Satyam Patel Appellant (Plaintiff) v. Saskatchewan Health Authority, 2022 SKCA 114

Court of Appeal for Saskatchewan Docket: CACV4033 Citation: Patel v Saskatchewan Health Authority , 2022 SKCA 114 Date: 2022-10-05 Between: Satyam Patel Appellant (Plaintiff) And Saskatchewan Health Authority (formerly Regina Qu’Appelle Regional Health Authority) and The Practitioner Staff Appeals Tribunal Respondents (Defendants) Before: Caldwell J.A. (in Chambers) Disposition: Application dismissed Written reasons by: The Honourable Mr. Justice Caldwell On application from: QBG 827 of 2021, QBG 1385 of 2018, QBG 105 of 2020, Regina Application heard: August 10, 2022 Counsel: E.F.

Anthony Merchant K.C., for the Appellant Faith Baron for the Practitioner Staff Appeals Tribunal Reginald Watson K.C., Scott Spencer, Jeffery Deagle, and Ryan Kitzul for the Saskatchewan Health Authority Caldwell J.A. I. INTRODUCTION [ 1 ] This matter involves an application by Dr. Satyam Patel for leave to appeal against the Court of Queen’s Bench Chambers decision in Patel v Saskatchewan Health Authority (9 June 2022) Regina, QBG 827/21 (Sask QB) [ Fiat ]. [ 2 ] A judge of this Court has previously declared Dr.

Patel to be a vexatious litigant pursuant to Rule 46.2(1) of The Court of Appeal Rules (see Saskatchewan Health Authority v Patel , 2021 SKCA 140 [ Designation Decision ]), which prohibits him from “commencing any proceedings in this Court without leave of the Court or a judge thereof” (at para 136(a)). For that reason, Saskatchewan Health Authority [SHA] raises a preliminary objection, arguing that Dr. Patel’s application for leave to appeal is a nullity because he did not obtain leave to file it. While acknowledging that, practically speaking, Dr.

Patel’s application for leave to appeal is before a judge of this Court, SHA urges me to impose what I will call a “double-leave” requirement on him in any applications for leave to appeal that he may bring in the future. [ 3 ] After considering SHA’s objection, I am not convinced that The Court of Appeal Rules [ Rules ], The Court of Appeal Act, 2000 , SS 2000, c C-42.1 [ Act ], or the Designation Decision impose a double-leave requirement on Dr. Patel. Nor am I persuaded that I can impose such a requirement in future applications for leave to appeal made by Dr.

Patel. [ 4 ] In substantive terms, applying Rothmans, Benson & Hedges Inc. v Saskatchewan , 2002 SKCA 119 , 227 Sask R 121 [ Rothmans ], in the context of this case, I dismiss Dr. Patel’s application for leave to appeal against the Fiat . II. BACKGROUND [ 5 ] For a

summary of the administrative proceedings, judicial reviews, civil litigation and appeals that precede this application, see the Designation Decision (at paras 22–98 ). [ 6 ] The matter at hand involves an interlocutory decision made by a Court of Queen’s Bench Chambers judge in the course of Dr. Patel’s most recent application for judicial review. That application seeks multiple avenues of relief, including an order setting aside a decision by a panel of the Practitioner Staff Appeals Tribunal [PSAT] to recuse itself from hearing Dr.

Patel’s appeal against an administrative decision of that body (see: Patel v Saskatchewan Health Authority (22 December 2020) Regina (PSAT) [ Recusal Decision ]). [ 7 ] For the purposes of the judicial review, the Chambers judge had previously ordered PSAT to compile and disclose the “record, including the written decision that is the subject of the originating application for judicial review, the reasons given for the decision, the document that started the proceeding and the evidence and exhibits filed in that proceeding” ( Patel v Saskatchewan Health Authority (27 September 2021) Regina, QBG 1385/2020, QBG 105/2020, QBG 827/2021 (Sask QB) [ Record Fiat ] at para 19(a)).

The language of this order tracks Rule 3-57 of The Queen’s Bench Rules [ QB Rules ], which addresses the filing of the record of proceedings before administrative tribunals in judicial review applications. [ 8 ] Also in the Record Fiat , the Chambers judge allowed that, if there were “perceived gaps in what is disclosed and a party believes documents exist which should form part of the record but they have not been disclosed, those are to be identified and PSAT informed of the belief and the basis for such belief”.

He then provided a mechanism for PSAT to respond and to object to the disclosure of any documents so identified by the parties but ordered PSAT not to redact the record unless required by law to do so. Lastly, the Chambers

judge directed that: (

d) Any party who is of the belief the objected to documents are to form part of the record that can be put before me on seven days’ notice for determination. [ 9 ] Acting under the Record Fiat , PSAT filed a record containing 32,000 pages of materials and provided the parties with flash drives of those materials. Also acting under terms of the Record Fiat , Dr. Patel applied to the Chambers judge for an order requiring PSAT to disclose a broad range of further materials. [ 10 ] Under the Fiat , the Chambers judge found that the record filed by PSAT warranted some supplementation but he dismissed the bulk of Dr.

Patel’s requests for disclosure. Dr. Patel seeks leave to appeal against this result on 12 proposed grounds, which have a principal theme, namely, that the Chambers judge erred in his assessment of what constituted the “record” because he misapprehended what had been put at issue by Dr. Patel’s application for judicial review . Dr. Patel also says the Chambers judge erred because he failed to consider The Practitioner Staff Appeals Regulations , RRS c R-8.2 Reg 5 [ Regulations ], when making his decision. III. PRELIMINARY OBJECTION [ 11 ] I first answer SHA’s objection to the filing of Dr.

Patel’s leave application. In brief terms, SHA argues that a vexatious litigant who has been prohibited from “commencing any proceedings in this Court without leave” must obtain leave to file an application for leave to appeal and that, where that does not occur, the application is a nullity. SHA submits that the test for granting leave to file differs from that described in Rothmans for granting leave to appeal. A. The question of double leave [ 12 ] Addressing whether there is a double-leave requirement, I note that neither the Rules nor the Act expressly impose such a requirement on vexatious litigants.

Further, although our jurisprudence in this regard is recent and narrow, this Court has not required vexatious litigants to obtain leave to file applications for leave to appeal.

Judges of this Court have considered only three applications for leave to appeal made by a litigant who has been declared vexatious by this Court pursuant to Rule 46.2(1) and each of those applications was brought by the first litigant to be so declared (see Barth v Saskatchewan (Social Services) , 2021 SKCA 41 [ Barth ]). [ 13 ] In the first of those Chambers decisions, Barth v Barth (18 May 2021) Regina, CACV3823 (Sask CA) [ Barth Chambers-1 ], Richards C.J.S. granted the application for leave to appeal.

In the second decision, Barth v Barth (24 June 2021) Regina, CACV3848 (Sask CA) [ Barth Chambers-2 ], Richards C.J.S. dismissed the leave application. In the third, Barth v Ritter (27 August 2021) Regina, CACV3852 (Sask CA) [ Barth Chambers-3 ], Schwann J.A. dismissed the application for leave to appeal. Nothing on this Court’s records indicates that Mr. Barth sought leave to file any of his applications for leave to appeal or that the judges who heard those applications had been asked to consider whether he should be required to do so. Notably in this regard, the vexatious litigant order in Barth prohibits Mr.

Barth from “ filing or attempting to file in this Court, by any means whatsoever, without leave of the Court or a judge thereof, any notice of appeal ” (at para 20(a); emphasis added); whereas the Designation Decision prohibits Dr. Patel from “ commencing any proceedings in this Court” (at para 136(a); emphasis added). [ 14 ] As SHA points out, in Canadian National Railway Company v SSAB Alabama Inc. , 2019 SKCA 33 at para 34 [ SSAB Alabama ], Schwann J.A. held that “an application for leave to appeal is undoubtedly a ‘proceeding’ in this Court even though it has not yet achieved appeal status”.

