Indexed as:

Ang v. Metropolitan General Hospital (Ont. Div. Ct.)

IN THE MATTER OF an Application of Dr. John C. Ang

AND IN THE MATTER OF The Public Hospitals Act, R.S.O. 1980,

Chapter 410

Between

John C. Ang, Appellant, and

The Metropolitan General Hospital and The Salvation Army

Grace Hospital, Respondents

[1988] O.J. No. 1977

Court file no. 536/87

 Supreme Court of Ontario - High Court of Justice

 Divisional Court - Toronto, Ontario

O'Driscoll, Southey and MacFarland JJ.

Heard: November 16 and 17, 1988

 Judgment: December 6, 1988

R.G. Colautti and P.K. Hrastovec, for the Appellant.

J. Liswood and L. Dolan, for the Respondent, the Metropolitan General Hospital.

D. Jovanovic, for the Respondent, The Salvation Army Grace Hospital.

The judgment of the Court was delivered by

MacFARLAND J. (orally):-- This matter comes to us by way of appeal from the decision of The Hospital Appeal Board in respect of the applications of Dr. John Ang for hospital privileges at The Metropolitan and Salvation Army Grace Hospitals in Windsor, Ontario. We will deal firstly with The Metropolitan General Hospital.

Despite any procedural irregularities which may have ocurred before this matter reached The Hospital Appeal Board, we are all satisfied that the appellant in this Court received full and fair hearing before that Board. Dr. Ang was seeking renewal of the privileges he had had at The Metropolitan Hospital prior to January of 1985 in the Diagnosic Imaging Department of that hospital.

At Metropolitan Hospital nuclear medicine was a sub-service or sub-department within the Diagnostic Imaging Department. We are satisfied that the application of Dr. Ang, dated December 17, 1984, together with his letter of January 4, 1985, to Dr. Bricker, his letter of January 28, 1985, as well as his vive voce evidence and his conduct after February 28, 1985, provided ample evidence for The Hospital Appeal Board to reach the conclusion it did.

We are satisfied that the proponderance of evidence provided just cause for the hospital's refusal to renew the privileges of Dr. Ang. We are satisfied, while his application was to the Department of Diagnostic Imagery, he made it clear he intended only to perform in the area of nuclear medicine, a subdepartment of that general department. We are also satisifed that the fact Dr. Ang did not have a contract with X-Ray Associates, the partnership with whom the hospital had contracted to perform all diagnostic imaging, ultra sound, nuclear medicine and related services, was not and could not be a bar to his application for privileges.

Counsel are agreed that contract is not, by its terms, exclusive, nor was the contract treated as such by the hospital. There was evidence before The Hospital Appeal Board which showed that on at least one other occasion a physician had been hired in that department who did not have a contract with X-Ray Associates.

The particular contract in issue did not, in any way, letter the discretion the hospital is required to exercise pursuant to its statutory mandate, as set out in Sections 32 to 35 of the Public Hospitals Act. In result therefore, the appeal as it relates to Metropolitan Hospital is dismissed.

We will deal now with The Salvation Army Grace Hospital. The appeal in respect of this institution is somewhat different. This hospital has separate departments for diagnostic imaging and nuclear medicine, the latter being part of the Department of Medicine. Dr. Ang had privileges at this hospital in the Diagnostic Imaging Department. He never did have privileges in the Department of Medicine, which he was seeking before the Board.

In our view, the decision of The Hospital Appeal Board in respect of this application was supported by the evidence and we are not persuaded that the decision was not a correct one. In result therefore, this aspect of the appeal is also dismissed.

MacFARLAND J.

 O'DRISCOLL J.

 SOUTHEY J.

The endorsement reads:

"This appeal is dismissed regarding The Metropolitan General Hospital and The Salvation Army Grace Hospital for the unanimous oral reasons of the Court delivered by Madam Justice MacFarland.

Costs of this appeal payable by the appellant to the defendants on a party/party basis forthwith after assessment thereof".

O'DRISCOLL J.