Macdonald v. Mineral Springs Hospital, 2008 ABCA 273

JudgeHunt, Berger and O'Brien, JJ.A.
CourtCourt of Appeal (Alberta)
Case DateFebruary 14, 2008
Citations2008 ABCA 273;(2008), 437 A.R. 7 (CA)

Macdonald v. Mineral Springs Hospital (2008), 437 A.R. 7 (CA);

      433 W.A.C. 7

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. AU.025

Dr. Ian Robert Macdonald (respondent) v. The Mineral Springs Hospital (appellant)

(0701-0141-AC; 2008 ABCA 273)

Indexed As: Macdonald v. Mineral Springs Hospital

Alberta Court of Appeal

Hunt, Berger and O'Brien, JJ.A.

August 14, 2008.

Summary:

The Operating Room Committee of the Mineral Springs Hospital, refused to increase Dr. Macdonald's operating room time. Macdonald appealed to the Hospital Privileges Appeal Board, under s. 21(1)(c) of the Hospitals Act. A majority of the Board concluded that it had no jurisdiction to hear his appeal because it did not involve the matter of his "privileges". Macdonald appealed the Board's decision. The Act provided for an appeal to the Court of Queen's Bench, on a matter of law only.

The Alberta Court of Queen's Bench focussed on the definition of "privileges" in the Hospital's bylaws, concluded that the Board's denial affected Macdonald's "privileges", and that the decision fell under the definition of "varying the member's hospital privileges" in s. 21(1)(c) of the Act. The court concluded that the standard of review of correctness applied to the Board's decision because it was an issue of statutory interpretation, and held that the Board erred in law in concluding it had no jurisdiction over the Committee's decision. The court set aside the decision and directed the Board to hear the merits of Macdonald's appeal. The Hospital appealed. Three issues arose on appeal: (1) was the appeal to the Alberta Court of Queen's Bench on a question of law? (2) did the court select the appropriate standard of review? and (3) was the Board's decision reasonable?

The Alberta Court of Appeal allowed the appeal, and remitted the matter to the Board under s. 21(3) of the Hospitals Act, with a direction that it explain why it concluded that the decision not to vary Macdonald's operating room time was not a question of privilege. The reasons must be sufficient to allow for meaningful appellate review (given that there was a statutory right of appeal on questions of law) and answer Macdonald's "functional need to know" why the decision was made.

Administrative Law - Topic 547

The hearing and decision - Decisions of the tribunal - Reasons for decision - When required - The Hospital Privileges Appeal Board concluded that the matter before it was not a question of "privileges" and declined jurisdiction - It gave no reasons for its conclusion, nor were any reasons apparent from its decision - In determining whether the decision was reasonable, the Alberta Court of Appeal noted that the Board was not required to give reasons under the Hospitals Act or the Administrative Procedures and Jurisdiction Act, and that an administrative tribunal did not have a common law duty to give reasons - Nonetheless, the court noted Dunsmuir (S.C.C.), and stated that "[r]easonableness applies not only to the outcome of a tribunal's decision but also to its 'process of articulating reasons' and the 'existence of justification, transparency and intelligibility within the decision-making process' ... The notion of deference requires 'a respectful attention to the reasons offered' " - The court applied the "functional test" for whether reasons were required and concluded that "[t]here does not appear to be any principled reason why, when there exists a statutory right of appeal and the context makes it impossible to apply a reasonableness test to the tribunal's decision, the tribunal ought not to be required to give reasons" - See paragraphs 38 to 41.

Administrative Law - Topic 547

The hearing and decision - Decisions of the tribunal - Reasons for decision - When required - The Hospital Privileges Appeal Board concluded that the matter before it was not a question of "privileges" and declined jurisdiction - It gave no reasons for its conclusion, nor were any reasons apparent from its decision - In determining whether the decision was reasonable, the Alberta Court of Appeal noted that each party offered arguments in support of or against the Board's conclusion, based in part on an analysis of the Hospitals Act and the bylaws, and that "perhaps ... such ex post facto reasoning could support the view that the decision was reasonable. Doing so, however, would undermine one of the fundamental reasons why courts must defer to tribunals in cases such as this: because they have expertise about how hospitals function. Accepting the reasonableness of their decisions absent so much as a hint as to how they reached them would also encourage tribunals not to explain themselves. Moreover, it would engage courts in doing the very work that legislatures intended tribunals to do. This outcome would also work against the basic purpose of judicial review" - Here, the decision had to be grounded on analysis of complicated statutory-type provisions that could only be understood in context - Without the benefit of the Board's reasoning, it was impossible to determine whether its decision was reasonable - See paragraphs 42 to 44.

