A physician (“Cimolai”) appealed from an Order dismissing his petition attempting to prohibit Children’s and Women’s Health Centre (“the Hospital”) from (1) proceeding under its human rights policy to investigate complaints against him made by another physician,(2) requiring the Hospital to reinstate him and (3) requiring them to pay him all of his lost benefits during the period of suspension in 2001

Administrative law – Physicians and surgeons – Hospital privileges – Judicial review – Remedies – Alternative remedies – Human rights complaints – Harassment – Investigations – Procedural requirements and fairness – Report, adequacy of

Cimolai v. Children’s and Women’s Health Centre of British Columbia, [2007] B.C.J. No. 2473, British Columbia Court of Appeal, November 22, 2007, M.E. Saunders, A.D. Thackray and S.D. Frankel JJ.A.

Cimolai was a microbiologist who joined the Hospital in 1987. The other physician, Dr. Thomas (“Thomas”), started working at the Hospital in 1985. Cimolai became Chief Officer of Infection Control Services but was later replaced in that role by Thomas. A similar succession occurred with the position of Head of Program 5: Microbiology, Virology and Infection Control.

In 2000, Thomas complained against Cimolai alleging personal harassment in the workplace. Nine other individuals also complained about Cimolai’s behaviour. An investigation into alleged harassment in respect of one of the other complainants was conducted and resulted in the hospital board terminating Cimolai’s privileges in September 2001.

Cimolai brought a petition under the Judicial Review Procedure Act but although the investigation report was found to be flawed, the petition was dismissed because Cimolai was held to have an adequate alternative remedy through an appeal to the Hospital Appeal Board.

The Court of Appeal allowed an appeal from the decision on judicial review and set aside the Board’s decision terminating privileges. A new investigation was ordered but the Court of Appeal did not order reinstatement of Cimolai at that time.

The Hospital retained an outside investigator to conduct a new investigation starting in August 2003. A lengthy report was prepared concluding that the allegations of personal harassment by Thomas against Cimolai had been substantiated and proven and that Cimolai’s conduct violated the Hospital’s human rights policy.

The Hospital advised Cimolai that his privileges were to be cancelled on the basis of the investigation. Again, Cimolai brought a petition under the Judicial Review Procedure Act to set aside the investigation report on the grounds that he had not been afforded a fair hearing. At that time, the Honourable Mr. Justice Cullen held that it would be premature to conduct a judicial review given that Cimolai had not availed himself of procedural steps of internal review that were available.

Pursuant to the human rights policy, the investigator’s report was then to be forwarded to the vice-president of the Medical Affairs Committee who was to meet with Cimolai to discuss the report. If Cimolai objected to the course of action recommended in the report, namely the revocation of privileges, the report would be sent to the Chair of the Medical Advisory Committee who would direct formation of a peer review committee to consider the complaint and make recommendations. At the time of this appeal, attempts were being made for the parties to agree to allow that process to proceed.

On the petition for judicial review, the Court held that the second investigation report was subject to judicial review but that the complaints could be fairly addressed to the Hospital’s internal process. The Court exercised discretion against determining the substantive complaints and indicated that such determination should be made through the Hospital’s process.

Cimolai argued that the Court’s discretion in that respect was unreasonably exercised and that the process was infused with bias. The Court of Appeal rejected these submissions. The Court of Appeal indicated that the assumption should still be made that Cimolai would have an opportunity to present his case through the Hospital investigation process. His appeal was dismissed.

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