CITATION: Perron v. Guelph General Hospital, 2014 ONSC 1032
DIVISIONAL COURT FILE NO.: 486/13
DATE: 20140214
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Marrocco A.C.J.S.C., Sachs and Harvison-Young JJ.
BETWEEN:
DR. ROGER PERRON
Applicant
– and –
GUELPH GENERAL HOSPITAL
Respondent
Lisa Constantine and Ron Podolny, for the Applicant
Jack D. Coop, Michael Watts and Raphael Eghan, for the Respondent
HEARD at Toronto: February 5, 2014
Sachs J.
REASONS FOR JUDGMENT
Nature of the Proceeding
[1] The Applicant sought a declaration that a decision of the Board of Directors (“Board”) of the Guelph General Hospital (“Hospital”), dated July 18, 2013, in which the Board revoked the Applicant’s hospital privileges mid-term, was automatically stayed by virtue of s. 25(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”). In the alternative, the Applicant sought a stay of the Board’s decision pursuant to s. 106 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”).
[2] At the conclusion of the parties’ submissions regarding the applicability of s. 25(1) of the SPPA we granted the declaration sought by the Applicant with reasons to follow. These are those reasons. In view of that disposition, we did not deal with the alternative claim for a stay pursuant to s. 106 of the CJA.
Factual Background
[3] The Applicant has been a physician on staff at the Hospital practising obstetrics and gynaecology since 1991.
[4] In 2005 the Applicant was referred to the Medical Advisory Committee (“MAC”) due to an escalating pattern of disruptive behaviour contrary to the Hospital’s by-law (“By-Law”). MAC recommended that the Applicant’s privileges be suspended for three months. The By-Law provides that if MAC recommends a mid-term action regarding a physician’s privileges, the physician is entitled to a hearing before the Board.
[5] The Board declined to follow MAC’s recommendation, and instead, required the Applicant to voluntarily cease exercising some of his privileges at the Hospital until he was cleared to return to work. The 2005 decision required the Applicant to sign a letter of understanding (“the Summary Process Agreement”) that detailed the process to be followed before the Board if there were any future complaints of disruptive behaviour that were not directly related to the Applicant’s clinical care of his patients.
[6] Following the 2005 decision, the Applicant enrolled in various programmes to modify and monitor his behaviour. In 2007 the Board reviewed three new complaints concerning the Applicant’s behaviour, but elected not to discipline the Applicant because of the progress he had made with the behaviour remediation programme. The Board warned the Applicant that “future transgressions [would] not be tolerated.”
[7] By 2010 the Applicant had “graduated” from the behaviour modification and monitoring programme. During 2009 and 2010 the Hospital’s Chief of Staff reported that she did not have any reports of “disruptive behaviours” on the part of the Applicant. However, between August 2011 and August 2012, more complaints about the Applicant’s behaviour were received.
[8] The complaints were referred to MAC and, on April 17, 2013, MAC recommended that the Applicant’s hospital privileges be revoked. The Board agreed on July 18, 2013, after holding a hearing in accordance with the By-Law and the Summary Process Agreement. In its decision the Board found there was “sufficient, clear, cogent and convincing evidence to establish on a balance of probabilities a pattern of continuing Disruptive Behaviour of the part of Dr. Perron at Guelph General Hospital”. The Board directed that the Applicant’s privileges at the Hospital be revoked.
[9] On the same day the Board released its decision (July 18, 2013), the Applicant delivered a Notice of Appeal to the Health Professions Appeal and Review Board (“HPARB”) and Hospital CEO and Chief of Staff disseminated a “Security Alert” to the entire hospital and sent a letter to all of the professional staff stating that there were safety concerns with respect to the Applicant and that a “No Trespassing Order” and “Security Alert” would be issued to ensure that the Applicant was not present at the hospital. The Applicant has not been present at the hospital since July 18, 2013.
[10] The HPARB hearing is set to take place over a three-week period in March and April of 2014.
The SPPA Provisions Regarding a Stay Pending Appeal
[11] Section 25(1) of the SPPA provides as follows:
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 a 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] There is no dispute that if the proceedings before the Board were governed by the SPPA all of the requirements of s. 25(1) are satisfied. The Board’s decision is subject to an appeal to HPARB; HPARB is an “appellate body”; no Act or regulation precludes the Board’s decision from being stayed; and no tribunal, court or other appellate body has ordered that the automatic stay provided for in s. 25(1) be lifted. In this regard it should be noted that the Hospital neither asked the Board, HPARB, or this court to grant such relief. In its view, the request was unnecessary because the SPPA did not apply to the proceedings in question.
[13] Section 3(1) of the SPPA sets out the proceedings to which the SPPA applies. It provides as follows:
Subject to subsection (2) [which has no relevance to this case], 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.
[14] There is no dispute that the Board is a “tribunal” and that the Board exercised a statutory power of decision conferred by s. 36(c) of the Public Hospitals Act, R.S.O. 1990, c. P.40 (“PHA”) that authorized it to “revoke or suspend the appointment of or refuse to reappoint a member of the medical staff.” There is also no dispute that the PHA does not require the Board to hold a hearing. The only question in dispute is whether the Board was “otherwise by law” required to hold a hearing. If it was, the proceeding is governed by the SPPA and the provisions of s. 25(1) apply, which serve to automatically stay the Board’s decision pending appeal.