Administrative Law - Topic 2155

Natural justice - Administrative decisions or findings - Effect of failure of tribunal or official to give reasons for decisions - [See first Hospitals - Topic 356 ].

Administrative Law - Topic 6166

Judicial review - Statutory appeal - Grounds for review - Error of law - Interpretation of statute - [See third Hospitals - Topic 356 ].

Administrative Law - Topic 6244

Judicial review - Statutory appeal - Remedies on appeal - Remittal of award or decision -

[See first Hospitals - Topic 356 ].

Administrative Law - Topic 6302

Judicial review - Statutory appeal - Appeal from statutory appeal - Scope of review - [See second Hospitals - Topic 356 ].

Administrative Law - Topic 9011

Boards and tribunals - Jurisdiction - General - Declining or failing to exercise jurisdiction - [See first Hospitals - Topic 356 ].

Administrative Law - Topic 9118

Boards and tribunals - Judicial review - Curial deference to decisions of tribunals - [See sixth Hospitals - Topic 356 ].

Hospitals - Topic 356

Operation - Doctors - Restriction or revocation of hospital privileges - Appeals and judicial review - The Operating Room Committee of the Hospital refused to increase Dr. Macdonald's operating room time - Macdonald appealed to the Hospital Privileges Appeal Board - A majority of the Board concluded that it had no jurisdiction to hear his appeal because it did not involve the matter of his "privileges" under s. 21(1)(c) of the Hospitals Act - It gave no reasons for its conclusion, nor were any reasons apparent from its decision - Macdonald appealed the Board's decision (s. 21(3) of the Act provided for an appeal to the Court of Queen's Bench, on a matter of law only) - The Court of Queen's Bench held that the Board erred in law in concluding it had no jurisdiction, set aside the decision and directed the Board to hear the merits of Macdonald's appeal - The Hospital appealed - The Alberta Court of Appeal allowed the appeal, but remitted the matter to the Board, with a direction that it explain why it concluded that the decision not to vary Macdonald's operating room time was not a question of "privilege" - The reasons must be sufficient to allow for meaningful appellate review (given that there was a statutory right of appeal on questions of law) and answer Macdonald's "functional need to know" why the decision was made.

Hospitals - Topic 356

Operation - Doctors - Restriction or revocation of hospital privileges - Appeals and judicial review - The Operating Room Committee of the Hospital refused to increase Dr. Macdonald's operating room time - Macdonald appealed to the Hospital Privileges Appeal Board - A majority of the Board concluded that it had no jurisdiction to hear his appeal because it did not involve the matter of his "privileges" - Macdonald appealed the Board's decision (s. 21(3) of the Hospitals Act provided for an appeal to the Court of Queen's Bench, on a matter of law only) - The Court of Queen's Bench held that the Board erred in law in concluding it had no jurisdiction, set aside the decision and directed the Board to hear the merits of Macdonald's appeal - The Hospital appealed - The Alberta Court of Appeal stated that its role was to determine whether the reviewing judge chose and applied the correct standard of review, and if not, to assess the administrative tribunal's decision in light of the correct standard - Whether the proper standard of review was properly applied by the reviewing judge was also a question of law, subject to the correctness standard on appeal - See paragraph 19.

Hospitals - Topic 356

Operation - Doctors - Restriction or revocation of hospital privileges - Appeals and judicial review - The Operating Room Committee of the Hospital refused to increase Dr. Macdonald's operating room time - Macdonald appealed to the Hospital Privileges Appeal Board - A majority of the Board concluded that it had no jurisdiction - Macdonald appealed the Board's decision (s. 21(3) of the Hospitals Act provided for an appeal to the Court of Queen's Bench, on a matter of law only) - The Court of Queen's Bench (chambers judge) held that the Board erred in law in concluding it had no jurisdiction -The Hospital appealed - It was not clear to the Alberta Court of Appeal whether the chambers judge addressed the preliminary question of whether the appeal raised an issue of law as required by s. 21(3) - Whether the Board had jurisdiction could be determined only by an analysis of "complex" legislation and bylaws - Such statutory interpretation was generally a matter of law - "To the extent, then, that the chambers judge may have failed to consider the requirements of section 21(3), his error was harmless: the chambers judge had jurisdiction to hear the matter because it was a question of law" - See paragraphs 21 to 23.

