Patel v Carson, 2018 SKCA 98

Court of Appeal for Saskatchewan Docket: CACV3186 Citation: Patel v Carson , 2018 SKCA 98 Date: 2018-12-13 Between: Dr. Satyam Patel Appellant (Respondent) And Dr. George Carson (Regina Qu’Appelle Regional Health Authority Senior Medical Officer); Regina Qu’Appelle Regional Health Authority Board; Regina Qu’Appelle Regional Health Authority Discipline Committee Respondents (Applicants) And Attorney General for Saskatchewan Intervenor Before: Richards C.J.S., Ottenbreit and Whitmore JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Chief Justice Richards In concurrence: The Honourable Mr.

Justice Ottenbreit The Honourable Mr. Justice Whitmore On Appeal From: 2017 SKQB 377 , Regina Appeal Heard: October 9, 2018 Counsel: Eugene Meehan, Q.C., Tavengwa Runyowa and Thomas Slade for the Appellant Reginald Watson, Q.C., and Ryan Kitzul for the Respondents Dana Brule for the Intervenor Richards C.J.S. I. Introduction [ 1 ] Dr. Satyam Patel’s hospital privileges were suspended because of concerns about his competence. This led to a protracted series of proceedings under the regulatory framework governing such matters. [ 2 ] Dr.

Patel ultimately brought an application in the Court of Queen’s Bench to both quash the decisions that had led to his suspension and to have his hospital privileges restored in full. That application was denied by a Chambers judge. [ 3 ] This is an appeal from the decision of the Chambers judge. Dr. Patel advances a number of submissions based on the wording of various statutory and other provisions, on procedural fairness concerns and on the Constitution Act, 1867 . As explained below, these arguments cannot succeed. Dr. Patel’s appeal must be dismissed. II. the regulatory framework [ 4 ]

Section 43 of The Regional Health Services Act , SS 2002, c R-8.2 (repealed) [ RHS Act ], gave regional health authorities, such as the Regina Qu’Appelle Regional Health Authority [RQRHA], the authority to make bylaws dealing with the discipline and suspension of practitioner staff. [ 5 ] Pursuant to this authority, RQRHA enacted the Regina Qu’Appelle Regional Health Authority Practitioner Staff Bylaws [ Bylaws ]. For the purposes of this appeal, the key features of the Bylaws are as follows: (

a) The Senior Medical Officer or the Chief Executive Officer may immediately suspend a member’s privileges in circumstances where the conduct, performance or competence of the member exposes or is likely to expose patients to harm or injury ( Bylaws , s 86(1)(a)). (

b) In the event of an immediate suspension, the Senior Medical Officer or the Chief Executive Officer must provide the suspended member with written reasons for the suspension within 48 hours ( Bylaws , s 86(3)). (

c) The RQRHA Board [Board] must hold a hearing to review an immediate suspension within 14 days from the date of the suspension ( Bylaws , s 87). The member is a party to the hearing ( Bylaws , s 89). (

d) The Board may overturn the immediate suspension, confirm the suspension for a specified period of time, or confirm the suspension and refer the matter to a discipline committee ( Bylaws , s 90). (

e) The discipline committee must serve the member, at least 21 days before the discipline hearing, with a written notice containing, among other things, the particulars of the complaint allegations ( Bylaws , s 79).

(

f) On consideration of the allegations, evidence and representations presented to it, the discipline committee prepares a report for the Board of its findings and recommendations. Those recommendations may include everything from taking no action, at one end of the spectrum, to the suspension or termination of the member’s practitioner staff appointment, at the other ( Bylaws , s 81). (

g) The Board then considers the report of the discipline committee. The member receives at least 21 days’ notice of the Board meeting and is entitled to make representations to the Board ( Bylaws , s 82). (

h) On considering the recommendations of the discipline committee and the representations of the member, the Board may take steps ranging from no action to suspending or terminating the member’s practitioner staff appointment ( Bylaws , s 84). [ 6 ] The RHS Act , in s. 45(1), provided that a person aggrieved by a regional health authority decision in respect of discipline matters or the suspension of privileges could appeal to a tribunal established by regulations.

Those regulations were The Practitioner Staff Appeals Regulations , RRS c R-8.2 Reg 5 [ Appeals Regulations ]. [ 7 ] The Appeals Regulations established the Practitioner Staff Appeals Tribunal [Appeals Tribunal]. Appeals to the Appeals Tribunal are conducted as de novo hearings (s 11). [ 8 ] A decision of the Appeals Tribunal could be appealed to the Court of Queen’s Bench on a question of law or jurisdiction ( RHS Act , s 45(4)). [ 9 ] On December 4, 2017, The Provincial Health Authority Act , SS 2017, c P-30.3, repealed the RHS Act and amalgamated the RQRHA into the Provincial Health Authority.

The Appeals Regulations remained in force and unchanged following the amalgamation. [ 10 ] The Bylaws were repealed and replaced by the Saskatchewan Health Authority Interim Practitioner Staff Bylaws [ Interim Bylaws ] on December 4, 2017. The Interim Bylaws involved some modest changes to the Bylaws . However, none of those changes are in any way material to the outcome of this appeal and, as a result, I propose to refer to the Bylaws throughout this decision. III. factual background [ 11 ] Dr.

