Satyam Patel Appellant (Plaintiff/Respondent) v. Robert Younghusband McMurtry and, 2023 SKCA 74

Court of Appeal for Saskatchewan Docket: CACV3907 Citation: Patel v McMurtry, 2023 SKCA 74Date: 2023-07-04 Between:Satyam PatelAppellant(Plaintiff/Respondent)AndRobert Younghusband McMurtry and Western Medical Assessments CorporationRespondents(Defendants/Applicants)Before: Caldwell, Schwann and Barrington-Foote JJ.A.Disposition: Appeal allowedWritten reasons by: The Honourable Mr. Justice CaldwellIn concurrence: The Honourable Madam Justice Schwann The Honourable Mr.

Justice Barrington-Foote On appeal from: QBG 240 of 2020, ReginaAppeal heard: December 5, 2022Counsel: Satyam Patel on his own behalf for written argumentE.F. Anthony Merchant, K.C. for the Appellant for oral argument Nicholas Stooshinoff, K.C. for the Respondent, Robert Younghusband McMurtry Jennifer Pereira, K.C. for the Respondent, Western Medical Assessments Corporation Caldwell J.A. I. OVERVIEW [1] Dr. Satyam Patel appeals from the decision of a Court of Queen’s Bench Chambers judge that struck his statement of claimagainst Dr.

Robert Younghusband McMurtry and Western Medical Assessments Corporation [WMAC] under Rule 7-9(2)(

a) of TheQueen’s Bench Rules (see: Patel v Younghusband McMurtry (8 September 2021) Regina, QBG 240 of 2020 (Sask QB) [Decision]). Hesays the Chambers judge erred when he concluded that it is plain and obvious that the claims cannot succeed. [2] Dr. Patel is an orthopaedic surgeon. In this case, he sued Dr. McMurtry (who had prepared reports about Dr. Patel’s surgicalcompetence) and WMAC (which had arranged for Dr. McMurtry to provide those reports), principally for negligence, negligentmisrepresentation, defamation, and wrongful interference with economic relations.

Relying inter alia on the defence of absolute privilegeunder the doctrine of witness immunity, the defendants applied to have all of Dr. Patel’s claims struck as disclosing no reasonable cause ofaction. The Chambers judge found that, because the doctrine applied in the circumstances, there was no possibility that Dr. Patel mightsucceed with any of his claims. To the Chambers judge, it was plain and obvious that Dr. Patel’s statement of claim disclosed noreasonable cause of action, and he struck it in its entirety. [3] Dr.

Patel appeals against the striking on several grounds all related to the proposition that it is not plain and obvious that hisclaims against the defendants are barred under the doctrine of witness immunity.

In Hunt v Carey Canada Inc., (SCC),[1990] 2 SCR 959 at 980 [Hunt], citing Dyson v Attorney-General, [1911] 1 KB 410 (CA), the Supreme Court of Canada confirmed that a“plain and obvious” test applies under Rule 7-9(2)(a), reinforcing its stringency by instructing that plaintiffs should not be “driven fromthe judgment seat” if there is a “chance” that they might succeed: Thus, the test in Canada governing the application of provisions like [Rule 7-9(2)(a)] is … assuming that the facts as stated in thestatement of claim can be proved, is it “plain and obvious” that the plaintiff’s statement of claim discloses no reasonable cause of action?As in England, if there is a chance that the plaintiff might succeed, then the plaintiff should not be “driven from the judgment seat”. [4] As is set out in this judgment, I find the Chambers judge erred in ways that affected his conclusion that Dr.

Patel’s statementof claim disclosed no reasonable cause of action against the defendants. Some of Dr. Patel’s claims were properly struck by reason of thedoctrine of witness immunity; but it is not “plain and obvious” that absolute privilege attached to all of the impugned communications andconduct by Dr. McMurtry and WMAC, or that the doctrine provided a defence to all of the causes of action plead by Dr. Patel.

In theresult, I would set aside the order striking the entirety of the statement of claim and, because the Chambers judge did not address the otherbases for WMAC’s Rule 7-9(2) application in relation to Dr. Patel’s claims against it (i.e., whether they are frivolous, vexatious orotherwise an abuse of process), I would remit the matter to the Court of King’s Bench to adjudicate those aspects of the application. II. BACKGROUND A. Facts assumed to be true [5] As the Decision was made under Rule 7-9(2)(a), the factual background to this appeal (which follows) is drawn fromDr.

Patel’s statement of claim, as last amended on April 30, 2021, and from the particulars he furnished pursuant to the defendants’

demand therefor [together, the Claim], on the assumption that the facts as pled in the Claim are true unless they are manifestly incapable of being proven (see: Hunt at 980; and Thirsk v Public Guardian and Trustee of Saskatchewan , 2017 SKQB 66 at para 13 , citing Filson v Canada (Attorney General) , 2015 SKCA 80 at para 19 (iii), 388 DLR (4th) 66). [ 6 ] The assumed facts are as follows. WMAC operates an agency through which third parties engage expert witnesses. Through its services, the Saskatchewan Health Authority [SHA] retained Dr. McMurtry to review and provide opinions [Reports] concerning Dr.

Patel’s competency as an orthopaedic surgeon. The Reports were authored by Dr. McMurtry, approved by WMAC’s director of Western Medical Assessments, and submitted to the SHA on WMAC’s letterhead. The Reports reflect negatively on Dr. Patel and his surgical competence. [ 7 ] In the first of the Reports [Pre-Suspension Report], Dr. McMurtry wrote: … it is probable (>50%) that in the future Dr. Patel will put his patients on whom he performs surgery at higher risk for adverse events than a competent colleague in the same specialty.

On that basis I recommend the consideration of suspension of surgical privileges pending a full investigation. [ 8 ] The SHA relied on the Pre-Suspension Report when suspending Dr. Patel’s surgical privileges on an emergency basis on June 11, 2016 [Suspension Decision]. That suspension occurred pursuant to the regulatory framework established under The Provincial Health Authority Act , SS 2017, c P-30.3 , The Practitioner Staff Appeals Regulations , RRS c R-8.2 Reg 5 , and The Practitioner Staff Bylaws [together, the Regulatory Framework ]. The suspension has prevented Dr.

Patel “from performing surgeries and carrying on the practice as a surgeon” and “from earning income as a surgeon”. [ 9 ] An SHA review board upheld the Suspension Decision on July 7, 2016, and referred the matter to a discipline committee. In formulating its charges against Dr. Patel for the discipline committee proceedings, the SHA relied on Reports concerning 39 case files to allege that he had “in some manner or another provided substandard medical care”.

The discipline committee rendered its decision upholding the Suspension Decision (although this result must be inferred from the Claim) on January 9, 2018 [DC Decision]. The SHA board ratified and modified the recommendations made in the DC Decision on June 15, 2018 [Board Decision]. [ 10 ] Dr. Patel appealed the Board Decision to the Practitioner Staff Appeals Tribunal [PSAT]. The SHA, as a party to that appeal, retained WMAC and Dr. McMurtry to provide expert testimony in the PSAT proceedings on 34 of the 39 cases considered in the DC Decision. WMAC “tendered” Dr.

