Abbott v. London Health Sciences Centre, 2024 ONSC 3949
CITATION: Abbott v. London Health Sciences Centre, 2024 ONSC 3949
DIVISIONAL COURT FILE NO.: 41/23
London
DATE: 20240712
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
BETWEEN:
Dr. William Abbott, Dr. William Frydman, Dr. Giorgio Aiello,
Dr. Mitchell Kravitz, Dr. Keyvan Abbaszadeh, Dr. Michael Kirton
and Dr. Zachary Kerr
Applicants
AND:
London Health Sciences Centre
Respondent
BEFORE: D.L. Corbett, LeMay and Shore JJ.
COUNSEL: Neil M. Abramson and Anne Lewis, for the Applicants
Aislinn Reid, Lipi Mishra and Simone Livshits, for the Respondent
HEARD: June 24, 2024
ENDORSEMENT
[1] The Applicants apply for judicial review of the December 22, 2023, decision of the Respondent, London Health Sciences Centre (“LHSC” or the “Hospital”), cancelling the Applicants’ access to operating rooms (“ORs”) in the Hospital.
[2] The Applicants are seven oral and maxillofacial surgeons who are partners in, and practice out of, the Interface Centre for Oral and Maxillofacial Surgery in Southwestern Ontario.
[3] The Respondent is a tertiary, quaternary hospital made up of a number of sites and one of Canada’s largest acute-care teaching hospitals. LHSC is governed by the Public Hospitals Act, R.S.O. 1990, c. P.40 (“PHA”).
[4] Historically, the Applicants, along with three other oral surgeons (collectively, the “private practice oral surgeons”), had access to OR time and resources at the Hospital, which they used to provide dental services to patients of their private practices. The OR time was allocated to them from the oral surgery division of the Department of Dentistry at the Hospital. A total of 300 hours per year were allocated to the private practice oral surgeons, or approximately 2.5 hours per month per private practice oral surgeon.
[5] On September 19, 2023, without any notice, the private practice oral surgeons were advised that effective October 1, 2023, they would no longer be allocated OR time at the Hospital. The deadline was subsequently extended, but they were advised on December 22, 2023, that the extension would terminate on January 31, 2024. The private practice oral surgeons were advised to refer their patients who needed treatment in hospital to the oral maxillofacial surgeons on staff at the Hospital.
[6] The Applicants submit that the decision to cancel their access to the OR and to other hospital resources breached their rights to procedural fairness and they are seeking judicial review of the Hospital’s decision.
Standard of Review:
[7] The standard of review on judicial review is reasonableness. On the issue of procedural fairness, the court must determine whether the required level of procedural fairness has been accorded in the circumstances of the case: see Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653.
Position of the Parties:
[8] The Applicants submit that they were denied procedural fairness. They were not given proper notice and they were not given an opportunity to respond to or provide any input into the decision or the decision-making process. They were not given a right to be heard.
[9] The Hospital acknowledges that the Applicants were not given an opportunity to provide input into the decision. Further, although the Applicants provided affidavits to LHSC, LHSC admitted that the Hospital Board did not consider the affidavits before making the impugned decision.
[10] However, the Hospital submits that in making the decision, the Hospital Board was acting pursuant to s. 44 of the PHA and so they were not required to give notice, consider submissions, or hold any hearings: in other words, that the Applicants were not entitled to procedural fairness in respect to the impugned decision.
[11] The Applicants accept that if s. 44 applies, they were not entitled to notice or to be heard by the Board. Thus, the focused question on this application is whether the impugned decision was made under s. 44 of the PHA.
The Law:
[12] As set out above, the Hospital is governed by the PHA and the Hospital Management Regulations, R.R.O. 1990, Reg. 965, under the PHA (the “Regulations”).
[13] Among other things, the Regulations provide that a hospital board shall (a) monitor activities in the hospital for compliance with the PHA, the Regulations and the by-laws of the hospital; and (b) take such measures as the board considers necessary to ensure compliance with the PHA, the Regulations and the Hospital by-laws.
[14] Section 44(1.2) of the PHA provides that “[s]ubsection (2) applies if, (a) a board of a hospital determines that the hospital will cease to provide a service” (emphasis added).
[15] Subsection (2) provides the following:
(2) 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.
[16] A board must make all decisions honestly and in good faith: PHA, s. 44(5).
[17] Subsection (3) provides that the Board may make a decision under subsections (1) or (2) without holding a hearing unless a hearing is required by or under the PHA, displacing any common law rights to notice or a hearing.
Analysis:
[18] The question before this court is whether the Hospital was making a decision under s. 44, for which no hearing is required, or more specifically, was the decision of the Board to revoke the Applicants’ hospital privileges a decision to cease a service so as to fall under s. 44 of the PHA?
Was the Hospital making a decision under s. 44?
[19] The Applicants submit that the Hospital was not making a decision to cease a service, but “merely revoking the individual… OR access and professional staff privileges”, and therefore their decision is not one which would fall under s. 44 of the PHA. I disagree.
[20] The term “service” is not defined in the PHA.
[21] To understand the decision below, it is important to understand the circumstances under which the Board’s decision was made.
[22] created by the provincial Ministry of Health, charged with overseeing health care planning and delivery across the province, including management of funding in the health care sector. The HSAA is an agreement that sets out the terms and conditions under which LHSC The Hospital is subject to the HSAA with Ontario Health. Ontario Health is an agency receives funding from Ontario Health. A condition of the funding is that LHSC will only use the funding for providing “Hospital Services” in accordance with the terms of HSAA.
