Administrative law – Decisions of administrative tribunals – Hospital Appeal Board – Jurisdiction of tribunal – Physicians and surgeons – Hospital privileges – Appeals – Compliance with legislation – Judicial review – Standard of review – Reasonableness simpliciter – Correctness – Failure to provide reasons
Macdonald v. Mineral Springs Hospital,  A.J. No., 891, Alberta Court of Appeal, August 14, 2008, C.D. Hunt, R.L. Berger and C.D. O’Brien JJ.A.
The Respondent physician held medical staff privileges at the Respondent hospital and, in mid-2002 asked the OR Committee for more OR time. He later wrote the hospital’s Chief of Staff asking him to increase his allocation of OR time from one day every three weeks to one day every two weeks. The matter was referred to the OR Committee, which formed a sub-committee to re-evaluate the OR allocation process. Both the sub-committee (of which the Respondent was a member) and the OR Committee refused his request. The Respondent appealed to the Hospital Privileges Appeal Board, a majority of which concluded that it had no jurisdiction to hear his appeal because it did not involve the matter of his privileges.
The Respondent applied for judicial review of the Board’s decision. The Chamber’s Judge held that the Committee’s denial had clearly affected the Respondent’s privileges, and that the decision fell under the definition of varying the member’s hospital privileges in s. 21(1)(c) of the Hospital Act, R.S.A. 2000, c. H-12, thus allowing a right of appeal to the Board. The chambers judge applied the standard of review of correctness to the Board’s decision, and concluded that the Board had erred in law in concluding that it had no jurisdiction over the OR Committee’s decision. He set aside the Board’s decision and directed it to hear the merits of the Respondent’s appeal.
The Court of Appeal first considered whether the appeal to the Court of Queen’s Bench was on a question of law. The jurisdiction of the Court of Queen’s Bench on appeal from the Board is limited to such questions and was a threshold issue on which the Chamber’s Judge had to be correct. The issue before the Chamber’s Judge was with respect to the Board’s jurisdiction, which was a question of law. Therefore, the Chamber’s Judge had jurisdiction to hear the matter.
The Court then considered whether the chamber’s judge had selected the appropriate standard of review. The Court found that the decision was not jurisdictional (and thus not reviewable on a correctness standard without a requirement to conduct a standard of review analysis) despite the fact that the Board itself referred to its decision as one that concerned its jurisdiction. True jurisdictional questions are those which ask whether the tribunal’s statutory grant of power gives it the authority to make the enquiry. In this case, it was necessary to look at the entire statutory scheme to determine whether or not the question before the Board was jurisdictional. The Act gives the hospital boards the broadest possible mandate for controlling all aspects of hospital operations. The Legislature clearly intended to give hospital boards very comprehensive decision-making powers and the Board the power to decide questions that arise in the course of the hospital board’s operation of the hospital. The enabling legislation is clear that the Board is to decide questions pertaining to privileges. This was not the same sort of jurisdiction (or vires) questions referred to as “true” questions of jurisdiction. Consequently, a standard of review analysis was necessary.
The Court proceeded to a contextual standard of review analysis, per the Supreme Court of Canada’s decision in Dunsmuir v. New Brunswick, 2008 SCC 9. The Court concluded that deference was warranted and that the reasonableness standard governed a review of the Board’s decision.
The Court proceeded to apply the reasonableness standard to the Board’s decision. Reasonableness applies not only to the outcome of a tribunal’s decision but also to its “process of articulating reasons” and the “existence of justification, transparency and intelligibility within the decision-making process”. The notion of deference requires “a respectful attention to the reasons offered”. Here, the Board gave no reasons for its conclusion that the matter before it was not a question of privilege. Nor were any reasons for this conclusion apparent from the totality of its decision. There may be cases where the reasons for a tribunal’s decision are apparent from the totality of the record. This is unlikely to be the case when, as here, the decision has to be grounded on analysis of complicated statutory-type provisions that can only be understood in the context in which they operate. Without the benefit of the Board’s reasoning about how it employed its expertise to interpret its home statute, it was impossible to determine whether its decision was reasonable.
In the result, under s. 21(3) of the Act, the issue was remitted to the Board with a direction that it explain why it concluded that the decision not to vary the respondent’s OR time was not a question of privilege. The Court further ordered that the Reasons must be sufficient to allow for meaningful appellate review and answer the respondent’s “functional need to know” why the decision was made.
A dissenting member of the Court found that the Board’s decision was reasonable and would have allowed the Appeal and restored the decision of the Board.
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