Patel is an orthopaedic surgeon and a member of the practitioner staff of what was formerly the RQRHA. [ 12 ] On June 11, 2016, Dr. George Carson, the Senior Medical Officer of the RQRHA [Medical Officer], imposed an immediate suspension of Dr. Patel’s hospital privileges out of concern about Dr. Patel’s surgical competence. He did this pursuant to s. 86 of the Bylaws . [ 13 ] The Board was required, by s. 87 of the Bylaws , to review the suspension. It did just that.

On July 7, 2016, the Board provided a written decision confirming the suspension and referring the matter to a discipline committee for a hearing. [ 14 ] A five-person Discipline Committee was constituted pursuant to s. 76 of the Bylaws . The Discipline Committee commenced hearings on November 24, 2016, sitting for a total of 27 days as of the date of the Chambers hearing. [ 15 ] On July 14, 2016, Dr. Patel appealed the decision of the Board by filing an appeal with the Appeals Tribunal. A hearing date was set for July 31, 2017. That hearing was adjourned sine die , at Dr.

Patel’s request, on July 8, 2017. [ 16 ] On July 31, 2017, after 24 days of Discipline Committee sitting days, but prior to the proceedings before the Committee being concluded, Dr. Patel commenced an action in the Court of Queen’s Bench by way of originating application. He sought: (

a) an order quashing the Medical Officer’s decision to suspend Dr. Patel; (

b) an order quashing the Board’s July 7, 2016, decision to uphold the suspension; (

c) a stay of the proceedings before the Discipline Committee; and (

d) an order restoring Dr. Patel’s hospital privileges. [ 17 ] Dr. Patel’s application, as filed, was based on grounds including allegations that (

a) the true reason for his suspension was interpersonal conflict, not incompetence, (

b) no evidence had been tendered to properly demonstrate incompetence, and (

c) the allegations of concern about patient safety were based on a number of procedural and factual errors. [ 18 ] On August 17, 2017, the Medical Officer brought an application seeking to strike Dr. Patel’s originating application pursuant to the inherent authority of the Court of Queen’s Bench and Rule 7-9 of The Queen’s Bench Rules . IV. the Chambers decision [ 19 ] The Chambers judge noted that one of the discretionary grounds for refusing to undertake judicial review is the existence of an adequate alternative remedy.

In this regard, the judge referred extensively to Strickland v Canada (Attorney General) , 2015 SCC 37 , [2015] 2 SCR 713 [ Strickland ], one of the leading authorities in this area. She then observed that there is a comprehensive regulatory framework for dealing with the sorts of rights and obligations at stake in the proceedings in which Dr. Patel was engaged. The Chambers judge found there was no extraordinary circumstance to warrant her interfering with the ongoing proceedings and, as a result, dismissed Dr. Patel’s application.

V. the smith and chard affidavits [ 20 ] Dr. Patel filed the affidavit of Heath Smith, sworn October 1, 2018, with this Court. The Medical Officer filed the affidavit of Steve Chard, sworn September 28, 2018. These affidavits describe what has happened in the proceedings involving Dr. Patel since this matter was before the Chambers judge at the end of 2017. Neither Dr.

Patel nor the Medical Officer objected to these affidavits being placed before the Court. [ 21 ] The affidavits reveal that the Discipline Committee released its report to the Saskatchewan Health Authority Board [Saskatchewan Board] on January 9, 2018. It recommended that Dr. Patel’s suspension of privileges should continue until he had completed a period of supervised training. The Saskatchewan Board then held a hearing about whether to act on the Discipline Committee’s recommendation. On June 15, 2018, it accepted that recommendation. Then, on July 6, 2018, Dr.

Patel filed a notice of appeal with the Appeals Tribunal. Proceedings before the Tribunal are ongoing. Dr. Patel suggests those proceedings are unduly complex. The Medical Officer replies by saying that any undue complexity is a direct function of Dr. Patel’s refusal to make reasonable positions with respect to their conduct. [ 22 ] In my view, it would not be appropriate to take the affidavits of Messrs. Smith and Chard into account when deciding this appeal.

Doing so would shift the factual foundation on which the Chambers judge based her decision and would consequently draw this Court into exercising a sort of original, as opposed to appellate, jurisdiction in relation to Dr. Patel’s various disputes. As a result, I will not consider the evidence contained in the affidavits sworn by Messrs. Smith and Chard in the analysis that follows. Nor, of necessity, will I give effect to the arguments of Dr. Patel and the Medical Officer to the extent those arguments are based on the contents of the affidavits. VI. analysis [ 23 ] Dr.

