Saskatchewan Health Authority v Patel, 2021 SKCA 140

Court of Appeal for Saskatchewan Docket: CACV3866 Citation: Saskatchewan Health Authority v Patel , 2021 SKCA 140 Date: 2021-10-29 Between: Dr. Satyam Patel Respondent/Prospective Appellant (Respondent) And The Saskatchewan Health Authority Applicant/Prospective Respondent (Applicant) And The Practitioner Staff Appeals Tribunal Non-party/Prospective Respondent Before: Kalmakoff J.A. (in Chambers) Disposition: Application granted Written reasons by: The Honourable Mr. Justice Kalmakoff Application heard: August 25, 2021 Counsel: E.F. Anthony Merchant, Q.C., for Dr.

Satyam Patel Reginald Watson, Q.C., Scott Spencer, Jeffrey Deagle, Ryan Kitzul and Annie Alport for the Saskatchewan Health Authority Heather Jensen for The Practitioner Staff Appeals Tribunal Kalmakoff J.A. I. INTRODUCTION [ 1 ] Saskatchewan Health Authority [SHA] has applied for an order that Dr. Satyam Patel be managed as a vexatious litigant in this Court.

Rule 46.2(1) of The Court of Appeal Rules provides that such an order may be made where a person “has habitually, persistently, and without reasonable cause commenced frivolous or vexatious proceedings in the court”. [ 2 ] SHA takes the position that an order under Rule 46.2(1) is necessary because Dr. Patel has repeatedly brought appeals and applications in this Court that are meritless, moot, lacking a legal basis, or seek relief which cannot be granted, and because he places undue strain on judicial resources by continually inundating the Court with voluminous and inappropriate materials.

SHA says that, in addition to all of this, Dr. Patel has also used the proceedings in this Court as a platform to make unfounded accusations against public authorities, counsel and members of the judiciary. When Dr. Patel’s conduct before this Court is considered in its entirety, says SHA, it is clear that he has crossed the line that separates the legitimate pursuit of his rights of appeal from abuse of the Court’s process. [ 3 ] For reasons that follow, I conclude that SHA’s application must be granted. II. BACKGROUND [ 4 ] 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]. RQRHA was eventually subsumed into SHA in 2017. The legal dispute between SHA and Dr. Patel relates to disciplinary proceedings that were initiated in June of 2016 and have continued ever since. Those proceedings have been highly contentious and there is no clear end in sight. [ 5 ] The disciplinary proceedings against Dr. Patel began when the Senior Medical Officer of RQRHA suspended his surgical privileges due to concerns over quality of care and patient safety.

The RQRHA Board confirmed the suspension and referred the matter to a Discipline Committee. Dr. Patel appealed that decision to the Practitioner Staff Appeals Tribunal [PSAT], the body established by The Practitioner Staff Appeals Regulations , RRS c R-8.2 Reg 5 [ PSA Regulations ] [1] for the purpose of hearing and determining appeals of that nature. However, instead of advancing his appeal before the PSAT at that time, Dr. Patel chose to proceed with a hearing before a Discipline Committee constituted pursuant to the RQRHA bylaws. [ 6 ] The Discipline Committee recommended that the suspension of Dr.

Patel’s surgical privileges continue, subject to a proviso that he be permitted to reapply for privileges after completing a period of supervised training. The Discipline Committee’s recommendation was accepted by SHA’s Board Practitioner Hearing Committee. Dr. Patel then appealed that decision to the PSAT. [ 7 ] Eventually, a PSAT hearing panel [Panel] was appointed. A hearing began in September of 2018, and continued intermittently for more than two years, but did not reach a conclusion. On December 17, 2020, the Panel recused itself because it determined that certain actions taken by Dr.

Patel had created a reasonable apprehension of bias. To my understanding, a new panel has not yet been appointed to hear Dr. Patel’s appeal to the PSAT. [ 8 ] Among the factors that contributed to the protracted nature of the proceedings before the PSAT were various interlocutory applications Dr. Patel brought in the Court of Queen’s Bench. He appealed against, or sought judicial review of, several interlocutory rulings made by the Panel. He also sought the removal of SHA counsel for the purpose of the PSAT proceedings and an order removing

the Panel. These applications led to counter applications by SHA to strike Dr. Patel’s notice of appeal on the basis that the Court of Queen’s Bench lacked jurisdiction to hear it, and to dismiss his applications for judicial review as premature. Dr. Patel also applied for orders removing SHA counsel in the Court of Queen’s Bench and sought to have the Queen’s Bench judge who had been assigned to manage his case recuse himself on the basis of a conflict of interest. These applications led to rulings, fiats and orders which, in turn, spurred Dr.

Patel to file several appeals and make other applications in this Court. Much of this historical background is described, in greater detail, in this Court’s recent decision Patel v Saskatchewan Health Authority , 2021 SKCA 115 at paras 19–73 [ Patel CA 2021 ]. [ 9 ] In addition to the unresolved proceedings before the PSAT, there are still numerous active proceedings in the Court of Queen’s Bench involving Dr. Patel. One of his former patients has sued him for medical malpractice. Dr. Patel has sued SHA in tort and contract in relation to the suspension of his surgical privileges.

These lawsuits and the matters arising out of the disciplinary proceedings before the PSAT have spawned a host of applications by Dr. Patel before the Court of Queen’s Bench that remain unresolved, including statutory appeals, applications for judicial review, applications by Dr. Patel to have Reginald Watson, Q.C., and Miller Thompson LLP removed as SHA’s counsel, and an application by SHA to have Dr. Patel declared a vexatious litigant in the Court of Queen’s Bench. [ 10 ] Dr. Patel has appealed, or has sought leave to appeal, against nearly every ruling made by the Court of Queen’s Bench in his matters.

With the exception of an appeal that does not involve SHA (but involves other parties connected to the disciplinary proceedings against Dr. Patel), which Dr. Patel filed subsequent to the hearing of SHA’s application in this matter, all of the proceedings he has initiated before this Court have concluded. III. ISSUE [ 11 ] The issue to be determined in this application is whether Dr. Patel’s conduct in this Court warrants making an order under Rule 46.2(1). IV. THE GOVERNING LEGAL PRINCIPLES [ 12 ] Rule 46.2(1) reads as follows: 46.2

(1) If, on application of any person, the court or a judge is satisfied that a person has habitually, persistently, and without reasonable cause commenced frivolous or vexatious proceedings in the court, the court or a judge may make an order prohibiting the commencement of proceedings without leave of the court or a judge. [ 13 ] As the Honourable Stuart J.

Cameron observed in Civil Appeals in Saskatchewan: The Court of Appeal Act & Rules Annotated , 1st ed (Regina: Law Society of Saskatchewan Library, 2015) at 199, this Rule was “made for the purpose of formalizing the exercise by the court of its inherent jurisdiction to control its own process”, and to prevent it from being abused “by persons who, by reason of bad faith, irrational judgment, or otherwise, are prompted to abuse the process in one way or another”.

In this way, it “operates to facilitate the protection of persons from being drawn into unreasonable proceedings launched by unreasonable persons, bearing in mind the resulting disruption, cost, time, and unfairness to others” (at 200). [ 14 ] The question of whether a proceeding is vexatious is properly resolved by the application of objective rather than subjective standards. It is a holistic determination that takes into consideration a variety of factors ( Green v University of Winnipeg et al , 2018 MBCA 137 at para 27 , [2019] 2 WWR 35 [ Green ]).

These factors properly encompass not only the nature of the proceeding initiated by a litigant, but also the conduct of the litigant in advancing the proceeding . A litigant does not fall within the ambit of Rule 46.2(1) merely because their appeals or applications have failed. Nor is vexatiousness demonstrated by the mere use of improper procedure, or by the fact that a litigant has an unrealistic or overly passionate belief in the merit of their cause of action. Vexatious conduct is also distinct from the initiation of proceedings that are simply unmeritorious.

More is required; namely, a “pattern of abuse” ( Jonsson v Lymer , 2020 ABCA 167 at para 13 , 448 DLR (4th) 275 [ Lymer ]). [ 15 ] The need for a pattern of abuse of the court’s process to be demonstrated is evident from the language in Rule 46.2(1). This stands to reason; repeatedly or, as the Rule states, “habitually” or “persistently”, commencing meritless proceedings is the essence of vexatiousness.