Hospitals - Topic 356

Operation - Doctors - Restriction or revocation of hospital privileges - Appeals and judicial review - The Court of Queen's Bench (chambers judge) held that the Hospital Privileges Appeal Board erred in law in concluding it had no jurisdiction - The Hospital appealed on the ground, inter alia, that the chambers judge did not select the appropriate standard of review (correctness rather than reasonableness) - The Alberta Court of Appeal noted that the Board referred to its decision as one that concerned its jurisdiction, and that "[j]urisdictional matters are reviewable on the correctness standard without a requirement to conduct a standard of review analysis" - In the court's view, however, the decision was not jurisdictional - "True jurisdictional questions are those which ask whether the tribunal's statutory grant of power gives it the authority to make the inquiry ... . Courts should be slow to brand as jurisdictional issues that are doubtfully so ... . An overly broad approach to characterizing an issue as jurisdictional would effectively reduce the tribunal's authority to that of fact-finding" - The court looked to authorities that characterized the issue as a question of law and that applied a standard of review analysis to conclude that the reasonableness standard applied, "manifestly" not treating the issue as jurisdictional - Consequently, a standard of review analysis was necessary in this case - See paragraphs 24 to 29.

Hospitals - Topic 356

Operation - Doctors - Restriction or revocation of hospital privileges - Appeals and judicial review - The Alberta Court of Appeal looked at the entire scheme of the Hospitals Act to determine whether or not the question before the Hospital Privileges Appeal Board (HPAB) was jurisdictional and consequently reviewable on the correctness standard - "The Legislature clearly intended to give ... the HPAB the power to decide questions that arise in the course of the hospital board's operation of the hospital. ..., the enabling legislation is clear that the HPAB is to decide questions pertaining to privileges. This is not the same sort of jurisdiction (or vires) questions Dunsmuir refers to as 'true' questions of jurisdiction. Consequently, a standard of review analysis is necessary" - As no existing jurisprudence had comprehensively done so as regards the HPAB, the court embarked on a contextual standard of review analysis - An application of Dunsmuir suggested that deference was warranted and that the reasonableness standard governed a review of the HPAB's decision - Lacking the benefit of Dunsmuir, it was wrongly concluded on judicial review that correctness applied - See paragraphs 30 and 37.

Hospitals - Topic 356

Operation - Doctors - Restriction or revocation of hospital privileges - Appeals and judicial review - The issue before the Alberta Court of Appeal was whether the Hospitals Act contemplated that operating room (OR) time was a "privilege" - The court embarked on a contextual standard of review analysis and concluded that the "reasonableness" standard governed - The statutory right of appeal from a decision of the Hospital Privileges Appeal Board to the Court of Queen's Bench on questions of law, under s. 21(3) of the Hospitals Act, suggested "a low level of deference since such questions are intended to be reviewable by the Court" - The purpose of the Board under s. 21(1) suggested "greater deference" to its decisions - The question was one of statutory interpretation (whether the legislation contemplated that OR time was a "privilege"), which required the Board to interpret its constituting statute, suggesting "a greater degree of deference" - The court had, in previous decisions, described the Board as "having expertise in the subject [of privileges]" - "Given its composition ..., the HPAB undoubtedly has more expertise than the courts about how hospitals function and what is the scope of medical staff privileges within complex hospital systems" - See paragraphs 33 to 37.

Hospitals - Topic 356

Operation - Doctors - Restriction or revocation of hospital privileges - Appeals and judicial review - [See both Administrative Law - Topic 547 ].

Cases Noticed:

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [paras. 19, 74].

Dr. Q. v. College of Physicians and Surgeons (B.C.) - see Dr. Q., Re.

United Nurses of Alberta, Local 115 v. Calgary Health Authority (Foothills Medical Centre) (2004), 339 A.R. 265; 312 W.A.C. 265; 2004 ABCA 7, refd to. [para. 19].

Health Sciences Association (Alta.) et al. v. Provincial Health Authorities (Alta.) et al. (2004), 348 A.R. 361; 321 W.A.C. 361; 2004 ABCA 185, refd to. [para. 19].

Health Sciences Association (Alta.) v. David Thompson Health Region - see Health Sciences Association (Alta.) et al. v. Provincial Health Authorities (Alta.) et al.

Alberta (Minister of Municipal Affairs) v. Municipal Government Board (Alta.) et al. (2002), 312 A.R. 40; 281 W.A.C. 40; 2002 ABCA 199, refd to. [para. 19].

Canadian Union of Public Employees, Local 784 v. Board of Education of Edmonton School District No. 7 (2005), 363 A.R. 123; 343 W.A.C. 123; 2005 ABCA 74, refd to. [para. 19].