While she reached that conclusion when interpreting the scope of a judge’s authority pursuant to s. 20 of the Act , her analysis remains applicable to the

interpretation of the word “proceeding” in Rule 46.2(1) and under the Designation Decision . In that regard, she wrote: [34] There are two limitations to the exercise of discretionary authority under s. 20(1). First, s. 20(1) does not empower a single judge to make an order if the order would, in effect, decide the appeal on its merits. There is no suggestion CN’s application would have that effect. This brings me to the second limitation: the relief sought must be incidental to an appeal or a matter pending in the court.

Clearly, the first of these scenarios does not apply for the simple reason that until leave is granted there is no appeal. As to the second part of the precondition, I am satisfied that CN’s application, viewed narrowly, relates to a “matter pending before the court”. Matter is defined by s. 2 of The Court of Appeal Act, 2000 , to mean “every proceeding in the court that is not an appeal”. An application for leave to appeal is undoubtedly a “proceeding” in this Court, even though it has not yet achieved appeal status.

Furthermore, a matter is said to be incidental when it is one that “has a minor or subordinate role in relation to the outcome of the appeal proper” ( Stevenson Estate v Bank of Montreal , 2009 SKCA 11 at para 10 , 320 Sask R 168). [ 15 ] Although not reported and not entirely on point, I note that this Court interpreted the nature of the leave requirement under the Designation Decision in Patel v McMurtry (04 February 2022) Regina, CACV3907 (Sask CA) [ McMurtry ], in the context of an as-of- right appeal Dr. Patel had commenced before he was declared vexatious.

In that matter, the respondents asked this Court to impose a leave requirement either “retroactively or nunc pro tunc ” on the commencement of that already-commenced appeal. In denying that request, the Court wrote: That said, we are all of the view that the applications must fail. As a starting point, the order made in the [ Designation Decision ] does not impose a leave requirement on every step taken by Dr. Patel in pursuit of an appeal, only the commencement of proceedings. An appeal, especially one that is an appeal as of right, is commenced by the service and filing of a notice of appeal.

Taking further steps such as perfecting an appeal by filing his factum and appeal books is not a “proceeding” as the term is used in Rule 46.2(1), or the [ Designation Decision ]. Moreover, the present appeal had already been commenced when the order in the [ Designation Decision ] was made, and the order was made with that in mind. And, notwithstanding the nature of the order, it contained no retroactive aspect pertaining to the commencement of the present appeal. We see no proper basis to now impose a requirement that Dr.

Patel seek leave to commence an appeal that did not require leave at the time he filed it. [ 16 ] Given the reasoning in SSAB Alabama , I agree with SHA that, on its face, the Designation Decision would seem to prohibit

Dr. Patel from applying for leave to appeal without first obtaining leave to do so. However, I find that the strict application of this

interpretation in the context of this matter would give rise to an absurdity. Applying the same reasoning, I am at a loss to understand how an application to obtain permission to file an application for leave to appeal is not also a proceeding and, therefore, not also something that Dr. Patel would require leave to commence. It is by no means an answer to this problem to say that such applications could be made ex parte —because ex parte proceedings are still proceedings. The absurdity arises because, taken to the extreme, there would be no way for Dr.

Patel to begin to seek leave to appeal because he would need a prior grant of leave before he could take any step in that direction. That is, Dr. Patel could never get past the front door of the Registry because he would need permission to knock, which he could only obtain by entering. [ 17 ] In Barth , which first interpreted Rule 46.2(1), the Court observed that the relief afforded under that Rule “does not preclude access” to this Court (at para 11). As a strict

interpretation of the Designation Decision would effectively preclude Dr. Patel from accessing this Court, I prefer to interpret it in accordance with the intent of Rule 46.2(1) and so that it operates “to protect the proper administration of justice and to prevent an abuse of its process” ( Barth at para 10 ). As I read the endorsement in McMurtry , this is what the Court did in that matter. [ 18 ] In McMurtry , the Court said that the Designation Decision “does not impose a leave requirement on every step taken by Dr.

Patel in pursuit of an appeal, only the commencement of proceedings” but in the same paragraph affirmed that: “An appeal, especially one that is an appeal as of right , is commenced by the service and filing of a notice of appeal” (at 5; emphasis added). An appeal as of right does not require leave, so the issue arising in this matter was not before the Court in McMurtry . Nonetheless, McMurtry remains applicable in the context of Dr.

Patel’s proposed appeal against the Fiat as an interlocutory order because, in such matters, the grant of leave to appeal authorises the prospective appellant to file a notice of appeal and it is the filing of the notice of appeal that commences the appeal. That is, an application for leave to appeal is merely a step toward the possible commencement of an appeal against an interlocutory order. And, this Court had interpreted the Designation Decision as prohibiting Dr.

Patel from commencing appeals without leave to do so, not as preventing him from taking steps in that direction without obtaining leave. [ 19 ] Given the purpose of Rule 46.2(1) and following McMurtry , I conclude that Dr. Patel’s application for leave to appeal against the Fiat may be understood as a preliminary step taken in the appeal process but not one that necessarily commences a proceeding within the meaning of the Designation Decision . I am, therefore, unable to interpret the Designation Decision as prohibiting Dr. Patel from filing the instant application for leave to appeal. B.

The Rothmans criteria in context [ 20 ] The question left to be resolved is whether or how Rothmans applies when a vexatious litigant seeks leave to appeal. In arguing for a double-leave requirement, SHA submitted that the grant of leave to file should be made on a basis that differs from Rothmans .

However, I see no reason to conclude that Rothmans does not already fully address the circumstances of vexatious litigants who seek leave to appeal. [ 21 ] I start the explanation for this conclusion by referring to the approach set out in Rothmans at paragraph 6 under which, as already noted, applications for leave to appeal to this Court are most commonly handled: First: Is the proposed appeal of sufficient merit to warrant the attention of the Court of Appeal? • Is it prima facie frivolous or vexatious? • Is it prima facie destined to fail in any event, having regard to the nature of the issue and the scope of the right of appeal, for instance, or the nature of the adjudicative framework, such as that pertaining to the exercise of discretionary power? • Is it apt to unduly delay the proceedings or be overcome by them and rendered moot? • Is it apt to add unduly or disproportionately to the cost of the proceedings?

Second: Is the proposed appeal of sufficient importance to the proceedings before the court, or to the field of practice or the state of the law, or to the administration of justice generally, to warrant determination by the Court of Appeal? • does the decision bear heavily and potentially prejudicially upon the course or outcome of the particular proceedings? • does it raise a new or controversial or unusual issue of practice? • does it raise a new or uncertain or unsettled point of law? • does it transcend the particular in its implications? (Emphasis in original.) [ 22 ] SHA argued that, if I were to find that Dr.

Patel had to meet a double-leave requirement, the test for the initial stage of leave should include consideration of the two factors identified in Yashcheshen v Allergan Inc. , 2021 SKQB 33 [ Yashcheshen QB ], as being relevant to the determination of whether “leave to commence an action” should be granted: [40] Therefore, I conclude the appropriate test for determining if a vexatious litigant should be granted leave to commence an action is: (

a) is the proposed proceeding an abuse of process, as generally defined by the conditions set out in Rule 7-9(2)(

b) or (e)?; and (

b) are there reasonable grounds for the proposed proceeding, as generally defined by the conditions set out in Rule 7-9(2)(a)? [ 23 ] While I appreciate the parties’ arguments in this respect, what I take from Yashcheshen QB is that the two factors it identifies—

i.e., reasonable grounds and abuse of process—are already part of the Rothmans approach to the question of granting leave to appeal. [24] I begin with the reasonable-grounds requirement. The conditions set out in Rule 7-9(2)(

a) of the QB Rules support theconclusion that leave to commence an action proposed by a vexatious litigant may be denied when it “discloses no reasonable claim”. In Rv Imperial Tobacco Canada Ltd., 2011 SCC 42 at para 17, [2011] 3 SCR 45, the Court held that “another way of putting the test is that theclaim has no reasonable prospect of success”. Applying a similar test in Bernard v Canada (Professional Institute of the Public Service),2020 FCA 211 [Bernard], Stratas J.A. held that the reasonable-grounds requirement is met where a proposed appeal is “not doomed tofail”.