As the wording of the Rule also specifies, it is the conduct of the litigant before this Court that must be the focus of the inquiry, although that person’s conduct before other courts or tribunals can properly inform the decision that must be made (see, for example: Green at paras 33–36 ; Extra Gift Exchange Inc. v The Owners, Strata Plan LMS3259 , 2014 BCCA 228 at paras 36–37 , 54 CPC (7th) 251; and Dawson v Dawson , 2014 BCCA 44 at para 26 , 349 BCAC 307). [ 16 ] The requirement in Rule 46.2(1) that the conduct of the litigant be habitual or persistent before a vexatious litigant order can be made reflects the importance of the right of access to the courts.

In Lymer , the Court of Appeal of Alberta described this right as having a “constitutional dimension” and said that access to the courts should not be barred “absent some actual pattern of abuse of that right” (at para 38). Discrete improper actions or procedural missteps are better assessed by individual and focused remedies, not by wide-reaching vexatious litigant orders. [ 17 ] While a vexatious litigant order under Rule 46.2(1) does not prohibit a person from launching appeals, it limits access to this Court by imposing an additional burden on the exercise of the right of appeal.

As such, it is a measure that should be “used sparingly and only in the clearest of cases”, where “the litigant has taken himself over the line” ( Barth v Saskatchewan (Social Services) , 2021 SKCA 41 at paras 3 and 11 [ Barth ]). [ 18 ] In Barth , this Court observed that, at its root, Rule 46.2(1) “speaks to aspects of the Court’s inherent jurisdiction to prevent its process from being abused” (at para 12) and confirmed that, while the Court should not be quick to restrict a litigant’s access, there are two sides to the access to justice coin: [13] … [W]e agree that orders under Rule 46.2(1) should be granted sparingly.

That idea is found in the language of the Rule itself,

which contemplates an order being made only when the person subject to it has met the condition of “habitually, persistently, and withoutreasonable cause” commencing “frivolous or vexatious proceedings” in this Court. [14] There is, also, the other side of the access to justice coin to consider. As Voith J. commented in Nayyar v Manufacturers LifeInsurance Co., 2016 BCSC 1587 at para 78, a vexatious litigant order is “in certain circumstances, in the public interest and necessary toprevent ongoing abuse of the court’s process” (see also Hokhold v Gerbrandt, 2017 BCCA 216 at para 21).

Repetitive, unmeritoriousappeals and applications result in unnecessary expense for all parties and may have other negative effects, including increased conflict anddelay. They also result in the needless expenditure of the judicial and other resources of the Court that would otherwise be available tomeet the needs of other litigants.

In this way, to the extent that an order under Rule 46.2(1) may mitigate these adverse effects of vexatiouslitigation, the order facilitates access to justice by other litigants. [19] In Lymer, the Court described the tension at work in applications of this sort by saying that “[u]ltimately, the response toproblematic litigation must find the proper balance between maintaining reasonable access to the court” and “preserving court resourcesand shielding other litigants from abusive behaviour” (at para 16).

On the point of how such a balance should be struck, this Court, inBarth, adopted the list of factors set out in Lang Michener Lash Johnson v Fabian (1987), (ON SC), 37 DLR (4th) 685(Ont SC (H Ct J)) (WL) as forming a “useful guide to the considerations relevant” to determining whether an order under Rule 46.2(1) iswarranted (at para 15). Those considerations, adapted to the appellate context, are: (

a) whether the appellant has brought more than one appeal seeking to determine the same issue; (

b) whether one or more of the appeals discloses no right of appeal (Rule 46.1(1)(b)); (

c) whether one or more of the appeals is manifestly without merit (Rule 46.1(1)(c)); (

d) whether the appellant’s conduct in appealing against a tribunal’s decisions can be considered an abuse of the process of the Court(Rule 46.1(1)(d)); (

e) whether it appears one or more of the appeals was brought for an improper purpose, including the harassment and oppression of arespondent through multiple proceedings brought for purposes other than the legitimate assertion of a statutory right of appeal or a causeof action; (

f) whether the grounds raised in one appeal tend to be rolled forward into subsequent appeals, where they are repeated orsupplemented; (

g) whether the appellant has made accusations against or alleges malfeasance on the part of lawyers who acted for or against theappellant in other proceedings; and (

h) whether the appellant has failed to pay costs orders awarded in favour of parties opposite. [20] As I read Barth, this list of factors is not a checklist or a list of pre-conditions for an order under Rule 46.2(1) but, rather, a non-exhaustive roster of relevant considerations to be weighed and balanced in determining whether a litigant has crossed the line. V. ANALYSIS [21] Deciding whether an order under Rule 46.2(1) ought to be made in this case requires a detailed examination of Dr. Patel’sconduct in this Court.

In the end, the question is whether his conduct demonstrates a pattern of abusing this Court’s process, rather thanthe legitimate pursuit of his rights of appeal. I turn now to that analysis. A.

Summary of the proceedings initiated by Dr. Patel in the Court of Appealfor Saskatchewan 1. CACV3186 – Patel v Carson [22] Dr. Patel had applied to the Court of Queen’s Bench for judicial review of the Senior Medical Officer’s decision to suspendhim and the Board’s decision to uphold the suspension. Justice Pritchard dismissed Dr.

Patel’s application as premature, holding that thecomprehensive legislative and regulatory framework in place for dealing with the disciplinary proceeding in issue was an adequatealternative remedy and there were no other extraordinary circumstances that made judicial review appropriate until the matter before thePSAT had run its course (Patel v Carson, 2017 SKQB 377). Dr. Patel appealed against that decision. This Court dismissed the appeal,holding that Pritchard J. had not erred in that determination (Patel v Carson, 2018 SKCA 98 [Patel CA 2018]). Dr.

Patel applied for leaveto appeal to the Supreme Court of Canada; that application was also dismissed (Patel v Carson, ). 2. CACV3489 – Patel v The Practitioners Staff Appeal Tribunal and Saskatchewan Health Authority [23] This matter involved an application by Dr. Patel for leave to appeal against a fiat rendered by Scherman J. in the Court ofQueen’s Bench (Patel v Saskatchewan Health Authority (25 September 2019) Regina, QBG 1385/2018 and QBG 953/2019 (Sask QB)[September 25 Fiat]). At the time, the hearing of Dr. Patel’s appeal under the PSA Regulations was proceeding before the PSAT.

Thathearing had been adjourned because Dr. Patel had made multiple applications in the Court of Queen’s Bench related to it, includingapplications for judicial review of various interlocutory decisions made by the Panel, an application to disband the Panel and quash all ofits rulings to that point, an application for an order removing Mr. Watson as counsel for SHA, and an application to remove the Chair ofthe Panel on grounds of bias. Justice Scherman had been appointed as the case management judge in relation to Dr. Patel’s matters in theCourt of Queen’s Bench. Dr.

Patel had requested that Scherman J. recuse himself on grounds of bias.

[ 24 ] Dr. Patel had also filed a notice of appeal under the provisions of the PSA Regulations , seeking to appeal to the Court of Queen’s Bench against various orders made by the Panel. [ 25 ] SHA had applied to quash Dr. Patel’s applications for judicial review as premature and to strike his notice of appeal as being without jurisdiction. In the September 25 Fiat , Scherman J. decided the order in which the applications would be heard; he held that the appropriate course of action would be to 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 before hearing any of Dr. Patel’s applications. [ 26 ] Dr. Patel sought leave to appeal against that determination. Among his proposed grounds of appeal were allegations that Scherman J. was biased and that he had erred by “excluding the application for his recusal and the application for the removal of Mr. Watson from the sequence of issues to be heard and adjudicated, thereby prejudging these issues”. [ 27 ] Justice Schwann denied Dr.

Patel’s application for leave to appeal (Patel v Saskatchewan Health Authority (31 October 2019), CACV3489 (Sask CA) [ 2019 Schwann Fiat ] ). She observed that the September 25 Fiat 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 no determination had been made about whether Scherman J. should recuse himself or remove Mr. Watson as counsel for SHA and that “no decision was made of the nature reflected in Dr. Patel’s draft notice of appeal” (at para 27). 3.

CACV3517/CACV3527 – Patel v Saskatchewan Health Authority CACV3679 – Patel and Merchant v Saskatchewan Health Authority CACV3751/CACV3752 – Patel v C.L., The Practitioner Staff Appeal Tribunal and Saskatchewan Health Authority [ 28 ] The five appeals listed here arose from separate matters. However, they were all heard together and determined in a single decision of this Court, Patel CA 2021 . a. CACV3517 and CACV3527 [ 29 ] Justice Scherman had granted SHA’s application to strike Dr.