McMurtry as an expert in the field of orthopaedic surgery, “specifically with respect to trauma and disorders of the upper extremities”. Dr. McMurtry is not an expert, has not performed surgery since 1992, and had not been “in full-time clinical surgical practice for several years” prior to 1992. [ 11 ] The defendants “rendered approximately 20 reports and/or letters as an expert witness regarding 34 of the 39 cases under review”, including one dated June 10, 2016 [June 2016 Report], in which Dr. McMurtry, “on behalf of the Defendants” wrote, “in respect of Dr.

Patel being restricted to [ sic , “from practising”] arthroscopic surgery”, inter alia : c. I have received no material by which to judge Dr. Patel’s competence or not in arthroscopic surgery but it is more likely than not there will be parallel issues regarding judgement for surgical indications. There are other short-comings found in Dr. Patel’s practice such as quality of consultation notes, clinical reasoning and medical records which also need to be addressed. d. Based on the information I have reviewed and for patient safety, exclusion of Dr.

Patel from these surgical interventions is the most prudent decision until the full review is completed. (As paraphrased in the Claim) [ 12 ] In or about January of 2018, the SHA asked the defendants to “assume a set of facts to be true and to ‘provide the writer with your opinion with respect to the Standard of Care provided by Dr. Patel in each of these respective cases and whether your opinion has changed, and if so, please explain how and why it has changed’. In the responding Report prepared by the defendants [January 2018 Report], they stated: a. “It does not call Dr. Patel’s integrity into question.

He appears to have misrepresented his preparedness to those in authority listed above.” b. “This new information contradicts Dr. Patel’s claim and once again raises doubts about his integrity.” c. “[…] this information appears to add to the concerns regarding Dr. Patel’s integrity.” d. “Serious concerns about Dr. Patel’s integrity must now be added to the list of concerns itemized in the

summary of my report (Review of 14 Original Cases Plus Additional Information). It is the task of other to conclude whether Dr. Patel can muster an adequate explanation for the evidence that is explicitly contradictory to his claims. From my perspective, there is no acceptable explanation for his behavior.” (As quoted in the Claim) [ 13 ] In November of 2019, counsel for the SHA prepared a litigation document entitled “Review of Transcripts of Witnesses… with extracted highlights” for use in the PSAT hearing [November 2019 Document].

The Claim alleges that the defendants stated in that document that “My comments made in my letter of January 30, 2018, regarding Dr. Patel’s integrity are still relevant” and that: The testimony reviewed and cited has served to deepen my concerns about Dr. Patel’s competence, insight, judgement and professionalism. There are disquieting and recurrent instances in Dr. Patel’s behaviour that undermine his integrity. [ 14 ] The SHA did not ask the defendants “to opine on the integrity of Dr.

Patel” and did not put them forward “as qualified expert’s [ sic ] on integrity, and in fact they had no expertise to render an opinion on the integrity of a fellow surgeon”.

[ 15 ] At the PSAT appeal hearing, Dr. McMurtry was cross-examined before the adjudicatory panel on his qualifications as an expert. He testified that he had performed 2–3 arthroscopic surgeries prior to 1992, all under the supervision of an instructing physician. The PSAT panel ruled that Dr. McMurtry’s evidence was not admissible as expert evidence because he was “biased and had no currency of knowledge” (quote from the Claim). The PSAT panel “determined that [Dr. McMurtry] had evaluated Dr.

Patel regarding standard of care using a College of Physicians and Surgeons of Ontario evaluation table that does not determine standard of care”, and had, without permission, modified that table and used it when rendering the Reports and in testifying at the PSAT hearing. In the Claim, Dr. Patel asserts that WMAC was “well aware” that Dr. McMurtry was not qualified to provide the Reports. B. Causes of action asserted [ 16 ] In terms of causes of action, the Claim lists negligence, negligent misrepresentation, defamation and wrongful interference with economic relations. 1. Claim in negligence [ 17 ] Dr.

Patel states, when claiming in negligence, that “the Defendant” owed “the following duties of care to [him] and to prevent the following foreseeable losses or harm from being sustained”: a. to investigate, or obtain, or receive information that existed that would assist the Defendant in formulating and rendering an opinion that was accurate, fair, objective and non-partisan (the “Due Diligence Duty”); b. to prepare, formulate and render an opinion and/or report that was accurate, fair, objective and non-partisan (the “Duty of Impartiality”); and/or c. to provide an opinion that is related only to the matters within his area of expertise (the ‘Duty of Expertise’). d. improper loss or suspension of privileges to practice as a surgeon. e. economic loss including loss of income and unnecessary payment of expenses for legal representation related to an unwarranted suspension of privileges. f. mental distress and loss of enjoyment of life. g. loss of reputation. [ 18 ] Dr.

Patel says that the defendants breached these “duties and/or standards of care and caused the following losses”: a. failing to investigate, or obtain, or receive information that existed that would assist the Defendant in formulating and rendering an opinion that was accurate, fair, objective and non-partisan; b. failing [to] prepare, formulate and render an opinion and/or report that was accurate, fair, objective and non-partisan; and or c. failing to provide an opinion that was related only to the matters within his area of expertise. d. causing the Plaintiff to lose or have his privileges suspended to practice as a surgeon. e. causing the Plaintiff economic loss including loss of income and unnecessary payment of expenses for legal representation related to an unwarranted suspension of privileges. f. causing the Plaintiff mental distress and loss of enjoyment of life. g. causing the Plaintiff loss of reputation. [ 19 ] With respect to WMAC alone, the Claim asserts that it “negligently assigned this particular case file to the defendant Dr.

McMurtry, who was unqualified” and that WMAC did not “proactively identify relevant limits to [Dr. McMurtry’s] expertise”. [ 20 ] The Claim states that Dr. Patel “relied on and/or expected the Defendants to not cause or commit” the identified breaches and losses and reaffirms the allegation that “the suspension of [his] privileges was caused by the negligence of the Defendants in rendering their opinions and breach of duties of care”.

The Claim asserts that the defendants knew that the breaches would cause such losses and that the losses were reasonably foreseeable as a result of their actions or omissions and were “traceable to that failure”. Although it appears to be misstated, the Claim also alleges: 32c.) The Plaintiff states that the Defendants knew or ought to have known that the Plaintiff was in a close and direct relationship with him and that he would suffer losses and damages if they breached their duties of care and/or were negligent. [ 21 ] Lastly, Dr.

