The appellant Regina Qu’Appelle Regional Health Authority sucessfully appealed a lower court decision affirming a tribunal’s decision that the Health Authority acted unreasonably in the treatment of the respondent physician’s disruptive behaviour

Administrative law – Decisions of administrative tribunals – Health authorities – Physicians and surgeons – Disruptive behaviour – Penalties and suspensions – Judicial review – Appeals – Jurisdiction – Compliance with legislation – Standard of review – Correctness

Regina Qu’Appelle Regional Health Authority v. Dewar, [2013] S.J. No. 9, 2013 SKCA 3, Saskatchewan Court of Appeal, January 15, 2013, J.G. Lane, R.G. Richards and N.W. Caldwell JJ.A.

The respondent physician had a history of disruptive behaviour in the workplace. On May 10, 2010, the respondent was verbally and physically aggressive to a physician colleague. In respect of the respondent’s conduct, the respondent and appellant Regina Qu’Appelle Regional Health Authority entered into an agreement that the respondent would undertake assessment and treatment to address disruptive behaviour and anger management and in the event that the respondent exhibited angry, disrespectful or otherwise disruptive behaviour in the workplace, failed to attend for assessment, or acted in any way in breach of the agreement, the respondent would immediately resign from the staff of the Health Authority.

On September 27, 2010, the respondent again engaged in disruptive behaviour. The Health Authority determined that the respondent’s conduct toward another physician colleague was angry and disrespectful and under the terms of the agreement warranted acceptance of the respondent’s resignation.

The respondent appealed the Health Authority’s decision to the Practitioner Staff Appeals Tribunal.

The Tribunal found that it had jurisdiction to hear the appeal, notwithstanding that it arose out of the terms of the agreement, and that the Health Authority acted unreasonably in determining that the September 2010 incident triggered the acceptance of the respondent’s resignation because the Health Authority had not provided the respondent with sufficient time and a conducive environment for rehabilitation.

The Health Authority appealed the Tribunal’s decision to the Court of Queen’s Bench, pursuant to a statutory right of appeal under the Regional Health Services Act, S.S. 2002, c. R-8.2 (the “Act”). The lower court held that the Tribunal had jurisdiction and the Tribunal’s interpretation and application of the agreement fell within the range of reasonable decisions.

The Health Authority further appealed to the Saskatchewan Court of Appeal. Richards J.A. and Caldwell J.A., for the majority, held that the Tribunal had jurisdiction to consider the respondent’s case but that the Tribunal’s decision was unreasonable.

On the issue of jurisdiction, the Court of Appeal held that the question of jurisdiction is reviewable on a standard of correctness. Under s. 45 of the Act, the respondent had a right of appeal in relation to appointment, reappointment, suspension, or termination of appointment and in relation to discipline. Accordingly, while the respondent’s resignation took place within the framework of the agreement, it was within the broad scope of s. 45. The Health Authority had approved the agreement and the decision of the Health Authority to accept the respondent’s resignation was both in relation to the termination of an appointment and discipline; therefore, the respondent enjoyed a right of appeal under s. 45 and the Tribunal had jurisdiction to hear the matter.

In respect of the substance of the Tribunal’s decision, the Court of Appeal held that the Tribunal’s decision that the respondent had not been given sufficient time to deal with his behavioural issues and that the Health Authority failed to create a conducive environment for the respondent to remediate his behaviour were unreasonable. The Court of Appeal characterized the agreement as a “one last chance” arrangement, which required the respondent to undertake steps to address his behavioural issues. The respondent did nothing with the opportunity provided to him under the agreement and, in the circumstances, it was unreasonable for the Tribunal to find that the Health Authority failed to provide the respondent with “sufficient time” for rehabilitation. Further, the agreement did not impose any obligations on the Health Authority to make changes to the workplace or to otherwise address the conduct or behaviour of its staff; rather, the agreement was directed at the inappropriate conduct of the respondent and the need for the respondent to address his disruptive behaviour. Therefore, the agreement did not contemplate the Health Authority doing anything to create an environment conducive to the respondent rehabilitating himself and, on that basis, the Tribunal’s findings were disconnected from the terms of the agreement and unreasonable.

The majority allowed the Health Authority’s appeal.

Lane J.A. concurred on the issue of jurisdiction and dissented with respect to the substantive review of the Tribunal’s decision. Lane J.A. held that the respondent’s history of disruptive behaviour was not in issue following the September 2010 incident and, therefore, that incident on its own was insufficient to trigger the respondent’s resignation under the agreement. Further, the Tribunal’s finding that the respondent was not provided a reasonable opportunity to correct his behaviour was reasonable.

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

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