Patel’s appeal to the Court of Queen’s Bench 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 ]). He had also granted SHA’s applications to dismiss Dr. Patel’s application for judicial review of the PSAT Panel’s interlocutory decisions on the basis that judicial review was premature ( Patel v Saskatchewan Health Authority , 2019 SKQB 291 [ November 7 Decision ]). [ 30 ] Dr.

Patel appealed to this Court against both of those decisions. Among the grounds of appeal were allegations that Scherman J. was biased and that he had erred in law by failing to hear and determine the application for recusal before ruling on SHA’s applications. By way of relief, Dr. Patel sought, among other things, that his appeal to the Court of Queen’s Bench and his application for judicial review be remitted to that Court to be heard by a different judge, and that his surgical privileges be re-instated. [ 31 ] Although these appeals were filed shortly after the decisions they challenged had been rendered, Dr.

Patel had not perfected the appeals by the end of February of 2020. SHA brought an application for an order that Dr. Patel perfect the appeals, failing which they may be exposed to dismissal for want of prosecution. That application was dismissed ( Patel v Saskatchewan Health Authority (12 May 2020) Regina, CACV3517 (Sask CA)). [ 32 ] Dr. Patel filed an appeal book, which he labelled as a “joint” appeal book, in relation to CACV3517 and CACV3527. It consisted of 66 volumes and more than 21,000 pages.

SHA took issue with the contents of the joint appeal book because it included evidence that had not been before the Court of Queen’s Bench, correspondence between the Registrar of that court and counsel, briefs of law, and court documents from a different action involving the parties. This prompted an application by Dr. Patel, who was represented by counsel, for an order that the joint appeal book be received for filing. That application was heard by Caldwell J.A. He determined that SHA’s objections were meritorious, because much of the content in the appeal book did not conform with Rule 23(1).

He ruled that the appeal book could not be accepted for filing until the non-conforming material was removed ( Patel v Saskatchewan Health Authority (12 June 2020) Regina, CACV3517 (Sask CA)). [ 33 ] Justice Caldwell also directed that Dr. Patel separate the volumes of his appeal book that contained fresh evidence from the material that was properly part of the appeal book. This led to the filing of a new appeal book by Dr.

Patel, comprising 49 volumes and more than 16,700 pages, as well as a new fresh evidence application consisting of an affidavit with more than 6,700 pages of exhibits attached. [ 34 ] The hearing of these appeals took place before a panel composed of Caldwell J.A., Leurer J.A. and me, on October 13, 2020. Dr. Patel was represented by counsel at that hearing. The decision was reserved. [ 35 ] A short time later, the parties were back before the PSAT, to continue the hearing of Dr. Patel’s appeal to that tribunal. SHA requested that the Panel recuse itself, arguing that certain actions Dr.

Patel had taken had given rise to a reasonable apprehension of bias. On December 17, 2020, the Panel granted SHA’s application and recused itself. In its written reasons for recusal dated December 22, 2020, the Panel ordered that a rehearing take place before a new panel. [ 36 ] The Panel’s recusal led SHA to make an application to introduce fresh evidence of that fact in this Court and to seek direction as to whether the appeal hearing in CACV3517 and CACV3527 should be re-opened. SHA took the position that the Panel’s recusal had rendered Dr.

Patel’s appeals from the October 10 Decision and the November 7 Decision moot. [ 37 ] Dr. Patel responded with a fresh evidence application of his own. He filed a 442-page affidavit sworn on January 25, 2021, and a 52-page supplemental affidavit sworn March 11, 2021. SHA countered with applications to strike most of the content of Dr. Patel’s affidavits on various bases, including that it was not relevant to the grounds of appeal and that several portions were inadmissible because

they were either opinion, argument, commentary and speculation, unsourced inadmissible hearsay, prolix, scandalous, redundant, confidential personal health information that had been tendered in breach of the implied undertaking rule, or simply not new evidence. [ 38 ] On January 29, 2021, this Court determined that it would be appropriate to re-open the appeal hearing in CACV3517 and CACV3527. The parties were given leave to file supplementary factums ( Patel v Saskatchewan Health Authority (29 January 2021), CACV3517 and CACV3527 (Sask CA)). The re-opened hearing was scheduled for March 23, 2021. [ 39 ] Dr.

Patel then applied to amend his notices of appeal. In particular, he sought to change the nature of the relief he requested, in both appeals, to the following: (

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 [Discipline Committee] recommendation and the subsequent SHA decision were respectively an impossible recommendation and decision; and (

c) An order declaring that the 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 and Surgeons of Saskatchewan… (Emphasis in original) [ 40 ] This Court dismissed Dr.

Patel’s application to amend the notice of appeal in relation to the appeal from the October 10 Decision (CACV3517) because none of the proposed amendments were relevant to the live issues in that appeal, i.e., whether Scherman J. should have decided the case, given that a potential concern had been raised about bias, and whether a right of appeal to the Court of Queen’s Bench from an interlocutory decision of a PSAT panel exists. Dr.

Patel’s application was granted, however, in relation to the appeal from the November 7 Decision (CACV3527), because the proposed amendments had some relevance to the issues in that case and amendment of the notice of appeal would not prejudice SHA ( Patel v Saskatchewan Health Authority, (17 March 2021) Regina, CACV3517 and CACV3527 (Sask CA)). [ 41 ] Ultimately, these re-opened appeals were scheduled to be heard at the same time as the appeals in CACV3679, CACV3751 and CACV3752. b. CACV3679 [ 42 ] While Dr.

Patel’s appeals in CACV3517 and CACV3527 were before this Court, the other matters between him and SHA continued before the PSAT and the Court of Queen’s Bench. On July 22, 2020, Scherman J. granted Dr. Patel’s application to recuse himself as the case management judge for Dr. Patel’s matters. Justice Scherman determined that, even though a reasonable apprehension of bias had not been established, 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 ]). Despite granting Dr.

Patel’s application for recusal, Scherman J. awarded SHA $10,000 in costs; $5,000 against Dr. Patel and $5,000 against Dr. Patel’s counsel, E.F. Anthony Merchant, Q.C. [ Costs Order ]. The Costs Order stemmed from what Scherman J. had found to be “prolix, unnecessary and improper” affidavit material that had been filed on behalf of Dr. Patel by Mr. Merchant. Justice Scherman concluded that the offending affidavit material had resulted in “unfocused submissions” that had added unnecessarily to the length of the proceeding and meant that Mr.

Merchant had not performed his “obligation as counsel to ensure that the affidavit evidence of Dr. Patel was proper affidavit evidence” ( QB Recusal Decision at para 122 ). [ 43 ] Dr. Patel and Mr. Merchant appealed against the Costs Order . They raised several grounds of appeal, including an assertion that, by recusing himself, Scherman J. had lost jurisdiction to make the Costs Order . They also alleged that Scherman J. had erred in law by ordering enhanced costs ex mero motu and by imposing costs against Mr.

Merchant personally without affording him a proper opportunity to make representations on that issue. [ 44 ] Dr. Patel and Mr. Merchant did not serve and file their appeal book and factum within 30 days of August 24, 2020, as required under Rule 43 of The Court of Appeal Rules in an expedited appeal. As a result, on October 2, 2020, SHA filed an application for an order requiring the appeal to be perfected or risk dismissal for want of prosecution. On October 14, 2020, Ottenbreit J.A. heard SHA’s application in Chambers. He ordered that Dr. Patel and Mr.

Merchant perfect the appeal within 45 days ( Patel and Merchant v Saskatchewan Health Authority (14 October 2020) Regina, CACV3679 (Sask CA)). [ 45 ] A dispute then arose between Dr. Patel and Mr. Merchant, and SHA, regarding the appeal book. This led to an application by SHA, dated December 1, 2020, to settle the contents of the appeal book. That application was heard by Ottenbreit J.A. on February 10, 2021. He granted SHA’s application and ordered costs against Dr.

Patel in the amount of $1,000 ( Patel and Merchant v Saskatchewan Health Authority (10 February 2021) Regina, CACV3679 (Sask CA)). [ 46 ] On February 9, 2021, Dr. Patel and Mr. Merchant applied to amend their notice of appeal and factum. They sought to add a ground of appeal alleging that Scherman J. had erred in law and principle in making the Costs Order by failing to consider that Mr. Merchant had appeared for Dr. Patel on a limited retainer basis and they proposed to amend the factum by adding arguments addressing that ground.