Patel claims that “the actions and omissions of the Defendants were either done intentionally, recklessly and/or negligently and they jointly and/or severally caused the loss and damages”. 2. Negligent misrepresentation claim [ 22 ] Under the heading “Negligent Misrepresentation”, Dr. Patel asserts that: 33. The Defendants had a special relationship with the Plaintiff as they knew the reports and opinions they were preparing and submitting to Dr. Carson, the RQRHA and/or the SHA would determine whether the Plaintiff was suspended from practicing as a surgeon

and earning income in the RQRHA/SHA. Further, they knew this would lead him to defend his suspension and incur expenses to defend himself, to lose reputation and to lose enjoyment of life. [ 23 ] The Claim states that the defendants owed Dr. Patel and the “deciders of fact” a “Duty of Impartiality”, a “Duty of Expertise”, and duties of care to: c. objectively, impartially, accurately and truthfully represent the Plaintiff’s competency and whether he met the standard of care of an orthopedic surgeon for the patients they were asked to review and render a fair and unbiased opinion. d.

The duty of honest contractual performance. However, Dr. Patel does not assert in the Claim that he had a contractual relationship with either of the defendants. [ 24 ] In terms of breaches, the Claim states: 34.

The Defendant breached the aforementioned duties by: a. failing to render an opinion that was accurate, fair, objective, truthful and non-partisan; b. failing to provide an opinion that was related only to the matters within his area of expertise c. failing to objectively, impartially, accurately and truthfully represent the Plaintiff’s competency and whether he met the standard of care of an orthopedic surgeon for the patients they were asked to review and render a fair and unbiased opinion. [ 25 ] The Claim does not state that the defendants made representations to Dr.

Patel upon which he relied; it alleges: 35. The Defendant made the following misrepresentations or omissions in his curriculum vitae, report(s), and/or in viva voce testimony, including but not limited to: a. omitting to state that he had not performed a surgery since 1992; b. omitting to state that he had only performed arthroscopic surgery on 2-3 occasions prior to 1992, and then only as a learner; c. omitting to state that he had not performed the surgeries and/or used the equipment and/or use the implant(

s) that he was opining on; d. opining on the Plaintiff’s integrity when he had no expertise to opine on the integrity of [ sic ] fellow surgeon; e. using and/or modifying an assessment tool developed by the College of Physicians and Surgeons of Ontario (CPSO) (the “Assessment Tool”) without permission that he obtained in his capacity as a member of the Inquiries, Complaints and Investigations Committee of the College of Physicians and Surgeons of Ontario; f. failing to disclose the instructions for using the Assessment tool; g. that the Plaintiff had no integrity; h. by stating the Plaintiff did not meet the standard of care in treating his patients. … 36.

The Plaintiff relied on the Defendants in a reasonable manner to render an opinion and give testimony that was accurate, fair, true, not misleading, objective and non-partisan and that was within the scope of their area of expertise, which said reliance was reasonable as the said duty is set out in the Court of Queen’s Bench Rules of Saskatchewan. 37. The Plaintiff relied upon the Defendants satisfying their duties as stated above and has been detrimental to the Plaintiff and damages to him have resulted.

The Defendant’s negligent misrepresentation cause the Plaintiff damages in the amount of $5,000,000.00 or an amount to be proved at trial. These damages are of an ongoing nature since the Plaintiff’s suspension and the proceedings arising from this continue. 3. Defamation claim [ 26 ] In his defamation claim, Dr.

Patel says that the defendants defamed him by “falsely and maliciously” publishing the January 2018 and the November 2019 Reports to persons involved in the disciplinary proceedings against him, and the Claim includes the excerpts therefrom that are set out earlier in this judgment (defined in the Claim as “Defamatory Words”). The Chambers judge found that the Claim does not assert that the defendants published the Reports in any other way. [ 27 ] Dr.

Patel alleges that “the Defamatory Words, in their natural and ordinary meaning, and by innuendo, meant and were understood to mean, inter alia , that”: a. the Plaintiff was a dishonest surgeon and person; b. the Plaintiff lacked integrity; c. the Plaintiff was a bad surgeon; d. the Plaintiff was not trustworthy;

e. the Plaintiff was not qualified to be an orthopaedic surgeon; and f. the Plaintiff would cause harm to the patients. [ 28 ] In the paragraph that follows, Dr. Patel pleads that the “Defamatory Words published by the defendant, and the innuendo arising from them, are false and were maliciously published by the defendant knowing that they were false or with careless disregard as to whether they were true or not”. [ 29 ] In terms of damages, the Claim states: 45.

As a result of the Defamatory Words, and all repetitions, republications and broadcasts of them the Plaintiff has lost income, incurred unnecessary legal expenses, been injured in his feelings, in his personal and professional character and reputation, and in his office, profession, calling, trade or business. The Plaintiff has also suffered personal embarrassment and humiliation. 46. As a result of all the foregoing, the Plaintiff has suffered and will continue to suffer economic damages for which the Defendants are jointly and severally liable. 47.

By their conduct, the Defendants have further aggravated the damages caused by them to the Plaintiff. In particular: a. The Plaintiff has and is still unable to carry on his office, profession, calling, trade or business as a surgeon; and/or b. The Plaintiff has lost referrals from other physicians; and/or c. The Plaintiff’s reputation in the community has been damaged. 4. Claim of wrongful interference with economic relations [ 30 ] Under this heading, Dr.

Patel asserts that the defendants “intended to cause [him] to lose his surgical privileges and to cause him economic harm”, largely by committing the torts of negligence, negligent misrepresentation and defamation. The Claim in this respect reads as follows: 49. The Defendants caused this by unlawful means to the Plaintiff either as an end in itself or a means to an end, by: a. Holding himself themselves out to the Plaintiff. the SHA and/or the 2018 PSAT to be an expert in the types of surgeries that Plaintiff had performed when he was not; b.

Providing an opinion and/or viva voca evidence about the Plaintiff to the SHA and/or the 2018 PSAT on matters outside of the Defendant’s areas of expertise including the types of surgeries, the implants and implements used by the Plaintiff; c. Providing an opinion to the SHA and/or the 2018 PSAT about the integrity of the Plaintiff without being asked to opine on the Plaintiffs integrity or having an expertise to render an opinion on the integrity of a fellow surgeon. d.

Improperly Using and/or modifying a confidential assessment tool developed by the College of Physicians and Surgeons of Ontario (CPSO) (the “Assessment Tool”) without authorization that he obtained in his capacity as a Member of' the Inquiries. Complaints and Investigations Committee College of Physicians and Surgeons of Ontario that was misleading and not designed to determine the standard of care of a surgeon. 49. [ sic ] The Defendants unlawful conduct of negligence and/or negligent misrepresentation and/or defamation has interfered with the surgical practice of the Plaintiff causing him economic harm. 50.

The interference with the Plaintiffs economic relations has caused the Plaintiff to suffer damages of $3,000,000.00 - $5,000,000.00 or in an amount greater to be proven at trial. (Emphasis in original) [ 31 ] Under this last cause of action in the Claim, Dr. Patel asserts specifically against WMAC that: 50a.) The Corporate Defendant is vicariously liable for the acts and omissions of its employees. agents. servants and subcontractors and directly liable for the acts of its Director Dr. Roger Hodkinson.

