Court of Appeal for Ontario

Date: 2018-10-31 Docket: C65171

Judges: Hoy A.C.J.O., Sharpe and Fairburn JJ.A.

Between

Dr. Douglas Beattie, Dr. George Luczkiw, and Dr. Dominick Shelton Appellants (Plaintiffs)

and

Women's College Hospital Respondent (Defendant)

Counsel

For the Appellants: Natalie C. MacDonald and Kathryn Marshall

For the Respondent: John J. Morris and Kate Deakon

Heard: October 18, 2018

On appeal from: The judgment of Justice Jane Ferguson of the Superior Court of Justice, dated March 1, 2018, with reasons reported at 2018 ONSC 1852, 46 C.C.E.L. (4th) 131.

Reasons for Decision

Overview

[1] The appellants are both doctors who practiced for many years in the respondent hospital's urgent care centre. The respondent closed the urgent care centre and, as a consequence, terminated their privileges. The trial judge dismissed the appellants' action for damages for wrongful dismissal on the ground that it was barred by s. 44(5) of the Public Hospitals Act, R.S.O. c. P.40. That provision provides that if the board of a hospital decides to cease to provide a service:

No action or other proceeding for damages or otherwise shall be instituted against [the hospital] for any act done in good faith in the execution or intended execution by a board of its authority [to cease to provide the service] or for any alleged neglect or default in the execution in good faith by a board of such authority.

The Statutory Scheme

[2] Section 44(5) is one component of the integrated scheme the Act provides to govern a hospital's cessation to operate or provide services. If a hospital board decides to cease to provide a "service" under s. 44(1.2)(a), then the hospital board may decide to "cancel or substantially alter" the privileges of any physician relating to the provision of that service under s. 44(2).4. Sections 44(3) and 44(4) establish that the hospital board is not required to hold a hearing when it makes such a decision and the normal procedural and appeal rights provided for in the Act do not apply. Section 44(5) immunizes a hospital from liability for acts done by its board in good faith under s. 44(2).

[3] Here, it is not in dispute that the urgent care centre was a "service" and that the respondent's board decided to cease providing that service. The trial judge found that by closing the urgent care centre, the respondent's board also decided to cancel or substantially alter the privileges of the two appellants. Accordingly, she concluded that s. 44(5) applied to immunize the respondent from liability for the appellants' wrongful dismissal claims.

The Appellants' Arguments

[4] The appellants submit that s. 44(5) does not bar their claim for two reasons.

[5] First, they argue that the legislative history indicates that at the time s. 44(5) was enacted, the Legislature expected it to have limited duration and that the Minister would be able to make exceptions to it by regulation.

[6] Second, the appellants argue that the trial judge conferred upon them the status of "dependent contractors", a legal category they say did not exist at the time s. 44(5) was enacted. They submit that their claim is therefore exempt from its application because the Legislature could not have intended to deprive of rights the members of a legal category that did not exist at the time of the provision's enactment.

Court's Analysis

[7] We are unable to accept these arguments.

Legislative History and Intent

[8] The intention of s. 44(5) is clear. It precludes all proceedings for damages for acts done in good faith under ss. 44(1) and 44(2) by hospitals which close or cease to provide a service. The Legislature enacted s. 44(5) as part of the Savings and Restructuring Act, 1996, S.O. 1996, c. 1. This Act created the Health Services Restructuring Commission, a body given a mandate to restructure Ontario's hospitals to make them more efficient and cost-effective. While the legislative debates indicate that parts of the package of legislation enacted along with s. 44(5), including the Health Services Restructuring Commission, would be temporary in nature, the legislature did not extend the four-year sunset provision to s. 44(5). Nor has the legislature repealed or amended s. 44(5) since it was enacted to limit its application. This provision remains intact despite the Legislature's decision in 2006 to make extensive amendments to the Public Hospitals Act, including to other subsections of s. 44, by enacting the Local Health System Integration Act, S.O. 2006, c. 4.

[9] As a court of law we are required to apply the legislation as it was enacted, not as it could have been drafted or might have been amended. Legislative history can be used to interpret legislation but not to create exceptions to legislation that may have been contemplated but were never enacted. The statements by Members of the Legislative Assembly that the appellants point to are at best equivocal. This court cannot use them to contradict the meaning and purpose that arises from reading the words of the provision in the context of the statute as a whole.

Regulation-Making Power

[10] Nor does the regulation-making power in the Public Hospitals Act assist the appellants. The Legislature did consider the possibility of enacting regulations to confer certain procedural rights. Indeed, s. 32(1)(v) of the Public Hospitals Act gives the Minister of Health and Long-Term Care the power to provide alternative procedures and appeal rights where the procedures and appeal rights provided for in the statute do not apply. However, the Minister has never enacted any such regulations. In any case, the power to enact a regulation to provide certain procedural rights under s. 32(1)(v) cannot overcome the specific language of s. 44(5) barring actions for damages.

The "Dependent Contractor" Argument

[11] We do not accept the contention that because the trial judge characterized the legal status of the appellants as "dependent contractors", their claims are exempt from the reach of s. 44(5). Doctors in the situation of the appellants whose privileges are terminated by the good faith decision of a hospital board as a consequence of a hospital board's decision to cease to provide a service have been precluded from suing for damages since 1996, however the legal nature of their relationship to the hospital is characterized. The language of s. 44(5) is all embracing and it would be inappropriate to read-in an exception that the Legislature did not provide: see Ordon Estate v. Grail, [1998] 3 S.C.R. 437, at para. 134. Section 44(5) bars any and all proceedings for claims arising from a hospital's decision to cease to provide a service and the specific legal characterization of the terminated doctor's status has no impact on its application.

Disposition

[12] Accordingly, the appeal is dismissed. The respondent is entitled to costs in the agreed amount of $15,000 inclusive of disbursements and taxes.

"Alexandra Hoy A.C.J.O."

"Robert J. Sharpe J.A."

"Fairburn J.A."