Justice Ottenbreit heard the application on February 25, 2021, and dismissed it with costs payable to SHA in any event of the cause. In short, he found that Dr. Patel and Mr. Merchant had not established that there was a proper factual foundation to support the proposed amendments ( Patel and Merchant v Saskatchewan Health Authority (2 March 2021) Regina, CACV3679 (Sask CA)). c. CACV3751 and CACV3752 [ 47 ] Prior to the Panel’s recusal, while Dr. Patel’s appeal before the PSAT was still in progress, the Panel had issued a summons to

C.L., one of Dr. Patel’s former patients. The summons directed C.L. to attend before the Panel and to disclose certain documents to Dr. Patel relevant to matters at issue in the PSAT proceedings. [ 48 ] C.L. was also a litigant in a separate but related matter; he had commenced a civil action against Dr. Patel for medical malpractice. The documents Dr. Patel sought to compel C.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 the implied undertaking rule.

As a result, after C.L. was served with the PSAT summons, he applied to the Court of Queen’s Bench to quash it. He also requested that the Panel stay the operation of the summons until his application in the Court of Queen’s Bench could be heard. The Panel granted C.L.’s request. [ 49 ] Dr. Patel then filed an originating application with the Court of Queen’s Bench, seeking an order enforcing the PSAT summons against C.L. That application was heard on November 19, 2020, by McCreary J.

She granted SHA standing to appear and make submissions ( Patel v The Practitioners Staff Appeals Tribunal and C.L. (19 November 2020) Regina, QBG 1792/2020 (Sask QB) [ Standing Decision ]). Justice McCreary ultimately dismissed Dr. Patel’s originating application because the summons had been stayed by the Panel pending C.L.’s application to quash it and, in any event, she held that Dr. Patel had no standing under the governing legislation to bring an application to enforce the summons. Finding that Dr.

Patel’s application had no merit and was “utterly unnecessary, resulting in unwarranted expense to all the parties”, McCreary J. also ordered him to pay costs of $5,000 to C.L. ( Patel v The Practitioners Staff Appeals Tribunal and C.L (30 November 2020) Regina, QBG 1792/2020 (Sask QB) [ Summons Decision ]). [ 50 ] Dr. Patel appealed against both the Standing Decision and the Summons Decision . He was not represented by counsel when he filed the appeals. [ 51 ] In his appeal from the Standing Decision (CACV3752), Dr.

Patel alleged that McCreary J. had erred in a number of ways, including granting standing to SHA even though C.L. had previously been represented by current SHA counsel (Mr. Watson) in his individual action against Dr. Patel. He also asserted that McCreary J. ought not to have heard the matter, because prior to her appointment to the bench, the law firm at which she practiced had represented SHA. Dr.

Patel sought various forms of relief, including an order upholding the summons, an order disqualifying McCreary J. from hearing his matters, and the assignment of an out-of-province judge to hear all of his matters. [ 52 ] In his appeal from the Summons Decision (CACV3751), Dr. Patel raised seventeen grounds of appeal, including those set out in the notice of appeal from the Standing Decision , as well as the following: (

a) The Chambers Judge erred by sacrificing her independence when she communicated with Mr. Justice M.D. Tochor with regard to Dr. Patel's matters prior to hearing this application. … (

f) The Chambers Judge erred in determining or ruling that the Practitioner Staff Appeals Tribunal was not under duress when the subpoena was stayed by them. [ 53 ] Dr. Patel’s notice of appeal sought wide-ranging relief, including the following: (

a) An order allowing the Judicial Review that enforce the subpoena; (

b) An order dismissing the November 30 , 2020 order made by the Chambers Judge; … (

e) In the alternative, the charges and evidence relating to [C.L.] before the PSAT be struck; (

f) An order that Madam Justice M.R. McCreary recuse herself from 1793 of 2020 and 2381 of 2017 for conflict of interest; (

g) An order that Mr. Justice M.D. Tochor be recused or disqualified from 1957 of 2019 and 3187 of 2019; (

h) An order assigning either an out-of-province judge , or a Federal Court judge to all of Dr. Patel's matters; (

i) An order that Mr. Justice M.D. Tochor, Madam Justice M.R. McCreary, Mr. Chief Justice M.D. Popescul , and Mr. Justice B.J. Scherman provide statements on the record attesting to any and all communications between themselves or any other outside party regrading Dr. Patel's matters; (j)That the Court of Appeal formally review the standing of Miller Thompson LLP in all matters related to Dr. Patel with regard to impropriety; … [ 54 ] SHA responded with an application to strike Dr.

Patel’s appeal from the Standing Decision on the basis that it was an interlocutory decision from which there was no right to appeal without first obtaining leave. SHA also applied to quash Dr. Patel’s appeals from both the Standing Decision and the Summons Decision as moot, given that the Panel had recused itself and, as such, the summons that was at the heart of the appeals was void ab initio and no longer capable of being enforced. [ 55 ] In response to the application to strike or quash his appeals, Dr. Patel filed an affidavit, sworn on March 9, 2021.

The affidavit was 20 pages in length, with more than 670 pages of additional material attached as exhibits. It contained his account of what he viewed as the relevant procedural history. In his rendition of the procedural history, Dr. Patel made numerous allegations against various persons who had been involved in the course of his disciplinary proceedings. He also questioned the validity of the Panel’s reasons for recusal and made various allegations regarding McCreary J., Tochor J., and the Chair of the Panel.

[ 56 ] SHA, in turn, brought an application to strike the bulk of Dr. Patel’s affidavit on the basis that it was “comprised of inadmissible assertions of opinion, argument, speculation, polemic, rhetoric or matters based on unsubstantiated belief or with trivial or no relevance to the matters in issue in the application before the Court”. d. The Hearing of CACV3517, CACV3527, CACV3679, CACV3751 and CACV3752 [ 57 ] The re-opened hearing of Dr.

Patel’s appeals in CACV3517, CACV3527 and CACV3679, and SHA’s applications to quash or strike the appeals in CACV3751 and CACV3752 were scheduled to be heard on March 23, 2021. [ 58 ] On March 22, 2021, Dr. Patel applied for an adjournment of the hearing of SHA’s applications in CACV3751 and CACV3752, in part because of the recent application by SHA to strike his affidavit. Over SHA’s objection, the adjournment request was granted. [ 59 ] The balance of the matters remained scheduled for hearing on March 23, 2021. On that day, Dr. Patel, now represented by Mr.

Merchant on all of the scheduled appeals, raised an objection to the presence of Leurer J.A. as one of the judges on the panel. Dr. Patel indicated that he had recently become aware that the law firm at which Leurer J.A. had been a partner prior to his appointment to the bench had represented SHA and its predecessors during a portion of the time period relevant to Dr. Patel’s disciplinary proceedings.

A determination was made that it was appropriate for Leurer J.A. to recuse himself, meaning that the appeals in CACV3517, CACV3527 and CACV3679 would all need to be adjourned and heard by a new panel. [ 60 ] The hearing of all matters related to CACV3517, CACV3527, CACV3679, CACV3751 and CACV3752 were rescheduled for May 7 and May 10, 2021, before a panel comprised of Caldwell J.A., Whitmore J.A. and me. At the outset of the hearing on May 7, 2021, Dr. Patel raised an objection to Whitmore J.A.’s presence on the panel.

He alleged there was a reasonable apprehension of bias because he understood that Whitmore J.A. lived on the same street as Mr. Watson, counsel for SHA. He applied for an order that Whitmore J.A. recuse himself and that the hearings be adjourned. The Court dismissed the application, holding that there was not a reasonable apprehension of bias nor any other compelling reason to adjourn the matters. e. Disposition: Patel CA 2021 i.

CACV3517 and CACV3527 [ 61 ] With respect to the appeal from the October 10 Decision (CACV3517) , the Court determined that the matter was moot but, notwithstanding mootness, it would be appropriate to decide the appeal because it raised a pure legal question regarding the scope of appellate review permitted by s. 15 of the PSA Regulations , and providing an answer to that question would be of benefit to the parties and consistent with the proper function of the Court. Ultimately, the Court dismissed Dr.

Patel’s appeal, concluding that Scherman J. had been correct in determining that s. 15(1) of the PSA Regulations permits appeals to the Court of Queen’s Bench only from final decisions of the PSAT ( Patel CA 2021 at para 143). [ 62 ] With respect to the appeal from the November 7 Decision (CACV3527), the Court also determined that the matter was moot and, in the circumstances, it would not be a proper exercise of the Court’s discretion to decide the matter notwithstanding mootness. In large measure, this was because the Court simply could not grant the relief that Dr. Patel sought.