Workers' Compensation Board (Alta.) v. Workers' Compensation Board Appeals Commission (Alta.) (2005), 371 A.R. 318; 354 W.A.C. 318; 2005 ABCA 276, refd to. [para. 21].

Phillips et al. v. Phillips et al. (2006), 384 A.R. 34; 367 W.A.C. 34; 2006 ABCA 19, refd to. [para. 22].

Phillips v. Avena - see Phillips et al. v. Phillips et al.

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [paras. 22, 74].

United Taxi Drivers' Fellowship of Southern Alberta et al. v. Calgary (City), [2004] 1 S.C.R. 485; 318 N.R. 170; 346 A.R. 4; 320 W.A.C. 4; 2004 SCC 19, refd to. [para. 27].

VIA Rail Canada Inc. v. Canadian Transportation Agency et al., [2007] 1 S.C.R. 650; 360 N.R. 1; 2007 SCC 15, refd to. [para. 28].

Council of Canadians with Disabilities v. VIA Rail Canada Inc. - see VIA Rail Canada Inc. v. Canadian Transportation Agency et al.

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; 226 N.R. 201, addendum [1998] 1 S.C.R. 1222, refd to. [paras. 31, 74].

Calgary General Hospital v. Williams (1982), 42 A.R. 1; 142 D.L.R.(3d) 736 (C.A.), refd to. [para. 36].

Cooper v. Hospital Privileges Appeal Board (Alta.) et al. (1999), 241 A.R. 297; 1999 ABQB 165, refd to. [para. 36].

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

Supermarchés Jean Labrecque Inc. v. Tribunal du Travail, [1987] 2 S.C.R. 219; 78 N.R. 201; 9 Q.A.C. 161; 43 D.L.R.(4th) 1, refd to. [para. 40].

Supermarchés Jean Labrecque Inc. v. Flamand - see Supermarchés Jean Labrecque Inc. v. Tribunal du Travail.

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. 40].

Cook et al. v. Alberta (Minister of Environmental Protection) (2001), 293 A.R. 237; 257 W.A.C. 237; 2001 ABCA 276, refd to. [para. 40].

Fenske et al. v. Alberta (Minister of Environment) et al. (2002), 303 A.R. 356; 273 W.A.C. 356; 2002 ABCA 135, refd to. [para. 40].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 2002 SCC 26, refd to. [paras. 41, 94].

Hill et al. v. Hamilton-Wentworth Regional Police Services Board et al., [2007] 3 S.C.R. 129; 368 N.R. 1; 230 O.A.C. 260; 285 D.L.R.(4th) 620; 2007 SCC 41, refd to. [para. 41].

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207; 2003 SCC 20, refd to. [para. 74].

Voice Construction Ltd. v. Construction & General Workers' Union, Local 92, [2004] 1 S.C.R. 609; 318 N.R. 332; 346 A.R. 201; 320 W.A.C. 201; 2004 SCC 23, refd to. [para. 74].

Cartaway Resources Corp. et al., Re, [2004] 1 S.C.R. 672; 319 N.R. 1; 195 B.C.A.C. 161; 319 W.A.C. 161; 2004 SCC 26, refd to. [para. 74].

Canadian Broadcasting Corp. v. Canada Labour Relations Board et al., [1995] 1 S.C.R. 157; 177 N.R. 1, refd to. [para. 77].

Board of Education of Toronto v. Ontario Secndary School Teachers' Federation District 15 et al., [1997] 1 S.C.R. 487; 208 N.R. 245; 98 O.A.C. 241, refd to. [para. 77].

Pasiechnyk et al. v. Procrane Inc. et al., [1997] 2 S.C.R. 890; 216 N.R. 1; 158 Sask.R. 81; 153 W.A.C. 81, refd to. [para. 79].

Pasiechnyk v. Workers' Compensation Board (Sask.) - see Pasiechnyk et al. v. Procrane Inc. et al.

Calgary (City) v. Municipal Government Board (Alta.) et al. (2008), 432 A.R. 202; 424 W.A.C. 202; 2008 ABCA 187, refd to. [para. 81].

Johnston et al. v. Director of Vital Statistics (Alta.) et al. (2008), 433 A.R. 147; 429 W.A.C. 147; 2008 ABCA 188, refd to. [para. 81].

Proprio Direct Inc. v. Association des courtiers et agents immobiliers du Québec et al. (2008), 375 N.R. 1; 2008 SCC 32, refd to. [para. 85].

Conseil de la magistrature (N.-B.) v. Moreau-Bérubé, [2002] 1 S.C.R. 249; 281 N.R. 201; 245 N.B.R.(2d) 201; 636 A.P.R. 201; 2002 SCC 11, refd to. [para. 85].

