Benson v. Vandersluis, 2015 ONSC 7344

DIVISIONAL COURT FILE NO.: 515/15 DATE: 20151216

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

SWINTON, V.J. MACKINNON, and D.L. CORBETT JJ.

BETWEEN:

CLIFTON RALPH BENSON Applicant

– and –

DR. RUDY VANDERSLUIS, MEDICAL ADVISORY BOARD, CENTRAL EAST PREHOSPITAL CARE PROGRAM AND LAKERIDGE HEALTH CORPORATION Respondents

COUNSEL: John McLuckie, for the Applicant Cindy Clarke and Logan Crowell, for the Respondents

HEARD at Toronto: November 20, 2015

Swinton J.:

Overview

[1] The applicant, Clifton Benson, seeks judicial review of a decision of Dr. Rudy Vandersluis, Medical Director of the Central East Prehospital Care Program (“CEPCP”) dated October 15, 2014 to decertify him as an Advanced Care Paramedic in the CEPCP region. He argues that he was denied procedural fairness and, as a result, the decision must be set aside.

[2] For the reasons that follow, I would dismiss the application for judicial review.

The Regulation of Paramedics

[3] Pursuant to s. 4(2)(d) of the Ambulance Act, R.S.O. 1990, c. A.19 (the “AA”), the Minister of Health and Long-Term Care (“the Minister”) designates hospitals to act as “base hospitals” in order to monitor the quality of care provided by ambulance services in regions and districts established by the Minister. A “base hospital program” is defined in s. 1 of the Act to mean a program operated by a base hospital for several purposes, including “(a) delegating controlled acts to paramedics.”

[4] A base hospital designates a physician to be the medical director of the base hospital program. Pursuant to s. 8 of O. Reg. 257/00 made pursuant to the AA (the “Regulation”), the medical director must authorize a paramedic to perform controlled acts. Subsection 27(1) of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (the “RHPA”) confers the power on the medical director to delegate controlled acts.

[5] The AA and the Regulation do not set out a procedure for the decertification of a paramedic. However, the CEPCP has a Certification Policy, developed in common with the five other base hospitals in the province and the Ornge ambulance service. The Policy provides for decertification of a paramedic on specified grounds:

• Gross professional misconduct as defined in the Paramedic Conduct Directives
• Falsification of documentation
• A critical omission/commission in one or more of the Controlled Acts
• Failure to successfully complete prescribed remediation within three months of deactivation
• Repeated deactivation in similar clinical areas.

[6] Prior to the formal decertification of a paramedic, the decision to decertify must be reviewed by a Paramedic Practice Review Committee (“PPRC”). After hearing from the paramedic and the medical director and reviewing documentation, the PPRC is to make recommendations to the medical director. The medical director “shall apply those recommendations to their decision of the paramedic’s certification status.” However, the Policy makes it clear that the recommendations are not binding, stating:

It is understood that according to the CPSO [College of Physicians and Surgeons of Ontario] guidelines for delegation that the Paramedic Practice Review Committee can not replace the Medical Director’s ultimate responsibility for the decision about the paramedic’s certification status.

Factual Background

[7] The applicant has been a paramedic in the province of Ontario for over 20 years. He has been qualified as an Advanced Care Paramedic since 1998. At the time of the events giving rise to this application, he held a certificate authorized by the respondent Dr. Vandersluis, a physician who specializes in emergency medicine, and who is the Medical Director of the CEPCP. The CEPCP operates from the respondent Lakeridge Health Corporation.

[8] On March 11, 2014, the applicant and his partner, Primary Care Paramedic Jordan Lean, were working for the City of Kawartha Lakes Paramedic Service (“KLPS”). They answered a call to attend at a homeless shelter in Lindsay because a resident might have experienced an overdose of medication.

[9] According to the applicant’s version of events, the resident refused medical care, although the applicant did take his pulse. The applicant and Mr. Lean left the shelter. The call was not entered into the Call Log, nor was an Ambulance Call Report (“ACR”) completed during their shift.

[10] Sometime during the night, staff at the shelter placed a second emergency call with respect to the same resident. Other paramedics responded and found the resident without vital signs.

