COURT OF APPEAL FOR ONTARIO
DATE: 20251224
DOCKET: COA-24-CV-1311
Roberts, Miller and Zarnett JJ.A.
BETWEEN
Dr. William Abbott, Dr. William Frydman, Dr. Giorgio Aiello, Dr. Mitchell Kravitz, Dr. Keyvan Abbaszadeh, Dr. Michael Kirton and Dr. Zachary Kerr
Applicants (Appellants)
and
London Health Sciences Centre
Respondent (Respondent)
Neil M. Abramson and Marco P. Falco, for the appellants
Aislinn E. Reid, Lipi Mishra and Simone Livshits, for the respondent
Heard: June 26, 2025
On appeal from the order of the Divisional Court (Justices David L. Corbett, William M. LeMay and Sharon Shore) dated July 12, 2024 with reasons reported at 2024 ONSC 3949, dismissing an application for judicial review of the decision of the Board of Directors of London Health Sciences Centre, communicated on December 22, 2023.
Zarnett J.A.:
I. OVERVIEW
[ 1 ] The appellants are dental surgeons who, for many years, had access to operating room (“OR”) time and resources at the respondent, London Health Sciences Centre (“LHSC”), a major public hospital. The OR access was provided to the appellants to perform oral surgery on patients of their private practice.
[ 2 ] In late 2023, the board of directors (the “Board”) of LHSC, without affording the appellants a hearing, decided to (i) cease providing OR time to the appellants and reassign that time to “clinical priority tertiary, quaternary-level surgical cases”, and (ii) cancel the hospital privileges of the appellants and revoke their staff appointments related to using OR time for their private practice patients.
[ 3 ] The appellants’ application for judicial review of the Board’s decision was dismissed by the Divisional Court. Reviewing the Board’s decision on a reasonableness standard, the Divisional Court found that the Board was entitled to proceed as it did by virtue of s. 44 of the Public Hospitals Act, R.S.O. 1990, c. P.40 (“PHA”).
[ 4 ] Under s. 44 of the PHA, if a hospital’s board of directors determines that the hospital will cease to provide a “service”, it may revoke the appointment of any “physician” to the hospital’s staff and cancel their hospital privileges associated with the cancelled service. Section 44(3) of the PHA provides that certain decisions contemplated by s. 44 may be made without holding a hearing.
[ 5 ] Having been granted leave to appeal to this court, the appellants challenge the Divisional Court’s application of the reasonableness standard of review as it concerns the interpretation of s. 44 of the PHA and the factual basis the Divisional Court took into account in conducting its reasonableness review.
[ 6 ] For the reasons that follow, I would dismiss the appeal. I reject the appellants’ arguments that the Board was obliged to hold a hearing on the question of whether s. 44 of the PHA was applicable, that the Board adopted an unreasonable interpretation of the PHA in characterizing the appellants’ use of OR time and resources for the treatment of their private practice patients as a “service” within the meaning of s. 44, and that it was unreasonable to view the appellants, who are dental surgeons, as coming within the reach of s. 44 of the PHA. Finally, since the Board was not required to hold a hearing, I reject the argument that the Divisional Court erred, in assessing whether the Board’s decision was reasonable, by not taking into account evidence provided by the appellants which was not considered by the Board.
II. THE CONTEXT
a. Background
[ 7 ] The appellants are dental surgeons certified as specialists in oral and maxillofacial surgery. They are partners in, and practice out of, the Interface Centre for Oral and Maxillofacial Surgery, a private dental clinic in Southwestern Ontario.
[ 8 ] LHSC is one of Canada’s largest acute-care teaching hospitals. It is governed by the PHA.
[ 9 ] For many years, the appellants and three other oral surgeons – referred to collectively as the “private practice oral surgeons”[^1] – had access to OR time and resources at LHSC. The OR access allowed the appellants to perform oral surgery on patients of their private practice. The appellants each held appointments at, and were granted privileges by, LHSC, limited to providing these services.
[ 10 ] The OR time at LHSC was allocated to the appellants from the oral surgery division of LHSC’s Department of Dentistry. The oral surgery division was comprised of the private practice oral surgeons, who used the OR time exclusively for patients of their private practices, and other oral surgeons on staff at the LHSC.
[ 11 ] As a public hospital, LHSC is subject to a Hospital Service Accountability Agreement (“HSAA”) with Ontario Health, an agency created by the Government of Ontario to oversee health care planning and delivery across the province, including funding of the health care sector.
[ 12 ] The HSAA sets out how funding provided to the LHSC can be used and stipulates that funding may only be used to provide “Hospital Services”, defined as “the clinical services provided by [LHSC] and the operational activities that support those clinical services…”. The HSAA also requires LHSC to transition to the Wait Time Information System (the “WTIS”), which tracks patients waiting time for a specific procedure based on their defined priority level.
b. LHSC’s Office of Capacity Management’s Concerns About the Appellants’ OR Access
[ 13 ] LHSC’s Office of Capacity Management reviews its management accountabilities for funding under the HSAA to ensure that funding is only being used for Hospital Services that comply with the HSAA. As part of its review during 2023, it formed the view that the LHSC’s “practice of providing OR rooms to private practice oral surgeons was not in line with their obligations under the HSAA” and that this service needed to end. The Office of Capacity Management further “identified that OR time allocated to the Department of Dentistry was not being used as required by the LHSC OR policy”.
[ 14 ] On September 19, 2023, the private practice oral surgeons were informed that they would no longer be allocated OR time at the LHSC effective October 1, 2023.
c. The Appellants’ Response to the Office of Capacity Management’s Plan to Cancel OR Access
[ 15 ] Upon learning of LHSC’s contemplated action, the appellants complained and retained counsel, who provided LHSC with affidavits setting out why, in the appellants’ view, it was essential for them to have OR access in a public hospital. The affidavits outlined, among other things, the appellants’ qualifications as respected practitioners and teachers, the need to treat patients for whom care in a community clinic was not feasible, their efforts to address a fair allocation of OR time within LHSC’s Department of Dentistry, their contributions to LHSC, and the fact that the staff oral surgeons lacked the capacity to treat the volume of patients who needed the appellants’ services. The affidavits also described a history of perceived animus against them at LHSC, including from within the Department of Dentistry which they contended had resulted in decreasing allocations of OR time to them.
d. The Temporary Reinstatement
[ 16 ] The appellants then commenced an application for judicial review on September 28, 2023, seeking to prohibit the implementation of any decision to cancel their access to OR time and resources.
[ 17 ] Subsequently, OR time for the appellants was temporarily reinstated, and the appellants were made aware that LHSC was reviewing the private practice oral surgeons’ OR access at LHSC, after which a decision would be made.
III. THE BOARD’S DECISION
[ 18 ] In November 2023, LHSC’s Strategic Redevelopment Committee (the “Committee”) recommended to the Board that LHSC (i) cease providing OR time to the private practice oral surgeons and reassign that time to “clinical priority tertiary, quaternary-level surgical cases”, and (ii) cancel the hospital privileges of the private practice oral surgeons and revoke their appointments to the extent their privileges were related to using OR time for their private practice patients. In the Committee’s view, the practice of allowing OR services through private practice oral surgeons was “misaligned with LHSC’s accountabilities under the HSAA, including with respect to clinical prioritization, including because [the private practice oral surgeons] do not use the WTIS.”
[ 19 ] The Committee’s recommendations to the Board were contained in a detailed Briefing Note (the “Briefing Note”). It provided background about the history of the issue, including that provided by the Office of Capacity Management. It did not purport to summarize the affidavits the appellants had provided. It then set out the Committee’s views supporting its recommendations.
[ 20 ] The Briefing Note explained that although permitting OR access to the private practice oral surgeons provided some benefits to the community, the benefits to LHSC were limited, and the OR time could be better utilized. According to the Briefing Note, unlike the staff oral surgeons, the private practice oral surgeons were not required to treat patients admitted to LHSC other than their own private practice patients or perform on-call shifts for the Department of Dentistry. They did not all hold academic appointments at the Schulich School of Medicine and Dentistry, with which LHSC was affiliated. They billed the Ontario Health Insurance Plan or their own patients directly for the procedures they conducted and did not reimburse LHSC for their use of the OR or its staff, equipment or supplies. Freeing up OR time previously assigned to private practice oral surgeons for reassignment to higher priority surgical cases could increase funding to LHSC as well as reduce the waiting time for those surgeries.
[ 21 ] Moreover, the Briefing Note stressed what it saw as a fundamental difference between the way patients were selected, booked and prioritized for surgery by the private practice oral surgeons, and the way that occurred for all other surgeries at LHSC. Patients were booked for surgery by the private practice oral surgeons inconsistently with the LHSC’s OR booking policy and “[t]he allocation of OR time to [private practice oral surgeons was] misaligned with LHSC’s accountabilities under the HSAA”. The private practice oral surgeons “do not maintain waitlists in the [WTIS], use or track patient clinical prioritization within the [WTIS] and schedule procedures accordingly. [Their] waitlists are not captured in [WTIS]…”. Thus, their patients “who have surgery in LHSC’s ORs are not clinically prioritized based on required provincial standards prior to their procedures being scheduled.” The private practice oral surgeons’ “use of LHSC’s ORs is an outlier. All other LHSC surgical service lines follow the standard pathway: community practitioners refer patients requiring hospital-based surgery to a hospital-based surgeon for assessment, clinical prioritization and scheduling.”
[ 22 ] The Briefing Note mentioned that the appellants had commenced legal proceedings challenging the cancellation of their OR time. It referred the Board to s. 44 of the PHA stating that:
where a hospital board makes a decision to cease to provide a service, the board may revoke, cancel or substantially alter the hospital privileges of any physician which relate to the provision of that service, and revoke the appointment of that physician. The board is protected from liability where these decisions are made in good faith.
The Briefing Note also pointed out that adopting its recommendations would not harm patients of the private practice oral surgeons, as those requiring procedures in a hospital OR could be referred to the LHSC’s staff oral surgeons, as is the standard practice for other community-based practices.
[ 23 ] The Board approved the Committee’s recommendations on November 29, 2023 but also determined that the private practice oral surgeons should receive 30 days’ notice of the cancellation of their privileges. At a December 20, 2023 Board meeting, January 31, 2024 was set as the date on which LSHC would cease providing “operating room services” for the private practice oral surgeons and as the date on which “the hospital privileges of [the private practice oral surgeons] that are related to the [private practice oral surgeons’] operating room services be cancelled” and “any dentist’s appointment [to the LHSC] be revoked”.
[ 24 ] The appellants were not provided with notice of the Board’s meetings or deliberations, and they were not given an opportunity to respond or provide input into the decision or the decision-making process. Although they had provided affidavits, the affidavits were not considered by the Board before making the impugned decision.
[ 25 ] The private practice oral surgeons, including the appellants, were informed of the Board’s decision by letters from LHSC, dated December 22, 2023. Each letter stated, in part:
I am writing to provide you with notice of decisions of the LHSC Board of Directors regarding LHSC operating room services provided by [private practice oral surgeons].
LHSC is accountable under its funding agreement, the [HSAA] … to use the provincial Wait Time Information System (WTIS) to ensure equitable patient access to available scarce OR resources….
LHSC uses the WTIS to track patients waiting for surgeries and to allocate physician / surgeon time based upon the specific patient’s defined WTIS priority level. This process is consistent with the processes followed by other Ontario hospitals.
As part of its management of accountabilities for funding under the HSAA, and related optimization of OR resources, the Office of Capacity Management identified that OR time allocated to the Department of Dentistry was not being used as required by the LHSC OR policy….
The Department of Dentistry has not been following required practice under the OR policy, and was allocating OR time to [private practice oral surgeons] who do not use the WTIS or otherwise schedule cases in accordance with LHSC’s obligations under the HSAA. The allocation of OR time to [private practice oral surgeons] is misaligned with LHSC’s accountabilities under the HSAA, including with respect to clinical prioritization. The Office of Capacity Management has advised that the OR time used by [private practice oral surgeons] should be reallocated to surgical procedures that meet provincial expectations for … complex cardiac, neurosurgery, orthopaedics/spine, oncology and pediatric cases, and that are based on WTIS assessment and prioritization.
At its meeting on November 29, 2023, LHSC’s Board of Directors considered information provided by the Office of Capacity Management and the recommendation of the Board’s Strategic Redevelopment Committee. The Board of Directors approved the following motion:
The Board of Directors APPROVE by GENERAL CONSENT the following:
LHSC cease to provide operating room services through [private practice oral surgeons] effective December 31, 2023, with associated operating room time to be reallocated to the LHSC surgical operating room grid for assignment to clinical priority tertiary, quaternary-level surgical cases. This recommendation is also supported by the Physician Executives for the Department of Surgery and the Department of Dentistry.
The hospital privileges of [private practice oral surgeons ] that are related to the [private practice oral surgeons] operating room services be cancelled as of December 31, 2023 ( i.e. the date LHSC ceases to provide [private practice oral surgeons] operating room services) and any dentist’s appointment be revoked if the only hospital privileges attached to that dentist’s appointment is related to the cancelled [private practice oral surgeons] operating room service.
Additionally, at the November 29, 2023 Board meeting, the Board of Directors determined that it wished to provide the [private practice oral surgeons] affected by its November 29, 2023 decisions at least 30-days notice of the cancelation of their respective privileges, and, if applicable, revocation of their hospital appointments.…
Accordingly, the Board of Directors met on December 20, 2023, the Board of Directors and approved the following motion:
The Board of Directors APPROVE by GENERAL CONSENT the following:
The effective date of LHSC ceasing to provide [private practice oral surgeons] operating room services is hereby changed from December 31, 2023, to January 31, 2024.
The Board of Directors hereby ratifies and confirms that effective January 31, 2024, the hospital privileges of the dentists listed below are cancelled, and their appointments to LHSC are revoked[.]
Accordingly, effective January 31, 2024, your LHSC OR privileges will be cancelled, and your appointment to the LHSC Professional Staff will be revoked.
Please ensure that all patient and administrative matters at LHSC, including any outstanding recordkeeping, are addressed and completed by no later than January 31, 2024.
IV. THE DIVISIONAL COURT’S DECISION
[ 26 ] After learning of the Board’s decision, the appellants amended their judicial review application to seek orders quashing the Board’s decision and prohibiting LHSC from cancelling their OR access and revoking their appointments at LHSC pursuant to it. The Divisional Court dismissed the application for judicial review.
[ 27 ] The parties agreed, and the Divisional Court accepted, that the standard of review of the Board’s decision was reasonableness.
[ 28 ] The Divisional Court noted LHSC’s concessions that the appellants were not given an opportunity to provide input into the Board’s decision and that the affidavits the appellants provided to LHSC had not been considered by the Board before making the decision. The Divisional Court also noted that the appellants accepted that if s. 44 of the PHA applied, “they were not entitled to notice or to be heard by the Board”. The Court therefore identified the “focused question” to be “whether the impugned decision was made under s. 44 of the PHA”, for which no hearing was required.
[ 29 ] Fundamentally, the Divisional Court disagreed with the appellants’ position that the Board’s decision fell outside of s. 44. In its view the Board’s decision was “‘a decision to cease a service’ within the meaning of s. 44 of the PHA.”
[ 30 ] According to the Divisional Court, by providing OR time and resources to the private practice oral surgeons, LHSC was providing a distinct service. It “was offering a service to the community by permitting patients access to a hospital without having to follow the usual process and/or be subject to provincial wait times. It was a distinct service being provided to patients who were not hospital based but part of the community clinics.”
[ 31 ] The Divisional Court also concluded that LHSC’s actions were taken to comply with their obligations under the HSAA and thus, in cancelling the service, it acted in good faith as required by s. 44(5) of the PHA.
V. ANALYSIS
a. The Legislative Scheme
[ 32 ] Broadly speaking, the appellants’ complaint is about a decision concerning their hospital appointments and privileges that was made without providing them with procedural fairness. And, broadly speaking, the PHA does not tolerate such a result. Sections 37(3) to (7) and ss. 38 to 43 of the PHA entitle a person aggrieved by a decision of a hospital about a staff appointment or hospital privileges to reasons for the decision, a hearing, and certain appeal rights.
[ 33 ] But where s. 44 of the PHA applies, the situation is different. This section becomes applicable in two circumstances.
[ 34 ] The first, contemplated by s. 44(1) of the PHA, is where a hospital board determines, or a Ministerial order requires, that a public hospital “cease to operate”. Where such a decision is made, s. 44(1.1) empowers the hospital’s board to revoke, alter or cancel appointments and hospital privileges of “any physician”.
[ 35 ] Section 44(1.2) of the PHA describes the other circumstance in which s. 44 is applicable, namely, where the board of a hospital determines, or a Ministerial order is made requiring, that the hospital will “cease to provide a service”. Section 44(1.2) provides that:
Subsection (2) applies if,
(a) a board of a hospital determines that the hospital will cease to provide a service;
(a.1) the Minister responsible for the administration of the Connecting Care Act, 2019 has made an order under that Act that requires a hospital to cease to provide a service[.]
[ 36 ] Section 44(2) of the PHA then provides for decisions about staff appointments and hospital privileges of “any physician”. It states:
If one of the conditions set out in subsection (1.2) applies, the board of the hospital mentioned in that subsection may make any of the following decisions that the board considers necessary or advisable in order to implement the decision or requirement to cease to provide a service:
Refuse the application of any physician for appointment or reappointment to the medical staff of the hospital if the only hospital privileges to be attached to the appointment or reappointment relate to the provision of that service.
Refuse the application of any physician for a change in hospital privileges if the only privileges to be changed relate to the provision of that service.
Revoke the appointment of any physician if the only hospital privileges attached to the physician’s appointment relate to the provision of that service.
Cancel or substantially alter the hospital privileges of any physician which relate to the provision of that service.
[ 37 ] Under s. 44(3) of the PHA, “the Board may make a decision under subsection 44 or (2) without holding a hearing”. Under s. 44(4) of the PHA, “[s]ubsections 37 (3) to (7) and sections 38 to 43 do not apply where the board makes a decision under subsection 44 or (2).”
[ 38 ] Section 44(5) of the PHA protects a corporation that owns or operates a hospital for any act done in good faith by its board in execution or intended execution of its authority under ss. 44(1) and (2).
[ 39 ] The PHA does not define “service” as it is used in s. 44. It does, however, define “physician”, another term used in that section, to mean “a member of the College of Physicians and Surgeons of Ontario or another prescribed person”: s.1 of the PHA (emphasis added).
[ 40 ] Section 32 of the PHA provides for the making of regulations on a variety of topics, including “prescribing persons for the purposes of the definition of a ‘physician’ in section 1”. The regulation under the PHA, the Hospital Management, R.R.O. 1990, Reg. 965, provides, subject to a non-applicable exception, that for the purposes of the PHA “‘physician’ includes a person who is exempted from subsections 9 (1) and (3) of the Medicine Act, 1991 [,S.O. 1991, c. 30]”: s. 1.1(1) of the Hospital Management.
[ 41 ] Subsections 9(1) and 9(3) of the Medicine Act address who may use the title, and hold themselves out as, among other things, a “surgeon”. Section 9(2) of the Medicine Act creates an exception from s. 9(1) for the use of the title of surgeon “by a member of the Royal College of Dental Surgeons of Ontario.”
b. The Issues on Appeal
[ 42 ] On an appeal from a decision of the Divisional Court on a judicial review application, two questions are pertinent: whether the Divisional Court correctly identified the standard of review to be applied, and if so, whether the Divisional Court applied that standard of review correctly: Thales DIS Canada Inc. v. Ontario (Transportation), 2023 ONCA 866, 170 O.R. (3d) 241, at para. 86, leave to appeal refused, [2024] S.C.C.A. No. 58, citing Turkiewicz (Tomasz Turkiewicz Custom Masonry Homes) v. Bricklayers, Masons Independent Union of Canada, Local 1, 2022 ONCA 780, 476 D.L.R. (4th) 421, at para. 49, leave to appeal refused [2023] S.C.C.A. No. 131; Canadian Federation of Students v. Ontario (Colleges and Universities), 2021 ONCA 553, 157 O.R. (3d) 753, at para. 20.
[ 43 ] The appellants concede that the Divisional Court correctly identified reasonableness as the standard of review applicable to the Board’s decision. They submit that the Divisional Court applied that standard incorrectly.
[ 44 ] In that regard, the appellants raise four issues.
[ 45 ] First, the appellants argue that the Board’s interpretation of s. 44 of the PHA was unreasonable as it did not recognize that s. 44(3) – the “no hearing” provision – only applies when the Board makes decisions listed in s. 44(2), for example, to cancel privileges or revoke appointments of physicians. In other words, it only applies to decisions to implement a board’s determination that a hospital will cease to provide a service. The provision does not apply, according to the appellants, to a board’s threshold determination to cease to provide a “service” in s. 44(1.2). According to the appellants, nothing exempted the Board, in making such a determination, from the obligation to provide procedural fairness to those affected.
[ 46 ] Second, the appellants argue that it was unreasonable to find that s. 44 applied because it was unreasonable to interpret the phrase “cease to provide a service” in s. 44(1.2) of the PHA as meaning anything less than the termination of an entire service, for example, all dentistry or all oral surgery at the LHSC. In this case, it was always contemplated that LHSC would continue to provide some dentistry and oral surgery, albeit through practitioners other than the appellants and referred, booked and prioritized consistently with the practices followed elsewhere at LHSC. Thus, according to the appellants, the Board did not determine that LHSC would cease to provide a service, and the follow-on power to revoke staff appointments and cancel hospital privileges without a hearing did not apply.
[ 47 ] Third, the appellants submit that it was unreasonable to conclude that they could be made the subject of decisions revoking their hospital appointments and cancelling their privileges without a hearing, as each of them is a dentist, not a “physician”, the latter being the term used in s. 44(2) of the PHA to describe a person whose privileges may be cancelled and appointments revoked without being afforded a hearing.
[ 48 ] Finally, the appellants submit that the Divisional Court erred because it essentially reviewed the Board’s decision for reasonableness based only on certain factual contentions, namely the narrative the Committee put before the Board. The Divisional Court did not take into account the appellants’ affidavits, even though they had provided them to LHSC in advance of the Board making its determinations, and they were part of the evidentiary record before the Divisional Court.
c. The Reasonableness Standard of Review
[ 49 ] Before analysing the merits of the appellants’ arguments, it is important to identify the manner in which these arguments are to be assessed.
[ 50 ] In the administrative law context, a decision is reasonable if it is both based on internally coherent reasoning and is justified in light of the relevant legal and factual constraints that bear on it: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 99.
[ 51 ] Thus, there are two types of “fundamental flaws” that may lead a reviewing court to find a decision unreasonable. First, a decision may be unreasonable because the reasoning process is internally irrational: Vavilov, at para. 101. The appellants’ arguments in this case do not raise this type of flaw. Second, a decision may be unreasonable because it is “untenable in light of the relevant factual and legal constraints that bear on it”, which include
the governing statutory scheme; other relevant statutory or common law; the principles of statutory interpretation; the evidence before the decision maker and facts of which the decision maker may take notice; the submissions of the parties; the past practices and decisions of the administrative body; and the potential impact of the decision on the individual to whom it applies: Vavilov, at paras. 101-6.
The appellants’ arguments assert these types of flaws – a fundamental misinterpretation of key elements of the statutory scheme and a misunderstanding of the universe of facts that were to be considered.
[ 52 ] In conducting a reasonableness review where these types of errors are asserted, the court must focus on the decision actually made by the administrative decision maker – both the reasoning and the outcome: Vavilov, at para. 83. The reviewing court’s role is not to decide the issue afresh, or to “ask what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the ‘range’ of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the ‘correct’ solution to the problem”: Vavilov, at para. 83.
[ 53 ] In particular, while the administrative decision maker’s interpretation of a statutory enactment must be consistent with the text, context and purpose of the provision, the reviewing court does not undertake a de novo analysis or ask what the correct result would have been, and compare that to the administrative decision maker’s interpretation. It reviews the administrative decision as a whole – to determine, for example, whether omissions or gaps in the analysis cause the reviewing court to lose confidence in the outcome. Where the administrative decision has not explicitly considered the meaning of the relevant provision, a reviewing court, if it is able to determine from the record what the interpretation was, may determine whether the interpretation was reasonable: Vavilov, at paras. 116, 120 and 122-23.
[ 54 ] Similarly, as it pertains to facts, the reviewing court does not reweigh or reassess the evidence that was before the decision maker – it determines whether the decision was reasonable in light of the evidence and general factual matrix actually before the decision maker : Vavilov, at paras. 125-26. While a fundamental misapprehension or failure to account for evidence before the decision maker may make the decision unreasonable, the fact that a reviewing court would have assessed the evidence differently will not have that effect: Vavilov, at paras. 125-26.
[ 55 ] Finally, a reasonableness review focuses on the reasons of the administrative decision maker: Vavilov, at para. 84. In this case the Board gave no formal reasons; it adopted the recommendations of the Committee contained in the detailed Briefing Note the Committee provided to the Board. Although the Board did not expressly say that it was adopting the Briefing Note as its reasons, the Divisional Court appears to have approached the matter as though it did.
[ 56 ] The appellants did not argue that that approach was inappropriate here, and in the circumstances of this case I see no error in it. In conducting a reasonableness review, a reviewing court is directed to consider the institutional context in which the decision is made and the nature of the decision maker: Vavilov, at paras. 91-93. These factors make it sensible to view the Board as having adopted the recommendations of the Committee for the reasons expressed by the Committee in the Briefing Note. This conclusion is fortified by the fact that the December 22, 2023 letters, sent to the appellants informing them of the Board’s decision, outlined, albeit in abbreviated form, reasons for the Board’s decision consistent with the Briefing Note.
[ 57 ] As the Federal Court of Appeal noted in Givogue v. Canada (Attorney General), 2024 FCA 186, at para. 7, leave to appeal refused, [2025] S.C.C.A. No. 30: “[w]here, as here, the Commission adopts the recommendations of its Officer in the Report for Decision, its brief reasons may be supplemented by the reasons in the Report” (emphasis added); see also Tazehkand v. Bank of Canada, 2023 FCA 208, at para. 39.
d. The Board Did Not Adopt an Unreasonable Interpretation of s. 44 of the PHA
[ 58 ] The first three issues raised by the appellants are essentially arguments that the Board’s decision was unreasonable because it was not tenable in light of the legal constraints that bore on it – specifically the statutory scheme interpreted in accordance with the principles of statutory interpretation. I do not accept these arguments. Although the Board did not expressly deal with these issues, directly or through the adoption of the Briefing Note, the interpretation applied by the Board can be inferred from the record – the Board proceeded on the basis that s. 44, expressly referred to in the Briefing Note, applied and that no hearing needed to be afforded to the appellants. That interpretation was not unreasonable.
[ 59 ] The appellants’ argument that the no hearing provision in s. 44(3) did not apply to the threshold determination by the Board that LHSC would cease to provide a service is contradicted by the language of s. 44(3) itself. Section 44(3) of the PHA provides that “[t]he Board may make a decision under subsection (1) or (2) without holding a hearing unless a hearing is required by or under this Act.”
[ 60 ] By its own terms, s. 44(3) of the PHA is not limited to nullifying any obligation of the Board to hold a hearing for decisions to cancel privileges or revoke appointments under s. 44(2). It also applies to decisions under s. 44(1). The reference to subsection 44(1), in context, should be read to embrace ss. 44(1.1) and 44(1.2) of the PHA, the latter of which refers to the Board’s power to determine that the hospital will cease to provide a service. This is so, for two reasons.
[ 61 ] First, a reading of s. 44(3) of the PHA that excludes ss. 44(1.1) and (1.2) from its ambit creates an unlikely mismatch that the legislature could not have intended. Under that reading, the legislature exempted from the obligation to hold a hearing, decisions to close a hospital (under s. 44(1)), while not exempting from the obligation to hold a hearing, decisions about privileges and appointments that are taken under s. 44(1.1) to implement a hospital closing decision. And it would mean that a decision to cease to provide a service under s. 44(1.2) of the PHA – a less intrusive decision than to close a hospital – is not exempted from the obligation to hold a hearing, while decisions under s. 44(2) about staff appointments and privileges related to the cancelled service would be exempt from a hearing requirement. In other words, the context suggests that the reference, in s. 44(3) of the PHA, to s. 44(1) should be read to mean all of s. 44(1) including ss. 44(1.1) and (1.2).
[ 62 ] Second, this reading is consistent with the way s. 44(5) of the PHA has been interpreted. Sections 44(4) and (5), of the PHA, like s. 44(3) each refer to decisions under ss. 44(1) and (2). This court held, in Beattie v. Women’s College Hospital, 2018 ONCA 872, leave to appeal refused, [2018] S.C.C.A. No. 524, that s. 44(5) was applicable in a case where the hospital had decided to cease to provide a service under s. 44(1.2). At para. 8 of Beattie, the court stated that: “[t]he 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.”
[ 63 ] Accordingly, nothing in the text, context or purpose of s. 44(3) renders unreasonable the Board having addressed the “threshold” question of ceasing to provide a service without holding a hearing.
[ 64 ] Similarly, nothing in the text, context or purpose of s. 44(1.2) renders unreasonable the view that the Board, in terminating OR access of the private practice oral surgeons, was deciding that LHSC would “cease to provide a service” such that s. 44 applied. No case law or other authority required “service” to be restricted to an entire service in the sense of all dentistry or all oral surgery.[^2] It was open to the Board to proceed based on an interpretation of the phrase that takes into account not only the ultimate treatment that a patient received (i.e., oral surgery) but also the way patients were selected for treatment (i.e., only patients of the private practice oral surgeons), and that their surgery was prioritized by an “outlier” method that did not use WTIS and was out of compliance with LHSC’s obligations under the HSAA and its own OR policy. The Board was entitled to contrast those features with the way all other surgical patients were referred and prioritized, to identify that the OR access of the private practice oral surgeons was a distinct service within the meaning of s. 44(1.2).