On that point, the Court wrote: [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 [Discipline Committee] recommendation and the subsequent SHA decision were respectively an objectively impossible recommendation 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 and Surgeons 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 the alleged deficiencies in the way the proceedings have unfolded before the PSAT process and the delays that have resulted, the PSAT is no longer 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 the Legislature has established for dealing with matters related to licencing, competence and discipline of physicians; (ii) step over the roles of the Court of Queen’s Bench, PSAT, and [Board Practitioner Hearing Committee]; (iii) make findings of fact; and (iv) grant first-instance relief. Moreover, he implores us to do 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 a marked departure from the proper role of this Court is a grave understatement.

In light of that, we see no proper basis to exercise our discretion in favour of deciding this moot appeal. [ 63 ] Accordingly, Dr. Patel’s appeals in CACV3517 and CACV3527 were dismissed. The Court awarded costs against Dr. Patel, in relation to these appeals, of $15,000. [ 64 ] In addition to dismissing Dr.

Patel’s appeals in CACV3517 and CACV3527, the Court also dismissed his applications to introduce fresh evidence, because the evidence had no bearing on the live issues in CACV3517 and, in relation to CACV3527, failed to meet the standard for admission for a wide variety of reasons ( Patel CA 2021 at paras 86–95). Given the “volume and nature of material” that Dr. Patel had unsuccessfully attempted to file as fresh evidence, the Court awarded an additional $2,500 in costs against him in relation to this application (at para 96).

ii. CACV3679 [ 65 ] The appeal in relation to the Costs Order was allowed, in part. The Court concluded that, because Scherman J. had recused himself out of an abundance of caution in the QB Recusal Decision , and not because of a finding of an apprehension of bias, he had not lost jurisdiction to make an order for costs. However, the Court went on to find that Scherman J. had erred in principle by ordering costs personally against Mr. Merchant without giving him an opportunity to be heard on the matter, as required by Rule 11-24(3) of The Queen’s Bench Rules .

Accordingly, the Court set aside the portion of the Costs Order that had apportioned $5,000 in costs to Mr. Merchant personally. [ 66 ] The Court also determined that there was no basis to interfere with the award of $10,000 in costs against Dr. Patel, as it was “a compensatory order predicated on the volume of prolix and irrelevant materials filed by Dr. Patel as a party” in the matter and there was “simply no basis to conclude that the Chambers judge erred in principle when exercising his discretion to award costs against Dr. Patel” ( Patel CA 2021 at para 169). iii.

CACV3751 and CACV3752 [ 67 ] The Court granted SHA’s applications in relation to the Summons Decision and the Standing Decision , quashing Dr. Patel’s appeals in both matters as moot. In that respect, the Court wrote: [184] Dr. Patel seeks an order reversing the Summons Decision and alternatively seeks a rehearing of the matter before a different judge. However, the fact remains that the summons can no longer be enforced because it has been stayed and the Panel that issued the summons has recused itself. Thus, a new hearing will be necessary.

At present, there is no hearing to which C.L. can be summonsed as the Panel no longer exists and the hearing, and the summons order, are null and void. The issue is moot, as the substratum of the legal issues before us have disappeared and there is no live controversy. [185] The same conclusion holds with respect to the Standing Decision .

The underlying lis – the enforcement of the summons – has disappeared and the issue of whether SHA should be added as a party is therefore moot. [186] Turning now to the question of whether the Court should nevertheless go on and hear these matters, in our view, as stated, there is no longer a live controversy between the parties on either of these matters. When the summons was stayed and the Panel later recused itself, any issue surrounding the enforcement of the summons became moot as did the issue of whether SHA was properly a party at the Court of Queen’s Bench.

Under these circumstances, proceeding to hear these matters on appeal – where no practical relief could be achieved – would amount to a further waste of judicial resources. Simply put, none of the factors outlined above weigh in favour of hearing these two appeals. The appeals should therefore be quashed on this basis. [ 68 ] The Court also held that the Standing Decision and Summons Decision could properly be struck because they were interlocutory in nature and, since Dr. Patel had not sought leave, there was no right of appeal. Nor was it an appropriate case for leave to be granted nunc pro tunc .

Finally, the Court found no basis to interfere with the costs order made by McCreary J. in the Summons Decision. [ 69 ] The Court awarded an additional $5,000 in costs against Dr. Patel in relation to CACV3751 and CACV3752. 4. CACV3857 – Patel v Saskatchewan Health Authority [ 70 ] SHA brought an originating application in the Court of Queen’s Bench, seeking to have Dr. Patel declared a vexatious litigant in that court.

This prompted an application by C.L. to either be added as a party to the application under Rule 3-84 of The Queen’s Bench Rules or to be granted intervenor status under Rule 2-12. [ 71 ] On June 22, 2021, Layh J. granted C.L.’s application and added him as a party to SHA’s originating application ( Saskatchewan Health Authority v Patel (22 June 2021) Regina, QBG 2144/2020 (Sask QB)). [ 72 ] Dr. Patel sought leave to appeal against that decision. In his application for leave, Dr. Patel filed a draft notice of appeal alleging that Layh J. had made a multitude of legal errors. Dr.

Patel also asserted that he had not been given an adequate opportunity to make submissions. Along with his leave application, Dr. Patel filed a lengthy affidavit, setting out his take on the procedural history and attaching large portions of the record from the PSAT proceedings. He also filed a “supplemental affidavit” in which he made a variety of allegations against C.L.’s counsel, Paul Harte, and Mr. Watson. [ 73 ] Justice Barrington-Foote heard Dr. Patel’s leave application on July 28, 2021.

He concluded that the proposed appeal cleared the “merit” hurdle of the test set out in Rothmans, Benson & Hedges Inc. v Saskatchewan , 2002 SKCA 119 , 227 Sask R 121 [ Rothmans ] because, even though many of the issues identified by Dr. Patel lacked merit, there had also been some “arguable points” raised with respect to procedural fairness and the proper application of Rule 3-85. However, Barrington-Foote J.A. was not persuaded that Dr. Patel’s application for leave met the “importance” criterion under Rothmans .

This was so because the addition of C.L. as a party did not bear heavily on the outcome of the application Dr. Patel was facing in the Court of Queen’s Bench and granting leave to appeal would add delay that, in the circumstances, was not warranted. In the result, he denied the application for leave and ordered Dr. Patel to pay $1,000 in costs to C.L. immediately ( Patel v Saskatchewan Health Authority , 2021 SKCA 105 ). [ 74 ] In conjunction with his leave application in CACV3857, Dr.

Patel had also filed a notice of motion in which he sought to have this Court compel C.L. to produce an appropriate draft order in relation to Layh J.’s decision on standing, and to “compel reasonable behaviour by opposing counsel”. In the application, Dr. Patel accused Mr. Harte and Mr. Watson of unprofessional behaviour, dishonesty, intimidation and “churning” their files to facilitate billings. He sought an order “attributing the causation and costs of delay personally to Mr. Harte and Mr. Watson” and an order “addressing the unprofessional behaviour” of each with their respective law societies.

Justice Barrington-Foote’s fiat did not directly address this motion but it is apparent that the relief Dr. Patel sought in the motion is not relief this Court can grant.

[ 75 ] Dr. Patel was represented by counsel on this application on a limited retainer basis. The scope of the limited retainer restricted the role of counsel to making oral argument in this Court. 5. CACV3854 – Patel v The Practitioner Staff Appeals Tribunal and Saskatchewan Health Authority and CACV3866 – Patel v Saskatchewan Health Authority and The Practitioner Staff Appeals Tribunal a. The underlying Queen’s Bench proceedings [ 76 ] Dr. Patel is involved in many matters that are currently before the Court of Queen’s Bench.

He is either an applicant, appellant, or plaintiff in QBG 953 of 2019, QBG 1792 of 2020, QBG 1793 of 2020, and QBG 240 of 2020. He is the defendant in QBG 2361 of 2017, a claim of medical malpractice brought against him by C.L. [ 77 ] In QBG 1385 of 2018, Dr. Patel is the plaintiff.

In this action, which he commenced by statement of claim filed on May 8, 2018, he pleads several causes of action against SHA, including malicious prosecution, negligent prosecution, negligent investigation, breach of contract, conspiracy, intimidation, interference with economic relations, libel, and slander. [ 78 ] In QBG 105 of 2021, Dr. Patel is the appellant.

This proceeding concerns a notice of appeal he filed pursuant to s. 15 of the PSA Regulations , appealing to the Court of Queen’s Bench against the December 22, 2020, recusal decision of the Panel that had been hearing his matter before the PSAT. [ 79 ] In QBG 827 of 2021, Dr. Patel is the applicant.