This determination, he said, involves judicial consideration of the standard of review and a finding that there is some “arguablesubstance behind the proceeding” (at paras 15-17), which harmonises with the merit criterion as described in Rothmans. Justice Strataswas careful to observe, however, that this is a merit-based inquiry not an ad hominem one in the context of a vexatious litigant: [18] Some vexatious litigants may repeatedly and unsuccessfully try to get leave to start various new proceedings.

In that circumstance,yet another attempt to seek leave might be met with understandable scepticism on the part of the Court. But that would be wrong. TheCourt must remain open-minded.

Vexatious litigants who have cried wolf too often in the past might actually come across a wolf one dayand might genuinely need help. [25] Similarly, in Belway v Lalande-Weber, 2017 ABCA 108 [Belway], Martin J.A. (as she then was) interpreted the reasonable-grounds requirement as being satisfied by “the existence of an arguable case” and, quoting from Rule 14.5 of the Alberta Rules of Court,equated it with a “reasonable chance of success on appeal” (at paras 4-6).

Nonetheless, she held that the two phrases were expressions ofthe same burden, namely, that “the applicant must show the case is not frivolous”, which she distinguished from the “the additionalburden on the applicant to show that the case does not amount to an abuse of process” (at para 6).

This too is consistent with Rothmans,which asks whether a proposed appeal would be prima facie frivolous. [26] In Manitoba, s. 31.2(3) of The Court of Appeal Act, RSM 1987, c C240, CCSM c C240, provides that, where a judge is satisfiedthat a proceeding to be continued is not an abuse of process and that there are “reasonable grounds for the proceeding”, the judge maygrant leave to proceed.

After considering this provision in Green v University of Winnipeg, 2021 MBCA 60, Burnett J.A. helpfullysummarised the general approach of a judge faced with an application for leave to appeal brought by a vexatious litigant: [12] To summarize, I have carefully considered the applicant’s written and oral submissions.

Notwithstanding the low threshold, I amnot persuaded that he has established any reasonable grounds for the appeal, nor do I believe that any of the proposed grounds reveal anarguable case or have a realistic possibility of success (see Belway v Lalande-Weber, 2017 ABCA 108 at paras 4, 6; ET v CalgaryCatholic School District No 1, 2017 ABCA 349 at para 10; Makis v College of Physicians and Surgeons of Alberta (Complaint ReviewCommittee), 2019 ABCA 341 at para 15; Bossé v Law Society of New Brunswick, at paras 13-14 (NBCA); and Green2020 at paras 11-14). [13] Moreover, I am satisfied that “[t]o permit the appeal to proceed would advance claims that have no hope of succeeding” (Wong vLeung, 2012 ABCA 290 at para 16) and would simply be a continuation of the applicant’s abuse of the Court process.

As O’Ferrall JAobserved in Jordan v De Wet, 2016 ABCA 366, “Fundamental to both tests (the abuse of process or the reasonable grounds test) is that ifthe court is convinced the appeal has no chance of success, permission should not be granted” (at para 21). [27] On the whole of it, I find that appeals that have no reasonable grounds or that disclose no right of appeal, that are “doomed tofail”, that are not arguable, or that have no reasonable chance or reasonable prospect or realistic possibility of success are (as Martin J.A.observed in Belway) subsets or examples of appeals that are “prima facie frivolous” or “prima facie destined to fail in any event”(Rothmans at para 6).

Although the language used differs from that in Rothmans and even from that floated by the parties in the hearing ofthis application, I am not persuaded that any of it describes something substantively different than what is described in Rothmans. [28] As I understand it, the Rothmans merit analysis is not confined to asking simply whether an appeal is frivolous, vexatious, ordestined to fail.

As Rothmans itself states, it must be understood that the criteria governing a grant of leave to appeal “constituteconventional considerations rather than fixed rules, that they are case sensitive, and that their point-by-point reduction is not exhaustive”(at para 6). I interpret “they are case sensitive” and “their point-by-point reduction is not exhaustive” to mean that the Rothmansconsiderations may be adapted by a judge to suit the specific contextual circumstances of an application for leave to appeal.

Nothingsuggests that Rothmans does not accommodate the existence of a vexatious litigant order or why an applicant was declared vexatious bythis Court. In fact, our jurisprudence suggests that it does (see Barth Chambers-1, Barth Chambers-2 and Barth Chambers-3). [29] Coming at this from the abuse-of-process angle, vexatious litigant orders are made by this Court “to protect the properadministration of justice and to prevent an abuse of its process” (Barth at para 10; see also Canada v Olumide, 2017 FCA 42 at paras 17–28, [2018] 2 FCR 328).

Rothmans does not expressly refer to abuse of the court process as part of a merit analysis but it is undoubtedlyconcerned with whether a proposed appeal would be vexatious. And, while abuse of process may take many forms, it certainly includesconduct that is considered vexatious. Such conduct may involve relitigating issues or rolling them forward, or commencing appeals thatdisclose no right of appeal or that are manifestly without merit or that have an improper purpose (such as harassment, oppression, orpursuit of a personal vendetta, etc.) (Barth at para 15).

In this sense, by denying leave to appeal where the appeal would be “vexatious”, achambers judge acts, on that measure, to protect the proper administration of justice and to prevent an abuse of the court process. [30] It follows that, when the circumstances of an application for leave to appeal warrant consideration of abuse of the courtprocess, the bona fides of the applicant are part of the inquiry.

Not in an ad hominem way, but in a way that allows the judge to examinethe applicant’s broader history with the courts and the justice system in general alongside the specific proceedings in question, theimpugned decision put at issue, and the merit and importance of the proposed grounds for appealing against that decision. [31] Further, as Stratas J.A. observed in Bernard, “a proceeding started for a bona fide reason can still be prosecuted abusively” (atpara 10).

Therefore, when abuse of process issues are engaged in an application for leave to appeal, the merit inquiry may extend towhether there is some assurance that the prospective appellant will appropriately prosecute the proposed appeal.

This may involveconsideration of factors such as whether the prospective appellant will be represented by counsel, whether the vexatious litigant orderresulted from a flouting of the Rules or non-compliance with court orders and directions, and whether the prospective appellant has castbaseless recriminations against the judiciary or court officials or made scandalous allegations of fact or allegations of malfeasance by

lawyers involved in the proceedings, etc. ( Barth at para 15 ). [ 32 ] In broad terms, this was the approach taken by Richards C.J.S. in Barth Chambers-1 and Barth Chambers-2 , and by Schwann J.A. in Barth Chambers-3 , albeit that neither of them referred to Rothmans . In Barth Chambers-1 , Richards C.J.S. granted leave to appeal because a number of Mr. Barth’s extant appeals had been consolidated, were already set down for a hearing, and concerned orders that Mr. Barth sought to put at issue again in the appeal proposed by his leave application.

That is, the proposed appeal dealt with orders under a Rothery Fiat that had resulted from an application to vary orders made under a Wilkinson Fiat , which were already under appeal. Given that set of circumstances, Richards C.J.S. concluded that “It would therefore make little practical sense to deny Mr. Barth leave to appeal the Rothery Fiat . It, after all, represents the current and governing state of affairs in the Court of Queen’s Bench with respect to supervised access and, unless it is before this Court, adjudicating the appeal from the Wilkinson Fiat will be something of a moot exercise” (at para 8).