Patel contends the decision of the Chambers judge should be set aside on a number of grounds. He advances the following arguments: (

a) the Chambers judge erred by accepting evidence after the oral hearing had concluded; (

b) the Chambers judge erred by failing to consider s. 102 of the Bylaws in the course of her analysis; (

c) the Chambers judge erred by finding that s. 45 of the RHS Act prohibited judicial review of decisions suspending hospital privileges; (

d) the Chambers judge erred in applying Strickland to find that Dr. Patel had an adequate alternative to judicial review; and (

e) the Chambers judge’s

interpretation of the regulatory scheme established by and pursuant to the RHS Act offends s. 96 of the Constitution Act, 1867 . [ 24 ] I propose to deal with each of these submissions in turn. However, before turning to them, it will be useful to take a closer look at the decision of the Chambers judge. This is because several of Dr. Patel’s arguments are based on what, in my respectful view, is a misunderstanding or mischaracterization of her decision. A. What did the Chambers judge decide and why? [ 25 ] Dr.

Patel takes the position that the Chambers judge erroneously read the RHS Act as prohibiting judicial review applications. He proceeds on the basis that, as a result of this misunderstanding of the regulatory framework, the Chambers judge dismissed his judicial review application because it was an abuse of process. This is not an accurate understanding of what the Chambers judge decided. Let me explain. [ 26 ] In order to put the decision of the Chambers judge in context, it is necessary to begin with the proceedings giving rise to it. As explained above, Dr.

Patel commenced an action by way of originating application on July 31, 2017. In that action, he sought to quash the decisions of both the Medical Officer and the Board to suspend him, to stay the proceedings before the Discipline Committee and to restore his hospital privileges. The Medical Officer countered with an application to dismiss Dr.

Patel’s application and, in so doing, invoked both Rule 7-9 (which allows the Court to strike a pleading if it is an abuse of process) and the inherent jurisdiction of the Court of Queen’s Bench. [ 27 ] The position taken by the Medical Officer with the Chambers judge was not expressed as clearly as it perhaps might have been. In his written submissions, the Medical Officer suggested that, by way of his application, Dr.

Patel was engaged in an abuse of process because he was endeavouring to circumvent the appeal procedures prescribed by the Bylaws and, in the guise of a judicial review application, was attempting to appeal the Board’s decision to suspend his privileges. For example, paragraph 37 of his brief said this: 37. The procedural rules set out in

Part 3 of the Queen’s Bench Rules provide the supervisory jurisdiction of this Honorable Court which is distinct from its appellate jurisdiction. This Honorable Court’s appellant [ sic ] jurisdiction arises only by way of statute. Dr. Patel has no statutory right of appeal to this Court at this time and is attempting to pursue his appeal through an abuse of this Court’s supervisory process.

[ 28 ] However, at the same time, the Medical Officer’s brief also emphasized that Dr. Patel’s application should be dismissed because he had alternative remedies under the governing regulatory framework. He did not expressly reference Strickland or related authorities but, rather, characterized Dr. Patel’s failure to pursue an appeal to the Appeals Tribunal as an abuse of process. Paragraph 44 of the Medical Officer’s brief reads as follows: 44. Dr. Patel has commenced an appeal to the Tribunal with respect to the Board’s decision. His appeal was adjourned sine die at his request. Dr.

Patel has not exhausted his appeal remedies under the statutory framework. His application for judicial review is premature and he pursues the same remedy from this Court that is available to him on appeal to the Tribunal. Dr. Patel’s originating application is therefore premature and an abuse of process and should be dismissed. (Emphasis added) In her decision, the Chambers judge quite understandably took this argument to be one that engaged the doctrine of the adequacy of alternative remedies as explained in Strickland . [ 29 ] Dr.

Patel contends that the Chambers judge ultimately decided to dismiss his application because the regulatory framework created by and under the RHS Act prohibited judicial review applications with the result that such applications are an abuse of process. In support of this reading of the decision, Dr. Patel relies on its bookends, paragraphs 2 and 32. They are set out below: [2] In response, Dr. George Carson, Senior Medical Officer [SMO] applied for an order under Rule 7-9 that the originating application be dismissed in its entirety as an abuse of process. This decision relates to the application of the SMO.

The Regina Qu’Appelle Regional Health Authority [RQRHA] Board [Board] participated in the hearing in support of the SMO application. … [32] The application of the SMO is therefore allowed, the originating application for judicial review commenced by Dr. Patel is hereby dismissed with costs to the SMO set, as requested by the SMO, at $1,000.00. [ 30 ] In my respectful view, Dr. Patel misunderstands the decision of the Chambers judge. Her bottom-line conclusion was not based on the idea that judicial review applications were somehow prohibited and hence an abuse of process. Rather, she decided that Dr.

Patel’s application should be dismissed because the procedures established pursuant to the RHS Act provided him with an adequate alternative means of seeking a remedy. [ 31 ] It was no accident that, in the critical “Discussion”

section of her decision, the Chambers judge summarized the applicable regulatory framework and then turned directly to Strickland saying, at paragraph 28 , that “[o]ne of the discretionary grounds for refusing to undertake judicial review is whether there is another adequate alternative”. After quoting extensively from Strickland , the Chambers judge concluded her analysis by writing as follows: [31] Here, the Act , Regulations and Bylaws provide a comprehensive regulatory framework to deal with the significant rights and obligations being determined in the process currently underway.