Accordingly. to the extent any of the conduct described above v, 1 as the result of acts or omissions by the employees. agents. servants. or subcontractors ·of the Corporate Defendant. the Corporate Defendant remains liable. Specifically, the Corporate Defendant had an obligation to properly supervise Dr. McMurtry and ensure he was acting in a manner that complied with all internal policies of the Corporate Defendant. codes of conduct. codes of ethics and all statutes. regulations. professional bodies and policies to which Dr. McMurtry was subject.

By virtue of the failure by the Corporate Defendant to properly supervise Dr. McMurtry. and by direct action of its Director Dr. Roger Hodkinson the Plaintiff suffered the losses detailed herein. 50b.) The Corporate Defendant made efforts to backfill Dr. McMurtry's reports with further experts. who are themselves unqualified. This violated procedural fairness norms for disclosure of expert reports prior to a hearing and added to the Plaintiffs expense of defending himself and extended the duration of the hearing.

The existence of these reports have subsequently been disclosed to other proceedings despite the replacement expert being unqualified as well. having never done many of the operations in question. 5. Damages claimed [ 32 ] In terms of relief, Dr. Patel seeks, jointly and severally against the defendants, $5,000,000 in general damages and punitive, aggravated and exemplary damages as well as special damages for the cost of legal fees, expert witness fees, photocopying, printing and travel. The Claim also asks for costs on a full indemnity basis, including applicable taxes.

C. Chambers Decision [ 33 ] In the Decision , the Chambers judge summarised his conclusions on whether the Claim disclosed a reasonable cause of action, relying only on the application of the defence of absolute privilege under the doctrine of witness immunity: 65. The core of the witness immunity rule is not unsettled. The privilege is absolute applying to all causes of action even if the opinion, whether given in writing or orally, is perjured or malicious. 66.

When considered in the context of an application to strike a claim, the caselaw has identified instances where there is an element in the claim that takes it outside of the core of the witness immunity rule. In such cases, it is not plain and obvious that no causes of action exist.

As identified in these reasons, the witness immunity rule will or may not apply where: a. the plaintiff claims against its own witness; b. the witness published the opinions in a manner or for a purpose outside of what was required by the proceeding for which it was prepared; c. the witness had obligations other then the obligations imposed on the expert witness such as a statutory obligation or the duties imposed on a person who also holds a public office; d. the witness, in addition to investigating and preparing an opinion, also had a decision-making function; or e. the witness conducted some portion of the investigation for a purpose other then the issues involved in the litigation. 67.

There will no doubt be other circumstances where a plaintiff will advance a reason that a claim falls outside of the parameters of the core of the immunity defence. But I do not see that one is alleged in this case. 68. There is no allegation that the Respondent retained the Applicants. 69. The Respondent does not allege in the Claim that the opinions he says grounds the Cause of Action were published in any manner or to anyone other than those responsible for the investigation and prosecution of the conduct in the disciplinary proceeding.

The scope and purpose of the publication of the opinions does not void the availability of the privilege. 70. There is no allegation that the Applicants had an obligation or duty other then [ sic ] those imposed on expert witnesses. Nor is it alleged they had a decision-making function. 71. The whole of the Applicants[’] investigations and out of court statements related to the question of the propriety of the Respondent’s surgical practices. 72.

The rational[e] for the witness immunity rule necessitates its application in this case to both the out of court statements that resulted in the emergency suspension and the subsequent decisions. Experts would be reluctant to investigate and opine, in a candid manner, on conduct at the stage where an emergency suspension was being considered, and thereafter, if they were not protected by the rule. If this Claim were to proceed it would only result in the re-litigation of the validity, reliability and admissibility of the opinions. 73.

Assuming, for the purposes of determining this application, that the allegations contained in the Claim are true, it remains that the Respondent’s case arises from investigations and opinions that were prepared for the purpose of determining if his practices were sound. Relying on the opinions delivered by the Applicants, decision makers, acting in accordance with their mandates, found they were not. Those decisions remain under review under the Appeals Procedures [i.e., the Regulatory Framework ]. 74.

The proceedings in which the Respondent’s surgical privileges were suspended were from their inception quasi-judicial in nature. 75. Is it [ sic ] not enough for the Respondent to argue that the privilege is lost because the Applicants were not experts. The allegation in the Claim is that the Applicants opinions were found to be inadmissible for various reasons. The opinions and the testimony were, nonetheless, proffered as an expert opinion. If the opinions were rejected that does not create a Cause of Action.

Moreover, the broader witness immunity rule as opposed to the expert witness immunity rule would still apply. 76. The privilege applies as a defence to the Causes of Action. 77. Since I cannot identify in the Claim or the particulars provided a circumstance or allegation that takes this case outside of the settled parameters of the expert witness immunity rule it follows that it is plain and obvious that the Respondent’s claim cannot succeed. 78. The applications must be granted as the Claim discloses no Cause of Action. III.

ANALYSIS [ 34 ] It will be helpful to start with an understanding of the doctrine of witness immunity and the scope of its application. In that regard, the Court in Elliott v Insurance Crime Prevention Bureau , 2005 NSCA 115 , 256 DLR (4th) 674 [ Elliott ], summarised the scope and purpose of the doctrine as follows: 114. The immunity applies to words said or conduct performed on a protected occasion, the protected occasion being a judicial or a quasi-judicial proceeding: [Raymond E. Brown, The Law of Defamation in Canada , loose-leaf (Rel 4, 2004) (Toronto: Carswell, 1999)] at ¶ 12 . 4(2).

Thus, publishing defamatory words is not actionable if done in the course of judicial or quasi-judicial proceedings. It is critical to understand that it is not the nature of the conduct or the words which is the focus of the immunity, but the occasion on which the words

are said or the conduct is performed. Saying exactly the same words will be either actionable or not depending on the occasion on whichthey are said. This is true whether the immunity is advanced as a defence in a defamation case or in other types of actions. The immunityapplies only to a protected occasion. 115. The core of witness immunity is well established by authority. A witness has immunity in respect of what he or she says and doesin court or in testimony before a quasi-judicial proceeding: Darker v. Chief Constable of West Midlands Police, [2001] 1 A.C. 435 (H.L.(E.)) at 463.

The immunity also extends to a statement made by a witness if the statement is as to the nature of the evidence the witnesscan give and it is made to a professional person preparing the evidence to be presented in court: Watson v. M’Ewan [[1905] AC 480 (HL)];Halls v. Mitchell [ (SCC), [1928] SCR 125]. 116. The absolute immunity of witnesses exists because it is necessary to protect the proper functioning of the administration of justice.“Strict necessity” said Duff, J. in Halls, “is the basis of the privilege”: at 145. Or, as The Lord Chancellor said in Watson v.