[11] Because of the resident’s death, an investigation commenced into the events of March 11 to 12, 2014. CEPCP clinical staff, Dr. Vandersluis, and the Medical Advisory Board (“MAB”) participated in the investigation. The MAB is a body of three emergency room physicians established by Dr. Vandersluis to advise him in his role as Medical Director.

[12] The investigation included multiple interviews with the applicant and Mr. Lean, review of documents, interviews of witnesses from the shelter, and review of a video recording obtained from the shelter. On April 9, 2014, Dr. Vandersluis and the MAB decided that the applicant should be decertified as a paramedic. A letter from respondents’ counsel dated April 17, 2014 set out a number of reasons for the decision:

1. In entering the scene without bringing equipment there is a demonstrated intent to not complete a proper and appropriate assessment.
2. In Mr. Benson’s brief time with the patient a complete and appropriate assessment was not performed.
3. An appropriate refusal of service process was not completed. No documentation was completed for signature by the patient. No witness (of the refusal process) signature was obtained.
4. An Ambulance Call record (ACR) for this call was not completed at the time of the call nor immediately following the call. No ACR for this call was submitted with the Paramedic Data Collection Envelope. The Paramedic Data Collection Envelope does not include an entry for this call. At the first meeting with CEPCP, an ACR for this call was submitted. The findings indicated that it is highly improbable that this ACR was completed when Mr. Benson claimed to have completed it.
5. The submitted ACR contains false information. Documented on the ACR are physical findings and vital signs that Mr. Benson indicated in interview were not done or that video evidence shows could not have occurred as Mr. Benson has described.

The letter concluded that due to the applicant’s significant breach of trust, the decision was made to decertify him.

[13] The PPRC was convened on May 16, 2014. In accordance with the Policy, it was composed of individuals not associated with the CEPCP: a program manager, a medical director and two peer paramedics. The PPRC reviewed the documentary record and written submissions and reply submissions from the applicant and Dr. Vandersluis. A teleconference involving the applicant and Dr. Vandersluis was held September 11, 2014.

[14] The PPRC provided its recommendations on September 26, 2014. On the issue of patient care, the PPRC concluded that the case “does raise potentially significant concerns with respect to the patient care provided.” While there were deficiencies in the patient care, the PPRC concluded that the deficiencies could be remediated.

[15] On the issue of falsification of documents, the PPRC stated,

Having not been part of the investigation and meetings with the paramedics involved in this case, it is extremely difficult to determine the facts regarding documentation timing, accuracy and honesty.

The PPRC concluded,

The undisputed facts that the ACR was filled out at a time when Mr. Benson’s partner was not available and that it was not available until the next day when Mr. Benson was contacted is questionable, but, in and of itself, does not prove any dishonesty or falsification. Both the Base Hospital and Mr. Benson have presented a version of events that contradict each other and the PPRC does not feel that evidence in support of either version was presented that would enable a consensus to be reached on a balance of probabilities.

[16] On the issue of trust, the PPRC stated that “the Medical Director of the CEPCP will need to deliberate on this as it cannot be assessed by the PPRC.”

[17] The PPRC recommended alternatives to decertification that included training and constraints on the applicant’s practice, including past chart and ACR audits and ongoing direct monitoring.

[18] Dr. Vandersluis reviewed the PPRC recommendations. While he agreed with the recommendation respecting remediation as a response to the patient care issues, he remained of the view, in light of what had occurred in the investigation, that the applicant had falsified records and the ACR. He wrote to the applicant on October 15, 2014 stating that he had concluded that decertification was the only appropriate course of action in order to ensure public safety. Along with this letter was a further letter from legal counsel outlining his reasons for the decision. In his affidavit filed for this application, he explained that he had reconsidered all the evidence and submissions before reaching a decision. He had split his decision into two letters in the hope that this would allow the applicant to provide his decision letter to KLPS and the Ministry in relation to other proceedings, while retaining the reasons letter for his own information.