On April 19, 2021, he filed an originating application in the Court of Queen’s Bench seeking, among other remedies, a declaration that the PSAT is not an adequate process to determine his appeal from the disciplinary sanction imposed by the SHA Board, an injunction ordering SHA to immediately allow him to exercise his surgical privileges, a declaration that the suspension of his surgical privileges by the Senior Medical Officer was improper, and an order that he be “reinstated at the Saskatchewan Health Authority with full surgical privileges”. [ 80 ] Dr.

Patel is the respondent in QBG 2144 of 2020, which involves an application by SHA to have him declared a vexatious litigant in the Court of Queen’s Bench. [ 81 ] Between August 6, 2019, and May 25, 2021, Dr. Patel filed multiple applications, in relation to many of the actions noted above, to have Mr. Watson and Miller Thompson LLP removed as counsel for SHA. b. CACV3854 [ 82 ] On April 29, 2021, Popescul C.J.Q.B. appointed Brown J. as case management judge in relation to QBG 105 of 2021 and QBG 827 of 2021 and directed that those proceedings be managed in conjunction with QBG 1385 of 2018.

Prior to that having been done, however, some of the applications that had been brought in relation to those proceedings had been scheduled, by another judge, to be heard on June 15, 2021. [ 83 ] In a management conference call on June 13, 2021, Brown J. addressed the issue of sequencing. He determined that Dr. Patel’s application to remove Mr. Watson and Miller Thompson LLP as counsel for SHA should proceed first.

However, he also determined that, because a dispute had arisen over the production of documents said to be necessary to establish the factual basis for that application, the hearing of all matters needed to be adjourned. He directed the local registrar to arrange a conference call to address the scheduling of the application for disqualification of counsel and the sequencing of the other applications ( Patel v Saskatchewan Health Authority , (13 June 2021) Regina, QBG 105/2021, QBG 827/2021 and QBG 1385/2018 (Sask QB) [ June 13 Brown Fiat ]). [ 84 ] Dr.

Patel applied for leave to appeal from the June 13 Brown Fiat . In his application for leave, he also sought an order staying proceedings in the three Court of Queen’s Bench matters to which the June 13 Brown Fiat related, as well as in QBG 2144 of 2020 (SHA’s application to have him declared a vexatious litigant in the Court of Queen’s Bench). [ 85 ] Dr.

Patel’s draft notice of appeal listed seventeen grounds of appeal, which included the following: iv) that the purported reasons for the adjournment are nonsensical and inconsistent and cannot be taken at face value … vi) That granting the adjournment essentially means that opposing counsel have been allowed to hand-pick their preferred judge to hear the question of Mr. Watson’s removal and/or disqualification as counsel vii) That the actions of the Registrar in this matter and in prior matters exhibits bias and the resulting decision brings the administration of justice into disrepute… …

x) That a judge has an ethical obligation to adjudicate the matter(

s) they are assigned, not delegate them to other judges explicitly or implicitly; xi) That a judge has an ethical obligation to formally state their decision, and the reasons of the decision made, not simply make an implicit decision; [ 86 ] Dr. Patel sought relief that included a judgment “quashing the Order” made by Brown J., along with an order disclosing to him all “Correspondence to and from the Registrar on the relevant files” and an order assigning all applications concerning the removal of Mr. Watson to a single judge.

[ 87 ] Along with his application for leave to appeal, Dr. Patel also filed affidavits setting out the procedural history of his matters and containing copies of all the applications he had made to remove Mr. Watson as counsel, with briefs of law. He also filed a supplementary affidavit, containing various fiats and decisions rendered by other judges and more briefs of law and argument regarding Mr. Watson’s removal. Then he filed an amended notice of application, and a second amended notice of application.

He also filed a separate notice of application, in which he contended that his rights under s. 15(1) of the Charter had been breached because the Registrar and the Court Queen’s Bench justices had discriminated against him because of his race. c. CACV3866 [ 88 ] Several applications relating to Dr. Patel’s matters in the Court of Queen’s Bench were set to be heard on July 19, 2021. Among them were applications seeking a determination of what material comprised the PSAT record, for the purpose of dealing with the applications for judicial review of the proceedings before the PSAT Panel.

However, upon being informed of the date, Heather Jensen, counsel for PSAT, advised the Local Registrar of the Court of Queen’s Bench that she was unavailable on July 19, 2021, due to a scheduling conflict with another matter. On July 15, 2021, Brown J. granted Ms. Jensen’s request for an adjournment and pushed the hearing back three days to July 22, 2021 ( Patel v Saskatchewan Health Authority , (15 July 2021) Regina, QBG 105/2021, QBG 827/2021 and QBG 1385/2018 (Sask QB) [ July 15 Brown Fiat ]).

Justice Brown concluded that, in light of the nature of the applications that required determination, counsel for PSAT was an important participant. He also allowed, in the fiat, that if Dr. Patel could not effectively participate in the hearing on July 22, 2021, an alternative date could be scheduled. [ 89 ] Dr. Patel filed an application for leave to appeal from the July 15 Brown Fiat as well. He raised prospective grounds of appeal relating to questions of procedural fairness because, he said, he had not been given a proper opportunity to contest opposing counsel’s request for the adjournment.

He also took issue with what he characterized as a lack of reasons given by Brown J. for granting the adjournment. Along with the application for leave, he filed a notice of Charter application, identical in most respects to the application filed in CACV3854, alleging that the Registrar and the Court of Queen’s Bench had discriminated against him on the basis of his race.

By way of relief, he proposed to seek a declaration that the “Court and/or court officials” had violated his rights under s. 15(1) of the Charter by imposing upon him a more formal standard for obtaining an adjournment than had been imposed on PSAT or its counsel, and a declaration that the Court had erred by not granting him an adjournment when he had requested one in April of 2021. [ 90 ] Dr. Patel also filed an application to consolidate the proposed appeal in CACV3866 with the proposed appeal in CACV3854. [ 91 ] Dr. Patel was not represented by counsel when he filed the applications, but Mr.

Merchant appeared for him to request an adjournment on August 25, 2021. d. The Chambers hearing in CACV3854 [ 92 ] After he filed his leave and consolidation applications in CACV3866, Dr. Patel also filed a consolidation application in CACV3854. [ 93 ] The applications for leave to appeal in CACV3854 and to consolidate that appeal with CACV3866 were heard on August 4, 2021, by Tholl J.A. Both applications were dismissed ( Patel v The Practitioners Staff Appeal Tribunal , (6 August 2021) Regina, CACV 3854 (Sask CA)). In his written reasons, Tholl J.A. observed that, given the nature and timing of Dr.

Patel’s application, any benefit to consolidating the two appeals would be outweighed by the delay required to give SHA the opportunity to properly respond to the application. [ 94 ] As for Dr. Patel’s application for leave to appeal, Tholl J.A. wrote: [20] In my view, this application for leave to appeal should be dismissed. Dr. Patel has made serious allegations about procedural fairness, violations of the Charter , bias, differential treatment of a self-represented litigant and racism.

However, none of these allegations appear to have been raised with the Court of Queen’s Bench and certainly are not reflected in the June 13th Fiat . The June 13th Fiat is a discretionary decision made by a case management judge that simply adjourned the applications set for June 15, 2021, and directed a conference call to deal with management issues. The adjourned date has passed and cannot be restored. The conference call has taken place and the management issues have been dealt with.

The formal order that should have resulted from the June 13th Fiat is spent and there is no remedy that this Court could grant on appeal that would affect that result. Consequently, the appeal is destined to fail on the substantive grounds related to the result of the June 13th Fiat . It has been overcome by the proceedings and rendered moot. An appeal would also unduly delay the proceedings. There is no merit to an appeal regarding the actual result of the June 13th Fiat . … [22] In relation to the issues he raises about process, Dr.

Patel seeks to be granted leave to appeal this simple discretionary management decision and, in the resulting appeal, have this Court conduct an examination of issues regarding alleged differential treatment of self- represented parties versus counsel-represented parties, racism, bias and unauthorized actions on the part of the local registrar, apprehension of bias on the part of Brown J., judge shopping, and other instances of procedural unfairness.

Based on the material filed in this application, it does not appear that a remedy has been sought for any of these issues in an application to the Court of Queen’s Bench. It is also highly relevant that Dr. Patel does not seek any changes to the bottom-line result from the June 13th Fiat .

Instead, in the proposed appeal, he seeks disclosure of records from the local registrar regarding her communications on the three files and a declaration “that the Court and / or court official have unduly infringed on the Appellant’s s. 15(1) Charter right to equal treatment before the Courts by imposing a more formal standard for applications seeking adjournment on Dr. Patel than upon the PSAT or their counsel, Ms. Heather Jensen”. There is no indication in the material filed on the leave application that Dr. Patel sought any of this same relief in an application to the Court of Queen’s Bench.