M’Ewan,taking proceedings in court and compelling witnesses to attend are necessary for the administration of justice and as a result witnessesmust be protected from actions in respect of their evidence: at 487. Thus, the core of the immunity protects giving testimony in court – ofthings said and done on that ‘occasion’. Extensions beyond that ‘occasion’ are made when necessary in order to make the immunity fortestimony effective. 117. The immunity, of course, does not exist to protect wrongdoers, but it will sometimes do so.

For the immunity to be effective,witnesses must be protected from all lawsuits, not only unmeritorious ones. This protection of witnesses from the risk of suit is seen asmore important than righting a wrong in a particular case. Moreover, to achieve its objective, the immunity must be clear: People mustknow in advance whether they are protected or not: Darker v. Chief Constable of West Midlands Police and Brown, ¶12.4(4)(e). Theimmunity, therefore, is a blunt instrument, barring all claims in the interests of the broader administration of justice. 118.

The absolute immunity of witnesses, therefore, negates the usual rules of civil liability. But such a sweeping exemption fromliability is only justified when demonstrably necessary to achieve important objectives: Brown, page 9-5. As has been said, “… the generalrule is that the extension of absolute privilege is ‘viewed with the most jealous suspicion, and resisted, unless its necessity isdemonstrated’”: Taylor v. Director of the Serious Fraud Office, [1999] 2 A.C. 177 (H.L., Eng.) at 214 per Lord Hoffman quoting withapproval the High Court of Australia in Mann v. O’Neill (1997), 71 A.L.J.R. 903 at 907.

Thus, the test for the extension beyond the well-settled core of the immunity is a strict one: Necessity must be shown. Consistent with the usual rules about the burden of proof, theburden of proving a defence based on immunity is on the defendant: Brown at

section 12.4(7). 119. Two main policy considerations support the necessity of witness immunity. First, it is critical that witnesses be willing to tell thewhole truth as they see it, free of concern about consequences to themselves. The need for both candour and cooperation means thatwitnesses should be protected from civil liability and the risk of vexatious litigation in relation to their testimony. The rigours of cross-examination and the risk of prosecution for perjury are seen as sufficient checks on the untruthful witness.

Second, the immunity protectsthe substance of the evidence from collateral attack in other proceedings. As Lord Wilberforce put it in Roy v. Prior, [1971] A.C. 470(H.L. (Eng.)) at 480, the immunity exists “... to avoid a multiplicity of actions in which the value or truth of [the witness’] evidence wouldbe tried over again.” … [35] With the legal framework in mind, I turn to consider the grounds of appeal. A. Did the Chambers judge err by finding that Dr. McMurtry is an expert? [36] This ground of appeal is a red herring. Whether Dr.

McMurtry is an expert is not relevant to the application of the doctrine ofwitness immunity. As the Court in Elliott remarked, “the immunity applies to words said or conduct performed on a protected occasion,the protected occasion being a judicial or a quasi-judicial proceeding”, and it is “critical to understand that it is not the nature of theconduct or the words which is the focus of the immunity, but the occasion on which the words are said or the conduct is performed” (atpara 114, emphasis added).

That is, it matters not in the application of the doctrine what was said or who said it; what matters is where orwhen they said it. [37] I am not persuaded by this ground of appeal. B. Did the Chambers judge err by finding that the proceedings in questionwere quasi-judicial? 1. Post-suspension proceedings [38] In the Decision, the Chambers judge found that the Suspension Decision and the proceedings that followed it (i.e., the SHAboard review, DC Decision, the SHA board ratification, and the PSAT appeal) were quasi-judicial proceedings: 24.

By the Respondent’s admission, the proceedings in which the Applicants provided opinions led to his suspension first on anemergency basis and then by a discipline committee. 25.

It is clear from this line of authorities [i.e., Rubin v Ross, 2010 SKQB 249, 358 Sask R 183, Getz v Opseth, 2005 SKQB 69, 261Sask R 1, Rubin v Ross, 2013 SKCA 21, 409 Sask R 202, and Hamalengwa v Duncan (2005), (ON CA), 135 CRR(2d) 251 (Ont CA)] that the discipline proceedings that followed the emergency suspension was [sic] a quasi-judicial proceeding wherewitness immunity can apply. [39] There is no reason to disturb the Chambers judge’s findings in this regard.

The proceedings that followed the SuspensionDecision all involved adjudicative decision-making in the course of professional-discipline or -competency proceedings by a regulatorybody acting under its statutory authority. Although the nature of the inquiry or review at each adjudicative stage differed, the decision tobe made always concerned the continuation or cessation of Dr. Patel’s surgical privileges.

[40] In this context, the Chambers judge correctly found that those proceedings were quasi-judicial in their nature. As such, there isno basis to disturb his finding that absolute privilege attaches to everything that Dr. McMurtry communicated or did in the course of, or forthe purpose of, the SHA board review, DC Decision, SHA board ratification and PSAT appeal. However, it is not plain and obvious thatthe immunity extends to all Reports, or all causes of action claimed by Dr. Patel. [41] The doctrine of witness immunity attaches, in a manifest way, only to those Reports that Dr.

McMurtry prepared after theSuspension Decision [Post-Suspension Reports]. That is because it is self-evident that Dr. Patel’s claims amount to a flank attack on thatevidence and that evidence is what the SHA principally relied upon in several now-completed quasi-judicial proceedings and which itsought to adduce in appeal proceedings before a PSAT panel (which appeal is, as yet ongoing). The Claim states that the Post-SuspensionReports were accepted into evidence by quasi-judicial decision-makers and that a PSAT panel did not allow Dr.

McMurtry to testify in anappeal hearing, thereby rejecting that evidence. [42] Paraphrasing the relevant assumed facts, the Claim states, inter alia, that Dr. McMurtry lacks sufficient or current qualificationsto opine on Dr. Patel’s surgical competence, that he exceeded his review mandate by opining on the matter of Dr. Patel’s personalintegrity, and that his methodology for reviewing Dr. Patel’s surgical work was fatally flawed in specific ways. These statements of factalso form the basis for Dr.

Patel’s arguments about the admissibility and reliability of the Post-Suspension Reports and other evidencethat has been and may yet be put before quasi-judicial decision-makers. Indeed, Dr. Patel’s reply to the defendants’ demand for particularslays out in some detail these arguments and other facts as the reasons why a PSAT panel declined to accept Dr. McMurtry as an expertand rejected his testimony and evidence. [43] In my view, the foregoing assumed facts, and the fact that the PSAT appeal is ongoing, confirm the strict necessity of absoluteprivilege attaching to the Post-Suspension Reports.

As Lord Devlin observed in Lincoln v Daniels, [1961] 3 All ER 740 (CA) at 753,witnesses must be protected from “flank attack” to encourage their candour and cooperation in connection with their evidence and as wellto avoid a multiplicity of litigation in which the value of their evidence is re-tried. [44] Put in context, the adjudication of Dr. Patel’s causes of action in defamation against the defendants would require the Court ofKing’s Bench to assess Dr.