[ 65 ] Third, the Board did not adopt an unreasonable interpretation of s. 44(2) by applying it to the appellants. While s. 44(2) applies to physicians, both s. 1 and s. 32 of the PHA contemplate that an extended meaning may be given to that term by the regulations. As described above in paragraphs 39-41, the interaction of the regulations under the PHA and the Medicine Act extends the term “physician” to oral surgeons, such as the appellants.
e. The Divisional Court Did Not Err in Assessing Reasonableness Based on the Factual Record the Board Considered
[ 66 ] Finally, I do not accept the appellants’ argument that the Divisional Court erred because it assessed the reasonableness of the Board’s decision by only looking at the record that was before the Board, when additional factual material was put forward by the appellants (their affidavits) which, they say, painted a different factual portrait.
[ 67 ] In Vavilov, at para. 127, citing *Baker v. Canada (Minister of Citizenship and Immigration)*, 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, at para. 28, the Supreme Court pointed out that
[t]he principles of justification and transparency require that an administrative decision maker’s reasons meaningfully account for the central issues and concerns raised by the parties. The principle that the individual or individuals affected by a decision should have the opportunity to present their case fully and fairly underlies the duty of procedural fairness and is rooted in the right to be heard[.]
[ 68 ] If the Board had been required to hold a hearing – to accord the appellants the right to be heard – the Board’s decision would have had to meaningfully account for their concerns, including those they raised by evidence. But because s. 44 of the PHA applied, the Board was not required to hold a hearing. The appellants conceded before the Divisional Court that if s. 44 applied the Board was not required to provide them with notice or a hearing.[^3] Although the appellants made efforts to have the Board consider their version of events, the Board did not consider it. That is a consequence of the legislature’s “no hearing” choice in the PHA. The legislature entrusted the Board with the power to make these kinds of decisions and to decide what information would be sufficient for its purposes.
[ 69 ] To hold that, on judicial review, the Divisional Court had to consider facts that the Board did not, on the basis that if considered they would undermine the Board’s reasoning, would go beyond a review of the reasonableness of the Board’s decision that it was legislatively empowered to make without holding a hearing. It would involve the reviewing court speculating what a reasonable decision might have been if a hearing were held.
[ 70 ] It follows that the Divisional Court was correct to limit its factual review to the evidence and general factual matrix actually before the Board, for the purpose of determining whether its decision was reasonable in light of the factual constraints that bore upon it: Vavilov, at paras. 99, 125-26.
VI. CONCLUSION
[ 71 ] I would dismiss the appeal.
[ 72 ] I would award costs of the appeal, including of the motion for leave to appeal, to LHSC fixed in the sum of $50,000, all inclusive. I recognize that this amount is lower than the amount requested by LHSC if it was successful (approximately $88,000) and by the appellants if they were successful on the appeal (approximately $120,000); however, in my view $50,000 is a reasonable costs award in the circumstances.
Released: December 24, 2025 “L.B.R.”
“B. Zarnett J.A.” “I agree. L.B. Roberts J.A.” “I agree. B.W. Miller J.A.”
[^1]: I adopt this nomenclature as it was used in the Divisional Court’s decision. The Board used the phrase “community dentists”.
[^2]: The appellants do not contend that the scope of the term “service” in s. 44(1.2) was decided in Beattie. In Beattie, the parties agreed that a decision to close an urgent care centre was a decision to cease to provide a service: at para. 3. A persuasive analogy cannot be drawn in the appellant’s favour from this example. An urgent care centre may be a unique service within a hospital because of the way patients are booked and prioritized; not because it is the only place in the hospital that prescribes or administers medications, treats injuries, etc.
[^3]: In their factum in this court, consistent with the distinction they sought to draw between the threshold decision to cease to provide a service, and the implementation of that decision by cancelling appointments and revoking privileges, the appellants expressed their concession this way: “once it has been found that a public hospital has in fact ceased to provide a service under section 44 of the PHA, those affected by the hospital’s decision are not entitled to procedural fairness thereafter” (emphasis in original). Since I have rejected the argument that s. 44(3) is inapplicable to the decision to cease to provide a service, it follows that there is no right to procedural fairness at that stage either.