[19] Counsel’s letter reiterated Dr. Vandersluis’ conclusion that the applicant had falsified the ACR, or he had recorded false information in the ACR because the report contained information about medical interventions and assessments that could not have been performed during the call. The letter stated,

It is simply not possible for CEPCP or Dr. Vandersluis to continue to support a paramedic who does not meet the accepted standards, and about whom there is concern related to documentation and the accuracy of information conveyed in ambulance call reports. Out in the field, Mr. Benson would be acting further to the delegated authority granted by Dr. Vandersluis. If Dr. Vandersluis and CEPCP cannot trust Mr. Benson to perform his duties and exercise his judgment in accordance with standards, as well as to act at all times with integrity and honesty, then Dr. Vandersluis cannot delegate his authority to Mr. Benson.

The Issues

[20] Both parties agree that the decision of Dr. Vandersluis is subject to judicial review. I agree, as the Divisional Court in Scheerer v. Waldbillig, [2006] O.J. No. 744 established that the decision of a medical director to decertify a paramedic can be judicially reviewed.

[21] The applicant does not challenge the merits of the decertification decision. Rather he argues that he was denied procedural fairness, largely because of the failure of Dr. Vandersluis to follow the recommendations of the PPRC.

The Standard of Review

[22] When an applicant alleges a denial of procedural fairness, the Court need not engage in a standard of review analysis. Rather the Court must determine whether a common law duty of fairness exists and, if so, whether the duty has been met in the circumstances of the case (Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at para. 43; London (City) v. Ayerswood Development Corp. (2002), 167 O.A.C. 120 (C.A.) at para. 10).

Was there a denial of procedural fairness?

The content of the duty of procedural fairness

[23] Both parties agree that the respondents owe paramedics a duty of procedural fairness when making a decision on decertification.

[24] The content of the duty of fairness varies with the context and is determined having regard to the factors set out in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paras. 21-27:

1. The nature of the decision and the processes followed in making it
2. The nature of the statutory scheme
3. The importance of the decision to the individual or individuals affected
4. The legitimate expectations of the person challenging the decision
5. The choice of procedures made by the decision maker.

[25] Turning to the nature of the decision, I conclude that the decision to decertify is administrative in nature. Dr. Vandersluis is empowered to delegate authority to perform controlled acts to paramedics. He is also responsible for ensuring, on an ongoing basis, that paramedics are qualified to perform those controlled acts in a competent manner. Accordingly, he has the power to carry out investigations where there is a concern about performance, and decertification is a possible outcome. In determining whether to decertify, he has a responsibility to consider the criteria set out in the Policy, to weigh evidence and to assess credibility.

[26] The role of the PPRC appears to be more judicial in nature, in that it reviews documentation and hears submissions from the paramedic and the medical director. However, the PPRC can only make a recommendation, and the ultimate decision on decertification remains that of the medical director in accordance with the Policies and in accordance with the delegation of authority he or she has made pursuant to the RHPA.

[27] While the nature of the decision does not suggest that the paramedic is entitled to a trial-like procedure, he or she is entitled to a high degree of procedural fairness for a number of reasons. First, there is no right of appeal from the medical director’s decision. Second, the decision to decertify is of great importance to the paramedic, since it results in his or her inability to practise within the base hospital region. Moreover, as the decertification must be reported to other base hospitals, one can surmise that there is likely to be an adverse effect on future employment opportunities.

[28] The doctrine of legitimate expectations is not a factor that is significant in this case. There have been no representations by the respondents as to particular procedures they would follow other than those set out in the Policy. According to the Policy, the decision of the PPRC is advisory only, and the ultimate decision on decertification remains with Dr. Vandersluis and the MAB.

[29] With respect to the choice of procedure, the RHPA and the AA are silent on the procedure to be used in making a decision on decertification. In certain circumstances, deference is paid to the procedures chosen by an administrative tribunal because of the nature of the decision made or the authority given to design its own procedures. In my view, this factor does not assist in the present case.

[30] However, given the various factors that do apply, the duty of fairness is towards the higher end of the spectrum, although it does not give rise to a right to have a trial-type process.

There was no denial of procedural fairness

[31] In my view, the duty of procedural fairness was met in this case. The duty of fairness required that notice of the decision to be made and disclosure of Dr. Vandersluis’ concerns be given to the applicant. He was entitled to an opportunity to respond to the allegations and to receive reasons for the decision to decertify (see Scheerer, above at paras. 48-49).