Godfrey v. Ontario Police Commission et al. (1991), 53 O.A.C. 338; 83 D.L.R.(4th) 501 (Div. Ct.), refd to. [para. 99].

Bakery and Confectionery Workers International Union of America, Local 468 v. White Lunch Ltd., [1966] S.C.R. 282, refd to. [para. 100].

Rowley v. Petroleum & Natural Gas Conservation Board (Alta.), [1943] 1 W.W.R. 470 (Alta. T.D.), refd to. [para. 100].

National Bank of Canada v. Rosario et al. (1984), 60 A.R. 8 (Q.B.), refd to. [para. 100].

Statutes Noticed:

Hospitals Act, R.S.A. 2000, c. H-12, sect. 17(1)(a) [para. 6]; sect. 21(1)(c), sect. 21(2)(b), sect. 21(2)(c)(i), sect. 21(2)(e), sect. 21(3) [para. 7].

Hospitals Act Regulations (Alta.), Operation of Approved Hospitals Regulation, Reg. 247/90, sect. 33 [para. 11].

Authors and Works Noticed:

2006 Isaac Pitblado Lectures, Appellate Courts: Policy, Law and Practice (2006), p. V-12 [para. 75].

Cromwell, Thomas A., Appellate Review: Policy and Pragmatism, in 2006 Isaac Pitblado Lectures, Appellate Courts: Policy, Law and Practice (2006), p. V-12 [para. 75].

Counsel:

B.R. Carbert and B. Gallant, for the appellant;

V.A. Engel, Q.C., for the respondent.

This appeal was heard on February 14, 2008, by Hunt, Berger and O'Brien, JJ.A., of the Alberta Court of Appeal. The reasons for judgment reserved were delivered at Calgary, Alberta, on August 14, 2008, and the following opinions were filed:

Hunt, J.A. (O'Brien, J.A., concurring) - see paragraphs 1 to 46;

Berger, J.A., dissenting - see paragraphs 47 to 102.

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    • Court of Appeal (Saskatchewan)
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    ...before it qua employee rather than qua practitioner staff. [94] Dr. Ready next argues, citing Macdonald v Mineral Springs Hospital, 2008 ABCA 273, 295 DLR (4th) 609 [Macdonald], that it has already been determined that review of the decisions of a hospital privileges appeal board, regarding......
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    ...Commission et al. (2010), 482 A.R. 233; 490 W.A.C. 233; 2010 ABCA 213, refd to. [para. 28]. Macdonald v. Mineral Springs Hospital (2008), 437 A.R. 7; 433 W.A.C. 7; 2008 ABCA 273, refd to. [para. 28]. Border Paving Ltd. v. Occupational Health and Safety Council (Alta.) et al. (2009), 446 A.R......
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    ...255 B.C.A.C. 98; 430 W.A.C. 98; 80 B.C.L.R.(4th) 232; 2008 BCCA 217, refd to. [para. 115]. Macdonald v. Mineral Springs Hospital (2008), 437 A.R. 7; 433 W.A.C. 7; 295 D.L.R.(4th) 609; 2008 ABCA 273, refd to. [para. Sagl v. Cosburn, Griffiths & Brandham Insurance Brokers Ltd. et al., [20......
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21 cases
  • Ready v Saskatoon Regional Health Authority, 2017 SKCA 20
    • Canada
    • Court of Appeal (Saskatchewan)
    • 9 Marzo 2017
    ...before it qua employee rather than qua practitioner staff. [94] Dr. Ready next argues, citing Macdonald v Mineral Springs Hospital, 2008 ABCA 273, 295 DLR (4th) 609 [Macdonald], that it has already been determined that review of the decisions of a hospital privileges appeal board, regarding......
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    ...Commission et al. (2010), 482 A.R. 233; 490 W.A.C. 233; 2010 ABCA 213, refd to. [para. 28]. Macdonald v. Mineral Springs Hospital (2008), 437 A.R. 7; 433 W.A.C. 7; 2008 ABCA 273, refd to. [para. 28]. Border Paving Ltd. v. Occupational Health and Safety Council (Alta.) et al. (2009), 446 A.R......
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    ...Securities Commission (2009), 457 A.R. 153; 457 W.A.C. 153; 2009 ABCA 186, refd to. [para. 19]. Macdonald v. Mineral Springs Hospital (2008), 437 A.R. 7; 433 W.A.C. 7; 295 D.L.R.(4th) 609; 2008 ABCA 273, refd to. [para. Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C......
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