The ultimate decision of the Board following receipt of the report of the Discipline Committee could have grave consequences to Dr. Patel and potentially equally serious consequences to members of the public. The decision must be arrived at through a process that is objectively fair, balanced and professional. Although Dr. Patel has made broad claims of unfairness and denial of natural justice throughout the current process, he has not asked the court to review any specific evidentiary ruling or interim procedural decision made by the SMO, the Board or the Discipline Committee. As is evident from para. 1(

d) of his application, Dr. Patel seeks a court order reinstating his surgical privileges. However, under s. 45 of the Act , the court’s jurisdiction with respect to the suspension of Dr. Patel’s surgical privileges does not arise until after the Tribunal has rendered a decision. As there are no extraordinary circumstance that compels me to interfere in the currently ongoing regulatory process, I decline to do so. (Emphasis added) [ 32 ] The Chambers judge did use the language of abuse of process at the beginning of her decision, no doubt picking up the terminology used by the Medical Officer.

However, she clearly dismissed Dr. Patel’s application on the basis that there was an adequate alternative way for him to address his concerns. She did not, as Dr. Patel contends, decide his application was an abuse of process because judicial review applications are prohibited by virtue of statutory decree. B. Did the Chambers judge wrongly rely on late-arriving evidence? [ 33 ] Dr. Patel’s first argument is that, in coming to her decision, the Chambers judge improperly relied on evidence submitted to her after the hearing. This issue was raised only in oral argument. It was not flagged by Dr.

Patel in his notice of appeal or in his factum. I will deal with it anyway. [ 34 ] Dr. Patel rests his argument on two considerations. First, he points to a letter from counsel for the Medical Officer that was sent to the Local Registrar of the Court of Queen’s Bench, on the day after the Chambers hearing. The body of the letter reads as follows: During the course of yesterday’s hearing in respect of the above-noted matter, Madam Justice J.L. Pritchard asked that certain materials be provided to her for her review. As per Madam Justice Pritchard’s request attached is the material.

We would ask that you bring this material to her attention as soon as possible. [ 35 ] Second, Dr. Patel notes paragraph 3 of the decision of the Chambers judge wherein the judge quoted at some length from a June 11, 2016, written notice provided by the Medical Officer to Dr. Patel advising Dr. Patel of his immediate suspension.

[36] Dr. Patel contends the notice quoted by the Chambers judge at paragraph 3 was provided to her by way of the letter sent bycounsel for the Medical Officer after the hearing. Dr. Patel says all of this was improper: the Chambers judge should not have acceptedevidence presented in this way and, at a minimum, she should have given him an opportunity to respond to that evidence. [37] This argument has no merit. To begin, the additional material forwarded by counsel for the Medical Officer to the LocalRegistrar was a June 17, 2015, letter from Dr. R.Y. McMurtry.

That letter reviews the cases of 14 patients treated by Dr. Patel and notesfurther information that might be required in relation to them. This was not what the Chambers judge quoted at paragraph 3 of herdecision. Indeed, the decision of the Chambers judge makes no reference of any sort to the McMurtry letter. In other words, Dr. Patel’sargument is based on a fundamental misunderstanding. The written notice quoted by the Chambers judge at paragraph 3 of her decisionwas not forwarded to her after the hearing. In fact, it came from Dr. Patel himself.

It is exhibit 1 of his September 20, 2017, affidavit – anaffidavit filed by Dr. Patel before the Chambers hearing. [38] I should also note that the September 22, 2017, letter from counsel for the Medical Officer to the Local Registrar was copiedto counsel for Dr. Patel. In light of that, it was open to counsel for Dr. Patel to object to information being sent to the Local Registrar inthis way even if it was being forwarded, as the letter indicates, at the request of the Chambers judge herself. It was also open to counselfor Dr.

Patel to seek leave to submit further information in response, or to seek leave to make additional submissions on Dr. Patel’sbehalf. He chose to exercise none of those options. As a result, it is not open to Dr. Patel, at this late date, to take issue with how theChambers judge chose to proceed. [39] As indicated, this aspect of Dr. Patel’s appeal is ill-founded and cannot succeed. C. Did the Chambers judge err by failing to consider s. 102 of the Bylaws? [40] As noted, the Bylaws set out the procedures governing practitioner staff discipline.

In the case of an immediate suspension, ashere, the suspension must be reviewed by the Board within 14 days. The Board has a number of options including referring the matter toa discipline committee. If a discipline committee is engaged, its report comes back to the Board to be considered and, in the discretion ofthe Board, acted upon. Board decisions may be appealed to the Appeals Tribunal. [41]

Section 102 of the Bylaws, found under the heading “Appeals”, reads as follows: 102. Right of Appeal Nothing in these Bylaws limits or restricts any right of appeal or other legal recourse, which is available to an individual pursuant to TheRegional Health Services Act and regulations, or any other applicable law. [42] Dr. Patel says the Chambers judge overlooked s. 102 in her analysis. He stresses the words “or any other applicable law” atthe end of the

section and suggests a judicial review application falls within their scope. Accordingly, submits Dr. Patel, the Chambersjudge erred in concluding that the regulatory framework here, of which the Bylaws are part, precludes judicial review applications. [43] Accepting Dr. Patel’s construction of s. 102 arguendo, his argument cannot prevail for a very simple reason. It is based on amisconception of the decision made by the Chambers judge. As explained above, the Chambers judge did not hold that the RHS Act orthe Bylaws proscribe judicial review.