McMurtry’s expertise and the truthfulness and reliability of the Post-Suspension Reports as well as histestimony and those issues have already been adjudicated by quasi-judicial decision-makers that may yet again come before a PSAT panelfor determination. Therefore, allowing Dr.

Patel’s claims to proceed with respect to the Post-Suspension Reports would raise the obviousrisk of inconsistent treatment of evidence because the “value or truth of the evidence of a witness would be tried all over again” (Jones vKaney, [2011] 2 AC 398 (UK SC) at para 17 [Kaney]). [45] As such, I find no reason to disturb the Chambers judge’s conclusion that it is plain and obvious that absolute privilege attachedto the Post-Suspension Reports. [46] It would have been an error of law for the Chambers judge to have cast aside the long-established legal doctrine, which hasbeen described as “essential to the administration of justice” (Halls v Mitchell, (SCC), [1928] SCR 125 at 145, per Duff J.,citing Watson v M’Ewan, [1905] AC 480 (HL)), without something more than an allegation that, for unsubstantiated public policy reasons,it might no longer achieve its purpose in the specific context of hired-gun experts.

Nevertheless, in this situation, the doctrine of witnessimmunity definitively provides a defence only against Dr. Patel’s claims in defamation. It is at least arguable that the absolute privilegedoes not bar Dr. Patel’s claims in negligence, negligent misrepresentation and wrongful interference with economic relations. I reach thatconclusion because, in Kaney, the U.K.

Supreme Court considered whether experts are protected from civil liability by witness immunity.The appellant in that case had sued his own expert for negligently signing a statement of matters agreed to with the opposing-side expert,which resulted in a reduced settlement. The majority of the U.K. Supreme Court held that expert witnesses are not immune from claims intort or contract for matters connected with their participation in legal proceedings.

However, the majority ruled that experts remain entitledto absolute privilege in respect of claims in defamation (see also: Lower v Stasiuk, 2013 BCCA 389, 367 DLR (4th) 241). [47] Given the result in Kaney, it cannot be said with the level of certainty required under Hunt that the doctrine of witnessimmunity provided a defence to Dr. Patel’s claims in tort, other than his claim in defamation. 2. Pre-suspension occasions [48] I will now explain my reasoning on another issue that arises under this ground of appeal.

Namely, whether the Chambers judgeerred by finding no uncertainty in absolute privilege attaching to Dr. McMurtry’s activities and communications in the lead-up to theSuspension Decision. In that regard, the Chambers judge characterised the emergency suspension of Dr. Patel as a step in the disciplineproceedings: 26. The Respondent has suggested that the emergency suspension was not made in a quasi-judicial proceeding.

Perhaps the decision tosuspend the Respondent on an emergency basis was not quasi-judicial in the sense that the Respondent was not offered an opportunity torespond to the opinion at that point, but the emergency suspension was clearly connected to and was a step in the discipline proceeding.The defence of absolute privilege is available at the stage where the emergency suspension was ordered. [49] The Chambers judge later framed the issue in this way, implicitly recognising that the question before him was whether it wasplain and obvious that absolute privilege extended to the chart review and the Pre-Suspension Report: 50.

Elliott and the jurisprudence it examined addresses the narrower assertion by the Respondent that the privilege does not clearlyextend to the investigation and report prepared by the Applicants that led to the initial suspension. [50] The doctrine does not have a “bright line test” for determining when absolute privilege attaches to communications andconduct. There is authority for the proposition that the key consideration in answering this question is the closeness of the connectionbetween the communication or conduct in question and a judicial or quasi-judicial proceeding.

As the Chambers judge elsewhere noted,the Court in Elliott identified three categories of witness communication or conduct to which absolute privilege attaches. Under the secondand third category, absolute privilege may attach to communications made by or the conduct of a witness outside a judicial or quasi-judicial proceeding in some limited circumstances. The Court in Elliott explained:

205. How does one assess whether it is necessary to extend witness immunity to cover a particular situation? An important discussion ofthis question, albeit in the context of the broader immunity for judicial and quasi-judicial proceedings, is found in the English Court ofAppeal decision in Lincoln v. Daniels [[1961] 3 All ER 740].

Devlin, L.J., in an often cited passage, stated that the absolute privilegewhich covers proceedings in or before a court of justice may be divided into three categories: the first extends to everything that is said inthe course of proceedings by judges, parties, counsel and witnesses and includes the content of documents in evidence. The second coverseverything that is done from the inception of the proceedings onwards and extends to all pleadings and other documents brought intoexistence for the purpose of the proceedings starting with the writ or other document which institutes the proceedings.

The third category,the one most relevant for our purposes, consists of situations in which it is necessary in practical terms to extend the immunity “... in orderto protect those who are to participate in the proceedings from a flank attack ...”: at 753. He said at 751-2: I turn now to the third category. It is obvious that unless there were a category of this sort the absolute privilege granted for matters saidand done coram judice might be rendered illusory. This is the consideration that animates the reasoning of the EARL OF HALSBURY,L.C., in Watson v. M’Ewan, ... ...

It is not at all easy to determine the scope and extent of the principle in Watson v. M’Ewan. I have come to the conclusion that theprivilege that covers proceedings in a court of justice ought not to be extended to matters outside those proceedings except where it isstrictly necessary to do so in order to protect those who are to participate in the proceedings from a flank attack. It is true that it is notabsolutely necessary for a witness to give a proof, but it is practically necessary for him to do so, as it is practically necessary for alitigant to engage a solicitor.

The sense of LORD HALSBURY’s speech is that the extension of the privilege to proofs and precognition ispractically necessary for the administration of justice; without it, in his view, no witness could be called. 206. Lincoln v. Daniels does not provide a bright line test for the point at which the absolute privilege attaches. But it does show thatthe critical consideration is how closely connected the communication is to a judicial or quasi-judicial proceeding and that this must beassessed in light of the underlying purposes of the immunity.

Devlin, L.J.’s reference to the necessity of protecting participants in thejudicial proceeding from a “flank attack” refers to both of the immunity’s underlying purposes. Witnesses must be protected from flankattack to encourage candour and cooperation in connection with their evidence and as well to avoid a multiplicity of litigation in which thevalue of their evidence is tried over again. (See also, Larche v. Middleton (1989), (ON SC), 69 O.R. (2d) 400 (H.C.)and Gursikh Sabha Canada v. Jauhal (2002), 186 O.A.C. 362; O.J. No. 2005 (Q.L.), aff’g [2001] O.J. No. 4243 (Q.L.) (Sup.

Ct.)). (Emphasis in original) [51] When determining whether the Pre-Suspension Report had been communicated outside of a quasi-judicial proceeding and, ifso, whether the immunity nonetheless extended to that communication as well as the work that went into its preparation, the Chambersjudge wrote: 54. In the case before me it is not contested that the governing authority had, as the regulator of the conduct of practitioners like theRespondent, a duty and obligation to investigate allegations of impropriety.

