A physician (“Dr. Cimolai”) successfully appealed the decision of a chambers judge dismissing his application for a judicial review of a decision of the Board of Directors of Children’s and Women’s Health Centre which had terminated his hospital privileges on the basis of the finding of harassment. The chambers judge had ruled that the doctor had available to him an “adequate alternative remedy” in the form of an appeal to the Hospital Appeal Board, and that for this reason he was not entitled to judicial review. The Court of Appeal disagreed with the findings of the chambers judge.

Administrative law – Physicians and surgeons – Hospital privileges – Judicial review – Procedural fairness – Public body – Definition – Remedies – Certiorari

Cimolai v. Children’s and Women’s Health Centre of British Columbia, [2003] B.C.J. No. 1313, British Columbia Court of Appeal, June 6, 2003, Southin, Newbury and Hall JJ.A.

The Court of Appeal considered the question of whether the termination of Dr. Cimolai’s permit was properly the subject of judicial review.

The court first considered if the decision was subject to judicial review. The question then was whether the board of the hospital was a public body with the power to decide a matter affecting Dr. Cimolai’s rights, interests, property or privileges. The court referred to factors which should be considered. First, the nature of the decision-maker, including whether it derived funding from the public purse, whether its members were appointed by government, and the extent to which it was subject to government control. Second, the source and nature of the decision-making power. Third, the description of the decision-making body’s functions as found in the enabling statute or other constitutive document. In applying these criteria, the Court of Appeal took notice of the fact that hospitals were generally publicly funded, hospitals performed functions that are normally undertaken by government, and that Board was acting in connection with the complaints against Dr. Cimolai. The Court of Appeal concluded that, in deciding to terminate Dr. Cimolai’s permit, the Board had been exercising a public duty with public consequences, and therefore owed him a duty of procedural fairness.

That duty of procedural fairness was breached by deficiencies in the process that had been identified by the chambers judge, including the fact that Dr. Cimolai did not have a complete copy of the report made regarding the allegations until after the management review had occurred.

The Court of Appeal also considered whether an appeal to the hospital appeal board provided an adequate alternative remedy. The Court of Appeal held that although the statute provided for a new hearing of the subject matter of the appeal, that did not constitute a new trial of the complaint. The Court of Appeal held that if the appeal proceeded, Dr. Cimolai would have not only been denied an investigation carried out properly at the initial stage, but would be subject to an appeal process that was certain to be tainted by serious deficiencies of the process following from the report on the harassment allegations.

In the result, the appeal was allowed.

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