Rather, she said that the particular judicial review application before her, Dr. Patel’s application,should be dismissed because he had an adequate alternative way of addressing his concerns. The Chambers judge did this in keepingwith standard administrative law principles reflected in cases like Strickland and Harelkin v University of Regina, (SCC), [1979] 2 SCR 561. D. Did the Chambers judge misinterpret s. 45 of the RHS Act? [44] Dr. Patel’s third line of argument focuses on s. 45 of the RHS Act.

He contends the Chambers judge erred by interpreting s. 45as precluding judicial review applications aimed at attacking the decisions of regional health authorities.

Section 45 reads as follows: 45(1) A person who is aggrieved by a decision of a regional health authority or an affiliate made in relation to the following matters may,in accordance with the regulations, appeal the decision to a tribunal established by the regulations: (

a) the appointment of the person to the practitioner staff or the reappointment, suspension or termination of appointment of the person; (

b) the disciplining of the person as a member of the practitioner staff; (

c) the granting of privileges to the person as a member of the practitioner staff, or the amending, suspending or revoking of privilegesgranted to the person.

(2) Subject to the regulations, a tribunal may determine its own procedures for the hearing of an appeal pursuant to subsection (1).

(3) For the purposes of hearing an appeal pursuant to subsection (1), the members of a tribunal have the powers conferred on acommission by sections 11, 15 and 25 of The Public Inquiries Act, 2013 .

(4) A decision of a tribunal may be appealed to a judge of the Court of Queen’s Bench on a question of law or jurisdiction within 30 daysafter the date of the tribunal’s decision. (Emphasis added) [45] In advancing this argument, Dr. Patel relies heavily on Sood v South Central Health District (Medical Advisory Committee),2005 SKQB 490, 271 Sask R 126 [Sood]. Dr. Sood was an ophthalmologist in Weyburn. There were concerns about his surgical

competency and the Medical Advisory Committee passed a motion recommending to the Health Authority that Dr. Sood’s surgical privileges be terminated. The Board then decided to terminate his privileges. In response, Dr. Sood applied for judicial review of the Board’s decision citing various procedural fairness concerns including failures of disclosure, the sufficiency of the notice of the Board’s meeting and the adequacy of the Board’s reasons for decision. Justice Chicoine accepted those arguments and quashed the decision of the Board. [ 46 ] Dr.

Patel says the Chambers judge should have taken the same approach as was taken in Sood , i.e. she should have read the regulatory framework governing disciplinary matters as allowing her to judicially review the Board’s decision to suspend his privileges. [ 47 ] In my respectful view, Dr. Patel’s reliance on Sood is misplaced. Most centrally, Sood did not deal with the question on which the Chambers judge in this case based her decision. It is true that Dr. Sood successfully brought a judicial review application to overturn a board decision to suspend his privileges.

But, the Strickland issue – the adequate alternative remedy issue – was neither raised nor considered. In other words, Sood simply drives by the question at the heart of this appeal. [ 48 ] In Sood , Chicoine J. did make some reference to Dr. Sood’s rights of appeal to something called the Medical Staff Bylaws Appeal Board. It is not clear how closely those appeal provisions parallel the ones at issue in the present case. However, the important point is that Chicoine J. did not consider the regulatory framework governing Dr. Sood’s application for the purpose of resolving a Strickland -type issue.

He considered it for the wholly different purpose of deciding what standard of review he should apply in considering the decision of the South Central Health District Board to suspend Dr. Sood’s privileges. As a result, Sood is of no particular assistance in resolving Dr. Patel’s appeal. [ 49 ] Dr. Patel also suggests s. 45 should not be interpreted as prohibiting judicial review because the various procedures mandated by the Bylaws are complex, drawn-out and expensive.

He suggests, because of this, that the Legislature could not have intended to have courts read s. 45 as prohibiting judicial review and thereby irrevocably locking people like him into what he sees as oppressive and never-ending proceedings. [ 50 ] Like some of Dr. Patel’s other arguments, this submission is founded on a misconception. It is aimed at establishing that the Chambers judge erred in concluding s. 45 prohibited her from judicially reviewing the decisions of the Medical Officer, the Board and the Discipline Committee. As explained above, the decision of the Chambers judge must be considered as a whole.

