Administrative law – Physicians and surgeons – Employment law – Termination of employment – Decisions of administrative tribunals – Health authorities – Hearings – Judicial review – Public body – Procedural requirements and fairness
Shaikh v. Regional Health Authority 7,  N.B.J. No. 581, New Brunswick Court of Queen’s Bench, December 7, 2005, T.W. Riordon J.
The applicant physician sought judicial review to quash a decision of a regional health authority terminating his Professional Services Contract (the “Contract”) which provided that termination would be on the basis of “just cause”, by mutual consent, or without cause following six months notice by either party.
The physician was under contract to provide internal medicine and nephrology services and, at the time of his termination, had been with the health authority for approximately 3 years. The board of the health authority (the “Board”) had engaged a consultant to review the functioning of its Internal Medicine Department who reported that the physician displayed an unprofessional attitude towards staff and recommended that his employment be terminated. The physician was not provided with a copy of the consultant’s report. The Board subsequently passed a resolution authorizing termination of the physician’s contract and the physician received notice of termination with an offer of six months pay in lieu of notice.
The Court set aside the board’s resolution and referred the matter back to the health authority to inform the physician of the reason for its dissatisfaction with his services and afford the physician an opportunity to respond.
There may be a general right to procedural fairness depending on: (i) the nature of the decision to be made by the administrative body; (ii) the relationship between the body and the individual; and (iii) the effect of that decision on the individual’s right. The duty to act fairly does not arise from employment law but stems from the fact that the employer is a public body whose powers are derived from statute and must be exercised according to the rules of administrative law: Knight v. Indian Head School Division No. 19,  1 S.C.R. 653 (S.C.C.).
The Board was a public body: it derived funding from the public purse; the source and nature of its decision-making power was statutory; it performed functions normally undertaken by government: Cimolai v. Children’s and Women’s Hospital of British Columbia  B.C.J. No. 1313 (B.C.C.A.). The decision was a final and specific decision that had serious consequences to the physician, the Regional Health Authority and the public. The relationship between the physician and the health authority was an employment relationship which the physician occupied at the pleasure of his employer but it did not mean he could be dismissed without the benefit and opportunity of procedural guarantee of fairness. The effect of the decision could have grave and permanent consequences on the physician’s professional and personal life. Given these factors, the health authority had a general duty to act fairly. Nothing in the contract or statute extinguished or modified the duty of fairness.
The duty of fairness required the physician be given notice of dissatisfaction and the reasons why, and an opportunity to be heard. This duty to act fairly was not complied with; therefore, the letter of termination and Board’s resolution to terminate should be set aside.
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