The Appellant Health Authority successfully appealed a decision of the Saskatchewan Court of Queens Bench which had upheld the decision of the Practitioner Staff Appeals Tribunal. The Tribunal had decided it could hear an appeal brought by the Respondent physicians, Drs. Kutzner and Blackwell relating to a reduction in their operating room time.

Administrative law – Decisions of administrative tribunals – Health authorities – Physicians and surgeons – Hospital privileges – Judicial review – Jurisdiction of tribunal – Standard of review – Reasonableness simpliciter

Prairie North Regional Health Authority v. Kutzner, [2010] S.J. No. 650, 2010 SKCA 132, Saskatchewan Court of Appeal, October 27, 2010, J. Klebuc C.J.S., J.G. Lane and R.G. Richards JJ.A.

The Respondents, Drs. Morley Kutzner and Thomas Blackwell, are physicians who had the right to practice at hospitals operated by the Appellant, Prairie North Regional Health Authority (the “Authority”).

The Authority was established pursuant to and is governed by the Regional Health Services Act. The Authority had difficulty retaining an ophthalmologist. In 2007, the Authority recruited an ophthalmologist, Dr. O’Keefe, who agreed to reside in the Authority’s region and provide a full range of ophthalmic services, including surgical services. Before Dr. O’Keefe’s arrival, Drs. Kutzner and Blackwell provided limited ophthalmological services to residents of the region. Both of Drs. Kutzner and Blackwell did not reside in the region. Dr. Kutzner was granted privileges in 1993, permitting him to perform general surgery and ophthalmic surgery (including cataract surgery). The only ophthalmic services he provided were cataract surgeries. Dr. Blackwell was granted privileges in 1995 permitting him to perform cataract surgeries.

The operating room time available for cataract surgeries in the region is limited by the funding provided by the Provincial Government. At the relevant time, the Authority’s budget permitted two surgical days per month at the Lloydminster Hospital and one surgical day per month at the Battlefords Union Hospital. When Dr. O’Keefe was admitted to the medical staff of the Authority, the Authority decided to reduce Dr. Kutzner’s allocation from two days per month at the Lloydminster Hospital to one day every second month. The remaining cataract surgery days were allocated to Dr. O’Keefe. Dr. Blackwell’s allocation of surgical days for cataract surgery was reduced to six days out of the twelve days available at the Battlefords Union Hospital. This was further reduced so that Dr. Blackwell was only allocated one surgical day every six months and the remaining days were allocated to Dr. O’Keefe.

Drs. Kutzner and Dr. Blackwell brought appeals to the Practitioner Staff Appeals Tribunal (“Tribunal”). The doctors relied upon the Tribunal’s jurisdiction to hear appeals in relation to the amending, suspending or revoking of privileges. The Authority argued that the Tribunal had no jurisdiction to entertain this appeal because the changing of operating room times was an administrative allocation of resources and not an amendment, suspension, or revocation of privileges. In a preliminary ruling, the Tribunal held that it could entertain the appeal. This decision was upheld in Chambers by a Court of Queen’s Bench judge. In the within appeal, the Authority sought to overturn the decision of the Chambers judge.

The court had to decide whether the Authority’s decision amounted to an amendment, suspension or revocation of their privileges within the meaning of the Act.

The Chambers judge appeared to rely upon the correctness standard. On the within appeal, the Authority argued that this standard was applicable because the question was one of jurisdiction. The court did not accept the Authority’s submission as the issue was not one of “true jurisdiction”. The court then considered other factors in order to determine the standard of review. There is no privative clause in the Act. However, the Tribunal enjoys a narrow and specialized mandate and the question in issue falls squarely within the scope of the Tribunal’s mandate and engages its expertise; the question is one that the Legislature intended to delegate to the Tribunal. The court concluded that the applicable standard of review is reasonableness.

The Authority argued that the term “privileges” mentioned in the Act refers only to the bare grant of authority to use services or facilities, such as operating rooms, and does not involve any question of the actual allocation of those services or facilities. Therefore, the Authority argued the Tribunal and the Chambers judge erred or acted unreasonably, in concluding otherwise. The court noted that the term “privileges” is not defined in the Act and therefore the court considered the entire context of the use of that phrase.

The court found that the Tribunal erred by ignoring the definition “privileges” found in the Attending Health Professionals Regulations and in the Authority’s Practitioner Staff Bylaws. Those definitions do not make reference to the allocation of surgical time or resources generally.

In the result, the court concluded that the context suggested the Legislature did not intend to create a regime in which each and every change to operating room allocations would give rise to a right of appeal to the Tribunal. The court therefore concluded that the Tribunal acted unreasonably in concluding that the Authority’s changes to the operating room times amounted to an amendment, suspension or a revocation of privileges. The court held that the Chambers judge also erred in failing to recognize the Tribunal’s error.

The Tribunal’s decision that it should hear the appeals of Drs. Kutzner and Blackwell flowed directly from its interpretation of the Act; it found that the change to the operating times meant that their privileges had been modified. Therefore, the Tribunal did not consider whether those changes amounted to an amendment, suspension or revocation of privileges in substance (i.e. where a physician’s allocation of facilities or resources is changed in a way that amounts to an amendment, suspension or revocation of the physician’s privileges). The court therefore remitted this matter to the Tribunal for reconsideration.

This case was digested by Scott J. Marcinkow of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at smarcinkow@harpergrey.com or review his biography at http://www.harpergrey.com.

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