Was the Board “otherwise by law” required to hold a hearing?
[15] In the leading text, Donald J.M. Brown & John M. Evans, Judicial Review of Administrative Action in Canada, looseleaf (Toronto: Carswell, 2013) vol. 2, the authors discuss the “otherwise by law” criterion and state as follows, at 8-19 to 8-20:
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 … In addition, it may be implied by the common law, or it may arise under the Charter. [Footnotes omitted.]
[16] In discussing the common law duty of fairness (one of the ways the duty may arise) the authors write, at 8-21 to 8-22:
However, a tribunal may attract a duty to conduct a “hearing” by creating a legitimate expectation to this effect. For example, where a tribunal publishes a statement of the procedure that it will follow before making a decision, and the published procedure has the essential indicia of a trial-type hearing, then even if the rules are not made under a delegation of statutory authority, the tribunal may nonetheless be required "otherwise by law" to hold a “hearing.” [Footnotes omitted.]
[17] The doctrine of legitimate expectations is a well-established feature of Canadian administrative law. Its key elements are set out in the following passage, taken from the majority ruling of Justice L’Heureux-Dubé, in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 26:
[T]he legitimate expectations of the person challenging the decision may also determine what the procedures of the duty of fairness requires in given circumstances. Our Court has held that, in Canada, this doctrine is part of the doctrine of fairness or natural justice, and that it does not create substantive rights. As applied in Canada, if a legitimate expectation is found to exist, this will affect the content of the duty of fairness owed to the individual or individuals affected by the decision. If the claimant has a legitimate expectation that a certain procedure will be followed, this procedure will be required by the duty of fairness … Nevertheless, the doctrine of legitimate expectation cannot lead to substantive rights outside the procedural domain. This doctrine, as applied in Canada, is based on the principle that the “circumstances” affecting procedural fairness take into account the promises or regular practices of administrative decision-makers, and that it will generally be unfair for them to act in contravention of representations as to procedure, or to backtrack on substantive promises without according significant procedural rights. [Emphasis added, Footnotes omitted].
[18] Article 16 of the By-Law applies to mid-term action relating to a physician’s privileges. Pursuant to art. 16.03 of the By-Law, where MAC makes a recommendation to the Board, the physician is entitled to a hearing before the Board on request. The By-Law goes on to specify that the physician must give a written request to the Board and MAC for the hearing. Article 16.04 provides that the physician will be given an opportunity before the hearing to examine “any written or documentary evidence that will be produced, or any report the contents of which will be given in evidence at the hearing.” With respect to the nature of the hearing itself, art. 16.04 of the By-Law requires the physician to “be given full opportunity to answer each ground as well as to present documents and witnesses if so desired”.
[19] Paragraph 11 of the Summary Process Agreement provides as follows:
The Hospital and Dr. Perron agree that in the event that an investigation into his conduct concludes that Dr. Perron behaved in a disruptive manner, the Hopital’s MAC and Board shall provide Dr. Perron an opportunity to avail himself of the due process set out in the By-Law and the Public Hospitals Act (Ontario), however the process shall be managed so that it reflects the Board’s intention that it be dealt with in a summary manner. Accordingly, the parties agree to the summary process for the MAC meeting and Board hearing set out in Schedule “D”.
[20] Paragraph 14 of the Summary Process Agreement provides that the terms of Schedule “D” are to apply for as long as the Applicant had privileges at the Hospital. Schedule “D” sets out a “Process Applicable to Future Disruptive Behaviour-Related MAC Meetings and Board Hearings.” That process includes the following: the right to make an opening statement of not more than 20 minutes per party; the provision of evidence in chief by way of a sworn written statement with a limit of 6 statements per party of no more than 20 pages; the right to conduct oral cross-examinations of the authors of the written statements, with a limit of 2 hours in total per party; the right to orally re-examine for up to 60 minutes in total for all witnesses; and the right to make a closing statement of not more than 30 minutes per party.
[21] In our view, the combined effect of the By-Law and the Summary Process Agreement is that the Applicant had a legitimate expectation that he was entitled to a hearing within the meaning of s. 3(1) of the SPPA. He was entitled to know the case against him in advance; he was entitled to present evidence and that evidence was to be in the form of sworn evidence; he was entitled to cross-examine and re-examine witnesses; and he was entitled to make opening and closing statements. The fact that his rights were circumscribed does not change the “trial-like” nature of the hearing he legitimately expected and to which he was, therefore, entitled.
[22] The legitimacy of the Applicant’s expectations in this regard are reinforced by the statements and conduct of the Board, the independent counsel for the Board, and the Hospital during the course of the Board hearing. In particular:
(a) During his opening remarks at the beginning of the hearing the Board Chair outlined the procedure that the parties agreed to follow during the hearing, reiterated that the time limits set out in the Summary Process Agreement would be adhered to, and referred to s. 23(2) of the SPPA as providing the Board with authority to control its own process by “reasonably limit[ing] further examination or cross-examination of a witness where it is satisfied that the examination or cross-examination has been sufficient to disclose fully and fairly all matters relevant to the issues in the proceeding.”
