COURT FILE NO.: 278/06
DATE: 20061003
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, EPSTEIN AND sWINTON JJ.
B E T W E E N:
LLOYD HARRISON
Applicant
- and -
ORILLIA SOLDIERS’ MEMORIAL HOSPITAL
Respondent
William D. Black, for the Applicant
Valerie D. Wise, for the Respondent
HEARD at Toronto: July 7, 2006
BY THE COURT:
[1] The applicant, Dr. Lloyd Harrison, sought an order that the decision of the Board of Directors (the “Board”) of the Orillia Soldiers’ Memorial Hospital (“the Hospital”) dated June 1, 2006 be stayed pending an appeal to the Health Professions Appeal and Review Board (“HPARB”). The Board’s decision had revoked the applicant’s hospital privileges immediately.
[2] At the end of the hearing of his application, the Court ordered that the decision be stayed, with written reasons to follow.
Background Facts
[3] The applicant, a surgeon, first obtained privileges at the Hospital in 1984. Over the years, there have been numerous complaints about his behaviour, and disciplinary action has been taken on a number of occasions. In 1991, he received a severe reprimand and his privileges were suspended for two weeks. His privileges were again suspended for three weeks in 1995, four weeks in 2001 and four months in 2003.
[4] Following the 2003 suspension, the applicant entered into an agreement with the Hospital, dated June 24, 2003, which included the following term:
As a further condition of Dr. Harrison’s continued privileges, should there be any further significant complaints of a similar nature to those issues of conduct and behaviour previously considered by the Medical Advisory Committee, such may result in a recommendation by the Medical Advisory Committee to the Board to revoke Dr. Harrison’s privileges.
[5] Two complaints about the applicant’s behaviour have been made since 2003. On November 24, 2005, the Medical Advisory Committee (“MAC”) met to consider whether his appointment to the medical staff at the Hospital should be revoked based on these new complaints and the history of past complaints. After hearing submissions for the applicant, the MAC recommended to the Hospital Board that the applicant’s appointment to the medical staff be revoked.
[6] The Hospital is a private corporation, incorporated pursuant to the Ontario Corporations Act, R.S.O. 1990, c. C.38. As a public hospital, it is regulated by the provisions of the Public Hospitals Act, R.S.O. 1990, c. P.40 (“the PHA”). Section 12 of the PHA states that a hospital “shall pass by-laws as prescribed by the regulations”. Subsection 4(1) of Regulation 965, R.R.O. 1990, requires certain provisions to be included in a hospital’s by-laws. However, the Act does not require that a hospital pass a by-law requiring a hearing before a mid-term revocation of medical privileges.
[7] In accordance with the by-laws passed by the Hospital, an individual is entitled to a hearing before the Board, upon a written request, where the MAC makes a recommendation to the Board with respect to mid-term action (see By-law 60A(22)). In this case, the applicant requested a hearing before the Board, which was held over two full days and four evenings in April and May, 2006.
[8] On June 1, 2006, the Board released its decision revoking the applicant’s appointment to the medical staff at the Hospital. The applicant then appealed the decision to the HPARB pursuant to s. 41(1)(d) of the PHA.
[9] The applicant took the position that the decision of the Board was automatically stayed pursuant to s. 25(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“the SPPA”). In the alternative, he sought an order staying the decision of the Board pursuant to common law principles and the Court’s jurisdiction under s. 106 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“the CJA”).
The Issues
[10] There are two issues in this application:
Is the Board’s decision automatically stayed pursuant to s. 25(1) of the SPPA?
Is the applicant entitled to a stay pursuant to s. 106 of the CJA?
Issue One: Is the Board’s decision automatically stayed pursuant to s. 25(1) of the SPPA?
[11] Section 25(1) of the SPPA provides:
An appeal from a decision of a tribunal to a court or other appellate body operates as a stay in the matter unless,
(a) another Act or regulation that applies to the proceeding expressly provides to the contrary; or
(b) the tribunal or the court or other appellate body orders otherwise.
[12] Section 3 deals with the application of the SPPA. Subsection 3(1) states:
Subject to subsection (2), this Act applies to a proceeding by a tribunal in the exercise of a statutory power of decision conferred by or under an Act of the Legislature, where the tribunal is required by or under such Act or otherwise by law to hold or to afford to the parties to the proceeding an opportunity for a hearing before making a decision.
[13] Subsection 3(2) states that the SPPA does not apply to certain proceedings. None of the expressed exceptions apply in the present case.
