MacDonald v Alberta Health Services, 2013 ABQB 404

Court of Queen ’ s Bench of Alberta Citation: MacDonald v Alberta Health Services, 2013 ABQB 404 Date: 20130717 Docket: 1301 03416 Registry: Calgary Between: Dr. Ian MacDonald Applicant - and - Alberta Health Services, Covenant Health and the Minister of Health Respondents _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice S.L. Martin _______________________________________________________ 1.

Introduction [ 1 ] On March 25, 2013, the obstetrical unit at the Banff Mineral Springs Hospital (the “ Banff Hospital ” ) was closed and relocated through consolidation to the Canmore General Hospital (the “ Canmore Hospital ” ), some 25 kilometers and 18 minutes away. Babies would only be delivered in the Banff Hospital on an emergency basis and low-risk obstetrics patients, physicians and families from Banff would become obliged to go to the Canmore Hospital. Moderate and high risk patients would continue to be sent to Calgary for delivery as they were prior to March 25, 2013 .

This decision was said to be part of an overall rationalization of medical services in the Bow Valley Corridor, an area that includes Banff and Canmore plus several smaller communities. At the same time, all vascular surgery and cosmetic surgery were transferred from Canmore to Banff. Dr. MacDonald is a physician who works as part of a medical clinic in

Banff. His wife and partner, Dr. Fowke, performed all the deliveries that took place at the Banff Hospital in 2012. Even though the affected Banff physicians have privileges in the Canmore Hospital, Dr. MacDonald claims that there was inadequate consultation before such an important decision was made. He seeks to quash and stay the part of the decision that moved the obstetrical unit to Canmore, citing a lack of procedural fairness that may result in safety risks to mothers and babies. 2.

Procedural History, Evidence and the Nature of the Application [ 2 ] The Applicant seeks an order in the nature of certiorari to overturn the Alberta Health Services decision to close the obstetrics unit at the Banff Hospital (the “Decision”). Alberta Health Services (“AHS”), is a separate legal entity from Alberta Health (the “Minister”). AHS is the successor to the former nine regional health authorities and is responsible for overseeing the planning and delivery of health supports and services to Alberta residents.

AHS is the regional health authority for the entire Province of Alberta: Minister of Health and Wellness, Ministerial Order #50/2008, (15 May 2008) and Minister of Health and Wellness, Ministerial Order #93/2008, (19 November 2008). [ 3 ] The responsibilities of AHS are set out in s 5 of the Regional Health Authorities Act , RSA 2000, c R-10 [ RHAA ]: 5 Subject to this Act and the regulations, a regional health authority (

a) shall (

i) promote and protect the health of the population in the health region and work toward the prevention of disease and injury, (ii) assess on an ongoing basis the health needs of the health region, (iii) determine priorities in the provision of health services in the health region and allocate resources accordingly, (iv) ensure that reasonable access to quality health services is provided in and through the health region, and (

v) promote the provision of health services in a manner that is responsive to the needs of individuals and communities and supports the integration of services and facilities in the health region, and (

b) has final authority in the health region in respect of the matters referred to in clause (a). [ 4 ] Covenant Health is a separate organization that owns and operates the Banff Hospital under a Cooperation and Services Agreement , permitted under s 15 of the RHAA and entered into on December 2, 2010. Despite the fact that the decision to move obstetric services to Canmore was made jointly by AHS and Covenant Health, AHS bears final authority in respect of the provision of health care services in the region under s 5(

b) of the RHAA . [ 5 ] The Minister is ultimately responsible for decisions and actions relating to health services in Alberta under s 16 of the Government Organization Act , RSA 2000, c G-10. In addition, the RHAA gives the Minister broad authority over AHS. [ 6 ] When appropriate these three entities will be referred to collectively as the decision makers. [ 7 ] