Patel v Saskatchewan Health Authority, 2021 SKCA 115

Court of Appeal for Saskatchewan Citation: Patel v Saskatchewan Health Authority , 2021 SKCA 115 Date: 2021-08-31 Docket: CACV3517 and CACV3527 Between: Dr. Satyam Patel Appellant (Applicant) And The Saskatchewan Health Authority and The Practitioner Staff Appeals Tribunal Respondents (Respondents) Docket: CACV3679 Between: Dr. Satyam Patel and E.F. Anthony Merchant, Q.C. Appellant (Applicant) And The Saskatchewan Health Authority (formerly the Regina Qu’Appelle Regional Health Authority) Respondents (Respondents) Docket: CACV3751 and CACV3752 Between: Dr.

Satyam Patel Appellant (Applicant) And C.L., The Practitioner Staff Appeals Tribunal and The Saskatchewan Health Authority Respondents (Respondents) Before: Caldwell, Whitmore and Kalmakoff JJ.A.

Disposition: Appeals in CACV3517 and CACV3527 dismissed Appeal in CACV3679 allowed in part Appeals in CACV3751 and CACV3752 quashed Written reasons by: The Court On appeal from: CACV3517 – QBG No 953 of 2019, Regina CACV3527 – 2019 SKQB 291 , Regina CACV3679 – 2020 SKQB 194 , Regina CACV3751 – QBG 1792 of 2020, Regina CACV3752 – QBG 1793 of 2020, Regina Appeals heard: May 7, 2021 – CACV3517, CACV3527 and CACV3679 May 10, 2021 – CACV3751 and CACV3752 Counsel: Dr. Satyam Patel on his own behalf in CACV3751 and CACV3752 E.F. Anthony Merchant, Q.C., on May 7, 2021, for Dr.

Satyam Patel in CACV3517, CACV3527 and CACV3679, and on his own behalf in CACV3679 Reginald A. Watson, Q.C., Ryan D. Kitzul, and Brian J. Lunde for Saskatchewan Health Authority in all matters Annie Alport for Saskatchewan Health Authority in CACV3517, CACV3527 Paul Harte for C.L. in CACV3751 and CACV3752 The Court

The Court I. INTRODUCTION [ 1 ] This decision relates to five separate appeals that have arisen in the context of a disciplinary proceeding involving a physician, Dr. Satyam Patel, and the Saskatchewan Health Authority [SHA]. [ 2 ] Dr. Patel is an orthopaedic surgeon and a member of the practitioner staff of what was formerly the Regina Qu’Appelle Regional Health Authority [RQRHA]. The RQRHA was eventually subsumed in SHA. Dr. Patel and SHA are involved in proceedings before the Practitioners Staff Appeals Tribunal [PSAT] that relate to the suspension of Dr. Patel’s hospital privileges.

Those proceedings have been highly contentious and are some distance from reaching a conclusion. II. AN OVERVIEW OF THE VARIOUS APPEALS A. CACV3517 and CACV3527 [ 3 ] Pursuant to s. 15 of The Practitioner Staff Appeals Regulations, RRS, c R-8.2 Reg 5 [ PSA Regulations ], Dr. Patel filed an appeal in the Court of Queen’s Bench in the spring of 2019, whereby he sought to challenge a number of interlocutory and procedural rulings made by the PSAT Panel [Panel ] that had been constituted to hear his case. At the same time, he also filed an originating application with the Court of Queen’s Bench for judicial review.

In the judicial review application, he sought various forms of relief, including striking the Panel and quashing all of its decisions to that point, removal of SHA counsel, and reinstatement of his hospital privileges. [ 4 ] On October 10, 2019, a Court of Queen’s Bench judge, in Chambers, struck Dr.

Patel’s appeal to that Court , on the basis that s. 15 of the PSA Regulations permits appeals to the Court of Queen’s Bench only from final decisions made by the PSAT, and not from interlocutory decisions ( Patel v Saskatchewan Health Authority (10 October 2019) Regina, QBG 953/2019 (Sask QB) [ October 10 Decision ]). [ 5 ] On November 7, 2019, the same Chambers judge also dismissed Dr. Patel’s application for judicial review ( Patel v Saskatchewan Health Authority , 2019 SKQB 291 [ November 7 Decision ]). In this decision, the Chambers judge held that Dr.

Patel’s application for judicial review was premature because the proceeding before the PSAT provided an adequate alternative remedy and there were no other exceptional circumstances that would make judicial review appropriate at an interim stage. [ 6 ] Dr. Patel appeals against both of these decisions. He says there was a reasonable apprehension that the Chambers judge was biased and, as such, erred by failing to recuse himself prior to hearing the application that led to the October 10 Decision . He also says the Chambers judge erred in his

interpretation of s. 15 of the PSA Regulations . With respect to the November 7 Decision , Dr. Patel alleges that the Chambers judge erred by hearing and determining that matter before hearing an application for recusal.

He also says the Chambers judge made substantive errors by finding that the application for judicial review was premature, by finding that the proceedings before the PSAT were an adequate alternative remedy, and by finding that no exceptional circumstances existed. [ 7 ] SHA contends that subsequent events have rendered the appeals in CACV3517 and CACV3527 moot because, on December 17, 2020, the Panel that had been hearing Dr.

Patel’s matters before the PSAT recused itself on the basis that a reasonable apprehension of bias had been established and, under its written reasons for recusal dated December 22, 2020, it ordered that a rehearing take place before a new panel. [ 8 ] Dr. Patel also applies to introduce fresh evidence on these appeals, in the form of three affidavits, sworn July 9, 2020, January 25, 2021 and March 11, 2021.

He contends this fresh evidence demonstrates, among other things, that the PSAT is not an adequate alternative remedy and that the exceptional circumstances present in his case oblige this Court to overturn the decisions of the Chambers judge and to grant Dr. Patel broad, sweeping relief. [ 9 ] For the reasons that follow, we deny Dr. Patel’s applications to introduce fresh evidence and dismiss the appeals in CACV3517 and CACV3527. B.

CACV3679 [ 10 ] The Chambers judge who rendered the October 10 Decision and the November 7 Decision had also been appointed, under Rule 4-4 of The Queen’s Bench Rules, as the case management judge overseeing Dr. Patel’s various matters in the Court of Queen’s Bench. On July 22, 2020, the Chambers judge granted Dr. Patel’s application for recusal. He determined that, even though Dr.

Patel had not established a reasonable apprehension of bias such that the judge was legally required to disqualify himself, recusal was appropriate in the circumstances, out of “an abundance of caution” ( Patel v Saskatchewan Health Authority , 2020 SKQB 194 at para 110 [ QB Recusal Decision ]). [ 11 ] Despite granting Dr. Patel’s application for recusal, the Chambers judge went on to award $10,000 in costs; $5,000.00 against Dr. Patel and $5,000.00 against Dr. Patel’s counsel, E.F. Anthony Merchant, Q.C. [ Costs Order ]. [ 12 ] Dr. Patel and Mr.

Merchant appeal against the Costs Order and no other aspect of the QB Recusal Decision . They contend that, once the Chambers judge had determined that it was appropriate to recuse himself, he lost jurisdiction to make the Costs Order . They also contend that the Chambers judge erred in principle by granting enhanced costs ex mero motu , and by making an order for costs against a solicitor without giving him notice or an opportunity to be heard, as required by Rule 11-24(3) of The Queen’s Bench Rules. [ 13 ] For the reasons that follow, we allow Mr. Merchant’s appeal but dismiss Dr. Patel’s appeal in CACV3679.

C. CACV3751 and CACV3752 [14] On October 9, 2020, prior to the Panel’s recusal, it had issued a summons to C.L., one of Dr. Patel’s former patients. Thesummons directed C.L. to attend before the Panel and to disclose certain documents to Dr. Patel relevant to matters at issue in the PSATproceedings. [15] C.L. had also commenced a civil action against Dr. Patel for medical malpractice. The documents Dr. Patel sought to compelC.L. to produce before the PSAT were documents that C.L. had disclosed to him in the civil action and, as such, were subject to theimplied undertaking rule.

C.L. then applied to the Court of Queen’s Bench to quash the PSAT summons as it related to the documents. Healso requested that the Panel stay the operation of the summons until his application in the Court of Queen’s Bench could be heard. [16] Dr. Patel also filed an originating application with the Court of Queen’s Bench, seeking an order enforcing the PSAT summonsagainst C.L. That application was heard on November 19, 2020.

The Chambers judge who heard it granted SHA standing to appear andmake submissions (Patel v The Practitioners Staff Appeals Tribunal and C.L. (19 November, 2020) Regina, QBG 1792/2020 (Sask QB)[Standing Decision]). The Chambers judge ultimately dismissed Dr. Patel’s originating application because the summons had been stayedby the PSAT pending C.L.’s application to quash it and, in any event, Dr. Patel had no standing under the governing legislation to enforcethe summons. She also ordered Dr.

Patel to pay costs of $5,000.00 to C.L., finding that the application had no merit and was “utterlyunnecessary, resulting in unwarranted expense to all the parties” (Patel v The Practitioners Staff Appeals Tribunal and C.L (30 November,2020) Regina, QBG 1792/2020 (Sask QB) [Summons Decision]). [17] Dr. Patel has appealed against both the Standing Decision and the Summons Decision. SHA applies to quash the appeals.

Itcontends that, in light of the Panel’s recusal and direction, all subpoenas it had issued “no longer have any force and effect” and that Dr.Patel’s appeals from the Standing Decision and the Summons Decision are moot. SHA also says the Standing Decision was interlocutoryin nature and, since Dr. Patel did not apply for leave to appeal, his appeal discloses no right of appeal. [18] For reasons that follow, we conclude that Dr. Patel’s appeals in CACV3751 and CACV3752 must be quashed. III. FACTUAL BACKGROUND A. The original suspension, the BPHC proceedings and Dr.

Patel’s firstapplication for judicial review [19] On June 11, 2016, Dr. George Carson, the Senior Medical Officer [Medical Officer] of what was then the RQRHA, imposed animmediate suspension of Dr. Patel’s surgical privileges due to quality of care and patient safety concerns. The suspension was imposedunder the authority of s. 86 of The Regina Qu’Appelle Regional Health Authority Practitioner Staff Bylaws [Bylaws]. [20] Under s. 87 of the Bylaws, the RQRHA Board [Board] was required to review the suspension. On July 7, 2016, after havingconducted its review, the Board confirmed Dr.

Patel’s suspension and referred the matter to a discipline committee for a hearing. Oneweek later, Dr. Patel filed a notice of appeal from the Board’s decision with the PSAT. A hearing date was set but that hearing wasultimately adjourned sine die, at Dr. Patel’s request. [21] Instead of advancing his appeal before the PSAT, Dr.

Patel chose to proceed with the hearing before the five-person disciplinecommittee that was constituted pursuant to s. 76 of the Bylaws, and it commenced hearings on November 24, 2016. [22] In July of 2017, after 24 days of hearings before the Discipline Committee, but prior to the conclusion of those proceedings, Dr.Patel commenced an action in the Court of Queen’s Bench by way of originating application. He sought, among other things, an orderquashing the Medical Officer’s decision to suspend him, an order quashing the Board’s decision to uphold his suspension and an orderrestoring his hospital privileges.

On December 18, 2017, Pritchard J., dismissed that application as premature (Patel v Carson, 2017SKQB 377 [2017 Chambers Decision]). Justice Pritchard determined that the comprehensive regulatory framework in place for dealingwith the type of dispute in issue was an adequate alternative remedy and there were no other extraordinary circumstances that madejudicial review appropriate. [23] Dr. Patel appealed the 2017 Chambers Decision to this Court.

This Court dismissed the appeal, holding that Pritchard J. had noterred by determining that the regulatory framework in place provided an adequate alternative remedy such that judicial review was notappropriate until that process had run its course (Patel v Carson, 2018 SKCA 98 [Patel 2018 CA]). Dr. Patel applied for leave to appeal tothe Supreme Court of Canada. That application was also dismissed (Patel v Carson, (SCC)). [24] While Dr. Patel’s appeal from the 2017 Chambers Decision was pending, the proceedings before the Discipline Committeecontinued to run their course.

As per its mandate, the Discipline Committee made a recommendation to the Board Practitioner HearingCommittee [BPHC] of SHA. The majority of the Discipline Committee recommended that the suspension of Dr. Patel’s surgicalprivileges continue, subject to a proviso that he be permitted to reapply for privileges after completing a period of supervised training. Thedissenting members of the Discipline Committee recommended that Dr. Patel’s suspension be lifted. [25] On May 25, 2018, the BPHC convened a meeting to review the Discipline Committee’s recommendation. Dr.

Patel attendedthe meeting, with legal counsel, and made submissions. On June 15, 2018, the BPHC rendered a written decision in which it accepted therecommendations made by the majority of the Discipline Committee. B. The current PSAT proceedings [26] On July 7, 2018, Dr. Patel filed a new notice of appeal with the PSAT, appealing from the BPHC’s June 15, 2018 decision.

Pursuant to the provisions of the PSA Regulations , the three-person Panel was appointed to hear Dr. Patel’s appeal. The appeal hearing before the PSAT began on September 18, 2018. [ 27 ] On January 3, 2019, the parties were advised, by the Chairperson of the Panel, that one of its members had to retire from the Panel for personal reasons. The Chairperson determined that the Panel could continue to hear the matter with the two remaining members. On March 12, 2019, the two-person Panel began hearing evidence on Dr.

Patel’s 2018 appeal and declared his 2016 appeal from the Board decision, which had been adjourned sine die , moot. C. Dr. Patel’s applications to the Court of Queen’s Bench in relation to the current PSAT proceedings [ 28 ] During the course of the hearing of the 2018 appeal before the PSAT Panel, Dr. Patel engaged several lawyers for different purposes and at different stages of the proceedings. He conducted some of the proceedings, including cross-examining witnesses and preparing and filing applications, himself.

His lawyers, who generally advised the Panel that they were appearing on a “limited retainer” basis, conducted other portions of the proceedings and drafted and filed other applications. [ 29 ] On April 11, 2019, one of Dr. Patel’s lawyers filed an originating application and a notice of appeal with the Court of Queen’s Bench. [ 30 ] In the originating application, Dr. Patel sought judicial review of the proceedings before the PSAT. He alleged that the Panel hearing his appeal had conducted itself in a way that denied him procedural fairness by, inter alia, (

i) refusing to hear certain applications he wished to make regarding disclosure, (ii) refusing to make decisions (or making improper decisions) regarding disclosure, (iii) refusing to allow him to personally cross-examine SHA’s witnesses, (iv) refusing to allow his limited-retainer counsel to cross examine SHA’s witnesses, (

v) refusing to provide reasons for decisions, (vi) summarily dismissing his applications without hearing full argument, (vii) refusing adjournments that he required to allow counsel to prepare for examination and cross-examination of witnesses, and (viii) allowing SHA to bring “new charges” against him. [ 31 ] By way of remedy, the originating application sought orders (

i) quashing the BPHC’s decision suspending his privileges, (ii) striking the Panel and quashing all its decisions, and (iii) staying the proceedings before the PSAT. [ 32 ] In his other application to the Court of Queen’s Bench, Dr. Patel indicated that he was appealing from “the decision of the [PSAT] dated January 3, January 14 and March 1, March 12, and March 13, 2019”. He alleged that the Panel erred by deciding it was still properly constituted with only two members and alleged that its various decisions contained the same errors as were set out in the originating application. [ 33 ] Dr.

Patel also filed a request for case management under Rule 4-5 of The Queen’s Bench Rules. That request was granted and, on May 10, 2019, the Chambers judge who would eventually render the October 10 Decision, the November 7 Decision and the QB Recusal Decision was appointed as the case management judge. [ 34 ] On May 14, 2019, SHA filed applications with the Court of Queen’s Bench, seeking to dismiss Dr.

Patel’s judicial review application as premature and seeking to dismiss his notice of appeal as being without a jurisdictional basis. [ 35 ] Notwithstanding the parties’ various applications to the Court of Queen’s Bench, the proceedings before the PSAT continued. Both Dr. Patel and SHA made numerous applications and sought interlocutory rulings from the Panel on a wide range of issues including the parties’ respective disclosure obligations, the scope of the inquiry before the PSAT, and whether the Panel continued to be properly constituted to hear the matter with only two members. [ 36 ] Dr.

Patel also took issue with the conduct of SHA’s counsel, Reginald Watson, Q.C., before the PSAT and sought an order that the Panel remove Mr. Watson from that role. Dr. Patel alleges that Mr. Watson conducted the PSAT proceedings in bad faith and contrary to the obligations that the law imposes upon prosecutors, to the extent that it has rendered those proceedings an abuse of process. This allegation is based, in part, on the fact that Dr. Patel’s treatment of C.L. was implicated in the disciplinary proceedings. Mr.

Watson continued to represent SHA before the PSAT even though he had also represented C.L. when C.L. commenced his civil action against Dr. Patel. Mr. Watson no longer represents C.L. in that action. D. The July 16 Fiat [ 37 ] On July 3, 2019, Dr. Patel filed an application in the Court of Queen’s Bench, seeking that the Chambers judge recuse himself from hearing Dr. Patel’s application for judicial review and also recuse himself as case management judge for Dr. Patel’s civil action against the Medical Officer. Dr.

Patel alleged that there was a reasonable apprehension of bias because, prior to his appointment to the Court, the Chambers judge had been a partner in the same law firm as Mr. Watson. On July 16, 2019, the Chambers judge dismissed this application ( Patel v Saskatchewan Health Authority (16 July 2019) Regina, QBG 1385/2018 and QBG 953/2019 (Sask QB) [ July 16 Fiat ]), stating:

[12] I am satisfied that the present applications to recuse myself should be dismissed. There is no proper rationale presented for me to recuse myself in respect of any of the applications presently assigned to and before me. I cannot consider a recusal application said to be justified in an application that will be made in the future. [13] The basis on which Dr. Patel asks that I recuse myself are his concerns that I may not be objective in respect of an application (the removal of Mr. Watson as counsel) which is not yet before the court. That application is appropriately dismissed outright.

The court does not adjudicate in respect of anticipated applications. [ 38 ] At the same time all of this was taking place, the proceedings before the PSAT pressed on, with the parties continuing to make applications and the Panel continuing to make rulings. This led to another flurry of applications in the Court of Queen’s Bench from Dr. Patel. Between August 2, 2019, and August 15, 2019, Dr. Patel filed five more applications seeking various forms of relief in the nature of judicial review of the proceedings before the PSAT. E.

The August 16 Fiat [ 39 ] This spate of applications led the Chambers judge to convene the parties, by way of a conference call, to discuss matters of scheduling. Some of the lawyers representing Dr. Patel were present for that call. Kevin Mellor, the lawyer who had filed the five most recent applications, was not. During the course of the conference call, the Chambers judge expressed some frustration with Mr. Mellor’s absence. He initially said he was going to order that Mr. Mellor produce his diary, but ultimately relented on that point.

Dates were set for the hearing of various applications (October 9, 10 and 11, 2019) and deadlines were imposed for the filing of material. The Chambers judge, with the agreement of all parties, also directed that they file written submissions outlining their respective positions on the issues that needed to be addressed and the sequence in which the applications should be heard ( Patel v Saskatchewan Health Authority (16 August 2019) Regina, QBG 953/2019 (Sask QB) [ August 16 Fiat ]). F. The September 25 Fiat [ 40 ] Between September 10 and 16, 2019, Dr.

Patel’s team of lawyers filed several more applications seeking various remedies, all of which were in the nature of judicial review of the proceedings before the PSAT.

This, in combination with the direction given in the August 16 Fiat , led the Chambers judge to issue another fiat on September 25, 2019, in which he considered the parties’ submissions regarding the legal issues that would need to be resolved and the order in which the applications before him should be argued and decided ( Patel v Saskatchewan Health Authority (25 September 2019) Regina, QBG 1385/2018 and QBG 953/2019 (Sask QB) [ September 25 Fiat ]) . [ 41 ] In the September 25 Fiat , the Chambers judge noted that, at the time of his July 16 Fiat , there had been four applications before him: Dr.

Patel’s originating application and notice of appeal from April 11, 2018, and SHA’s corresponding applications to dismiss those applications. He also observed that, since the July 16 Fiat , Dr. Patel had filed eight additional applications and a substantial amount of other material: [3] Since my fiat of July 16, 2019, Dr. Patel has filed eight additional applications in this action QBG 953 of 2019, as follows: (

a) an amended originating application dated August 7, 2019, and filed that same day in which he amends his Judicial Review Application originally filed April 11, 2019, adding additional grounds of relief, including asking that the court remove Reginald Watson, Q.C., as the SHA prosecutor in the hearing before the PSAT; (

b) a second application filed August 7, 2019 in which a Dr. Patel seeks an order disbanding the PSAT, quashing all rulings from the date the vice chair retired from the panel, and an order that his surgical privileges be reinstated or, in the alternative, that a new PSAT be constituted to hear his appeal; (

c) a third application filed August 7, 2019, asking the court to remove Reginald Watson as prosecuting counsel in respect of Dr. Patel's appeal before the PSAT; (

d) a fourth application filed August 7, 2019, seeking an order that any PSAT constituted to hear Dr. Patel’s appeal shall only hear and consider those charges that Dr. Patel was not successful in defending before the Discipline Committee; (

e) An application filed August 15, 2019, requesting various declarations with respect to the

interpretation of The Practitioner Staff Appeals Regulations , RRS c R-82 Reg 5 [ Regulations ], challenging the constitutionality of such regulations and asking for the immediate reinstatement of Dr. Patel; (

f) an application filed September 16, 2019 (filed by legal counsel Joseph Groia, Q.C.), seeking the removal of Reginald Watson as the SHA prosecutor in Dr. Patel’s appeal before the PSAT on the grounds that his role as prosecutor raises a reasonable apprehension of bias that make him unfit to continue prosecuting the case before the PSAT; (

g) a second amended originating application filed September 16, 2019 [Second Amended Originating Application] (being the second amendment to Dr. Patel's original judicial review application filed April 11, 2019), in which, in addition to the relief previously claimed, he asks that the court remove Reginald Watson as the SHA prosecutor in the hearing before the PSAT with immediate effect and that I be removed as the judge to hear the Judicial Review Application. This Second Amended Originating Application also asked that the court remove Leslie Sullivan, the chairperson for the PSAT, from hearing the appeal; (

h) a notice of application filed September 16, 2019, repeating requests for relief previously filed including requesting an order that I recuse myself as the presiding judge in respect of Dr. Patel’s Judicial Review Application and that Leslie Sullivan be removed as the chairperson. [4] In relation to the above noted eight applications (seven filed by Kevin Mellor, one filed by Joseph Groia), Mr. Mellor has filed six

affidavits of Dr. Patel comprising over 100 pages of affidavits and more than 800 pages of exhibits. In a designated “2nd Affidavit of Satyam Patel sworn September 16, 2019”, he purports to provide an inventory of issues that I will have to adjudicate unless I recuse myself. To detail this inventory of purported issues, I attach as Appendix A extracts from paragraphs 25, 26 ,30, 37 40, 43 to 47, 49 57, 58 and 59 of the “2nd affidavit of Satyam Patel sworn September 16, 2019”. Presumably it follows that if I recuse myself, Dr. Patel will be asking some other judge to hear and decide all those issues [ 42 ] Dr.

Patel took the position that, because the focal point of his applications was the overarching allegation of prosecutorial misconduct on the part of Mr. Watson, and because the Chambers judge had previously practiced law as a partner in the same firm as Mr. Watson, the question of recusal had to be addressed before any of the other issues raised by the applications could be determined on their merits. [ 43 ] The Chambers judge disagreed. He determined that the appropriate course of action would be to first hear and determine SHA’s application to strike Dr.

Patel’s notice of appeal and its application to dismiss Dr. Patel’s application for judicial review as premature. In that regard, he reasoned that SHA’s applications were “threshold or prerequisite” applications (at para 17) because, if they were successful, there would be no applications remaining that would require him to pass judgment on the actions of Mr.

Watson and, accordingly, no basis for an argument regarding bias. [ 44 ] With respect to the applications for judicial review, the Chambers judge noted that there were several threshold issues related to the question of whether judicial review was premature that could be properly determined without engaging anything related to Dr. Patel’s contention that Mr. Watson should be removed as counsel for SHA (at para 26). He then went on to say: [27] In my opinion there is nothing surrounding these issues which would involve me in judging the actions of my former partner Reginald Watson.

These are essentially legal issues which do not engage in adjudicating upon Reginald Watson's actions. It is significant to note that Dr. Patel made an application before the PSAT to have Reginald Watson removed as prosecutor and that this application was dismissed. Thus, in this respect, the Judicial Review Application is an attempt to review an interlocutory decision of the tribunal, which is generally prohibited. [ 45 ] The Chambers judge also concluded that the application to dismiss Dr.

Patel’s notice of appeal raised a pure legal question about whether there was a statutory right of appeal from decisions of the PSAT other than final decisions. Such a question, he observed, also did not engage any issue that would call upon him to judge the actions of Mr. Watson (para 30). [ 46 ] Accordingly, the Chambers judge determined that it would be appropriate to hear SHA’s two applications first. [ 47 ] Dr. Patel sought leave to appeal from the September 25 Fiat.

A judge of this Court denied his application for leave, issuing written reasons on October 31, 2019 ( Patel v Saskatchewan Health Authority (31 October 2019), CACV3489 (Sask CA) [ 2019 Leave Decision ] ). In the 2019 Leave Decision , Schwann J.A. observed that, in the September 25 Fiat , the Chambers judge had “simply established the order or sequence in which the various applications would be heard, and nothing more” (at para 23). As such, she concluded that the Chambers judge had not made a determination about whether he should recuse himself or remove Mr.

Watson as counsel for SHA and, as such “no decision was made of the nature reflected in Dr. Patel’s draft notice of appeal” (at paras 23 and 27). G. The October 10 Decision [ 48 ] As directed under the September 25 Fiat , the first application heard was SHA’s application to strike Dr. Patel’s notice of appeal to the Court of Queen’s Bench. The parties made their arguments on October 9, 2019 and, the following day, the Chambers judge issued the October 10 Decision granting SHA’s application and striking Dr. Patel’s notice of appeal.

The Chambers judge began the October 10 Decision by observing that appeals “exist only by the statutory creation of a right of appeal”. He then framed the question for determination as being whether s. 15 of the PSA Regulations — which permits an appeal from a “decision of the [PSAT]” to the Court of Queen’s Bench “on a question of law or jurisdiction” — limits the right of appeal to final decisions, or whether it permits appeals from interlocutory decisions as well. [ 49 ] The Chambers judge determined that the PSA Regulations created a right to appeal to the Court of Queen’s Bench only from final decisions.

In that respect, he wrote: I am of the opinion that … that

interpretation question, is clearly answered by s. 14.1 of the Practitioner Staff Appeals Regulations which reads: “within 30 days after completion of the hearing, the tribunal shall make a decision”. After completion of the hearing must mean the entirety of the hearing, not interlocutory applications. … It is my opinion that the legislative intent was that the decisions of Practitioner Staff Appeal Tribunals can only be appealed to the Court… from the final decision of the tribunal rendered at the completion of the hearing and does not extend to interlocutory or interim rulings made during the course of a hear i ng . This

interpretation is consistent with the well - established practice within the courts and, of course, there is also a principle of statutory

interpretation that Legislatures and , indeed , Lieutenant Governors in Council a r e intended to be cognizant of the entire body of legislation that they have out there . It is well​established w i thin the courts that interim or interlocutory rulings are only appealable with leave of the appeal court and that leave provision exists only because the statutes, or the Rules, which are also Regulat i ons, provide such interlocutory rulings may be appealed with leave of the appeal court . That i s not applicable here . There is no such provision permitting appeals of interlocutory decisions with the leave.

The general practice is that interlocutory rulings are not appealable. It is my opinion and decision that the proper

interpretation of ss. 14 and 15 of the Practitioner Staff Appeal Regulations is crystal clear. Only final decisions after completion of the hearing by the tribunal may be appealed to this Court. … [ 50 ] The Chambers judge, accordingly, struck Dr. Patel’s notice of appeal. H. The November 7 Decision

[ 51 ] The next application heard was SHA’s application to dismiss Dr. Patel’s application for judicial review as premature. After framing the issues, the Chambers judge reviewed the statutory and regulatory framework that governs disciplinary proceedings for physicians and appeals before the PSAT, including the right to appeal those decisions to the Court of Queen’s Bench. [ 52 ] He then canvassed the legal principles that govern the determination of whether an application for judicial review should be entertained or declined.

Citing the Supreme Court of Canada’s decision in Strickland v Canada (Attorney General) , 2015 SCC 37 , [2015] 2 SCR 713 [ Strickland ] , and this Court’s decisions in Patel 2018 CA and Saskatoon (City) v Wal-Mart Canada Corp. , 2019 SKCA 3 , [2019] 3 WWR 284 [ Wal-Mart 2019 ] , he observed that courts may properly decline to undertake judicial review of the decisions of an administrative tribunal where the statutory or regulatory framework provides an adequate alternative remedy that has not yet been fully pursued, or judicial review would be premature because the decision from which review is sought is interlocutory or interim in nature and does not finally determine the rights of the parties, and there are no other exceptional circumstances that make judicial review appropriate. [ 53 ] The Chambers judge then reviewed the parties’ arguments and concluded that, notwithstanding Dr.

Patel’s concern about the potential jurisdictional question raised by the Panel’s decision to continue with only two members and the other arguments relating to procedural fairness in the PSAT’s various interlocutory rulings, the statutory and regulatory framework that governed the Board, Discipline Committee, BPHC and PSAT provided an adequate alternative remedy. In that respect, he said: [63] Having considered the Act and Regulations and the predecessor Act and Regulations in effect at the time Dr.

Patel was initially suspended, I am satisfied that the intention of the Legislature was to create two levels of appeals from the internal administrative decision to suspend a physician’s hospital privileges.

It needs to be understood that the internal administrative decision to suspend itself had a number of steps, being: a. the initial decision of the Chief Medical Officer to impose an interim suspension; b. the Board’s review of that interim suspension and continuation of it pending a hearing it directed by a Discipline Committee; c. the hearing before the Hearing Committee and its decision and recommendation to the Board; and d. the Board’s decision to suspend following receipt and consideration of the Hearing Committee’s decision and recommendations. [64] The two levels of appeal created by the Act and Regulations are appeals from the Board’s decision made at the end of the above process.

The first right of appeal is created by s. 6 - 4 of the Act (previously s. 45 of The Regional Health Services Act , SS 2002, c R- 8.2 (rep)) to a tribunal established by the Regulations , being the PSAT.

Section 6 - 4(2) expressly provides that this tribunal may determine its own procedure for the hearing of an appeal. [65]

Section 3 of the Regulations establishes a tribunal panel of seven members selected by the Minister, one nominee from each of the Colleges of Physicians and Surgeons of Saskatchewan, the College of Dental Surgeons of Saskatchewan, the Saskatchewan Medical Association, The Chiropractors’ Association of Saskatchewan and two nominees from the Law Society of Saskatchewan. The Minister designates a chairperson and vice-chairperson of the tribunal and s. 7 of the Regulations stipulates that appeals are to be heard by a panel of three or more members selected by the chairperson.

The Regulations also provide that an appeal shall be conducted as a hearing de novo, the appellant and respondent have a right to be represented by counsel, the members of the tribunal have the powers conferred on a commission by The Public Inquiries Act, 2013, SS 2013, c P-38.01 , to hear the testimony of witnesses under oath or affirmation, may accept any evidence it considers appropriate and is not bound by the rules of law concerning evidence. [66] The Legislature has created a detailed statutory framework to decide physician privilege issues within which there is a right of appeal to a tribunal (PSAT) and then an additional right of appeal to this court on issues of law or jurisdiction.

This statutory framework must be given its appropriate consideration when I decide whether or not: a. there is an adequate alternative remedy to judicial review; and/or b. exceptional circumstances exist which permit a judicial review notwithstanding such rights of appeal. [67] In compliance with the direction from the Court of Appeal in Wal-Mart , I must be appropriately respectful of the statutory framework that applies here and consider the purposes and policy considerations underpinning this statutory framework of the available appeals related to hospital privileges. The intent of the Legislature is clear.

They have created on appeal to a tribunal that has medical expertise and, when a lawyer is appointed to the hearing panel, it also has legal expertise. In this matter, Leslie Sullivan, a lawyer, is chairing the panel.

Given the expertise of the tribunal specified by the Legislature, coupled with the right of appeal to this court on questions of law or jurisdiction, I am of the opinion that it was the Legislature’s intention to exclude supervisory jurisdiction by this court of the proceedings before the PSAT while such proceedings were ongoing. [68] By providing a right to appeal decisions of the PSAT, rendered after completion of the hearing, on questions of law or jurisdiction the Legislature has made it clear that it did not intend for this court to exercise supervisory jurisdiction during the course of a hearing absent exceptional circumstances. [69] Having weighed the relevant considerations summarized by me in para. 49(

c) above with appropriate regard to the statutory framework and the intention of the Legislature, I am satisfied that there is an adequate alternative remedy. That adequate alternative remedy includes both completing the hearing before the PSAT and, if necessary, pursuing an appeal to this court on completion of the PSAT hearing and its decision. If the concerns of Dr. Patel relating to jurisdictional errors and denial of natural justice in the various iterations advanced, those errors can be corrected on appeal to this court. [ 54 ] The Chambers judge then turned to the question of prematurity.

Guided by this Court’s decision in Wal-Mart Canada Corp. v Saskatchewan Labour Relations Board , 2010 SKCA 89 at para 20 , 359 Sask R 131 [ Wal-Mart 2010 ], he considered the stage of the proceedings before the PSAT and the nature of the rulings upon which Dr. Patel sought the intervention of the Court, and said: [71] I find that Dr. Patel’s application for judicial review is premature. In the course of such proceedings interlocutory rulings

necessarily must be made. Interlocutory rulings do not presage the final decision made on the merits. The various concerns of Dr. Patel may well turn out to be moot when the PSAT renders its decision. If not, Dr. Patel has his right of appeal to this court. [ 55 ] Finally, the Chambers judge considered the question of exceptional circumstances. Relying on Wal-Mart 2019 and Patel 2018 CA, he noted that the threshold for finding exceptional circumstances is high and that very few circumstances qualify as exceptional (at para 72).

He also observed that questions about procedural fairness, natural justice and jurisdictional error generally do not meet the threshold. In this case, he considered the circumstances that Dr. Patel had put forward as being exceptional and found that none of them met the standard to warrant judicial review. Accordingly, he dismissed Dr. Patel’s application: [74] I do not find the delay, cost and career impact considerations present here to constitute exceptional circumstances that justify a pre-emptive recourse to judicial review. [75] I find that the totality of the issues and concerns that Dr.

Patel advanced in support of his application for judicial review fail to demonstrate exceptional circumstances that would be required to displace the principles that judicial review is not available where there is an adequate alternative remedy. I have, for the reasons outlined above, found that Dr. Patel has adequate alternative remedies in both the ongoing PSAT appeal and his subsequent right to appeal the decision of the PSAT. [76] The proper and efficient way for Dr. Patel to contest the suspension of his privileges is the process mandated by the Legislature in the Act and Regulations .

The court should not be involved in the process unless and until the process has distilled itself down to questions of law or jurisdiction brought before this court by the appeal permitted by s. 15 of the Regulations . [ 56 ] As noted, Dr. Patel has appealed to this Court against the October 10 Decision and the November 7 Decision. I. The QB Recusal Decision [ 57 ] As the various proceedings in which Dr. Patel was involved unfolded, his application to have the Chambers judge recuse himself from hearing and determining any of Dr. Patel’s matters because of reasonable apprehension of bias remained outstanding.

The bases upon which Dr. Patel alleged that there was a reasonable apprehension of bias were as follows: (

i) prior to his appointment to the bench, the Chambers judge had been a partner in the same firm as Mr. Watson, counsel for SHA; (ii) prior to his appointment to the bench, the Chambers judge had also acted as counsel for one or more of the health authorities or hospital boards that were eventually subsumed in SHA; (iii) despite being resident in Saskatoon, the Chambers judge was appointed as the case management judge in relation to Dr. Patel’s matters, which originated in Regina; and (iv) the Chambers judge’s conduct relating to Mr.

Mellor’s non-attendance at a prior telephone case conference had demonstrated bias. [ 58 ] The Chambers judge heard Dr. Patel’s recusal application and rendered the QB Recusal Decision on July 22, 2020. Despite finding that none of the grounds alleged by Dr. Patel, either individually or collectively, met the test for disqualification, the Chambers judge decided that he should recuse himself “on an abundance of caution and not a finding of … reasonable apprehension of bias” ( QB Recusal Decision at paras 109–110). The Chambers judge also held that the affidavit Dr.

Patel had filed in support of the application was largely improper and, as a result, he ordered $10,000 in costs, $5,000 against Dr. Patel and $5,000 against his counsel, Mr. Merchant, personally . J. The Initial Hearing of CACV3517 and CACV3527 [ 59 ] The hearing of Dr. Patel’s appeals from the October 10 Decision and the November 7 Decision were initially scheduled for October 13, 2020. On that date, the parties appeared in this Court and made full submissions before a panel comprised of Caldwell, Leurer and Kalmakoff JJ.A. The decision was reserved. K.

The Standing Decision and the Summons Decision [ 60 ] On October 9, 2020, just before the first hearing of the appeals in CACV3517 and CACV3527, the Panel issued a summons to C.L., directing him to attend before the Panel and to disclose certain documents to Dr. Patel in relation to the PSAT proceedings. C.L. applied to the Court of Queen’s Bench to quash the summons and to the Panel for a stay of the summons pending the determination of the application to quash. The Panel granted the stay. [ 61 ] Dr.

Patel responded with an originating application in the Court of Queen’s Bench, seeking that C.L. “immediately honour” the summons and deliver all of the records it directed him to deliver to Dr. Patel. [ 62 ] On the day that Dr. Patel’s application was to be heard, SHA applied for standing to participate in the hearing. The Chambers judge before whom the parties appeared granted standing to SHA ( Standing Decision ) and went on to dismiss Dr. Patel’s application for enforcement of the summons ( Summons Decision ). [ 63 ] In the Summons Decision, the Chambers judge explained that there were three reasons why Dr.

Patel’s application could not succeed. First, she held that Dr. Patel had no standing to bring an application to enforce the summons. This, she reasoned, was because the authority for PSAT to issue the summons is rooted in The Public Inquiries Act, 2013 , SS 2013, c. P-38.01 , and s. 15 of that Act “does not contemplate that a party, other than the commission that issued the subpoena, can apply to a court to enforce the subpoena” (at para 9).

Second, she observed that the Panel had stayed the summons pending C.L.’s application to quash it and noted that it was “trite law that … [a summons] … is not subject to enforcement by this Court while it remains stayed” (at para 11). Third, she noted that Dr. Patel’s application amounted to a request for judicial review of an interim decision of the Panel and that it was “not an appropriate case to exercise the court’s discretion to perform a review” (at para 15). [ 64 ] Having dismissed Dr. Patel’s application, the Chambers judge considered the question of costs. She found that Dr.

Patel’s application was “completely and obviously without merit”, “border[ed] on, and perhaps even infring[ed] into the area of frivolous and vexatious litigation”, and resulted in “unwarranted expense to all the parties” (at para 19). Accordingly, she ordered Dr. Patel to pay costs of $5,000 to C.L. L. PSAT Panel Recusal [ 65 ] While the decision in CACV3517 and CACV3527 was under reserve, the proceedings between Dr.

Patel and SHA continued before the Panel. [ 66 ] On October 15, 2020, during a scheduling conference call, counsel for SHA advised the Chairperson of the Panel that, because of concerns that the Chairperson may have had ex parte communications with Dr. Patel, SHA would be bringing an application for the Panel to recuse itself. [ 67 ] A formal application was filed on October 21, 2020.

In it, SHA alleged that, by filing civil actions and making regulatory complaints against various persons connected to the discipline proceedings against him, and by threatening to take similar actions against the members of the Panel, Dr. Patel had caused the members of Panel to conduct themselves in a manner that would lead a “reasonable and right-minded person to conclude that the Tribunal members have … a bias towards [him] in this proceeding.” [ 68 ] SHA’s formal application was heard by the Panel on December 17, 2020.

The Chairperson advised the parties, on that date, that the Panel had decided to recuse itself, and that written reasons would follow. [ 69 ] On December 22, 2020, the Panel issued its written reasons for recusing. It held that, when considered in the entire context of the proceedings, Dr. Patel’s threats to make complaints to the Law Society about the Chairperson and to institute civil proceedings against the members of the Panel had made recusal appropriate.

In that regard the Chairperson, who authored the reasons, wrote: We view the circumstances as having reached the point where an informed observer, viewing the matter, would have real and reasonable doubts about the ability of the decision-makers to make decisions only based on the evidence and the law, in the face of repeated threats to commence complaints or sue the decision-makers if the decision-makers do not decide in favour of one side. This perceived or actual extraneous influence on the mind of a decision-maker has led the Panel to the conclusion that it cannot, in good faith, proceed in the circumstances.

It is of fundamental importance that justice should not only be done but should undoubtedly be seen to be done. [ 70 ] The Panel directed that there be a rehearing of Dr. Patel’s PSAT matter in front of a different panel. Eight days later, on December 30, 2020, the Panel issued an addendum to the written reasons for recusal, noting that, by way of clarification, all subpoenas it had issued were no longer of any force or effect and that any subpoena requests for the rehearing would be “dealt with by the Chair of the rehearing Panel”. M.

The Application to Re-open the Hearing [ 71 ] Based on the Panel’s recusal, SHA applied to re-open the hearing of the appeals in CACV3517 and CACV3527, so that the issue of mootness could be raised. That application was granted by this Court on January 29, 2021. N. The Recusal of Leurer J.A. [ 72 ] On March 23, 2021, the date scheduled for the re-opened hearing of the appeals in CACV3517 and CACV3527, Dr. Patel requested that Leurer J.A. disqualify himself from continuing to sit as a member of the panel of this Court hearing the appeals.

The basis for the request was that, prior to his appointment to the bench, the law firm at which Leurer J.A. had been a partner had advised SHA on matters related to the disciplinary proceedings against Dr. Patel. Although Leurer J.A. was not aware of, and had no personal involvement in, any matters relating to Dr. Patel while he was still in practice as a lawyer, he determined that it was appropriate for him to recuse himself. [ 73 ] Accordingly, the hearing of Dr. Patel’s appeals was adjourned to May 7 and 10, 2021, and a new panel of this Court was constituted. IV. THE INDIVIDUAL APPEALS A.

CACV3517 and CACV3527 [ 74 ] SHA takes the position that Dr. Patel’s appeals from the October 10 Decision and the November 7 Decision are now moot. This, says SHA, is because these appeals deal only with questions pertaining to the Chambers judge’s handling of applications seeking appellate or judicial review of decisions made by the Panel and, since the Panel’s recusal rendered its prior decisions void ab initio , there is no longer a need to determine whether the Chambers judge erred in his treatment of applications to review those decisions. [ 75 ] Dr. Patel argues that the appeals are not moot.

He points to the fact that the adversarial context between the parties continues to exist and contends that, in light of the full history of the proceedings, it has become abundantly clear that the PSAT is not an adequate

remedy to deal with the dispute with SHA. He implores this Court to step in, overturn all of the decisions made in the Court of Queen’sBench and tribunals below, and provide the relief he says should have been granted at the outset of the proceedings, i.e., the quashing ofhis suspension and reinstatement of his surgical privileges. [76] Given the way in which these proceedings have come before us and bearing in mind the proper role of a Court of Appeal, it isappropriate to first consider whether Dr. Patel’s appeals from the October 10 Decision and the November 7 Decision are moot.

This isbecause, as we will explain, the jurisprudence supports the notion that moot appeals should only be determined in certain limitedcircumstances. [77] Dr. Patel’s applications to adduce fresh evidence are, accordingly, also properly considered through the lens of whether theappeals to which they relate are moot. 1. Mootness – the governing legal principles [78] “A legal proceeding is ‘moot’ once the issue or issues raised by the proceeding are resolved” (Cannon v Saskatchewan (Courtof Queen’s Bench), 2021 SKCA 77 at para 86 [Cannon]).

Where the Court’s decision will not have the effect of resolving somecontroversy that affects or may affect the rights of the parties, the matter may properly be described as moot.

This will be the case wheresubsequent or intervening events remove or end the live controversy to which the proceeding related (Borowski v Canada (AttorneyGeneral), (SCC), [1989] 1 SCR 342 at 353 [Borowski]; Prince Albert Right to Life Association v Prince Albert (City),2020 SKCA 96 at para 47, [2020] 10 WWR 603 [Right to Life]; Wilson Olive and Friends of the Aquifer v Keys (Rural Municipality),2020 SKCA 124 at para 7, 8 MPLR (6th) 8 [Friends of the Aquifer]; and Radiology Associates of Regina Medical PC Inc. v Sun CountryRegional Health Authority, 2016 SKCA 57 at para 15, [2016] 10 WWR 662). [79] Borowski is the leading Canadian authority on the doctrine of mootness.

It instructs that, where a party alleges that an appeal ismoot, a two-step analysis is required. The nature of this analysis was explained in Dearborn v Saskatchewan (Financial and ConsumerAffairs Authority), 2017 SKCA 63, where Richards C.J.S. wrote: [16] The consideration of an arguably moot appeal involves two steps. The first is to determine if the appeal is moot, i.e., to determineif it involves a live and concrete controversy between the parties. The second step is to determine whether, notwithstanding that the appealis moot, the court should nonetheless exercise its discretion to hear the case.

That exercise of discretion, according to Borowski, should beundertaken with reference to the underlying basis of the mootness doctrine itself: (

a) the presence of an ongoing adversarial context,perhaps because of the collateral consequences of the outcome of the appeal, (

b) the importance of conserving judicial resources, and (c)the need for a court to be sensitive to its proper law-making function, i.e., its role as an adjudicator of disputes affecting the rights ofparties. [80] As explained above, the first step of the mootness analysis focuses on whether deciding the appeal will have the effect ofresolving a live controversy.

In Right to Life, Ottenbreit J.A. observed that a live controversy may cease to exist in a number ofcircumstances, including: [54] … when the decision will or may no longer actually affect the rights of the parties; where the practical relief sought is no longeravailable because of alterations in the factual or legal matrix of the case; where the question before the court has ceased to exist or thesubstratum of the litigation has disappeared; where a decision on the merits would have no practical effect on the parties’ rights; andwhere the question the court is now being asked to resolve has been overtaken by post-decision events or a subsequent decision of adecision-maker. [81] The second step of the analysis requires consideration of the three factors that underlie the doctrine of mootness but, asRichards C.J.S. noted in Friends of the Aquifer, those factors: [17] … should not be examined in a rigid fashion.

As Sopinka J. indicated in Borowski at page 363, “[t]he principles…may not allsupport the same conclusion. The presence of one or two of the factors may be overborne by the absence of the third, and vice versa”. 2. The fresh evidence applications [82] Dr. Patel seeks to introduce fresh evidence on these appeals. The proposed fresh evidence includes three affidavits sworn byhim; the first on July 9, 2020, the second on January 25, 2021, and the third on March 11, 2021. These affidavits, collectively, refer tohundreds of additional documents and portions of the PSAT record and the appeal book. Dr.

Patel takes the position that the proposedevidence is relevant to the questions of reasonable apprehension of bias, whether the proceedings before the PSAT constitute – or, for thatmatter, have ever constituted - an adequate alternative remedy, and whether there are exceptional circumstances that make it appropriatefor this Court to bypass the traditional approach to judicial review.

He says that much of the proposed evidence came to light only afterthe decisions under appeal had been rendered and that which existed before those decisions had been rendered did not become relevantuntil subsequent events had occurred. [83] Applications to adduce fresh evidence in civil appeals are governed by Rule 59 of The Court of Appeal Rules and require anexercise of discretion on the part of the Court.

The principles that govern the exercise of that discretion depend on whether the evidenceexisted before the decision from which the appeal is taken or arose only thereafter (Maitland v Drozda (1983), (SKCA), 22 Sask R 1 (CA) [Maitland]; Turbo Resources Ltd. v Gibson, (SK CA), [1987] 60 Sask R 221; Cannon atpara 46). Where the evidence that a party seeks to introduce on appeal existed at the time the decision under appeal was made, this Courthas consistently employed the test set out in cases such as Maitland and R v Palmer, (SCC), [1980] 1 SCR 759 [Palmer].That test is as follows: (

a) the evidence will not be admitted if, by due diligence, it could have been adduced at trial; (

b) the evidence must be relevant in the sense that it bears upon a decisive, or potentially decisive, issue in the action;

(

c) the evidence must be credible in the sense that it is reasonably capable of belief; and (

d) it must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. [ 84 ] Where the evidence a party seeks to introduce on appeal came into existence after the decision under appeal was rendered, the test is slightly different, as observed in Cannon : [49] Evidence that arises after the hearing need not meet the Palmer test, but the Palmer factors are still relevant to the question of whether such evidence should be admitted ( C.H. v S.F. , 2021 SKCA 24 at para 18 [ C.H. ]).

The evidence must be admissible and relevant to an issue under appeal “in the sense that it bears upon a decisive, or potentially decisive, issue in the proceeding”; it must be credible; and if believed, it must reasonably have the potential, when taken with the other evidence adduced, to have affected the result ( C.H. at para 18 ). Further, as stated in S.B. at paragraph 8, “it must not violate the principle of public policy that favours finality to litigation”. [ 85 ] As we will explain, Dr.

Patel’s applications to adduce fresh evidence in this case must fail because the affidavits he seeks to tender fail to meet either of these tests. [ 86 ] With respect to the appeal from the October 10 Decision , the proposed evidence fails on both the second and fourth legs of the Maitland/ Palmer test. This is because the only live issue in that case is whether s. 15 of the PSA Regulations permits appeals to the Court of Queen’s Bench from interlocutory decisions of the PSAT. None of what Dr.

Patel proposes to introduce as evidence on this appeal has any bearing whatsoever on that question of law and, accordingly, is not properly admitted. [ 87 ] With respect to the appeal from the November 7 Decision , different parts of the material Dr. Patel seeks to admit fail to meet the standard for admission for a variety of different reasons. [ 88 ] As a starting point, underlying the legal test for the admission of fresh evidence on appeal is a requirement that the material a party seeks to introduce actually be evidence that would be admissible in the type of proceeding that led to the decision under appeal.

Much of what Dr. Patel seeks to have this Court receive as fresh evidence fails to meet this basic requirement. [ 89 ] Significant portions of his July 9, 2020, affidavit (for example, paragraphs 16, 20, 40, 42, 77, 78, 103, 104 and 124) are simply a recitation or repetition of his lawyer’s opinions or advice. Other portions are no more than argument or irrelevant, self-serving hearsay (e.g., paragraphs 21, 27, 28, 30, 35, 40, 47, 76, 77, 115–123, 128, and 130–132).

None of this is admissible as evidence, regardless of when it is tendered for admission. [ 90 ] Still other portions of this affidavit amount to nothing more than Dr. Patel attempting to summarize and direct this Court’s attention to parts of the record and material that were filed in the Court below (for example, paragraphs 13, 15, 18, 19, 22, 23, 24, 28, 31, 32, 36, 37, 38, 105 and 106). Summarizing the existing record and drawing the appellate Court’s attention to certain portions is the function of argument. It is not evidence. [ 91 ] Other parts of the July 9, 2020, affidavit and the material Dr.

Patel purports to attach to it refer to correspondence documenting various persons’

interpretations of what he refers to as the “5 year rule” (e.g., paragraphs 75–101, 112, 113, 115–123 and 125–127). Much of this also falls into the category of argument or inadmissible hearsay. But, more than that, it does not bear upon the questions of whether the PSAT affords an adequate alternative remedy or whether exceptional circumstances exist in such a way that it could reasonably be expected to have affected the result when considered in conjunction with the other evidence.

Accordingly, it fails to meet the test for admission as fresh evidence. [ 92 ] Finally, a significant portion of the July 9, 2020, affidavit also refers to correspondence or other material that was in existence at the time the application giving rise to the November 7 Decision was heard and, to the extent that it is evidence, it falls squarely into the category of what could have been admitted at that time with the exercise of due diligence. We do not agree with Dr. Patel’s argument that any of that material has taken on new significance since the decision was rendered.

It fails at the first leg of the Maitland/ Palmer test. [ 93 ] The material contained in Dr. Patel’s January 25, 2021, and March 11, 2021, affidavits suffers from the same defects. [ 94 ] A large portion of the January 25, 2021, affidavit is simply argument by Dr. Patel, none of which is properly admissible as evidence. Another large portion is comprised of excerpts from the record of proceedings before the PSAT, augmented by Dr. Patel’s

interpretation of, or commentary on that material. The record is already before us, so it is not necessary for us to receive it in this fashion, and Dr. Patel’s

interpretation and commentary is not properly admissible as evidence. The rest of the affidavit contains Dr. Patel’s account of matters that are simply not relevant to the issues at play in this appeal. To the extent that any of this affidavit is properly admissible, it fails to meet the requirement that it could reasonably be expected to have affected the result. As such, it cannot be admitted as evidence. [ 95 ] Dr.

Patel’s March 11, 2021, affidavit is also comprised almost entirely of argument, his commentary on portions of the record relating to the Panel’s recusal, external information that he has learned about the members of the Panel, events that have occurred since the Panel recused itself, and correspondence authored by his lawyers expressing concern about delays in the proceedings.

Again, much of this is not even evidence, legally speaking, and to the extent it is, it fails to meet any of the criteria of the Maitland/ Palmer test. [ 96 ] In the end, we find nothing in the proposed fresh evidence that meets the test for admission. Dr. Patel’s application, in that respect, must be dismissed. Given the volume and nature of material filed by Dr. Patel, it is appropriate to order that he pay costs to SHA in relation to this application. We fix those costs at $2,500.00. 3. Are the appeals moot? a. CACV3517 [ 97 ] In our view, Dr.

Patel’s appeal from the October 10 Decision is moot because subsequent events – namely, the recusal of the

Panel – removed the substratum of the legal issues in play on the appeal such that there is no longer a live controversy. [98] In the October 10 Decision, the Chambers judge granted SHA’s application to strike Dr. Patel’s appeal from variousinterlocutory rulings of the Panel. Among those were the Panel’s determination that it had jurisdiction, after one of its members hadresigned, to conduct the hearing with only two members, as well as rulings relating to disclosure, non-removal of SHA counsel, cross-examination of witnesses, in-hearing adjournments and other procedural matters. The Chambers judge found that Dr.

Patel had no right toappeal from any of those rulings because they were interlocutory in nature and he determined that s. 15 of the PSA Regulations permitsappeals to the Court of Queen’s Bench only from final decisions made by the PSAT. [99] In his notice of appeal in CACV3517, Dr. Patel contends that the Chambers judge erred by hearing and determining theapplication that led to the October 10 Decision before addressing the question of recusal. He also contends that the October 10 Decision isincorrect in law. He seeks two forms of relief: (

i) that the Chambers judge recuse himself from hearing Dr. Patel’s matters in the Court ofQueen’s Bench; and (ii) that his appeal to the Court of Queen’s Bench from the decisions of the Panel be reinstated. [100] As stated above, subsequent events have removed the substratum of the legal issues in play. On July 22, 2020, the Chambersjudge rendered the QB Recusal Decision, disqualifying himself from hearing any of the ongoing matters involving Dr.

Patel and SHA.That aspect of the appeal from the October 10 Decision need not be addressed. [101] More importantly, the Panel’s recusal has effectively voided all of the rulings that were the subject of Dr. Patel’s appeal to theCourt of Queen’s Bench. The Panel determined that it was required to recuse itself because a reasonable apprehension of bias had beenestablished. While Dr.

Patel questions both the veracity and the legal propriety of the Panel’s reasons for recusal, its decision to recuseitself is not subject to review in the context of this appeal (see: Ayers v Miller, 2019 SKCA 2 at para 15, 44 CPC (8th) 12). [102] A finding of reasonable apprehension of bias taints the entire proceeding and voids any ruling made by the decision-maker(Newfoundland Telephone Co. v Newfoundland (Board of Commissioners of Public Utilities), (SCC), [1992] 1 SCR 623at 645 [Newfoundland Telephone]; R v Curragh Inc., (SCC), [1997] 1 SCR 537 at para 6; R v S.(R.D.),(SCC), [1997] 3 SCR 484 at para 100; R v Abukar, 2007 ABCA 286 at para 2).

To put it plainly, the rulings that Dr. Patel sought to appealto the Court of Queen’s Bench were voided by the Panel’s recusal. That being so, answering the question of whether the Chambers judgeerred when he struck Dr. Patel’s notice of appeal does not serve to resolve a live controversy between the parties because, legallyspeaking, the Panel rulings to which the notice of appeal pertained no longer exist. The appeal in CACV3517 is moot. b. CACV3527 [103] Dr.

Patel’s appeal from the November 7 Decision, in our view, is moot for the same reasons that the appeal from the October 10Decision is moot. [104] In the November 7 Decision, the Chambers judge dismissed Dr. Patel’s application for judicial review of various rulings made bythe Panel, on the basis that judicial review was premature and the PSAT provided an adequate alternative remedy that had not yet run itscourse. The errors that Dr. Patel suggests the Chambers judge made in reaching that conclusion are all connected to either (

i) the questionof whether various interlocutory rulings made by the Panel ought to have been subject to judicial review; or (ii) the question of whetherthe Chambers judge ought to have dealt with the application that he recuse himself before determining the application for judicial review.As set out above, the rulings in relation to which Dr. Patel sought judicial review were rendered null and void by the Panel’s recusal.Because of that, there are no longer any Panel rulings that are properly subject to judicial review and, accordingly, there is no longer a livecontroversy in CACV3527. The appeal is moot. 4.

Should the appeals be decided notwithstanding mootness? a. CACV3517 [105] Applying the criteria from the second step of the Borowski analysis, we conclude that it would be appropriate to exercise thisCourt’s discretion in favour of deciding the appeal from the October 10 Decision, notwithstanding its mootness. Conservation of judicialresources is not a concern; we have already heard the full appeal. More importantly, the adversarial context between Dr.

Patel and SHAwill continue to exist, regardless of the outcome of these appeals, and this appeal raises a pure question of law concerning the scope ofappellate review permitted by s. 15 of the PSA Regulations. Given the nature of the ongoing proceedings before the PSAT, that questionof law may well arise again and, as such, the parties would benefit from the clarity this Court can provide by rendering a decision. Boththe presence of the ongoing adversarial relationship and consideration of the Court’s proper law-making function favour exercising ourdiscretion to hear the appeal. b.

CACV3527 [106] As for the appeal from the November 7 Decision, however, we reach a different conclusion.

While neither the “ongoingadversarial context” nor the “conservation of judicial resources” factors are impediments to deciding the appeal, as we will explain, thethird factor set out in Borowski — the need to be sensitive to the proper law-making function of the court — weighs heavily againstexercising our discretion to decide this appeal. [107] In Borowski, Sopinka J. stated that one important element of the third factor in the second stage of the analysis is the “need todemonstrate some sensitivity to the effectiveness or efficacy of judicial intervention” (at 365).

This requires, among other things,consideration of whether the Court can properly grant the relief an appellant seeks. Where the relief sought amounts to a “markeddeparture” from the proper role of the court, that weighs heavily against deciding an appeal that is moot. [108] In his amended notice of appeal in CACV3527, Dr. Patel seeks the following relief: (

a) An order quashing the SHA’s proceedings against Dr. Patel and not remitting the matter back to the SHA Board, PSAT or Court of

Queen’s Bench; and (

b) An order declaring that the DC recommendation and the subsequent SHA decision were respectively an objectively impossiblerecommendation and decision; and (

c) An order declaring that such SHA Board decision was ultra vires and that it lost its jurisdiction by an objectively impossible sentence;and (

d) An order directing the SHA to reinstate Dr. Patel’s surgical privileges subject to issues of licencing by the College of Physicians andSurgeons of Saskatchewan… [109] None of this is relief this Court can properly grant in the circumstances at hand. Dr. Patel takes the position that, because of thealleged deficiencies in the way the proceedings have unfolded before the PSAT process and the delays that have resulted, the PSAT is nolonger an “adequate alternative remedy” and that this Court is therefore required to step in and determine the matter. [110] Granting the relief that Dr. Patel seeks, however, would require us to (

i) disregard the entire statutory and regulatory structure theLegislature has established for dealing with matters related to licencing, competence and discipline of physicians; (ii) step over the roles ofthe Court of Queen’s Bench, PSAT, and BPHC; (iii) make findings of fact; and (iv) grant first-instance relief. Moreover, he implores us todo all of that on the strength of a record that is not complete and evidence that has not been fully tested. To say that would amount to amarked departure from the proper role of this Court is a grave understatement.

In light of that, we see no proper basis to exercise ourdiscretion in favour of deciding this moot appeal. [111] The appeal in CACV3527 is, therefore, dismissed. 5. The Appeal from the October 10 Decision [112] Having concluded that it would be appropriate for this Court to determine the appeal from the October 10 Decisionnotwithstanding its mootness, we turn now to consider the question raised by this appeal, namely: did the Chambers judge err by strikingDr. Patel’s notice of appeal on the basis that it had been filed without jurisdiction?

This is a question of law and, thus, reviewable on acorrectness standard. [113] Appeals are creatures of statute; there is no right of appeal from the decision of a tribunal unless such right is provided for by therelevant legislation (Kourtessis v Minister of National Revenue, (SCC), [1993] 2 SCR 53 at 65–66; Dagenais v CanadianBroadcasting Corporation, (SCC), [1994] 3 SCR 835 at 900; R v Hudson, 2007 SKCA 82 at paras 11–12, 299 Sask R133). Questions regarding the scope of the right of appeal require examination of the relevant statute or regulations and application of theprinciples of statutory

interpretation. a. The relevant regulatory framework [114] The PSAT is established by the PSA Regulations. At the time that the disciplinary proceedings against Dr. Patel began, the PSARegulations operated in accordance with The Regional Health Services Act, SS 2002, c R-8.2 (repealed) [RHSA]. The RHSA has sincebeen replaced by The Provincial Health Authority Act, SS 2017, c P-30.3 [PHAA]. [115] The PHAA authorizes the Provincial Health Authority and its affiliates to make and enforce bylaws governing their practitionerstaff.

This includes the power to make decisions regarding appointment, reappointment, termination, suspension and discipline ofpractitioners (s. 6-2). The PHAA also provides, in s. 6-4(1), that a person aggrieved by such a decision may “in accordance with theregulations, appeal the decision to a tribunal established by the regulations” (the RHSA granted similar bylaw and decision-makingauthority to Regional Health Authorities and their affiliates in s. 43 and an identical right of appeal to aggrieved parties in s. 45(1)). [116] The “tribunal established by the regulations” is the PSAT.

Under s. 6-4(2) of the PHAA (and, formerly under s. 45(2) of theRHSA), the PSAT has the authority, “subject to the regulations”, to “determine its own procedure for the hearing of an appeal”. [117] The PSA Regulations govern the establishment and composition of the PSAT, the selection of panels, the powers of panelmembers, and the scope, conduct and procedure of proceedings before the PSAT. [118] The PSA Regulations require the PSAT to make a decision within 30 days after the completion of a hearing (s. 14) and provide aright of appeal from the PSAT’s decision in s. 15: Appeal 15(1) A decision of the tribunal may be appealed to a judge of the Court of Queen’s Bench on a question of law or jurisdiction within 30days after the date of the tribunal’s decision.

(2) Subject to subsection (3), commencement of an appeal of a decision of the tribunal to a judge of the Court of Queen’s Bench does notstay the decision that is the subject of the appeal.

(3) A party to an appeal may apply to a judge of the Court of Queen’s Bench for a stay of the decision that is the subject of the appeal. [119] The PSA Regulations do not contain a definition of the word “decision”. b. Principles of statutory

interpretation [120] The starting point when interpreting a regulation is s. 2-10 of The Legislation Act, SS 2019, c L-10.2:

Acts and regulations remedial 2-10(1) The words of

an Act and regulations authorized pursuant to

an Act are to be read in their entire context, and in their grammaticaland ordinary sense, harmoniously with the scheme of the Act, the object of the Act and the intention of the Legislature.

(2) Every Act and regulation is to be construed as being remedial and is to be given the fair, large and liberal

interpretation that bestensures the attainment of its objects. [121] This portion of The Legislation Act codifies the “modern principle” of statutory

interpretation described in Rizzo & Rizzo ShoesLtd. (Re), (SCC), [1998] 1 SCR 27 [Rizzo]. In Ballantyne v Saskatchewan Government Insurance, 2015 SKCA 38, 457Sask R 254, Ryan-Froslie J.A. summarized the approach to statutory

interpretation under the modern principle as follows: [19] The leading case with respect to statutory

interpretation is the Supreme Court of Canada’s decision in Re Rizzo & Rizzo Shoes Ltd.,(SCC), [1998] 1 SCR 27 [Rizzo Shoes]. A number of principles set out in that case are applicable to the case at hand,namely: 1. The words of

an Act are to be read in their context and in their grammatical and ordinary sense harmoniously with the scheme of theAct, its objects, and the intention of the legislature (See: Rizzo Shoes at para. 87). (See also: Saskatchewan Government Insurance v Speir,2009 SKCA 73 at para 20, 331 Sask R 250; and Acton v Rural Municipality of Britannia, No. 502, 2012 SKCA 127 at paras 16-17, [2013]4 WWR 213 [Acton]). 2. The legislature does not intend to produce absurd consequences. An

interpretation can be considered absurd if it leads to ridiculous orfrivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent or if it is incompatible with otherprovisions or with the object of the legislative enactment (See: Rizzo Shoes at para. 27). 3. Any statute characterized as conferring benefits must be interpreted in a broad and generous manner (See: Rizzo Shoes at para. 21). Thisprinciple is enshrined in s. 10 of The

Interpretation Act, 1995, SS 1995, c. I-11.2 (See: Acton at paras. 16-18). 4. Any doubt arising from difficulties of language should be resolved in favour of the claimant (See: Rizzo Shoes at para. 36). c. Analysis [122] As we will explain, application of the modern principle of statutory

interpretation leads us to the conclusion that the Chambersjudge correctly interpreted s. 15(1) of the PSA Regulations. That is to say, the word “decision” in s. 15(1) refers to a final decision madeby the PSAT, and not interlocutory decisions. [123] In the context of legal proceedings, the word “decision” can, when read on its own, permit of more than one ordinarygrammatical meaning. The modern principle requires ordinary meaning to be interpreted in a way that is consistent with the scheme andobject of the Act and Regulations and with the intention of the Legislature.

When one examines the PHAA and the PSA Regulations, it isapparent that the scheme and object of the provisions relating to governance of practitioner staff is to establish an effective system ofregulating the professional conduct of physicians, by (

i) providing the Provincial Health Authority with the power to develop standards fortheir appointment, suspension, discipline and termination, (ii) providing methods of enforcing those standards, and (iii) providing amechanism – the PSAT – for adjudicating disputes about their application. [124] Ascertaining the scheme and purpose of the PSA Regulations and the intention of the Legislature requires bearing in mind thepurpose of administrative tribunals. Tribunals, like the PSAT, are designed to provide a valid alternative to the courts for the purpose ofdispute resolution.

They are frequently staffed by decision makers with particular knowledge or expertise and can often operate moreexpeditiously than the courts.

Administrative tribunals are intended to have the necessary authority to operate within their mandate andmake all decisions required to determine the matters before them in a final way, without unnecessary oversight or interference that wouldserve to improperly delay the proceedings. [125] In Rasanen v Rosemount Instruments (1994), (ON CA), 68 OAC 284 [Rasanen], the Ontario Court of Appealnoted that administrative tribunals: …were expressly created as independent bodies for the purpose of being an alternative to the judicial process, including its proceduralpanoplies.

Designed to be less cumbersome, less expensive, less formal and less delayed, these impartial decision-making bodies were toresolve disputes in their area of specialization more expeditiously and more accessibly, but no less effectively or credibly… [126] This excerpt from Rasanen was quoted with approval by the Supreme Court of Canada in Penner v Niagara Regional PoliceServices Board, 2013 SCC 19 at para 102, [2013] 2 SCR 125, where the Court noted – in the context of issue estoppel – that there was noreason to treat administrative proceedings differently from court proceedings for the purpose of the application of that doctri

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