Although Richards C.J.S. did not set out a specific test for granting leave to a vexatious litigant, he plainly focused his analysis on the merit of the proposed appeal in a broader context than simply the allegations of error made in the draft notice of appeal. Chief Justice Richards accounted for the fact that Mr.

Barth had been declared vexatious, for the circumstances that had brought about that declaration, and for the state of his litigation in this Court and in the Court below. [ 33 ] Similarly, in Barth Chambers-2 , when finding that the proposed appeal in that case was “of doubtful merit at best”, and that there was “no realistic prospect of Mr. Barth succeeding on appeal”, Richards C.J.S. also remarked that the proposed appeal had “the character of being frivolous and vexatious, continuing Mr.

Barth’s pattern of, so it would seem, launching an appeal every time a Queen’s Bench judge makes a decision of any sort in relation to the proceedings between him and Ms. Barth” (at para 3). This is a more direct example of an approach to the Rothmans merit criterion with emphasis not only on the fact that the appeal had been proposed by a vexatious litigant but on the circumstances of the frivolous and vexatious conduct that had led to that declaration. In Barth Chambers-3 , Schwann J.A. continued this approach to the question of leave to appeal by emphasising the lack of merit to the appeal Mr.

Barth had proposed in the context of his declaration as a vexatious litigant. [ 34 ] On this basis, I am not persuaded that the Rothmans approach to answering the question of leave to appeal ceases to apply or is inadequate when an applicant has been declared vexatious by this Court pursuant to Rule 46.2(1).

Where required, the merit criterion under Rothmans permits a judge to consider the circumstances of a vexatious litigant and to deny leave to appeal when it would protect the proper administration of justice and prevent an abuse of the court process. [ 35 ] To summarise, the Designation Decision undoubtedly prohibits Dr. Patel from commencing an appeal without first obtaining leave to do so.

While a Rule 46.2(1) order prohibiting a litigant from “commencing any proceedings in this Court without leave” might in other circumstances preclude the filing of an application for leave to appeal without first obtaining leave to do so, I do not interpret the Designation Decision as having that effect. I, therefore, dismiss SHA’s objection to the filing of Dr. Patel’s application for leave in this matter. Lastly, I am unable to conclude that Rothmans is inapplicable to the question of leave to appeal in this circumstance. [ 36 ] As these conclusions deny SHA’s preliminary objection to the hearing of Dr.

Patel’s application for leave to appeal, I turn to address that application under Rothmans . IV. APPLICATION FOR LEAVE TO APPEAL [ 37 ] As noted, Dr. Patel seeks leave to appeal against the Fiat on 12 proposed grounds of appeal. As is usually the case in this type of application, it is important to start with an understanding of what was ordered under the Fiat . In rudimentary terms, the Chambers judge ordered PSAT to supplement the record relevant to Dr.

Patel’s judicial review application in two ways: [55] PSAT through their counsel indicate all emails in this category relate only to scheduling and were previously copied to Dr. Patel and/or his legal representation. While it appears anything related to evidence, arguments, or communication of those and the final decision either does not exist or has been disclosed, specific confirmation that is the case would be of importance here.

Thus, written communications (whether sent or received by email or other electronic means) between the participants in the proceeding, and the PSAT that communicate evidence, argument or a final decision (not any drafts or preliminary decisions which are not the final decision) are to be confirmed by PSAT as being made available for the judicial review. … [58] In relation to 1(o), which l will summarize as the “erroneous transcription records request”, the purpose of this is questionable.

While records which might assist in filling in the blanks left by gaps in the transcript due to technical or mechanical failure ought to be disclosed, to do more than that is not reasonable. Any record which would aid in the filling in of any gaps left through the lost recordings or transcripts should be provided. If the request is to create a missing transcript and tape, it does not make sense that something that does not exist can be disclosed. [ 38 ] All but one of the grounds of appeal that Dr.

Patel proposes to raise with this Court relate to the question of what documents constitute the record of the proceedings before the PSAT panel for the purposes of his judicial review application in the Court of King’s Bench. Therefore, it will well serve to examine what a “record” is comprised of in general terms, before considering whether leave to appeal should be granted on any of the proposed grounds. [ 39 ] The Record Fiat tracks the language of Rule 3-57(2) of the QB Rules .

That rule describes the materials that the tribunal must file (or disclose) as the record of the proceedings when a decision or act of an administrative tribunal, like PSAT, is the subject of an application for judicial review.

It states: 3-57(1) An originating applicant for judicial review who seeks an order to set aside a decision or act must include with the originating application a notice in Form 3-57, addressed to the person or body that made or possesses the record of proceedings on which the decision or act sought to be set aside is based, to send the record of proceedings to the local registrar named in the notice.

(2) The notice must require the following to be sent or require an explanation of why an item cannot be sent:

(

a) the written record, if any, of the decision or act that is the subject of the originating application for judicial review; (

b) the reasons given for the decision or act, if any; (

c) the document that started the proceeding; (

d) the evidence and exhibits filed with the person or body, if any.

(3) The Court may add to, dispense with or vary anything required to be sent to the local registrar under this rule. [ 40 ] The breadth of Rule 3-57 has been understood for some time: When a decision or act of an administrative tribunal becomes the subject of judicial review, all of the materials that were before the administrative decision-maker that bear on the correctness or reasonableness of that decision or act must be put before the court (see Hartwig v Commission of Inquiry into matters relating to the death of Neil Stonechild , 2007 SKCA 74 , [2007] 10 WWR 689 [ Hartwig ]). [ 41 ] Most recently, in Saskatchewan Labour Relations Board v SCH Maintenance Services Ltd. , 2021 SKCA 151 [ SCH Maintenance ], when considering whether a spoiled ballot cast in a vote on union certification was part of the record in a judicial review of the certification order, Ottenbreit J.A. explained the record requirement in this way: [70] The law governing production of the record is set out by this Court in [ Hartwig ]: [32] As indicated, I prefer to base my conclusion in this regard on the straightforward proposition that the parties to a judicial review application should be able to put before a reviewing court all of the material which bears on the arguments they are entitled to make.

If a tribunal decision can be challenged because it involves a patently unreasonable finding of fact, then the evidence underpinning that finding should be available for the Court to consider.

This is ultimately a sounder and more transparent approach to this issue than one couched in terms of the sometimes elusive notion of “jurisdiction” or framed around the complex and rather uncertain and unsatisfactory body of case law relating to the concept of decisions based on “no evidence”. [33] Thus, in all of the circumstances, the best course in this area for now is to simply recognize the right of participants in judicial review proceedings to bring forward the evidence which was before the administrative decision-maker.

This may be done by way of an affidavit which identifies how the evidence relates to the issues before the court and which otherwise lays the groundwork for its admission. That was the general approach taken by Hartwig. [71] The above passage is a clear and unequivocal statement that supports the premise that all evidence considered by an administrative decision-maker ought to be put before a court conducting a judicial review.

Anything short of the full evidentiary record being submitted to the court opens the door to the potential injustice cautioned against by Richards J.A. (as he then was) in Hartwig , whereby the factual findings of an administrative decision-maker can be challenged but the evidence behind those findings is not before the court. [72] A good

summary of the principles related to the evidentiary record that must be available on judicial review is found in Tsleil- Waututh Nation v Canada (Attorney General) , 2017 FCA 128 at para 71 , where Stratas J.A. characterized the evidentiary record before the administrative decision-maker as being “indispensable” to the court reviewing an administrative decision, and stated that the reasons must be compared to the result in light of the legislative scheme and the evidentiary record.