She determined only that, in light of Strickland and Dr. Patel’s alternatives for addressing his concerns, she should exercise her discretion in favour of denying his application. Her decision cannot fairly be read as holding that s. 45, in and of itself, was the reason she was allowing the Medical Officer’s application. [ 51 ] In

summary, I do not understand the Chambers judge to have construed s. 45 of the RHS Act as precluding the Court of Queen’s Bench from entertaining judicial review applications. This aspect of Dr. Patel’s submissions cannot succeed. E. Did the Chambers judge err in applying Strickland ? [ 52 ] Dr.

Patel also submits that, if the Chambers judge’s decision is understood as turning on the existence of an adequate alternative forum or remedy as per the doctrine discussed in Strickland , she erred by finding there was such an alternative. [ 53 ] The cases have considered a number of factors in determining whether an alternative forum or alternative relief is adequate. As noted in Strickland at paragraph 42 , these include (

a) the convenience of the alternative remedy, (

b) the nature of the error alleged, (

c) the nature of the other forum which could deal with the issue, including its remedial capacity, (

d) the existence of adequate and effective recourse in the forum in which litigation is already taking place, (

e) expeditiousness, (

f) the relative expertise of the alternative decision- maker, (

g) economical use of judicial resources, and (

h) costs. [ 54 ] That said, the inquiry into the adequacy of an alternative remedy or forum is more than a simple comparison of the features of the various alternative possible proceedings. As indicated in Strickland at paragraph 43 , it is necessary to consider “not only the available alternative, but also the suitability and appropriateness of judicial review in the circumstances”. Account must be taken of the purposes and policy considerations informing the administrative scheme in question. [ 55 ] Dr. Patel makes three main points about the issue of an alternative forum or remedy.

First, he says the Chambers judge failed to appreciate that the Appeals Tribunal lacked the jurisdiction to hear challenges to the Medical Officer’s suspension decision. Second, he argues the Appeals Tribunal had no authority or jurisdiction to deal with arguments about denials of procedural fairness. Third, Dr.

Patel contends the Chambers judge failed to properly appreciate that the alternative proceedings available to him were anything but convenient and expeditious. [ 56 ] Before considering these points, it will be useful to attempt to untangle some of the knots that have been tied in this appeal as a result of how matters were addressed in Chambers, how the Chambers judge organized her decision, and how Dr. Patel presented and argued his case in this Court. [ 57 ] As explained above, when Dr.

Patel filed his judicial review application, he had adjourned his appeal of the Board’s July 7, 2016, decision to the Appeals Tribunal and was some 27 days into the proceedings before the Discipline Committee. As noted, Dr. Patel sought to obtain an order (

a) quashing the decision of the Medical Officer to immediately suspend his privileges, (

b) quashing the July 7, 2016, decision of the Board sustaining the suspension, (

c) staying the proceedings of the Discipline Committee, and (

d) restoring his hospital privileges. [ 58 ] Against this background, it was necessary for the Chambers judge to consider the issue of alternative remedies and forums. However, it appears there may not have been a great deal of precision in how this question was mapped out for her. Similarly, there was not a great deal of precision in how it was mapped out in this Court. [ 59 ] In order to bring some clarity to the analysis, it is necessary to begin by asking about the nature of the alternative remedy

question at issue before the Chambers judge. It is not difficult to identify. The focus of the inquiry about adequate alternatives was necessarily on the Board’s July 7, 2016, decision to maintain the suspension of Dr. Patel’s privileges. That was the operative cause of his loss of privileges and the immediate source of his problems in this regard. In other words, the specific issue before the Chambers judge must be taken to have been whether there was a way for Dr.

Patel to take issue with the Board’s July 7, 2016, decision that was an appropriate alternative to subjecting that decision to judicial review. [ 60 ] This takes the inquiry to the next step: the possible alternatives to judicial review. There were two of them. The first, of course, was an appeal to the Appeals Tribunal. Dr. Patel had initiated such an appeal but had adjourned it. The second possible alternative, at least in practical effect, was to be found in the proceedings before the Discipline Committee.

I say this because, as noted earlier, the July 7, 2016, decision of the Board sustained the immediate suspension of Dr. Patel’s privileges and referred the matter to the Discipline Committee. The Discipline Committee would take a more in-depth look at Dr. Patel’s competency and then provide the Board with a recommendation as to whether the suspension should be maintained. [ 61 ] In

summary, therefore, Dr. Patel’s arguments about Strickland are best assessed against an understanding that the issue before the Chambers judge was whether the regulatory regime established pursuant to the RHS Act offered an appropriate alternative way for Dr. Patel to take issue with the Board’s decision of July 7, 2016. In this regard, the two possible alternatives were (

a) an appeal to the Appeals Tribunal and (

b) following through on the work of the Discipline Committee. [ 62 ] With this bit of clarification provided, I will deal now with the three points raised by Dr. Patel. The Medical Officer’s Decision [ 63 ] As indicated, Dr. Patel’s first argument concerns the Appeals Tribunal. He says it would have been an inadequate alternative to judicial review because it would not have been able to directly give effect to a challenge to the Medical Officer’s decision to suspend his privileges.

Section 8(1) of the Appeals Regulations says “[a] practitioner who is aggrieved by a decision of a board … may appeal that decision to the [Appeals Tribunal]”. Thus, an appeal to the Appeals Tribunal is, by definition, an appeal from a decision of the Board, not from the initial decision of the Senior Medical Officer or the Chief Executive Officer to impose an immediate suspension. [ 64 ] However, that said, the inability of the Appeals Tribunal to grant a remedy directly against the Medical Officer did not mean it was foreclosed from providing a meaningful remedy to Dr.

Patel and thus unable to provide effective alternative relief. Dr. Patel’s suspension of privileges was rooted in the Medical Officer’s decision only from June 11, 2016, when the Medical Officer imposed the immediate suspension, until July 7, 2016, when the Board confirmed the suspension. Since that latter date, Dr. Patel’s privileges had been suspended by virtue of the Board’s decision and only by virtue of the Board’s decision. As a result, setting aside the Medical Officer’s decision would not have given Dr. Patel the relief he sought. It would not, and could not, have restored his privileges. Dr.

Patel’s issue was with the decision of the Board and the Appeals Tribunal was fully empowered to review that decision. [ 65 ] Accordingly, the fact that the Appeals Tribunal could not have considered the Medical Officer’s decision was of no consequence to the analysis of the adequate alternative forum or remedies question. Procedural Fairness [ 66 ] What then of Dr. Patel’s suggestion that the Appeals Tribunal could not have provided adequate alternative relief because it could not consider his complaints about the procedural fairness of the Board’s decision-making?

The obvious answer to this argument is that, as per s. 11(1) of the Appeals Regulations , an appeal to the Appeals Tribunal would have been conducted as a de novo hearing. This means any procedural unfairness that might have attended the proceedings before the Board could have been overcome if the Appeals Tribunal itself had acted fairly. By way of hypothetical example, imagine that the Board denied Dr. Patel procedural fairness by failing to give him adequate notice of its hearing and that he was prejudiced in the presentation of his position as a result.

Any such prejudice would have been wholly overcome if, in its own proceedings, the Appeals Tribunal gave Dr. Patel adequate notice. That is the nature of a de novo appeal. The procedural unfairness of the past need not infect the proceedings of the present. [ 67 ] I should note here that Dr. Patel’s originating application for judicial review does little to identify procedural fairness concerns said to arise from the actions of the Board. Rather, it focusses on alleged shortcomings in the work of the Discipline Committee. Paragraph 12 of the application states “the proceedings against Dr.

Patel are the products of several procedural and factual flaws which include… .” It then goes on to itemize some 22 points intended, as I understand it, to describe instances of procedural unfairness and alleged evidentiary shortcomings. Virtually all of those points relate exclusively to matters arising in the work of the Discipline Committee. The only matter arguably touching the Board, and its July 7, 2016, decision to suspend Dr. Patel, is item (u), an assertion that the Medical Officer failed to disclose certain statistics favourable to Dr. Patel when the Board was deciding whether to uphold the suspension.

This is clearly something that could be remedied by the Appeals Tribunal in the conduct of a de novo hearing. [ 68 ] In the end, therefore, there is no merit in Dr. Patel’s concerns about his ability to have the Appeals Tribunal address issues of procedural fairness. Complexity and Expense [ 69 ] I turn, finally, to Dr. Patel’s argument that the proceedings available to him under the RHS Act could not have been seen as adequate alternatives to judicial review because they are complex, drawn-out and expensive.

On this front, let me deal first with the prospect of an appeal to the Appeals Tribunal and then with the notion of taking issue with the Board’s July 7, 2016, decision through the work of the Discipline Committee. [ 70 ] With respect to an appeal to the Appeals Tribunal, Dr. Patel’s particular concern appears to be that such appeals are de novo hearings. He suggests proceedings of this sort are too unwieldy to be a meaningful way of taking issue with the decision of the Board. [ 71 ] The central problem with Dr.

Patel’s argument about the complexity and expense of the proceedings before the Appeals Tribunal is that it engages only one of the considerations bearing on the question of whether such proceedings represent an adequate

alternative to judicial review. For example, his argument takes no account of the Appeal Tribunal’s relative expertise in relation toprofessional competency issues or of the obvious intent of the Legislature to have such matters addressed in an administrative, as opposedto judicial, forum. [72] Nor do Dr. Patel’s arguments or materials offer an adequate basis for concluding the proceedings before the Appeals Tribunalwould, in fact, have been oppressively complex, drawn-out and expensive.

On this front, let me underline the obvious reality that, bydefinition, proceedings concerning the competency of a physician will often, and unavoidably, be quite involved. This said, I note that, inhis affidavit at paragraphs 15 and 16, Dr. Carson avers that both Dr. Patel and RQRHA had prepared briefs of law by the time Dr. Pateladjourned his appeal to the Appeals Tribunal and that the plan for the appeal was for RQRHA to rely on the transcript of the evidencealready presented at the discipline hearing.

