Fong v. Winnipeg Regional Health Authority, (2006) 199 Man.R.(2d) 230 (QB)

• Judge: Greenberg, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: January 10, 2006
• Jurisdiction: Manitoba
• Citations: (2006), 199 Man.R.(2d) 230 (QB);2006 MBQB 8

Fong v. Health Authority (2006), 199 Man.R.(2d) 230 (QB)

MLB headnote and full text

Temp. Cite: [2006] Man.R.(2d) TBEd. JA.048

Dr. Handrick Ming-Tok Fong (applicant) v. Winnipeg Regional Health Authority (respondent)

(CI 05-01-44382)

Winnipeg Regional Health Authority (applicant) v. Dr. Handrick Ming-Tok Fong (respondent)

(CI 05-01-44388)

(2006 MBQB 8)

Indexed As: Fong v. Winnipeg Regional Health Authority

Manitoba Court of Queen's Bench

Winnipeg Centre

Greenberg, J.

January 10, 2006.

Summary:

The Winnipeg Regional Health Authority (WRHA) imposed restrictions on Dr. Fong's hospital privileges. Fong advised the WRHA Board that he was appealing the decision to an appeal committee. Both Fong and the WRHA moved to prohibit the appointment of certain persons to the appeal committee on the basis that the nominee proposed by each of them raised a reasonable apprehension of bias.

The Manitoba Court of Queen's Bench allowed both motions, finding that allowing the nominee of either party to sit on the committee would raise a reasonable apprehension of bias.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Apprehension of bias - A doctor appealed restrictions on his hospital privileges, imposed by the Winnipeg Regional Health Authority (WRHA), to a three person appeal committee - WRHA bylaws provided that its nominee to the committee was to be a person "chosen from the WRHA Board" - The WRHA Board member nominated by the WRHA (Olds) had neither participated in the Board's decision nor was privy to any information concerning the matter - The Manitoba Court of Queen's Bench held that the "statutorily authorized" appointment of a Board member to the committee did not preclude a challenge on the basis of an apprehension of bias - The court rejected the submission that Old's association with the Board, by itself, gave rise to a reasonable apprehension of bias - However, on the appeal, the WRHA Board was not a disinterested party, but an advocate where it was the party making representations to the appeal committee in support of its own decision - That, in the mind of a reasonable person, would raise a reasonable apprehension of bias - See paragraphs 22 to 42.

Administrative Law - Topic 2088.1

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Prejudgment of matter - A doctor appealed restrictions on his hospital privileges, imposed by the Winnipeg Regional Health Authority (WRHA), to a three person appeal committee - The doctor's nominee to the committee (Enns) was a member of the Medical Advisory Committee that heard the complaints against him and recommended a two month restriction - The WRHA Board rejected the recommendation and imposed a 12 month restriction - The Manitoba Court of Queen's Bench accepted WRHA's submission that the appointment of Enns gave rise to a reasonable apprehension of bias - Enns had already made a decision in this matter and was arguably biased in fact - Further, Enns would be sitting on appeal from his own decision - The structure of the tripartite appeal committee permitted the doctor to choose a nominee whom he considered to be favourable to his case, but did not permit him to choose a nominee who had already decided the very issue on appeal - See paragraphs 16 to 21.

Administrative Law - Topic 2092

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Board or member acting as judge and prosecutor - [See Administrative Law - Topic 2088.1 ].

Administrative Law - Topic 2093

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Institutional or systemic bias - [See Administrative Law - Topic 2088 ].

Cases Noticed:

Committee for Justice and Liberty Foundation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115; 68 D.L.R.(3d) 716, refd to. [para. 11].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [2003] 2 S.C.R. 259; 309 N.R. 201; 2003 SCC 45, refd to. [para. 11].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22; 174 D.L.R.(4th) 193, refd to. [para. 14].

Kane v. Board of Governors of University of British Columbia, [1980] 1 S.C.R. 1105; 31 N.R. 214; 110 D.L.R.(3d) 311, refd to. [para. 14].

Fong v. Winnipeg Regional Health Authority et al. (2004), 186 Man.R.(2d) 80; 2004 MBQB 182, refd to. [para. 16].

Glassman v. College of Physicians and Surgeons (Ont.) (1966), 55 D.L.R.(2d) 674 (Ont. C.A.), refd to. [para. 17].

Law Society of Upper Canada v. French, [1975] 2 S.C.R. 767; 3 N.R. 410; 49 D.L.R.(3d) 1, refd to. [para. 17].

Yorkton (City) v. Yorkton Professional Firefighters Association, Local 1527 et al. (2001), 213 Sask.R. 161; 260 W.A.C. 161; 2001 SKCA 128, refd to. [para. 20].

Barry and Brosseau v. Alberta Securities Commission, [1989] 1 S.C.R. 301; 93 N.R. 1; 96 A.R. 241, refd to. [para. 22].

Brosseau v. Alberta Securities Commission - see Barry and Brosseau v. Alberta Securities Commission.

Law Society of Upper Canada v. French, [1975] 2 S.C.R. 767; 3 N.R. 410; 49 D.L.R.(3d) 1, refd to. [para. 24].

Ocean Port Ltd. v. Liquor Control and Licensing Branch (B.C.), [2001] 2 S.C.R. 781; 274 N.R. 116; 155 B.C.A.C. 193; 254 W.A.C. 193; 2001 SCC 52, refd to. [para. 27].

Ringrose v. College of Physicians and Surgeons of Alberta, [1977] 1 S.C.R. 814; 9 N.R. 383; 1 A.R. 1, refd to. [para. 28].

Hannam v. Bradford City Council, [1970] 2 All E.R. 690 (C.A.), refd to. [para. 29].

Daneshvar v. National Dental Examining Board of Canada (2002), 161 O.A.C. 342 (Div. Ct.), refd to. [para. 36].

Northwestern Utilities Ltd. v. Edmonton (City), [1979] 1 S.C.R. 684; 23 N.R. 565; 12 A.R. 449; 89 D.L.R.(3d) 161, refd to. [para. 40].

MacBain v. Canadian Human Rights Commission et al., [1985] 1 F.C. 856; 62 N.R. 117 (F.C.A.), refd to. [para. 41].

Counsel:

Thor J. Hansell and Nicole M. Watson, for Dr. Fong;

E.W. Olson, Q.C., for the Winnipeg Regional Health Authority.

These motions were heard before Greenberg, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on January 10, 2006.