Justice Stratas noted: [72] For example, a key evidentiary finding made without anything in the evidentiary record in circumstances where evidence was necessary can render an administrative decision unreasonable. … So can a finding that is completely at odds with the evidentiary record.

In the case of reasonableness review, where a key part of the record—for example, any evidence on an essential element—is missing and, as a result, the reviewing court cannot assess whether the decision is within the range of acceptability and defensibility and, thus, reasonable, sometimes the reviewing court has no choice but to quash the administrative decision …. [73] Further, Stratas J.A. identified the importance of the evidentiary record in preventing administrative decision-makers from being immunized from review (see Tsleil-Waututh at para 73). [74] There can be no argument that the Board, as part of its deliberations, reviewed the Disputed Ballot.

It is therefore evidence in respect of the Board’s decision under review and it must be produced as part of the record. [ 42 ] What this means is that the record in this case would consist of all of the evidence and documents in the PSAT proceedings that are relevant to the decisions or acts put at issue by Dr. Patel’s originating application for judicial review. It is, therefore, also critical to know what he said in his originating application: PARTICUALRS [ sic ] OF APPLICATION The Applicant seeks the following remedies or orders: 1.

A declaration that The Practitioner Staff Appeals Tribunal is not an adequate alternative remedy or process to determine the appeal rights of the Applicant; 2. An injunction that orders the Saskatchewan Health Authority to immediately allow the Applicant to exercise his surgical privileges until The Practitioner Staff Appeals Tribunal renders its decision on the Applicant’s appeal of the Regina Qu’Appelle Regional Health Authority Board’s decision dated July 7, 2018; 3. A declaration that the June 11, 2016 suspension of the Applicant’s surgical privileges by Dr.

George Carson was improper and should be set aside as it was founded upon evidence that was not objectively determined by a person that was not an expert and unqualified to opine upon the surgeries conducted by the Applicant; 4. A declaration that the July 7, 2018 decision by the Saskatchewan Health Authority Board’s [ sic ] was improper and should be set

aside; 5. That the Applicant be reinstated at the Saskatchewan Health Authority with full surgical privileges. 6. In the alternative, a staying of all decisions preventing the Applicant from practicing as an orthopedic surgeon including the Saskatchewan Health Authority Board’s July 7, 2018 decision that continued the suspension of the Applicant’s surgical privileges; 7. In the alternative, an order allowing the Applicant’s appeal of the July 7. 2018 decision by the Saskatchewan Health Authority Board that suspended the Applicant’s surgical privileges; 8.

In the alternative, an order directing the July 7, 2018 decision by the Saskatchewan Health Authority be stayed and the Applicant shall be allowed to immediately exercise his surgical privileges as before; 9. That The Practitioners Staff Appeals Tribunal recusal decision rendered in respect of the Applicant’s appeal be quashed and the tribunal be ordered to complete the appeal process including rendering a decision by December 31, 2021, unless the date to complete needs to be amended as directed by this court; 10.

That The Practitioners Staff Appeals Tribunal shall only hear those charges and determine those charges that the Applicant appealed and was not successful in defending before the Discipline Committee established by the Regina Qu’Appelle Regional Health Authority; 11. That The Practitioners Staff Appeals Tribunal decision to render all subpoena’s void or of no force and effect, rendered in respect of the Applicant’s appeal be quashed and it is directed to enforce the subpoena’s issued; 12.

An order that The Practitioner Staff Appeals Tribunal be directed to disclose if each panel member agreed to recuse on December 17, 2020 or if the Chair was the only person to vote for the recusal of the Tribunal; 13. The removal of Miller Thomson as counsel of record for the Saskatchewan Health Authority; 14. That the hearing of this matter be heard before a jury or judge alone as directed by this Honourable Court; 15. Such other relief as this Honourable Court will allows [ sic ]; 16. Costs. [ 43 ] In the Fiat , the Chambers judge made several comments about the nature of Dr.

Patel’s application for judicial review, which Dr. Patel sees as incorrectly limiting the scope of the record. Dr. Patel points to paragraphs where, after the Chambers judge had recounted the issues that had been addressed by the courts in his previous applications for judicial review and his appeals, the Chambers judge wrote: [20] On April 19, 2021 Dr. Patel initiated this application for judicial review by way of originating application for which the record is relevant.

The relief he seeks is essentially a recitation of the previous judicial reviews already dealt with by our Court of Appeal other than reviewing the recusal by the PSAT itself. [21] The result is that all the forms of relief Dr. Patel seeks, but possibly for one, are either moot or have already been determined to be required to proceed through the PSAT process to conclusion before moving further along.

Of primary importance is the fact that any and all PSAT rulings leading up to or predating the recusal itself are not properly subject to judicial review. [22] The only remaining issue in this judicial review therefore is whether the decision to recuse is itself reviewable whether as a final decision of the PSAT or on another footing. The Court of Appeal noted within the context of Appeal CACV3517, (Dr.

Patel’s appeals from the PSAT as opposed to his judicial review), that the PSAT’s “...decision to recuse itself is not subject to review in the context of this appeal...” with reference to Ayers v Miller , 2019 SKCA 2 para 15 , 44 CPC (8th) 12. However, both the context of that statement and the Ayers v Miller decision do not remove all doubt that a recusal by a tribunal itself is neither a final determination nor, in the context of a statutory tribunal rather than a superior court, not subject to judicial review.

It may seem by application of logic that there is little to be served by reviewing a decision to recuse as that act ends the inquiry and a new one must begin. However, that matter has not yet been argued and appears to be something Dr. Patel is intent on pursuing. [23] What the record consists of now therefore draws its context, and takes on a certain complexion, when that is the issue at stake. [ 44 ] Taken as a whole, Dr.

Patel’s proposed grounds of appeal do not disclose a reasonably arguable case for an appeal against the Fiat on the basis that the Chambers judge erroneously narrowed the record relevant to what was at issue in the extant judicial review. I will explain that conclusion with reference to the proposed grounds of appeal. 1. Grounds 4(a), (

b) and (c) [ 45 ] Under paragraph 4(

a) of his draft notice of appeal, Dr. Patel states: a. The Learned Chambers Judge erred in law and principle in that he held at ¶34 that the onus rests on Dr. Patel to demonstrate and justify why a further order for production of the record is required based only on significant disclosure provided by the Practitioner Staff Appeal Tribunal (“PSAT”), when “significant disclosure” is not the threshold to satisfy legal sufficiency of disclosure. [ 46 ] As I understand it, ground 4(

a) alleges that the Chambers judge erred in law in two ways under paragraph 34 of the Fiat : (

a) by requiring Dr. Patel to “demonstrate and justify” his requests for further disclosure by PSAT; and

(

b) by misapprehending that the test for ordering further disclosure is not based only on whether the administrative tribunal had already provided “significant disclosure”. [ 47 ] Paragraph 34 of the Fiat is unrelated to the error alleged in the draft notice of appeal. However, in the next following paragraph, the Chambers judge wrote: Legal Test and Onus [35] A significant disclosure has already been provided by PSAT. The onus has therefore come to rest on Dr. Patel to demonstrate and justify why a further order is required.

The onus which an applicant for an expanded disclosure of the record after a significant disclosure has been provided is discussed in several decisions. [ 48 ] After reviewing the relevant jurisprudence, including Robertson v Edmonton (City) Police Service (#9) , 2004 ABQB 243 , 355 AR 281 [ Robertson ], the Chambers judge wrote: Applied to Dr. Patel’s Request here [39] It is clear from the authorities that Dr. Patel cannot simply apply for a vast swath of documents which may have tangential relevance to the issues he seeks to litigate. This is not disclosure in the course of a civil action.