[23] A definition of “Hospital Services” is found in the 2023/2024 Hospital Service Accountability Agreement (“HSAA”) as follows:
Hospital Services means the clinical services provided by the Hospital and the operational activities that support those clinical services, that are funded in whole or in part by the Funder, and includes the type, volume, frequency and availability of Hospital Services.
[24] One of the terms in the HSAA is that the Hospital transition to the Wait Time Information System (the “WTIS”). The WTIS supports the management of surgical waitlists by tracking patients waiting for a specific procedure based on their defined priority level.
[25] The Office of Capacity Management at LHSC, through the Strategic Redevelopment Committee, was tasked with reviewing its management accountabilities for funding under the HSAA to ensure, among other things, that that their funding from Ontario Health was only being used for Hospital Services that complied with the terms set out in the HSAA.
[26] The Strategic Redevelopment Committee determined that the Hospital’s practice of providing OR rooms to private practice oral surgeons was not in line with their obligations under the HSAA and that this Hospital Service needed to end.
[27] The Committee recommended to the Hospital’s Board of Directors that LHSC cease providing operating room services to private practice oral surgeons. The Board approved the recommendation at a subsequent Board meeting. The decision to stop providing OR rooms to private practice oral surgeons is within the Board’s general mandate to run the Hospital.
[28] The private practice oral surgeons historically had access to 300 hours of LHSC OR resources, in which they could perform procedures on patients from their private practices, who either required OR services or who did not have insurance for routine/low acuity procedures.
[29] This program operated quite distinctly from other Hospital Services. This arrangement provided benefits to the community and the private practice oral surgeons, as it operated outside of the usual practices of the Hospital.
[30] Patients of the private practice oral surgeons were able to gain access to an OR without being accountable to the WTIS and without having to be assessed, prioritized, and scheduled through the WTIS, in essence jumping the queue. This service was not consistent with the HSAA.
[31] The Applicants had access to the ORs, staff, equipment and supplies with no reimbursement to the Hospital. The Applicants did not have to fulfill the requirements and obligations of Hospital staff. For example, they were not required to treat any LHSC patients. They did not have to do on-call shifts. They did not need to have academic .integration network and did not use the integrated system within the Hospital.
[32] The Hospital 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.
[33] Further, through this program, the Applicants were able to bypass the usual obligations or costs to the Hospital. As set out in Beattie v. Women’s College Hospital, 2018 ONSC 1852, 46 C.C.E.L. (4th) 131, at para. 14, the Applicants only worked at the Hospital in this capacity and their privileges did not extend outside of this program.
[34] All other surgical service lines within LHSC receive referrals from community surgeons to clinically assess and accept patients that require hospital-based surgery. LHSC then uses an integrated program to track patients waiting for surgeries and to allocate surgeon time based on the specific patient’s defined WTIS priority level. Patients referred to LHSC are usually high-acuity patients who require treatments in a hospital and the standard practice is for them to be referred to a hospital-based surgeon. The patients using this service were not subject to the same requirements.
[35] For the reasons above, I would find that the decision of the Board is “a decision to cease a service” within the meaning of s. 44 of the PHA. As set out above, it was agreed by the parties that if it is determined that the decision falls under s. 44, no notice or hearing was required.
[36] As set out above, LHSC is accountable to use the WTIS to ensure equitable patient access to scarce OR resources. They are required to report on their performance as part of their agreement with Ontario Health. The Board acted in good faith, pursuant to s.44(5) of the PHA in cancelling the service, to meet their obligations under the HSAA.
[37] Given this conclusion, there is no need to address the other issues raised by the application.
[38] The application for judicial review is dismissed.
Costs:
[39] The parties agreed to costs in the sum of $60,000 to the successful party. However, the Hospital’s conduct provoked conflict by not following the correct process or providing reasonable notice initially.
[40] The decision made in September was made at a committee level. It was not put before the Board until November 2023. Section 44 is clear that the decision is to be made by the Board, not by a committee. Notice of the committee decision was given on September 19, 2023, with less than two weeks’ notice – an apparently unreasonably short period of notice for ending a longstanding “legacy” program at the Hospital. These problems were fodder for conflict, and it is no surprise that it led to these legal proceedings.
[41] These problems were cured by the Board decisions taken in November and December 2023, and by the extended period of notice to January 31, 2024. The Applicants took no issue with the sufficiency of the extended notice period, a point we confirmed with counsel during oral argument.
[42] In all of these circumstances, we exercise our discretion to order payment of 50% of the agreed partial indemnity costs, in the total of $30,000, inclusive, payable by the Applicants to the Respondent within thirty days.
“Shore, J”.
I agree: “D.L. Corbett, J”
I agree: “LeMay, J.”
CITATION: Abbott v. London Health Sciences Centre, 2024 ONSC 3949
DIVISIONAL COURT FILE NO.: 41/23
London
DATE: 20240712
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett, LeMay and Shore JJ.
BETWEEN:
Dr. William Abbott, Dr. William Frydman,
Dr. Giorgio Aiello, Dr. Mitchell Kravitz, Dr. Keyvan Abbaszadeh, Dr. Michael Kirton and Dr. Zachary Kerr
Applicants
AND:
London Health Sciences Centre
Respondent
Decision
SHORE J.
Released: 20240712