Modry et al. v. Alberta Health Services et al., 2015 ABCA 265

• Judge: McDonald, Veldhuis and Wakeling, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: August 21, 2015
• Citations: 2015 ABCA 265;(2015), 606 A.R. 373

Modry v. Health Services (2015), 606 A.R. 373; 652 W.A.C. 373 (CA)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. AU.100

Dr. Dennis L. Modry and Dennis L. Modry Professional Corporation (respondents)

(plaintiffs/applicants) 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 (appellants)

(defendants/respondents)

(1403-0324-AC; 2015 ABCA 265)

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

Alberta Court of Appeal

McDonald, Veldhuis and Wakeling, JJ.A.

August 21, 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 TIA 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, 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.

Injunctions - Topic 2309

Mandatory injunctions - Interim or interlocutory mandatory injunctions - The Alberta Court of Appeal stated that an applicant for a prohibitory interlocutory injunction must show a serious issue to be tried, that irreparable harm would result if the injunction was not granted, and the balance of convenience favoured granting the injunction - The court stated that "However ... the first step of the tripartite test is modified when the applicant seeks a mandatory interlocutory injunction requiring the respondent to carry out a positive act. The applicant must demonstrate a strong and clear prima facie case", being one that would "probably prevail at trial" or was "likely to succeed at trial" - See paragraphs 36, 37.

Injunctions - Topic 2309

Mandatory injunctions - Interim or interlocutory mandatory injunctions - Alberta Health Services (AHS) ordered a surgeon to submit to a Triggered Initial Assessment (TIA) respecting a "Concern" filed after he cancelled two surgeries to deal with a personal financial loss - A professional review committee would prepare a report respecting the TIA 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 - 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 - The surgeon applied for a mandatory injunction requiring AHS to immediately reinstate his surgical privileges and remuneration - The trial judge granted the injunctive relief sought, finding 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 misfeasance in public office - The Alberta Court of Appeal allowed AHS's 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 - There was no procedural unfairness - The trial judge erred in excluding evidence relevant to the balance of convenience - The surgeon failed to establish a strong prima facie case for the causes advanced - Accordingly, the trial judge erred in granting the mandatory injunction - 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 remuneration - The court opined that the payment order was a summary judgment under the guise of granting an injunction - See paragraphs 40 to 113.

Cases Noticed:

Association des parents ayants droit de Yellowknife et al. v. Northwest Territories (Attorney General) et al. (2015), 593 A.R. 180; 637 W.A.C. 180; 2015 NWTCA 2, refd to. [para. 72].

Capital I Industries Inc. v. Weldco-Beales Manufacturing Inc. (2010), 500 A.R. 342; 2010 ABQB 404, refd to. [para. 82].

Sun Drilling Products Corp. v. Garrett et al. (1999), 245 A.R. 370 (Q.B.), refd to. [para. 82].

Core Laboratories Canada Ltd. et al. v. Lonkar Services Ltd. et al., [2008] A.R. Uned. 21; 64 C.P.R.(4th) 241; 2008 ABCA 76, refd to. [para. 82].

Gold in the Net Hockey School Inc. et al. v. Netpower Inc. et al. (2007), 430 A.R. 38; 2007 ABQB 520, refd to. [para. 82].

Metropolitan Stores (MTS) Ltd. v. Manitoba Food and Commercial Workers, Local 832 and Labour Board (Man.), [1987] 1 S.C.R. 110; 73 N.R. 341; 46 Man.R.(2d) 241, refd to. [para. 84].

Dreco Energy Services Ltd. et al. v. Wenzel et al. (2004), 346 A.R. 356; 320 W.A.C. 356; 2004 ABCA 95, reving. [2003] A.R. Uned. 83; 2003 ABQB 110, refd to. [para. 92].

Cimolai v. Children's and Women's Health Centre of British Columbia (2003), 183 B.C.A.C. 279; 301 W.A.C. 279; 2003 BCCA 338, refd to. [para. 100].

International Brotherhood of Electrical Workers, Local 2085 et al. v. Winnipeg Builder's Exchange et al., [1967] S.C.R. 628, refd to. [para. 104].

Sharma v. London Life Insurance Co. et al., [2005] O.T.C. Uned. 714; 45 C.C.E.L.(3d) 302; 2005 CanLII 27324 (Sup. Ct.), refd to. [para. 105].

Globex Foreign Exchange Corp. v. Kelcher et al. (2005), 376 A.R. 133; 360 W.A.C. 133; 2005 ABCA 419, refd to. [para. 151].

Creston Moly Corp. v. Sattva Capital Corp., [2014] 2 S.C.R. 633; 461 N.R. 335; 2014 SCC 53, refd to. [para. 152].

Innovative Health Group Inc. v. Calgary Health Region (2006), 384 A.R. 378; 367 W.A.C. 378; 2006 ABCA 184, refd to. [para. 153].

Medical Laboratory Consultants Inc. et al. v. Calgary Health Region (2003), 347 A.R. 291; 2003 ABQB 995, varied (2005), 363 A.R. 283; 343 W.A.C. 283; 2005 ABCA 97, refd to. [para. 171].

Hampstead & Suburban Properties Ltd. v. Diomedous (No. 1), [1969] 1 Ch. 248; [1968] 3 All E.R. 545, refd to. [para. 175].

Ensign Drilling Inc. v. Lundle et al. (2007), 418 A.R. 267; 2007 ABQB 357, refd to. [para. 177].

McDonald's Restaurants of Canada Ltd. v. West Edmonton Mall Ltd. (1994), 159 A.R. 120 (Q.B.), refd to. [para. 177].

R. v. Mian (M.H.), [2014] 2 S.C.R. 689; 462 N.R. 1; 580 A.R. 1; 620 W.A.C. 1; 2014 SCC 54, refd to. [para. 191].

Hill v. Hill Family Trust et al., [2007] A.R. Uned. 355; 2007 ABCA 293, refd to. [para. 193].

Authors and Works Noticed:

Sharpe, Robert J., Injunctions and Specific Performance (2013 Looseleaf), para. 2.280 [para. 63]; para. 7.600 [para. 183].

Counsel:

H.W. Veale, Q.C., and G.S. Dunlop, for the respondents (plaintiffs/applicants);

P.J. Faulds, Q.C., and J.M. Raven-Jackson, for the appellants (defendants/respondents).

This appeal was heard on April 27, 2015, before McDonald, Veldhuis and Wakeling, JJ.A., of the Alberta Court of Appeal.

On August 21, 2015, the judgment of the Court of Appeal was filed, including the following memorandums of judgment:

Veldhuis, J.A. (Wakeling, J.A., concurring) - see paragraphs 1 to 114;

McDonald, J.A., dissenting - see paragraphs 115 to 193.