[32] The applicant was provided with frequent and repeated notice of Dr. Vandersluis’ concerns. He was notified of the investigation within 12 hours of its commencement. He was interviewed three times by Dr. Vandersluis and others from the CEPCP, and during those interviews he was provided updates about information discovered, such as the video from the shelter. He was also told of Dr. Vandersluis’ concerns about inconsistencies in his version of events and given a chance to explain. Then at the PPRC stage, he was represented by legal counsel, and he was able to present his version of events and respond to Dr. Vandersluis’ submissions.

[33] Dr. Vandersluis also provided the applicant with clear and detailed reasons, although he did so in a somewhat unconventional manner, in that the reasons were set out in a letter signed by his legal counsel. However, in his affidavit, he has stated that the reasons were his own, he provided the content of the letter to counsel, and he was motivated to provide the final reasons though counsel in an effort not to harm the applicant in other proceedings.

[34] The applicant argues that he was denied procedural fairness because Dr. Vandersluis did not follow the recommendations of the PPRC. However, the applicable Policy made it clear that the PPRC could only make recommendations, and that the final decision on decertification was that of the medical director, in accordance with the regulatory framework.

[35] The applicant also argues that the decision is inconsistent with the PPRC’s finding on falsification. I do not agree. The PPRC chose its words carefully in dealing with this issue. It stated that it could not reach a “consensus” on whether this allegation had been proven, given the material before it. It also stated that it was not in a position to deal with the issue of loss of trust.

[36] In contrast, Dr. Vandersluis had had the opportunity to consider the applicant’s version of events and that of his partner, Mr. Lean, in the course of several interviews and to assess their credibility. He gave careful attention to the PPRC’s views on this issue, but concluded that there had been falsification. This was a conclusion he was entitled to reach on the information he had acquired in the investigation process. Ultimately, it remained his decision as to whether to continue to delegate authority to the applicant.

[37] The applicant also argues that the process is flawed because the medical director is, in effect, investigator, prosecutor, and decision maker. I take this to be an argument that there is institutional bias in the way that the decision making process has been established in the Policy. In order to prove bias, the applicant must show that an informed person, viewing the matter realistically and practically, would conclude that the decision-maker would not decide in an impartial manner (Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369 at paras. 40-42).

[38] This not a case where Dr. Vandersluis had a closed mind when it came to the recommendations of the PPRC, thus giving rise to a reasonable apprehension of bias. Dr. Vandersluis gave careful consideration to the PPRC’s recommendation. He acknowledged that the concerns he had about patient care could be met by remediation, as recommended by the PPRC. However, he could not accept the suggestions made to deal with his other concerns and he explained why. In his view, there had been falsification of the ACR and/or its contents and this caused him to lose trust in the applicant. For reasons of patient safety, he felt it necessary to decertify the applicant.

[39] To the extent the applicant’s argument is one of institutional bias, the argument fails because it does not take adequate account of the nature of the decision under review and the required level of impartiality. There is one decision that is under review: the decision of the medical director to decertify. In making that decision, he or she is not fulfilling separate or differentiated roles as investigator, prosecutor and decision maker. He or she must acquire relevant information through investigation, make that information known to the paramedic affected, give him or her a fair chance to respond and then carefully consider the PPRC’s advice before coming to a final decision. Dr. Vandersluis followed the procedure for decertification in a meticulous manner. I see no basis for any allegation of bias here, either in the design of the process or the application of the procedures in the present case.

[40] The applicant would prefer a different model for decision making, perhaps more closely following the model applying to other health disciplines under the regime of the RHPA. However, the Legislature has chosen not to make paramedics a self-regulating profession nor to include them in the RHPA regulatory scheme. Accordingly, the applicant is entitled to procedural fairness at common law and compliance with the process in the Policy that governs certification and decertification of paramedics. Failing compliance, he or she is entitled to seek judicial review, as the applicant has done in the present case.

Conclusion

[41] The respondents have met their duty of procedural fairness. Accordingly, the application for judicial review is dismissed. Costs to the respondents are fixed at $7,500.00 all inclusive, an amount agreed upon by the parties.

___________________________ Swinton J.

V.J. Mackinnon J.

D.L. Corbett J.

Released: December 16, 2015