Beiko v. Hotel Dieu Hospital St. Catharines, 2007 ONCA 860

CITATION: Beiko v. Hotel Dieu Hospital St. Catharines, 2007 ONCA 860

DATE: 20071207

DOCKET: C46734

COURT OF APPEAL FOR ONTARIO

LASKIN, ROSENBERG and MACPHERSON JJ.A.

BETWEEN:

DR. GEORGE BEIKO, DR. LAWRENCE AEDY, DR. BRUCE LENNOX and DR. GERALD SCAIFE

Plaintiffs/Appellants

and

HOTEL DIEU HOSPITAL ST. CATHARINES, THE RELIGIOUS HOSPITALLERS OF ST. JOSEPH OF THE HOTEL DIEU OF ST. CATHARINES, (carrying on business as HOTEL DIEU SHAVER HEALTH AND REHABILITATION CENTRE) and RITA SOLUK

Defendants/Respondents

Michael Fraleigh and Ross MacDougall for the appellants

Lorne Honickman for the respondents

Heard and released orally: December 5, 2007

On appeal from the order of Justice Geoffrey Morawetz of the Superior Court of Justice dated January 26, 2007.

ENDORSEMENT

[1] The appellants, four physicians who are members of the Service of Ophthalmology at the respondent hospital in St. Catharines launched an action against the hospital and its CEO, the respondent Rita Soluk. The action was for damages for breach of contract and misrepresentation relating to the hospital’s decision to reduce the operating room allocation of the appellants (by approximately 12 per cent) because of underutilization by the appellants (by about 29 per cent).

[2] On a motion pursuant to Rule 21.01 of the Rules of Civil Procedure, Morawetz J. dismissed the action against the respondent hospital on the basis that the courts had no jurisdiction over the subject matter of the action because the proper recourse for the appellants was to follow the statutory review and appeal route under the Public Hospitals Act, R.S.O. 1990, c. P-40 (“PHA”). However, the motion judge permitted the action to continue against the respondent Soluk on the basis that much of her involvement may have predated the impugned decision reducing the operating room privileges of the appellants.

[3] The appellants appeal the first component of the motion judge’s decision; the respondent Soluk cross-appeals the second component of the decision.

The appeal

[4] The motion judge reviewed the PHA in detail and concluded that the legislature had established “a comprehensive code under which the hospital determines privileges for a member of staff.” He then found, again following a careful review of the record, that “[i]n the circumstances of this case, the allocation of OR time is a matter of privilege which was determined under the regime set out in the Act.” In our view, these conclusions are unassailable and fit comfortably within the analytical framework set out in Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] 2 S.C.R. 929. The appellants’ complaint is about their access to the respondents’ operating rooms. The essence of this complaint is about an alteration in the crucial professional privilege the appellants enjoy at the hospital. As such, their complaint is amenable to the statutory review and appeal regime established by the PHA.

The cross-appeal

[5] The respondent Soluk cross-appeals on the basis that she was an employee of the respondent hospital and that there is nothing in the pleadings to support any allegations of wrongdoing by her in her personal capacity. Specifically, she asserts that the pleadings do not allege any fraud, deceit, dishonesty, or some other action that might give rise to personal liability: see Scotia MacLeod Inc. v. Peoples Jewellers Limited, 1995 CanLII 1301 (ON CA), [1995] O.J. No. 3556 (C.A.)

[6] We agree. In the absence of pleadings along the above lines, the respondent Soluk is in the same position as the hospital. Since the action against the hospital was properly dismissed, the motion judge should have dismissed the action against Soluk as well.

[7] The appeal is dismissed. The cross-appeal is allowed.

[8] Costs to the respondents fixed at $12,000 inclusive of disbursements and GST.

“J.I. Laskin J.A.”

“M. Rosenberg J.A.”

“J.C. MacPherson J.A.”