In any event, the application for leave to appeal at hand does not engage any such applications from the Court of Queen’s Bench. [23] Alternatively, Dr. Patel seeks a declaratory judgment finding that the “Court of Queen’s Bench and / or Court officials erred by not granting an adjournment to Dr. Patel in April 2021 on the same basis for which Ms. Jensen’s adjournment request was later granted”. I

note Dr. Patel indicated that his adjournment request was granted in April, but only after a formal application by him and argument. Crucially, there is no application for leave to appeal from Clackson J.’s April 22, 2021, adjournment decision in front of me. [24] While Dr. Patel has made serious allegations, it is my view that the evidentiary record and the nature of the order in question in this application does not support the granting of leave, particularly in the absence of a challenge to the bottom-line result from the June 13th Fiat .

An appeal on the process grounds discussed above, in the context of an appeal arising out of the June 13th Fiat , cannot pass the merit test because it is destined to fail in any event. (Emphasis in original) e. The adjournment of the leave application in CACV3866 [ 95 ] The hearing of Dr. Patel’s application for leave to appeal in CACV3866 was scheduled for August 25, 2021. That was the same date scheduled for the hearing of SHA’s application to have Dr. Patel managed as a vexatious litigant. [ 96 ] On that date, Mr. Merchant appeared as counsel for Dr. Patel on SHA’s vexatious litigant application.

He also indicated that he was representing Dr. Patel on the application for leave (Dr. Patel had previously been self-represented on that application). Mr. Merchant requested an adjournment of the leave application because he had mistakenly believed that only the vexatious litigant application would be proceeding and, as such, he was not properly prepared on the leave application. Over SHA’s objection, I granted the request for an adjournment. f. The discontinuance of Dr.

Patel’s applications in CACV3866 [ 97 ] On July 22, 2021, the applications that had been adjourned by the July 15 Brown Fiat were heard in the Court of Queen’s Bench. On September 27, 2021, Brown J. issued a written fiat in which he determined what material comprised the record for the purpose of various judicial review applications before the Court of Queen’s Bench and ordered PSAT to compile the record and disclose it to Dr.

Patel, SHA and the Court within 45 days ( Patel v Saskatchewan Health Authority (Formerly Regina Qu’Appelle Health Authority) , (27 September 2021), Regina, QBG 1385/2018, QBG 105/2021, QBG 827/2021 (Sask QB)). [ 98 ] On October 1, 2021, Dr. Patel filed a notice of discontinuance of the applications he had previously filed in CACV3866. B. The Barth considerations applied to this case [ 99 ] There is no question that Dr. Patel has been a prolific litigant in this Court. It is also clear that, to date, the proceedings he has initiated before this Court have met with little success. Dr.

Patel points out that he has prevailed in certain interim skirmishes, including successfully resisting SHA’s application to have his appeals dismissed for want of prosecution in CACV3517 and CACV3527, successfully applying to amend his notice of appeal in CACV3527, and successfully arguing that Leurer J.A. should recuse himself from hearing various appeals. However, those small successes aside, none of the appeals or applications he has brought before this Court have ultimately been resolved in his favour. His appeals in CACV3186, CACV3517, CACV3527 and CACV3679 were all dismissed.

His appeals in CACV3751 and CACV3752 were quashed. His applications to introduce fresh evidence in those appeals were all dismissed. His applications for leave to appeal in CACV3489, CACV3857 and CACV3854 were denied. His application to consolidate the appeals in CACV3854 and CACV3866 was dismissed. [ 100 ] All of that said, lack of success—even repeated lack of success—does not necessarily mean that the proceedings brought by a litigant are frivolous or vexatious such that Rule 46.2(1) should be invoked.

Nor is an order under Rule 46.2(1) appropriate simply because a litigant’s conduct shows some of the hallmarks of vexatious conduct. As set out above, an order under that Rule is appropriate in only the clearest of cases where, after balancing the relevant considerations, the Court concludes that it is necessary to prevent the continued abuse of its process. I turn now to the analysis of those considerations. 1. Has Dr. Patel brought more than one appeal seeking to determine the same issue? [ 101 ] While there has been a consistent theme running through the various appeals brought by Dr.

Patel, I do not view this consideration as tilting the balance toward making an order under Rule 46.2(1). [ 102 ] CACV3186 involved an appeal from a decision that denied an application for judicial review of certain rulings made by the Panel, on the basis that judicial review was premature. While CACV3527 involved an appeal from a similar type of decision, I do not view this as an attempt by Dr. Patel to re-determine the same issues, as there had been new developments and significant changes in circumstances since the decision in Patel CA 2018 was rendered. [ 103 ] In the appeals in CACV3517 and CACV3527, Dr.

Patel raised, among other grounds of appeal, the argument that Scherman J. ought to have dealt with the application to recuse himself and the application to remove Mr. Watson as SHA counsel before determining other issues. Those arguments had been addressed, tangentially, in the 2019 Schwann Fiat that dismissed Dr. Patel’s application for leave to appeal against the September 25 Fiat . But I do not view the fact that Dr. Patel raised those arguments in these appeals as seeking a determination on the same issue.

The context was different in the leave application; Schwann J.A. determined that Scherman J. had not made the orders against which Dr. Patel sought leave to appeal. But, in the appeal proper, Dr. Patel raised the issues of bias and conflict of interest, arguing that Scherman J. had erred by hearing and determining the other issues at play first.

Without making any comment on the merit of those arguments, I am satisfied that, when the appeals were launched in CACV3517 and CACV3527, those arguments were properly raised, notwithstanding the fact that intervening events caused the appeals to ultimately turn on the question of mootness. [ 104 ] The remaining appeals, with the exception of CACV3854 and CACV3866, have all arisen from decisions that determined different types of applications and have raised different issues. And, as noted, Dr. Patel has now discontinued his applications in relation to CACV3866.

[ 105 ] Accordingly, I do not find that this factor speaks to conduct on Dr. Patel’s part that would bring him within the reach of Rule 46.2(1). 2. Have appeals been brought by Dr. Patel that involve no right of appeal? [ 106 ] Generally speaking, there is no right of appeal except as provided by statute. Any right of appeal is governed, and limited, by the statutory framework that creates it.

Section 7(2) of The Court of Appeal Act, 2000 , SS 2000, c C-42.1 , confers a general right of appeal to this Court from decisions of the Court of Queen’s Bench, but that general right is limited by s. 8(1), which provides (subject to certain exceptions set out in s. 8(2) that do not apply in this case) that “no appeal lies to the court from an interlocutory decision of the Court of Queen’s Bench unless leave to appeal is granted by a judge or the court”. [ 107 ] In Patel CA 2021 , this Court determined that one of the bases upon which Dr.

Patel’s appeals in CACV3751 and CACV3752 could properly be struck was that they did not disclose a right of appeal. This was because the decisions against which Dr. Patel had appealed were interlocutory decisions and he had not sought leave to bring the appeals. [ 108 ] In CACV3489, Dr. Patel sought leave to appeal against what he characterized in his draft notice of appeal as a refusal by Scherman J. to recuse himself and a refusal to remove Mr. Watson as counsel for SHA. Justice Schwann determined that no decision of the nature alleged by Dr.

Patel had been made in the July 25 Fiat and, as such, he had no right to seek leave to appeal. She denied his application for leave to appeal on that basis. [ 109 ] Those proceedings, in and of themselves, do not evince vexatious conduct. The failure to correctly identify whether the order from which an appeal is taken is interlocutory or final in nature does not suggest an abuse of the Court’s process.

Nor does incorrectly characterizing, in a draft notice of appeal, what order a Court of Queen’s Bench judge actually made. [ 110 ] More troubling on this front, however, is that a number of the applications that Dr. Patel has brought in conjunction with his applications for leave to appeal appear to seek what is essentially first-instance relief from this Court or relief that this Court has no ability to grant. Examples of this include the application for orders to “compel reasonable behaviour by opposing counsel”, “attributing the causation and costs of delay personally to Mr. Harte and Mr.

Watson” and “addressing the unprofessional behaviour” of each with their respective law societies in CACV3857; and his application for orders compelling statements on the record from several Court of Queen’s Bench judges about their out-of-court communications and formally reviewing the standing of Miller Thompson LLP in CACV3751 and CACV3752.