It was during this investigation stage that the Applicants wereretained to conduct an investigation and provide their opinion. It was on the basis of that opinion that the Respondent’s privileges weresuspended. 55. In the circumstance where a practitioner’s privileges are suspended on an emergency basis the Appeals Procedures [i.e., theRegulatory Framework] require that notice of the suspension and the reasons for it be given immediately to the practitioner and a hearingis scheduled to review the suspension. The practitioner is given the opportunity to challenge the decision and opinion. 56.

The investigation into the allegations of impropriety is required by statute, regulation and bylaw. It is known at the outset that if theinvestigation leads to a suspension that a hearing and possibly other appeals will follow. Statements made “... to a person discharging astatutory or other public duty to gather evidence for pending or contemplated proceedings will generally be protected ...”, Elliott at para.210. 57. Furthermore, the Applicants[’] initial investigation and opinion “became so intermingled with their roles as witnesses that it isimpossible to untangle them ...

That being so, the second rationale for the witness immunity is strongly implicated ... as ... it is not nowpossible to distinguish between a claim for negligent investigation and a claim for negligent testimony. ...”, Elliott at para. 217. 58. It is plain and obvious that the investigation and the report from it that lead [sic] to the emergency suspension [i.e., the Pre-Suspension Report] is covered by the witness immunity rule. [52] In this appeal, it must be taken as an assumed fact that the SHA initially engaged Dr. McMurtry to review or audit the chartsfor some of Dr. Patel’s surgeries.

I also assume that the Pre-Suspension Report is not a communication made by a witness in the course ofproceedings before a quasi-judicial adjudicator, even though it may have been later adduced as evidence in such proceedings. That is,absolute privilege does not appear to attach to the Pre-Suspension Report under the first category of situations covered by the doctrine ofwitness immunity as explained in Elliott. [53] Looking to the second category of situations referred to in Elliott, I see no pleading in the Claim of a complaint or other eventthat instigated the SHA’s chart review.

As well, the Regulatory Framework does not pinpoint a time or event after which investigationscould generally be said to have been initiated. In the Pre-Suspension Report, Dr. McMurtry recommended “the consideration ofsuspension of surgical privileges pending a full investigation” (emphasis added). In other words, the assumed facts and the RegulatoryFramework leave open the question of when the investigation into Dr.

Patel’s surgical competency commenced. [54] As there is uncertainty in this regard, it cannot be said that it is “plain and obvious” that the doctrine of witness immunityapplies to the Pre-Suspension Report on the basis that it was prepared in the course of an investigatory process under the RegulatoryFramework. Accordingly, I respectfully find that the Chambers judge erred when he reached the opposite conclusion.

To be clear, I havenot found that the conduct and communication in question was not part of an investigatory process; I have only expressed my opinionabout whether it is “plain and obvious” that it was—both as a matter of assumed fact and as to whether the assumed facts demonstrated a

sufficiently close connection for the immunity to apply. [ 55 ] When the Chambers judge assessed the closeness of the connection between the Pre-Suspension Report and a quasi-judicial proceeding under the third category identified in Elliott , he held that the defendants’ role in the matter had become “so intermingled with their roles as witnesses that it is impossible to untangle them” and that “it is not now possible to distinguish between a claim for negligent investigation and a claim for negligent testimony” (at para 57, quoting Elliott at para 217 ). Earlier in these reasons, I noted the Chambers judge’s

summary of his conclusions on the Rule 7-9(2) application, including his finding that: 72. The rational[e] for the witness immunity rule necessitates its application in this case to both the out of court statements that resulted in the emergency suspension and the subsequent decisions. Experts would be reluctant to investigate and opine , in a candid manner , on conduct at the stage where an emergency suspension was being considered , and thereafter , if they were not protected by the rule .

If this Claim were to proceed it would only result in the re-litigation of the validity, reliability and admissibility of the opinions. [ 56 ] As mentioned, when considering whether to extend absolute privilege in any specific circumstance, the court’s goal is to determine whether it is “strictly necessary” to do so in light of the two purposes that underpin the immunity.

The burden of proving that the doctrine of witness immunity applies in any situation always falls on the party asserting it as a defence; but, in this case, under Rule 7- 9(2)(a), only the facts as pled in the Claim may be used to establish the defence. From those pleadings, I assume it is true that the SHA retained Dr. McMurtry and WMAC to review 34 charts regarding Dr. Patel’s surgical work and that Dr. McMurtry’s involvement continued through and into the PSAT appeal proceedings, with different Reports produced along the way.

In view of this, I would paraphrase the Decision as the Chambers judge concluding that it was strictly necessary for absolute privilege to attach to the Pre- Suspension Report to protect from flank attack those persons who audit surgical charts and who are later called upon to participate in disciplinary proceedings related to the surgeon. [ 57 ] Drawing on the assumption that all the facts as pled are true, the narrative still leaves enough room to reasonably infer that Dr.

McMurtry’s chart audit and the Pre-Suspension Report could have been prepared for purposes other than quasi-judicial proceedings under the Regulatory Framework . As noted, Dr. McMurtry’s review and reporting commenced before the Suspension Decision and was possibly outside the investigatory process. While the Claim asserts, albeit not in these terms, that Dr.

McMurtry carried out that activity at the direction of the SHA as an evidence-gathering exercise, it is not “plain and obvious” that this statement sufficiently ties the Pre- Suspension Report to the subsequent resulting quasi-judicial proceedings for the strict-necessity purposes of attracting the immunity. [ 58 ] It is an assumed fact, given the pleadings, that the evidence which that exercise produced, i.e., the Pre-Suspension Report, was a chart audit. The Claim states that the Pre-Suspension Report was accepted and used in the decision-making that resulted in the Suspension Decision.

That proceeding has not been definitively proven to be quasi-judicial in nature. The Claim also states that the Pre- Suspension Report was used in subsequent disciplinary proceedings, which are quasi-judicial, and which confirmed the emergency suspension. Nonetheless, had the SHA not suspended Dr. Patel’s surgical privileges on an emergency basis, the matter would likely have been at an end at that juncture. That is, while a suspension was within Dr.

McMurtry’s contemplation when he conducted the chart audit (since he recommended its consideration in the Pre-Suspension Report), the quasi-judicial proceedings that followed the Suspension Decision were not then pending and, until the Suspension Decision was made and the “full investigation” that Dr. McMurtry also recommended had been conducted, they may not have been contemplated either. [ 59 ] Furthermore, Dr. Patel asserts that, in the quasi-judicial proceedings that occurred subsequent to the Suspension Decision, the SHA principally relied on the Post-Suspension Reports and Dr. McMurtry’s testimony.

While the SHA’s evidence likely also included the Pre-Suspension Report, the Claim focuses on the negligence and defamation said to arise from the later-produced Reports and the November 2019 Document, which Dr. McMurtry did not prepare. All of which is only to point out that, in terms of the closeness of the connection, it is an available inference that the Pre-Suspension Report has been overtaken by the Post-Suspension Reports in terms of evidentiary value. [ 60 ] It is not “plain and obvious” that these assumed facts establish that quasi-judicial proceedings were contemplated when Dr.