[14] The Hospital conceded that the Board was a tribunal exercising a statutory power of decision when it revoked the applicant’s privileges. While the PHA does not require a hearing by the Board before a mid-term revocation, the primary question to be determined in this application is whether the Board is “otherwise by law” required to hold a hearing within the meaning of s. 3(1) of the SPPA. The applicant submitted that the Board was required by law to hold a hearing, both because of the requirement for a hearing in the Hospital’s by-laws and because of the common law requirements of procedural fairness.
The Effect of the Hospital’s By-laws
[15] The PHA provides that a physician is entitled to a hearing before the Board if the MAC recommends to the Board that it refuse to grant privileges (ss. 36, 37(7)). However, it does not require a hearing when a Hospital decides to revoke or suspend a physician’s appointment to the medical staff, mid-term (see s. 36(c)). Such an individual is entitled to a hearing before the HPARB pursuant to s. 41(1)(d) of the Act.
[16] In this case, the Hospital’s by-laws entitle a physician to request a hearing before the Board if the MAC recommends a suspension or revocation of privileges, mid-term. The applicant submits that the Board is thus “required by law” to hold a hearing within the meaning of s. 3(1) of the SPPA and, therefore, s. 25(1) provides for an automatic stay of the Board’s decision.
[17] According to D.J.M. Brown Q.C. and the Hon. J. M. Evans, Judicial Review of Administrative Action in Canada, vol. 2 (Canvasback, looseleaf, July 2005), p. 8-19,
A duty to hold a hearing may be required “otherwise by law” in four ways. It may be required by virtue of a duty to hear contained in a statute other than the agency’s enabling statute. Alternatively, it may arise pursuant to delegated legislation made under the authority of such a statute, including the SPPA itself, which confers on tribunals the power to make rules of practice and procedure to govern their proceedings. In addition, it may be implied by the common law, or it may arise under the Charter.
[18] The applicant submits that the SPPA must be given a liberal construction in accordance with s. 2. It reads:
This Act, and any rule made by a tribunal under section 25.1, shall be liberally construed to secure the just, most expeditious and cost-effective determination of every proceeding on its merits.
“Proceeding” is defined in s. 1(1) as a proceeding to which this Act applies.
[19] In our view, s. 2 does not assist in determining whether the proceedings of a particular tribunal are subject to the Act pursuant to s. 3(1). By its terms, s. 2 only comes into operation after it has been determined that a particular proceeding is subject to the Act. Our task in this application is to determine whether the Board’s proceedings are subject to the SPPA.
[20] The applicant relies on s. 12(3) of the PHA in support of his submission that the by-laws of the Hospital are delegated legislation. Subsection 12(3) provides that a by-law made under subsection 2 has no force and effect until approved by the Lieutenant Governor in Council upon the recommendation of the Minister. However, that subsection has no application here, since Cabinet approval is only required if, pursuant to s. 12(2), a hospital is required to pass, amend or revise its by-laws and submit them to the Minister after receiving notice to do so as prescribed by the regulations. That is not the case with the by-law in issue here.
[21] The applicant relied on Abouna v. Foothills Provincial General Hospital Board (1978), 1978 ALTASCAD 1, 8 A.R. 94 (C.A.). That case is distinguishable, as there was a regulation passed by the Alberta Lieutenant Governor in Council which specifically required the hospital board to follow the procedures in its by-laws (at para. 5). It does not stand for the proposition advanced by the applicant that a hospital is bound by its own by-laws as though they were enacted by the Legislature.
[22] The Hospital, a private corporation, has passed by-laws for its internal governance, organization and regulation. Those by-laws are no different than the by-laws of any private corporation. More precisely, the by-law regulating the procedure for the revocation of privileges mid-term is not a by-law “required” under the PHA and its regulations. Nor is it delegated legislation. Therefore, the hearing is not otherwise required by law within the meaning of s. 3(1) of the SPPA.
Procedural Fairness
[23] In the alternative, the applicant submitted that the decision of the Board to revoke his privileges is governed by a duty of procedural fairness, and thus a hearing is “otherwise required by law”.
[24] In Brown and Evans, supra, at 8-20, the authors conclude that
a tribunal will generally only be required “otherwise by law to hold a hearing” if the procedural content of the duty of fairness applicable to the tribunal includes the essential aspects of an adjudicative hearing.
