon which the Court could grant this ancillary relief. The Court’s jurisdiction to grant an application depends on whether there is an action pending in the Court. Once the originating application was dismissed, the Court’s jurisdiction to grant ancillary relief was brought to an end. VII.

Conclusion [ 58 ] For these reasons, I would dismiss the appeal with costs in the usual way. “Jackson J.A”. Jackson J.A. I concur. “Whitmore J.A”. Whitmore J.A. I concur. “Ryan-Froslie J.A”. Ryan-Froslie J.A.