It is a focused disclosure linked to what “the record” consists of in the context of what is properly capable of review. As noted previously, it involves the PSAT recusing itself and cannot consist of every document generated by PSAT during the relevant time period. [ 49 ] The correctness standard applies to questions of law but this ground, in my assessment, does not disclose an arguable appeal even on the correctness standard. First and foremost, the ground misdescribes what the Chambers judge did. It is plain from the Fiat that he did not place the onus and burden of persuasion on Dr.

Patel “only” because there had been “significant disclosure by [PSAT]”. The law placed the onus and burden on him, regardless of those circumstances. [ 50 ] The cases Dr. Patel cites for the contrary proposition ( Abouhamra v Prairie North Regional Health Authority , 2016 SKQB 293 , 16 Admin LR (6th) 265 [ Abouhamra ], and 605499 Ltd. v Rifle Shot Oil Corp. , 2019 SKCA 133 [ Rifle Shot ]) are entirely distinguishable. Although it involved the judicial review of a PSAT decision, Abouhamra does not address the sufficiency of the record under Rule 3-57 of the QB Rules .

It confirms that judicial review is a hearing on the record and discusses how to consider evidence afresh when conducting a hearing de novo . It provides no support for the first proposed ground of appeal. Similarly, Rifle Shot does not set out what Dr. Patel says is the proper test for determining the record in a judicial review.

It involved an appeal of an order rejecting the appellants’ application for access to records filed with the administrative decision-maker established under The Surface Rights Acquisition and Compensation Act , RSS 1978, c S-65 , in the context of a right to access afforded under The Freedom of Information and Protection of Privacy Act , SS 1990- 91, c F-22.01 . Rifle Shot did not involve an application for judicial review and does not address Rule 3-57.

Rifle Shot involved different legal principles applied to a different set of facts. [ 51 ] Regardless, the Record Fiat squarely placed the onus and burden of persuasion on any applicant who sought further disclosure from PSAT and no appeal was taken from that order by either party to the proceedings. Given this circumstance alone, I am not persuaded that the first proposed ground of appeal has any merit whatsoever. [ 52 ] In a related argument, under ground 4(b), Dr. Patel seems to claim that the Chambers judge interpreted Robertson too narrowly: b.

The Learned Chambers Judge erred in fact and law in that he relied at ¶37 on the decision in [ Robertson ], which he quoted as holding that a decision-maker need not produce documents created prior to the time relating to the dispute, so as to hold that a tribunal is only bound to produce the documents which were before it and which formed the foundation of the challenged decisions, so as to justify why further disclosure for the record is not required in light of the recusal of the previous PSAT panel, when the dispute between Dr.

Patel and the SHA is not new so as to only relate to the new PSAT panel, but has a history before the PSAT going back six years, has been subject to considerable and unreasonably delay and is an application that the PSAT is not an adequate venue for the Applicants statutory appeals,, [sic] while the whole of the fiat parses the processes of the PSAT regarding the Applicant. [ 53 ] In Robertson , the Court held that: [49] The requirement to produce “all other papers or documents touching the matter” does not mean that the tribunal has to make full disclosure of all records in its possession or power.

For the purposes of the Return the “matter” is the decision and the way it was made. Generally only documents that were actually before the decision-maker at the time the decision was made need be included. (Citations omitted) [ 54 ] In the Fiat , the Chambers judge paraphrased the ratio from Robertson , writing that “even when the decision-maker fulfils an administrative role within the structure relating to the dispute that does not imbue a requirement to produce documents created prior to the time relating to the dispute.

A tribunal is only bound to produce the documents which were before it and which formed the foundation of the challenged decisions” (at para 37). [ 55 ] If I have correctly assessed the nature of ground 4(b) (it is difficult to extract meaning from its rambling prolixity), I do not read paragraph 37 of the Fiat as saying anything different than Robertson , Hartwig , SCH or, for that matter, Rule 3-57 itself—i.e., that all relevant information should be in the record put before the court in a judicial review application. There is no suggestion that the law on this issue is unsettled and I do not understand Dr.

Patel to take issue with that law. I am, therefore, not persuaded that ground 4(

b) has merit sufficient to obtain a grant of leave to appeal. [ 56 ] Next, Dr. Patel states under ground 4(c):

c.

The Learned Chambers Judge erred in law and principle at ¶39 in that he held production by the PSAT for the record is not akin to disclosure in the course of a civil action, but a focused disclosure linked to what the record consists of in the context of what is properly capable of review, when he too restrictively delineated production by misinforming himself on binding versus non-binding unargued and wrong obiter dicta of the Court of Appeal, and contradictorily held at ¶30 that the context of the judicial review, as a procedure en toto and not limited to susceptibility to review, is important as a backdrop and framework to the question of which documents may be required as part of the record. [ 57 ] For reference, at paragraph 30 of the Fiat , the Chambers judge wrote: As noted earlier, the context of the judicial review is important as a backdrop and framework to the question of which documents may be required as part of the record.

The fact that only the recusal of the PSAT remaining as the triggering point for the disclosure of the record here also provides certain parameters and necessary contextual directions which will not be overlooked. [ 58 ] I take Dr. Patel as seeking to assert under ground 4(

c) that the Chambers judge erred in paragraph 39 of the Fiat by stating (

a) that production of the record by an administrative tribunal is not the same as disclosure by a civil litigant and (

b) that production of the record is “a focused disclosure linked to what the record consists of in the context of what is properly capable of review”, and that he erred because these statements ((

a) and (b)) contradict what he said at paragraph 30. I find that each of these allegations of error is destined to fail. [ 59 ] QB Rule 3-57 stipulates what constitutes the record for the purposes of judicial review. On the other hand, disclosure in civil actions is dealt with under

Part 5, Division 1 of the QB Rules . The purpose behind “disclosure”—if it may be called that in each case— differs. Procedural fairness requires the record in a judicial review to include everything that was in front of the tribunal that is relevant to the decision or act impugned in the review so that the court can properly review the reasons of the administrative body ( Tsleil-Waututh Nation v Canada (Attorney General) , 2017 FCA 128 at para 71 [ Tsleil-Waututh ]).

The purposes of disclosure in civil actions include assisting the parties to obtain the evidence against them, narrowing the issues, and avoiding unnecessary costs and delays (see QB Rule 5- 1(1)). While there is some obvious overlap under the audi alteram partem principle, the two sets of rules are designed to serve the parties in their separate contexts. They are plainly not the same.

Pointing that out in the Fiat does not amount to error and an assertion to the contrary does not make for a prima facie meritorious appeal. [ 60 ] Furthermore, given Rule 3-57, the Record Fiat and the jurisprudence (with which I do not understand Dr. Patel to disagree, e.g., Hartwig ; SCH , Robertson and Tsleil-Waututh ), I am unable to find an arguable error in the Chambers judge’s statement that the production of the record is “a focused disclosure linked to what the record consists of in the context of what is properly capable of review” (at para 39).

I also fail to see any contradiction between this statement and paragraph 30 of the Fiat , where the Chambers judge wrote that “the context of the judicial review is important as a backdrop and framework to the question of which documents may be required as part of the record”. [ 61 ] At bottom, an applicant seeking leave to appeal must do three things: (1) identify an error in the decision below; (2) demonstrate that the error is of sufficient merit to justify leave being granted; and (3) establish that the error is of sufficient importance to warrant the attention of a panel of this Court.

In the case of grounds 4(a), (

b) and (c), I am not persuaded that Dr. Patel has met his onus under the first of these requirements. [ 62 ] I find grounds 4(a), (

b) and (

c) do not disclose a sufficiently meritorious appeal. 2. Grounds 4(d), (e), (g), (h), (i), (

k) and (l) [ 63 ] As I interpret them, the common thread of the following seven grounds of appeal is that the Chambers judge erred in his assessment of what was at issue in Dr. Patel’s most recent application for judicial review: d. The Learned Chambers Judge erred in law and principle by limiting the judicial review on the basis of mootness, when Dr.