[25] The content of the duty of fairness is variable, as the Supreme Court of Canada stated in Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817. Its content depends on a number of factors, including the following:
- the nature of the decision being made;
- the nature of the statutory scheme;
- the importance of the decision to the individual or individuals affected;
- the legitimate expectations of the person challenging the decision; and
- the choices of procedure made by the agency itself (at paras. 22-27).
[26] In this case, it is clear from the PHA that no hearing is contemplated when a decision is made to suspend or revoke an appointment. While a right to a hearing is conferred by s. 37(7) at the time of appointment or re-appointment, the decision of the Board to suspend or revoke is not subject to a hearing under the PHA. Rather, the decision is subject to appeal before the HPARB, where there is a trial de novo.
[27] Chadwick J. in Zahab v. Salvation Army Grace General Hospital – Ottawa, [1991] O.J. No. 763 (Gen. Div.) concluded that a hospital board owed a duty of procedural fairness to a doctor when revoking privileges, mid-term (at p. 10 Quicklaw). However, he observed that the individual was not entitled to a hearing similar to the hearing before the Public Hospital Appeal Board (now the HPARB). Similarly, this Court in Scheerer v. Waldbillig, 2006 6460 (ON SCDC), [2006] O.J. No. 744 (Div. Ct.) held that while a duty of fairness was owed to a paramedic before a decision was made to decertify her at her current place of employment, no formal hearing was required (at paras. 45-49).
[28] While the Board owes a duty of procedural fairness to a physician when it decides to revoke or suspend an appointment, a full and formal hearing is not required at common law. The fact that the Hospital, in its by-laws, chose to provide certain procedural safeguards for the affected individual does not trigger the full application of the SPPA to its proceedings.
[29] We conclude that a hearing before the Board is not “required by law”, and, therefore, the automatic stay provision in s. 25(1) of the SPPA does not apply to the decision of the Board.
Issue No. 2: Is the applicant entitled to a stay pursuant to s. 106 of the CJA?
[30] Having determined that the SPPA does not apply and that consequently the stay provisions of s.25(1) of the SPPA are not available to the applicant to stay the Board’s decision pending the outcome of his appeal to the HPARB, we turn to his alternative claim for what has been characterized as a common law stay.
[31] Counsel agree that the test for a stay is as set out for an interlocutory injunction by the Supreme Court of Canada in RJR-MacDonald Inc. v Canada (AG) (1994), 1994 117 (SCC), 111 D.L.R. (4th) 385.
[32] The applicant must show that:
• There is a serious issue to be tried; • He will suffer irreparable harm if the stay is not granted, and • The balance of convenience favours a stay.
[33] In our opinion, there is a serious issue to be tried. This branch of the test has a relatively low threshold. We heard that a large number of nurses, some doctors including Dr. Harrison’s colleagues, and family doctors who referred patients to him, are all supportive of Dr. Harrison.
[34] Although it seems clear that Dr. Harrison has serious difficulties in dealing with others, his treating psychiatrist gave opinion evidence that there had been a diminution in his behavioural difficulties and that with additional treatment, a further diminution could be expected.
[35] We were told that at the time of the hearing, Dr. Harrison had voluntarily enrolled in a behaviour modification program developed for physicians being given over the summer months in the United States.
[36] No serious issue was taken with Dr. Harrison’s competency as a general surgeon.
[37] With respect to irreparable harm, it was conceded that a revocation of privileges would be a professional death sentence for Dr. Harrison. He will be unable to practise in his community. His reputation as a practising surgeon will be ruined. On a personal level, he will be unable to earn professional fees and since the death of his wife in 2002, he has been the sole support of his four children.
[38] Lastly, with respect to the balance of convenience, we note the following:
• Dr. Harrison is now a senior member of the four person team in general surgery at the hospital; • His hospital privileges have been renewed annually for the past 20 years; • There is no significant issue with respect to Dr. Harrison’s care of his patients as was confirmed at the hearing by Dr. Makar, the present Chief of Staff at the hospital; • In the absence of the stay, there will be effectually a 25% reduction in surgical staff and we are told that patient care will be affected in Orillia because of the inability of the remaining surgeons to cover the work.
[39] In our opinion, the balance of convenience favours granting the stay.
[40] The three branches of the RJR MacDonald test having been satisfied, at the conclusion of oral argument, we granted a stay of the Board’s decision until the determination of the appeal of HPARB with these written reasons for doing so to follow.
Conclusion
[41] On consent, an order will issue that this file be sealed.
Jennings J.
Epstein J.
Swinton J.