This kind of approach to an appeal would obviously have served to significantly limit itslength and expense and, possibly, its complexity as well. In short, I conclude the Chambers judge did not err by failing to find anAppeals Tribunal proceeding would have been so complex, drawn-out and expensive that it would not have been an adequate alternativeto a judicial review application. [73] What then of the complexity, expeditiousness and cost of Dr. Patel dealing with the Board’s July 7, 2016, suspension of hisprivileges through the deliberations of the Discipline Committee?

It is true that, when this matter was argued before the Chambersjudge, the Discipline Committee’s hearings had extended over some 27 non-sequential days. However, it is important to note that theend of those proceedings was in sight. As Dr. Carson explained in his affidavit at paragraph 9, the next scheduled date for the hearingwas September 27, 2017, and the hearing was expected to continue in October. Significantly, in the same paragraph, Dr.

Carson stated“the hearing is expected to conclude in November”. [74] The Chambers judge was alert to this procedural history and she recounted it at paragraph 10 of her decision. In my view, theChambers judge was fully entitled to take all of this into account when deciding whether to subject the Board’s July 7, 2016, decision tojudicial review. Moving forward with judicial review would have thrown all of the efforts expended in the Discipline Committeeproceedings, including all of Dr. Patel’s efforts, out the window.

It also would have drawn the Chambers judge into a situation where, ineffect, she would have had to decide the merits of Dr. Patel’s suspension, or more accurately its reasonableness, on a record that wasnecessarily far less complete than the one being generated before the Discipline Committee. Further, although the proceedings before theDiscipline Committee had been protracted, it was by no means apparent from the record why this was so. Dr. Patel seems to suggest theDiscipline Committee’s work was unwieldy by definition. The Medical Officer contends the proceedings were delayed and complicatedbecause of Dr.

Patel’s refusal to take reasonable positions in the management of the proceeding. [75] At the end of the day, to the extent the Chambers judge concluded that the work of the Discipline Committee was anappropriate alternative to judicial review, she was on solid ground. [76] The Chambers judge correctly referred to the controlling legal considerations and principles by quoting from Strickland. Shethen, albeit succinctly, determined that Dr. Patel had an appropriate alternative remedy and that there was no exceptional circumstancejustifying judicial review.

Her decision in this regard was discretionary in nature and is therefore entitled to deference. See: CanadianPacific Ltd. v Matsqui Indian Band, (SCC), [1995] 1 SCR 3 at para 39. In my view, the Chambers judge made no errorin principle or in respect of the facts that would warrant the intervention of this Court. [77] In

summary, I conclude Dr. Patel has not established that the Chambers judge committed a reviewable error with respect tothe question of whether there was an appropriate alternative to judicial review. F. Has s. 96 been offended? [78] Dr. Patel also submits that s. 96 of the Constitution Act, 1867 would be offended if the decision of the Chambers judge isallowed to stand.

He argues that obliging him to work through complex, drawn-out and expensive proceedings involving the AppealsTribunal or the Discipline Committee as a pre-condition to having access to the Court of Queen’s Bench is, in effect, a denial ofmeaningful access to the superior courts. In this regard, Dr. Patel attempts to rely on, and extend, the reasoning of the Supreme Court inTrial Lawyers Association of British Columbia v British Columbia (Attorney General), 2014 SCC 59, [2014] 3 SCR 31. [79] This argument was not presented to the Chambers judge. Dr.

Patel suggests that it could not have been raised before herbecause the constitutional problem of which he now complains only became apparent when his judicial review application wasdismissed. There is no merit in that proposition. It would have been entirely possible for Dr.

Patel to submit to the Chambers judge thatshe could not dismiss his judicial review application because, if she did, s. 96 of the Constitution Act, 1867 would be compromised.These contingent-type arguments are commonly advanced in courts of all kinds. [80] Issues raised for the first time on appeal should not be entertained when so doing would prejudice the respondent. See:Saskatchewan Crop Insurance Corporation v McVeigh, 2018 SKCA 76 at para 131. That is the case here. Dr. Patel’s argument reliesvery heavily on the assertion that the proceedings mandated by the Bylaws are impossibly complex and drawn out.

However, the recordreveals only the barest of the surface features of all of this. We know that the proceedings before the Discipline Committee had involvedover three weeks of hearings by the time of the Chambers hearing but we do not know why those three weeks were necessary. A fullerexamination of the factual situation might reveal that, as counsel for the Medical Officer suggests, the delays and complexity in questionare directly related to Dr. Patel’s refusal to conduct the proceedings in a reasonable manner. [81] In the end, I conclude that it would not be appropriate to entertain Dr.

Patel’s argument about s. 96 of the Constitution Act,1867. The Medical Officer and the Attorney General would be prejudiced if Dr. Patel was allowed to change the course of hissubmissions in this way without them having had an opportunity to develop the factual record needed to respond to this new submission. VII. conclusion

[ 82 ] I conclude that Dr. Patel’s appeal must be dismissed. The Medical Officer is entitled to costs in the usual way. “Richards C.J.S.” Richards C.J.S. I concur. “Ottenbreit J.A.” Ottenbreit J.A. I concur. “Whitmore J.A.” Whitmore J.A.