Modry et al. v. Alberta Health Services et al., 2015 ABCA 328

• Judge: Bielby, J.A.
• Court: Court of Appeal (Alberta)
• Case Date: October 22, 2015
• Citations: 2015 ABCA 328;(2015), 609 A.R. 1

Modry v. Health Services (2015), 609 A.R. 1; 656 W.A.C. 1 (CA)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. OC.094

Dr. Dennis L. Modry and Dennis L. Modry Professional Corporation (applicants/respondents) v. Alberta Health Services, Dr. David Burns Ross, David B. Ross Professional Corporation, Dr. David E. Johnstone, David E. Johnstone Professional Corporation, Dr. Dylan A. Taylor, Dylan A. Taylor Professional Corporation, Dr. D. William C. Johnston, Donald William Cooper Johnston Professional Corporation, Dr. David R. Mador, David R. Mador Holdings Inc., Dr. Randall G. Williams, Randall Gordon Williams Professional Corporation, Dr. Michael Ivan Buss, Michael I. Buss Professional Corporation, Dr. Owen Robert Heisler, Dr. Gerald T. Todd, Gerald T. Todd Professional Corporation, Dr. Gordon H. Wilkes and Gordon H. Wilkes Professional Corporation, Mr. Kenneth Davidson and Ms. Carol Manson-Mcleod (respondents/appellants)

(1403-0324-AC; 2015 ABCA 328)

Indexed As: Modry et al. v. Alberta Health Services et al.

Alberta Court of Appeal

Bielby, J.A.

October 28, 2015.

Summary:

Alberta Health Services (AHS) ordered a surgeon to submit to a Triggered Initial Assessment (TIA) respecting a "Concern" filed involving the cancelling of two surgeries to deal with a personal financial loss. A three person professional review committee would prepare a report respecting the ITA and the Zone Medical Director would review the report and take one of the steps set out in s. 6.3.4 of the 2011 Staff Medical Bylaws (e.g., dismissal of Concern, further investigation, referral for hearing, consensual resolution). The doctor accepted an AHS offer to voluntarily withdraw from his surgical practice until the Director reached a decision on the TIA. In return the surgeon would be paid $20,000 per week. The committee's report referenced concerns with surgical performance matters in addition to the cancelled surgeries. The Director agreed that those matters were beyond the scope of the TIA and would not be considered. The Director decided to refer the TIA to Consensual Resolution subject to recommendations that the surgeon would voluntarily withdraw from surgical and on-call activities pending the evaluation and that issues of surgical performance would be reviewed at the surgeon's upcoming mandatory review at age 65. The weekly $20,000 payments stopped, as a decision was made. The surgeon challenged the fairness of the Director's decision. The Consensual Resolution was deferred by agreement because the surgeon was now subject to a mandatory age 65 review. The surgeon had commenced an action against AHS and others alleging conspiracy to reduce or limit his surgical privileges, breach of contract (failure to continue to pay the weekly $20,000 when no decision had yet been made), and misfeasance in public office. Subsequently, the surgeon applied for a mandatory injunction requiring AHS to immediately reinstate his surgical privileges and remuneration of $20,000 per week.

The Alberta Court of Queen's Bench, in a judgment reported [2015] A.R. Uned. 220, granted the injunctive relief sought. The trial judge found that there was no "decision" on the TIA (decision had been deferred) and the surgeon was denied procedural fairness. The trial judge found a strong prima facie case for breach of contract and for misfeasance in public office. AHS and the others appealed.

The Alberta Court of Appeal, McDonald, J.A., dissenting, in a judgment reported (2015), 606 A.R. 373; 652 W.A.C. 373, allowed the appeal and set aside the injunctive relief. The Director, in referring the Concern to Consensual Resolution, made a decision he was entitled to make under s. 6.3.4. Any procedural unfairness had been remedied by the Director. The surgeon failed to establish a strong prima facie case. Accordingly, the trial judge erred in granting the mandatory injunction. Although unnecessary to decide, the court opined that the trial judge erred in excluding evidence relevant to determining the balance of convenience, erred in finding irreparable harm to the surgeon if the injunction were not granted, and erred in determining that the balance of convenience favoured reinstatement of surgical privileges and the $20,000 per week. The surgeon applied to stay the decision pending the hearing of an application for leave to appeal to the Supreme Court of Canada. He sought reinstatement of his surgical privileges and the $20,000 per week payment, and a stay of his obligation to repay $1.64 million in overpayments as a result of the Court of Appeal decision.

The Alberta Court of Appeal, per Bielby, J.A., dismissed the application, except to the limited extent that the surgeon was not required, pending a decision on the leave application, to repay the $1.64 million. However, the surgeon was required, within 10 days, to obtain a $1.7 million letter of credit from a bank to secure the amount owing.

Practice - Topic 9090.4

Appeals - Supreme Court of Canada - Leave to appeal - Stay of judgment pending application for - A surgeon against whom a "Concern" was filed voluntarily withdrew from surgical activities pending a review - In exchange, he would be paid $20,000 per week pending a decision - A decision was made to refer the matter to Consensual Resolution - The $20,000 payments terminated - The surgeon sued Alberta Health Services (AHS) and others - He applied for a mandatory injunction requiring AHS to immediately reinstate his surgical privileges and remuneration of $20,000 per week - A trial judge granted the injunction - That decision was set aside on appeal - The result was that the surgeon was not entitled to reinstatement of surgical privileges and remuneration, and he owed $1.6 million in overpayments to AHS - The surgeon applied to stay the decision pending the hearing of an application for leave to appeal to the Supreme Court of Canada - He sought reinstatement of his surgical privileges and the $20,000 per week payment, and a stay of his obligation to repay $1.64 million in overpayments as a result of the Court of Appeal decision - The Alberta Court of Appeal, per Bielby, J.A., dismissed the application, except to the limited extent that the surgeon was not required, pending a decision on the leave application, to repay the $1.64 million - However, the surgeon was required, within 10 days, to obtain a $1.7 million letter of credit from a bank to secure the amount owing - The surgeon raised an arguable issue - However, except for requiring immediate repayment of the $1.64 million, the surgeon would not suffer irreparable harm and the balance of convenience favoured AHS.

Cases Noticed:

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1; 60 Q.A.C. 241, refd to. [para. 5].

Vaccaro v. Twin Cities Power, L.L.C. et al., [2014] A.R. Uned. 74; 2014 ABCA 146, refd to. [para. 5].

Modry et al. v. Alberta Health Services et al., [2015] A.R. Uned. 15; 2015 ABCA 31, refd to. [para. 5].

Nova Scotia (Minister of Community Services) v. B.F. and B.W. (2003), 219 N.S.R.(2d) 67; 692 A.P.R. 67; 2003 NSCA 125, refd to. [para. 6].

Counsel:

H.W. Veale, Q.C., R. Wasylyshyn and A. Poburan, for the applicants;

P.J. Faulds, Q.C., and J.M. Raven-Jackson, for the respondents.

This application was heard on October 22, 2015, at Edmonton, Alberta, before Bielby, J.A., of the Alberta Court of Appeal, who filed the following judgment on October 28, 2015.