Patel’s previous applications for judicial reviews had been respectively dismissed on the basis of either prematurity or mootness, and thereby creating the untenable legal situation that, irrespective of unreasonable delay and inadequacy of the PSAT as an alternative remedy, valid relief claimed by Dr. Patel is doomed to be either premature or moot, so that effective and inadequate relief would be unavailable within any reasonable time and thereby contribute to further materially deleterious consequences for Dr. Patel. e.

The Order is to set the record pursuant to which the Learned Chambers Judge will decide if the PSAT is an adequate venue for the Appellant’s statutory appeals. The PSAT, not the new or old formation of the PSAT, but the PSAT, will be reviewed where the six year delay, including 17 months in the reformation of the PSAT, is a fundamental issue.

The Saskatchewan Health Authority constantly blames the Appellant for all the delay. 1 In his error of perceiving the application regarding adequate venue for statutory appeal to be limited to the new PSAT and without considering that the fundamental issue is delay and prospective delay the Learned Chambers Judge failed to order a record permitting proper consideration of the delay and the cause of the delay. … g. The Learned Chambers Judge erred in fact and law in that he held at ¶20 that the relief that Dr. Patel seeks in the judicial review is essentially a recitation of Dr.

Patel’s previous judicial reviews that have already been dealt with by the Court of Appeal, when the said previous judicial reviews, and consequential appeals to the Court of Appeal, were based on decisions of the PSAT and consequential decisions of the Court of Queen’s Bench that are not the subject of the present judicial review, thereby rendering previous judicial comments, on which he relied for his consideration of the present judicial review, non-binding obiter dicta . h. The Learned Chambers Judge erred in fact and law in that he held at ¶21 that all but one of the forms of relief that Dr.

Patel seeks are either moot or have already been determined to be required to proceed through the PSAT process to conclusion before moving along, when: i. Further to (f), judicial comments on mootness and continuation before the PSAT were made in the context of decisions that are not

the basis for the present judicial review, thereby constituting non-binding obiter dicta ; ii. There has been no order requiring that Dr. Patel’s matters proceed through the PSAT process to conclusion first before being able to move along; iii. Dr.

Patel’s applications to adduce fresh evidence before the Court of Appeal were dismissed, so that his evidence showing why the relief sought was not moot and why the PSAT was not an adequate alternative remedy (and which is adduced in the present judicial review) was never considered or taken into account in the final adjudication by the Court of Appeal, thereby not rendering the relief sought in the present judicial review de facto or de jure moot; iv.

The holdings of the Learned Chambers Judge, with respect to mootness and continuing through the PSAT with the effect of limiting the judicial review, are contradictory to the holdings by the Learned Chambers Judge at ¶30 that the context of the judicial review is important as a backdrop and framework to the question of which documents may be required as part of the record; i.

The Learned Chambers Judge erred at ¶22 by restricting the judicial review to whether the decision to recuse is per se reviewable as a final decision of the PSAT “or on another footing”, in that, if the recusal, being the ultimate and final decision of the PSAT is reviewable, then by necessary implication the entire proceeding before the PSAT ought to be reviewable in the same way as a final or dispositive decision in an action or proceeding and that would correspondingly imply a review of the entire proceedings before that forum a quo . … k.

The Learned Chambers Judge erred in law and principle at ¶22 in that he held that any and all PSAT rulings leading up to and predating the recusal itself are properly subject to judicial review and that the PSAT recusal ended the inquiry and a new one must begin, in that any findings by the Court of Appeal in that regard constitute non-binding obiter dicta and binding law indicates that the recusal does not end the inquiry so as to require a new one ab initio . l.

The Learned Chambers Judge erred in law and principle by holding at ¶30 that only the recusal of the PSAT remains as a triggering point for disclosure of the record, when the entire judicial review by Dr. Patel ought to serve as a triggering point for production of the record in the circumstances as mentioned in the above grounds of appeal. [ 64 ] Unusual for a draft notice of appeal, there is a footnote attached to ground 4(

e) that reads: 1 Most recently in an application dated March 1, 2022, signed by Mr. Watson, Q.C.: 8. The Applicants (sic) known and purposeful disregard of the rules of evidence and civil procedure is causing unnecessary and extensive delay in this and related proceedings. 11. Dr.

Patel has repeatedly failed to abide by his obligation to this Honourable Court and has purposefully done so in order to create delay to the prejudice of the Respondents in this proceeding and related proceedings. [ 65 ] I am inclined to deny leave on the basis that some of these grounds are unnecessarily prolix, rambling, argumentative, accusatory, evidentiary, and otherwise difficult to understand. They do not identify the errors alleged in the Fiat with the expected measure of care and clarity.

However, in their best light, all seven of these grounds seem to say the same thing. [ 66 ] For example, it is difficult to extract what Dr. Patel alleges to be in error in ground 4(d), because much of it is argument or positioning, but it seems to introduce a question as to whether the Chambers judge erred by excluding issues of overall delay and the adequacy of the PSAT process. Grounds 4(g), (h), (i), (

k) and (

l) allege the same root error, i.e., that the Chambers judge’s assessment of what was at issue in Dr. Patel’s judicial review application was flawed. [ 67 ] As a whole, these seven grounds allege that the Chambers judge’s flawed understanding of what was at issue flavoured his assessment of the relevance of the documents over which Dr. Patel sought disclosure. In this respect, as I understand it, all seven of these grounds refer to the following paragraphs of the Fiat : [20] On April 19, 2021, Dr.

Patel initiated this application for judicial review by way of originating application for which the record is relevant. The relief he seeks is essentially a recitation of the previous judicial reviews already dealt with by our Court of Appeal other than reviewing the recusal by the PSAT itself. [21] The result is that all the forms of relief Dr. Patel seeks, but possibly for one, are either moot or have already been determined to be required to proceed through the PSAT process to conclusion before moving further along.

Of primary importance is the fact that any and all PSAT rulings leading up to or predating the recusal are not properly subject to judicial review. [22] The only remaining issue in this judicial review therefore is whether the decision to recuse is itself reviewable whether as a final decision of the PSAT or on another footing. The Court of Appeal noted within the context of Appeal CACV3517, (Dr.

Patel’s appeals from the PSAT as opposed to his judicial review), that the PSAT’s “...decision to recuse itself is not subject to review in the context of this appeal...” with reference to Ayers v Miller , 2019 SKCA 2 para 15 , 44 CPC (8th) 12. However, both the context of that statement and the Ayers v Miller decision do not remove all doubt that a recusal by a tribunal itself is neither a final determination nor, in the context of a statutory tribunal rather than a superior court, not subject to judicial review.

It may seem by application of logic that there is little to be served by reviewing a decision to recuse as that act ends the inquiry and a new one must begin. However, that matter has not yet been argued and appears to be something Dr. Patel is intent on pursuing. [23] What the record consists of now therefore draws its context, and takes on a certain complexion, when that is the issue at stake. [ 68 ] Notably, the Chambers judge made the foregoing statements after a careful review of this Court’s decision in Patel v Saskatchewan Health Authority , 2021 SKCA 115 [ Patel 2021 CA ].

[69] Reducing the garrulity of these seven grounds of appeal to their core, the question Dr. Patel seeks to have this Court address inhis proposed appeal is whether the Recusal Decision is the only “decision or act” of the PSAT at issue in his most recent judicial review.In this regard, it is important to understand that, in the Recusal Decision, the PSAT panel stated that the actions of Dr.

Patel had created areasonable apprehension of bias and it, therefore, recused itself (at para 7). [70] In Newfoundland Telephone Co. v Newfoundland (Board of Commissioners of Public Utilities), (SCC), [1992]1 SCR 623 at 645 [Newfoundland Telephone], the Supreme Court wrote: Everyone appearing before administrative boards is entitled to be treated fairly. It is an independent and unqualified right. As I have stated,it is impossible to have a fair hearing or to have procedural fairness if a reasonable apprehension of bias has been established.