McMurtry undertook the chart audit and provided the Pre-Suspension Report to the SHA. Nor is it “plain and obvious” that there is otherwise a sufficient link between that exercise and communication and a quasi-judicial proceeding to invoke the immunity. Among other things, while it was open to the Chambers judge to find that the content of the Pre-Suspension Report and the work undertaken in its preparation were so intermingled with Dr. McMurtry’s role as a witness in ongoing quasi-judicial proceedings that it was not possible to untangle them, that too was not the only available conclusion.

For these reasons, I am not persuaded that it was “plain and obvious” that absolute privilege attached to all of Dr. McMurtry’s conduct and communications in this matter or that the doctrine of witness immunity operated as a defence against all the causes of action pled by Dr. Patel. [ 61 ] In

summary, I would uphold the Chambers judge’s decision to strike from the Claim those paragraphs that set out a cause of action in defamation that is based on the Post-Suspension Reports. I would set aside the Decision to the extent that it strikes from the Claim: (

a) the defamation action as predicated on the Pre-Suspension Report; and (

b) the causes of action pled in negligence, negligent misrepresentation and unlawful interference with economic relations. C. Did the Chambers judge err by extending expert immunity to WMAC? [ 62 ] To begin, I am not persuaded that the Chambers judge actually extended witness immunity to WMAC. I acknowledge that he dismissed the claims against it with the same breath as he struck the claims against Dr. McMurtry—writing in terms of the “Applicants”, plural. However, I do not interpret the striking of the claims against WMAC as resulting from the extension of the defence of absolute privilege to it.

As I read his reasons, the Chambers judge struck the Claim because he interpreted the causes of action as pled against WMAC as being entirely co-dependent the causes of action asserted against Dr. McMurtry, the latter of which he found were not reasonable in light of the doctrine of witness immunity. [ 63 ] The likely reason for this is that it is difficult to consider the two defendants separately given the flawed way in which Dr. Patel has framed his claims against them. In his statement of claim, Dr. Patel alleged that Dr.

McMurtry had “authored” the Reports, that they had been “approved” by a director of WMAC and that they were “submitted” under WMAC’s letterhead. Other than that, most of Dr.

Patel’s pleadings have been reframed under amendments to impugn the conduct of “the Defendants”, plural. At times, the claims are levied against “the Defendant”, without distinguishing which of the two defendants is intended. [ 64 ] Nonetheless, I infer that the term “the Defendant”, singular, (most often) refers to Dr. McMurtry because WMAC is sometimes described as the “Corporate Defendant”, although not with enough consistency to constitute a rule.

Moreover, the imprecision in the pleadings as against WMAC was introduced by an amendment to the statement of claim to add it as a defendant on July 15, 2020, and the lack of precision remained and was exacerbated by subsequent amendments on April 30, 2021, wherein the term “Dr. McMurtry” was often simply changed to “the Defendants” and “Defendant” was changed to “Defendants”. [ 65 ] Having been amended in this way, the Claim asserts that WMAC, a corporation, has testified as a witness in quasi-judicial proceedings, which is manifestly impossible.

In any event, there is no reason, in light of the purposes of the doctrine of witness immunity, why absolute privilege would not attach to the Reports and testimony of Dr. McMurtry if they were provided or given by him qua an officer, employee or agent of WMAC in the course of or for the purpose of a quasi-judicial proceeding. As noted earlier, it matters not what was said or who said it; what matters is where or when they said it.

This would not, however, be an extension of the immunity to WMAC in the context of this case. [ 66 ] If the Claim is read down as against WMAC, i.e., to eliminate what is only humanly possible, there is no allegation that it took

part in any review or investigation of Dr. Patel’s surgical work except through Dr. McMurtry. Some of Dr. Patel’s claims assert that WMAC is “jointly and severally” liable with Dr. McMurtry, while others plead that it is vicariously liable for Dr. McMurtry’s conduct and communications. Nonetheless, although it takes some work to do so, it is possible to tease out specific tortious acts or omissions that WMAC is alleged to have committed separate and apart from Dr. McMurtry. One such claim is that WMAC negligently recommended Dr. McMurtry to the SHA as an expert.

Another is that WMAC was obliged to properly supervise Dr. McMurtry and to ensure that he was acting in a manner that complied with, among other things, all codes of conduct, codes of ethics, and professional bodies and policies to which he was subject. [ 67 ] Given the way the Claim is drafted it is understandable that the Chambers judge approached his decision-making by striking the asserted causes of action against both defendants together.

Aside from the fact that the statement of claim and reply to the demand for particulars are prolix and difficult to comprehend, the facts alleged under the specific torts are not distilled or organised in a way that readily facilitates the conclusion that the Claim pleads free-standing causes of action as against each of WMAC and Dr. McMurtry. [ 68 ] While prolix or otherwise confusing pleadings are sometimes better left to a trial judge to sort out, it is at other times appropriate and necessary for a judge of the Court of King’s Bench to weed them out under Rule 7-9 (see, for example: Reisinger v J.C.

Akin , 2017 SKCA 11 at paras 29–53 , [2017] 8 WWR 532). In this case, however, imprecision and inconsistency in the pleadings did not result in a complete failure to plead stand-alone torts as against WMAC. [ 69 ] At bottom, having reviewed the Decision under this ground, I conclude that the Chambers judge erroneously struck the claims as against WMAC but not because he extended witness immunity to a corporation. It is simply not plain and obvious, despite the poor state of the pleadings, that no reasonable cause of action has been pled against WMAC. IV.

CONCLUSION [ 70 ] I find no basis to interfere with the Chambers judge’s conclusion that the doctrine of witness immunity applied to Dr. McMurtry’s conduct and communications in the circumstances of the Post-Suspension Reports and associated testimony and, therefore, that the doctrine plainly and obviously operates as a defence to the related claims under the tort of defamation. However, the Chambers judge erred when he concluded that there was no possibility that Dr. Patel might succeed with his other claims against Dr. McMurtry and WMAC.

As it is not plain and obvious that the statement of claim discloses no reasonable cause of action, the Chambers judge erred by striking it under Rule 7-9(2)(a). [ 71 ] I would allow the appeal and set aside striking of the entire Claim and reinstate: (

a) the defamation action as predicated on the Pre-Suspension Report; and (

b) the causes of action pled in negligence, negligent misrepresentation and unlawful interference with economic relations. However, I would not reinstate the claims under the action in defamation that rely on the Post-Suspension Reports and associated documents and testimony. [ 72 ] Although Dr. Patel has been largely successful in this appeal, given that the state of his pleadings lies at the bottom of this appeal, I would not award costs. “Caldwell J.A.” Caldwell J.A. I concur. “Schwann J.A.” Schwann J.A. I concur. “Barrington-Foote J.A.” Barrington-Foote J.A.