As for his application to compel production of correspondence between counsel and the Registrar of the Court of Queen’s Bench and his application to conduct an examination of issues regarding alleged differential treatment of self-represented persons and parties represented by counsel in CACV3854 and CACV3866, Tholl J.A. noted that none of those matters were raised before the Court of Queen’s Bench. Dr. Patel’s attempts to raise them before this Court ignores this Court’s role as a court of review and invites it to exercise first-instance powers in the absence of a proper basis. Dr.

Patel’s repeated applications of this nature can properly be characterized as vexatious conduct. 3. Has Dr. Patel initiated appeals or other proceedings in this Court that are manifestly without merit? [ 111 ] One of the hallmarks of vexatious conduct is the repeated initiation of proceedings that are manifestly without merit. In my view, Dr. Patel has been guilty of this. [ 112 ] Rule 46.1(1)(

c) permits the Court, on application, to make an order quashing an appeal on the ground that it is manifestly without merit. The term “manifestly without merit” has a particular meaning in the context of that Rule.

It connotes a high threshold, one that is met only where “it is entirely clear the appeal is destined to fail and where, conversely, there is no possibility that any ground of appeal might succeed” ( Jardine v Hyggen , 2018 SKCA 38 at para 19 , [2018] 7 WWR 713; see also: 6517633 Canada Ltd. v Norton (Rural Municipality), 2019 SKCA 45 at para 15 ). [ 113 ] The same meaning applies to the term when Rule 46.2(1) is being considered. In that respect, although Dr.

Patel’s appeals in CACV3186, CACV3517 and CACV3679 were all dismissed, it cannot be said that any of them were manifestly without merit; they all raised points that were arguable. In CACV3857, even though Dr. Patel’s application for leave to appeal was denied, Barrington-Foote J.A. explicitly held that some of the proposed grounds of appeal were potentially meritorious. [ 114 ] However, certain aspects of Dr. Patel’s appeals in CACV3527, CACV3751 and CACV3752, can properly be described as manifestly without merit. To be clear, this is not because Dr.

Patel stood no chance of demonstrating that the Chambers judges had erred in the decisions under appeal, but because it was plainly obvious that the relief he sought could not be granted. [ 115 ] For example, and as noted above, in Patel CA 2021 , this Court observed that the relief Dr.

Patel sought in CACV3527 was relief that simply could not be granted, in light of the statutory and regulatory structure that governed his dispute with SHA, the roles that the Court of Queen’s Bench and various statutory bodies play in that structure, the state of the evidentiary record, and the proper function of this Court. [ 116 ] In addition to that, in relation to CACV3751 and CACV3752, Dr. Patel sought orders that included: (

a) striking the evidence that C.L. had given before the PSAT; (

b) disqualifying Tochor J. from hearing any of his matters; (

c) compelling “statements on the record” from several other Court of Queen’s Bench judges regarding any out-of-court communication they may have had about his matters; (

d) formally reviewing the standing of Miller Thompson LLP; and

(

e) assigning an out-of-province judge or a judge of the Federal Court to hear his matters. [ 117 ] It was not only patently obvious that Dr. Patel had not established a factual basis for any of this relief, but equally clear that there was no basis in law upon which this relief could be granted in the context of the appeal in which it was sought. [ 118 ] In CACV3854 Dr. Patel sought disclosure of correspondence between counsel and the Registrar of the Court of Queen’s Bench. He also sought a declaration that his rights under s. 15(1) of the Charter had been violated on the basis of racial discrimination.

However, these were not remedies he had sought in the application that led to the decision under appeal and nor did he provide an evidentiary basis for such remedies in this Court. Justice Tholl found there to be no merit to Dr. Patel’s appeal from the actual result of the June 13 Brown Fiat . [ 119 ] Dr. Patel raised many of the same issues in his applications in relation to CACV3866 that he had raised in CACV3854 and sought similar relief, again without evidence to support the allegations he was making.

As the Court of Appeal for British Columbia observed in Hirji v The Owners Strata Corporation Plan VR 44 , 2020 BCCA 285 [ Hirji ] at para 27 , repeatedly raising issues that obviously cannot succeed and seeking relief that no reasonable person could reasonably hope to obtain are indicative of a pattern of vexatious litigation. Dr. Patel’s conduct in this Court shows clear signs of this. To his credit, however, Dr.

Patel discontinued the applications he brought in CACV3866, which demonstrates some understanding on his part of the correct course of action by a litigant in circumstances where it is clear that there is no proper basis to continue with a proceeding. 4. Can Dr. Patel’s conduct in pursuing appeals be considered an abuse of the process of the Court? [ 120 ] In my view, much of Dr. Patel’s conduct in this Court demonstrates an abuse of the Court’s process. [ 121 ] There is no set test or rules for determining what amounts to an abuse of process.

The doctrine of abuse of process is a flexible one that engages the court’s inherent power to prevent the misuse of judicial proceedings and to ensure that the administration of justice is not brought into disrepute (see, for example: Onion Lake Cree Nation v Stick , 2018 SKCA 20 at paras 52–54 , [2018] 5 WWR 111; Saskatchewan Medical Association v Anstead , 2016 SKCA 143 at paras 23–24 ; and Huerto v Salte , 2015 SKCA 21 at para 12 , 457 Sask R 14). [ 122 ] In the context of applications for vexatious litigant orders, it has been held that an abuse of process may occur when a litigant brings new proceedings seeking to determine issues that have already been decided by a court of competent jurisdiction, raises issues that obviously cannot succeed, seeks relief that no reasonable person could reasonably expect to obtain, and fails to pay costs orders ( Hirji at para 27 ). [ 123 ] Dr.

Patel has done a number of these things. As mentioned above, he has, on more than one occasion, attempted to seek relief in his appeals or other applications that the Court has no legal authority to grant. A prime example of this was his appeal in CACV3527, which invited the Court to disregard the entire statutory and regulatory scheme in place for dealing with discipline of physicians and grant first-instance relief on the basis of an incomplete evidentiary record.

Many of his other appeals and applications have also sought relief that this Court simply has no legal authority to grant. [ 124 ] On top of that, Dr. Patel has also frequently raised issues in his appeals and applications that had not been raised before the judge that made the decision under appeal. [ 125 ] Furthermore, in almost every instance, Dr. Patel has filed large quantities of superfluous and often irrelevant material in support of his appeals or applications.

He has routinely included a lengthy history of the proceedings between him and SHA in those materials— even where that history does not bear on the decision under appeal. He routinely invites this Court to revisit and resolve larger issues that are not directly connected to the decision under appeal.

This is not unlike the situation in Hokhold v Gerbrandt , 2017 BCCA 216 , where Newbury J.A., in Chambers, found that the litigant’s practice of persistently filing voluminous and complex affidavit material that would inevitably confuse the issues and increase costs for the opposing party, amounted to an abuse of the court’s process. She wrote: [22] While in this case the majority of vexatious conduct on Dr. Hokhold’s part has taken place in the Supreme Court of British Columbia, there are two factors that amplify the seriousness of his conduct in this court – the extreme pressure that it has put on Ms.

Gerbrandt and the children; and the fact that Dr. Hokhold insists on filing (usually very shortly before the relevant hearing) volumes – literally hundreds if not thousands of pages – of materials with every application, no matter how insignificant. Virtually every affidavit has attached to it other affidavits and their exhibits, with the result that any substantive issues he might raise or response he might make, are simply lost in a sea of paper. No judge can digest such a stream of irrelevancies on a regular basis; and few litigants could afford to pay counsel to review such materials carefully. Certainly Ms.

Gerbrandt cannot. [23] It is these factors, together with his filings in this court, that lead me to conclude that Dr. Hokhold has been using the judicial process in a manner calculated to divert attention from the real issues outstanding between the parties … [ 126 ] In addition, some of Dr. Patel’s appeals have not engaged with an issue that is properly the subject of an appeal, but instead have sought to settle matters that have no impact on the bottom-line result in the decision.

Examples of this were seen in his applications for leave to appeal in CACV3854 and CACV3866. [ 127 ] Considering all of this, I conclude that Dr. Patel’s conduct has demonstrated an abuse of this Court’s process. 5. Does it appear that one or more of Dr. Patel’s appeals was brought for an improper purpose, including the harassment and oppression of a respondent through multiple proceedings brought for purposes other than the legitimate assertion of a statutory right of appeal or a cause of action? [ 128 ] SHA contends that Dr. Patel has commenced appeals and brought applications for improper purposes.

I cannot agree with that assertion. Even though many aspects of Dr. Patel’s appeals and applications have been seriously misguided, I am not prepared to go so far

as to draw the conclusion that they have been brought for purposes other than what he believes is a legitimate assertion of his right of appeal. [ 129 ] Lack of merit is not the same as impro

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