If there hasbeen a denial of a right to a fair hearing it cannot be cured by the tribunal’s subsequent decision. A decision of a tribunal which denied theparties a fair hearing cannot be simply voidable and rendered valid as a result of the subsequent decision of the tribunal. Proceduralfairness is an essential aspect of any hearing before a tribunal. The damage created by apprehension of bias cannot be remedied.

Thehearing, and any subsequent order resulting from it, is void. (Citations omitted.) [71] In R v Curragh Inc., (SCC), [1997] 1 SCR 537, the majority of the Court said: [5] The properly drawn conclusion that there is a reasonable apprehension of bias will ordinarily lead inexorably to the decision thata new trial must be held.

In circumstances where reasonable apprehension of bias is demonstrated the trial judge has no furtherjurisdiction in the proceedings and there is no alternative to a new trial. (Emphasis added.) See also: Cardinal v Director of Kent Institution, (SCC), [1985] 2 SCR 643 at 661; R v S.(R.D.), (SCC),[1997] 3 SCR 484; and David P.

Jones & Anne S. de Villars, Principles of Administrative Law, 7th ed (Toronto: Thomson Reuters, 2020)at 471. [72] The law set forth in Newfoundland Telephone and R v Curragh Inc. is clear and settled: where a reasonable apprehension ofbias on the part of (in this case) an administrative tribunal has been established, decisions or acts taken in respect of the proceedings beforethat body as well as the proceedings themselves are void and a new hearing is required.

In Patel 2021 CA, this Court quoted from andapplied Newfoundland Telephone and R v Curragh Inc., and the Court’s conclusions and rulings in that regard are self-evidently not obiterdicta in the circumstances of this matter. In that judgment, this Court held that two prior appeals by Dr.

Patel, under our docket numbersCACV3517 and CACV3527, were moot because: (a) “subsequent events—namely, the recusal of the Panel—removed the substratum of the legal issues in play on the appeal suchthat there is no longer a live controversy” (at para 97); (b) “the Panel’s recusal has effectively voided all of the rulings that were the subject of Dr. Patel’s appeal to the Court of Queen’sBench” (at para 101); (c) “A finding of reasonable apprehension of bias taints the entire proceeding and voids any ruling made by the decision-maker”(at para 102); (d) “To put it plainly, the rulings that Dr.

Patel sought to appeal to the Court of Queen’s Bench were voided by the Panel’srecusal” (at para 102); (e) “the Panel rulings to which the notice of appeal pertained no longer exist” (at para 102); and (f) “As set out above, the rulings in relation to which Dr. Patel sought judicial review were rendered null and void by the Panel’srecusal. Because of that there are no longer any Panel rulings that are properly subject to judicial review and, accordingly, there is no livecontroversy in CACV3527. The appeal is moot.” (at para 104). [73] While it is true, as Dr.

Patel argues, that this Court only declared that the appeals in CACV3517 and CACV3527 were moot,the analysis that explained why those appeals were moot necessarily reaches beyond the decision in Patel 2021 CA and into this matter.This is because this Court applied settled law in the very same context as is involved in this matter and found that the PSAT panel’srulings prior to the Recusal Decision were “null and void”. The Court went so far as to conclude that “there are no longer any Panelrulings that are properly subject to judicial review”.

I am at an utter loss to understand how Patel 2021 CA might even be characterised as“non-binding obiter dicta” in this matter. [74] Given the foregoing, I am also hard-pressed not to conclude that Dr. Patel seeks to bring forward grievances from previousmatters to be re-litigated or at least revisited in his most recent application for judicial review. Moreover, on the face of his originatingapplication, it appears that Dr.

Patel seeks to have that judicial review conducted in the manner of a broad judicial inquiry into the PSATprocess and everything that has and is still occurring before that administrative body. [75] As such, I conclude that proposed grounds 4(d), (e), (g), (h), (i), (

k) and (

l) are prima facie frivolous or vexatious and thatgranting leave to appeal thereon would amount to approving an abuse of the court process. 3. Ground 4(f) [76] The draft notice of appeal challenges the Chambers judge’s assessment of what was relevant to the record in a way unrelated tothe foregoing grounds, by stating under ground 4(

f) that: f. The Learned Chambers Judge erred in that, by failing to make the order with respect to documents that ought to be made for

production of the record by the PSAT, he failed to consider that the obligation to disclose becomes greater when, as is the case, thelivelihood of Dr. Patel is at stake. [77] Dr. Patel cites Napoli v British Columbia (Workers' Compensation Board) (1981), (BC CA), 29 BCLR 371(CA) [Napoli], South East Cornerstone School Division No. 209 v Oberg, 2021 SKCA 28, 457 DLR (4th) 224 [Oberg], and Kane v Bd. OfGovernors of U.B.C., (SCC), [1980] 1 SCR 1105 [Kane], in support of the merit of this ground.

These cases stand for thegeneral proposition that a high level of procedural fairness is owed where an individual’s livelihood is at stake (Napoli at para 14; Obergat para 80; Kane at 1113). However, none of these cases declare that a higher level of procedural fairness broadens the scope of the recordin a judicial review application beyond what is relevant to the decision or act under review. [78] Further, I note that it cannot be said that the Chambers judge was unaware that Dr. Patel’s livelihood was at stake. The PSATproceedings, Dr.

Patel’s earlier applications for judicial review and his previous appeals to the Court of Queen’s Bench and to this Courtare unmistakably related to the suspension of his operating and hospital privileges. I recognise that the Chambers judge does not addresshow this fact assessed under the factors identified in Baker v Canada (Minister of Citizenship and Immigration), (SCC),[1999] 2 SCR 817, might have affected the content of the record and the duty of fairness owed to Dr. Patel in this matter.

However, thoseissues were not, as I understand it, put before the Chambers judge for a determination. [79] As noted, it is settled law that the “record” in a judicial review includes all of the materials that were before an administrativedecision-maker that bear on the correctness or reasonableness of the decision or act put at issue in the review. As the Recusal Decision isprocedural, ostensibly made in the interests of fairness, it is reasonable to assume that the record relevant to that decision extends beyondthe testimony and exhibits tendered in the hearing before the PSAT panel.

But, at its outer edges, the record would not include anydocuments or materials that could have no bearing on (or relevance to) the decision to recuse. Moreover, it would take a long bow toestablish the relevance of documents that arose or came into existence, or of other decisions and acts taken by PSAT, after the date of theRecusal Decision. At bottom, whether a document properly bears upon the Recusal Decision would seem to be a matter of its relevance,not procedural fairness. [80] While I find ground 4(

f) is more easily understood than the other grounds of appeal, I am not persuaded that it has sufficientmerit or sufficient importance to be put before a panel of this Court. 4. Ground 4(j) [81] Under ground 4(

j) of the draft notice of appeal, Dr. Patel claims that the Chambers judge erred by failing to consider theRegulations, which govern the PSAT: j. The Learned Chambers Judge erred at ¶22 by excluding review of the regulations governing the PSAT as permitted by the FederalCourt of Appeal in Partov. [82] Given that the Regulations are silent on the issues of the content of the record and of disclosure, I am unable to see how thelack of reference to them might be an error in this circumstance. That is, Dr.

Patel has not explained how consideration of the Regulationscould have affected the Chamber judge’s decision or how the failure to do so was an error that affected that decision. As it fails to identifyan error, I am unable to grant leave on ground 4(j). V. CONCLUSION [83] Leave to appeal is denied. Given the circumstances, I make no order of costs in this matter. “Caldwell J.A.” Caldwell J.A.