(b) The Chair discussed whether the hearing would be held in public and referred to s. 9 of the SPPA as the source of any authority to hold the hearing in the absence of the public. This gave rise to a discussion about whether a non-publication order could be made, which ended when the independent counsel for the Board, Brian Gover, pointed out that the SPPA did not have a non-publication provision.
(c) Shortly after the exchange about a non-publication order Mr. Gover made the following comment to the Chair:
“Mr. Chair you were called upon under the Statutory Powers and Procedure Act as a single Panel member to rule on some procedural issues. This is a matter for the Panel to consider and rule upon now that we’ve embarked upon the hearing.”
(d) Later on in the hearing, after Applicant’s counsel objected to some evidence on the basis that it was hearsay, counsel for the Hospital replied as follows:
“I’m sorry, but we aren’t limited to admitting hearsay evidence. This Board is a Board constituted under the SPPA and under section 15 of that statute can certainly admit hearsay evidence”
[23] These extracts make it clear that all of the parties to the hearing, including the Hospital, proceeded on the basis that they were engaged in a hearing under the SPPA. Before us, counsel for the Hospital admitted that this was the case. However, he submitted that he did not contemplate that by engaging in a hearing under the SPPA the automatic stay pending appeal provisions of s. 25(1) of the SPPA would apply. According to the Hospital, the provisions of s. 25(1) of the SPPA were never discussed either before or during the hearing and, thus, the Applicant could not have had a legitimate expectation that those provisions would apply if he sought to appeal the Board’s decision.
[24] This submission of the Hospital ignores the wording of ss. 25(1) and 3(1) of the SPPA. The combined effect of these provisions in the Applicant’s case is that if the Board was required by law to hold a hearing under the SPPA, the Applicant was entitled to have the decision of the Board stayed pending his appeal. In this case, the doctrine of legitimate expectations gave rise to a legal requirement to hold a hearing under the SPPA. As a result, there was no need to further specify that all of the provisions of the SPPA (including s. 25(1)) would then apply.
[25] The Respondent also submitted that this case was indistinguishable from a previous decision of this court—Harrison v. Orillia Soldiers Memorial Hospital (2006), 56 Admin. L.R. (4th) 198 (Div. Ct.). In Harrison, the board of the Orillia Soldiers Memorial Hospital revoked Dr. Harrison’s hospital privileges, following which Dr. Harrison sought an order from the Divisional Court that the decision be stayed pending appeal. The court granted the stay pursuant to s. 106 of the CJA, after finding that the hearing before the board was not required “otherwise by law” within the meaning of s. 3(1) of the SPPA and, therefore, the automatic stay in s. 25(1) of the SPPA did not apply to the board’s decision.
[26] In making its decision the court relied on Brown and Evans for the meaning of the phrase “otherwise by law”, at para. 17. They found that the hospital’s by-law (which was similar to the By-Law at issue in this case) was not “required” under the PHA nor was it delegated legislation and, therefore, the hearing was not required “otherwise by law” in that regard. It went on to consider whether the common law duty of procedural fairness created such a requirement and found that it did not on the basis of prior case law and that the hospital’s by-law did not require the hospital to hold a formal hearing before revoking Dr. Harrison’s privileges mid-term: see Harrison, at paras. 17-29.
[27] In the Harrison case, unlike in this case, there was no Summary Process Agreement that specifically spelled out the process to be followed and made it clear that the process was a formal hearing that required allowing the parties to present evidence under oath, cross-examine and re-examine witnesses, and make formal opening and closing submissions. In Harrison, the only document that spoke to the nature of the hearing to be provided was the hospital’s by-law, which contained no specifics about the procedure to be followed at any hearing. Further, in Harrison, the court did not consider the doctrine of legitimate expectations and whether the hospital had done anything to give rise to a legitimate expectation on the part of Dr. Harrison that would entitled him to a formal hearing before the board before his privileges were revoked mid-term.
[28] For these reasons we find that Harrison is distinguishable from this case and that, unlike in Harrison, the Hospital created a legitimate expectation that the Applicant was entitled to a formal hearing before his hospital privileges were revoked mid-term. Thus, the automatic stay provisions of s. 25(1) of the SPPA do apply to stay the Board’s decision pending the Applicant’s appeal to HPARB.
Marrocco A.C.J.S.C.
Sachs J.
Harvison-Young J.
Released: February 14, 2014
CITATION: Perron v. Guelph General Hospital, 2014 ONSC 1032
DIVISIONAL COURT FILE NO.: 486/13
DATE: 20140214
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Marrocco A.C.J.S.C., Sachs and Harvison-Young JJ.
BETWEEN:
DR. ROGER PERRON
Applicant
– and –
GUELPH GENERAL HOSPITAL
Respondent
REASONS FOR JUDGMENT
Released: February 14, 2014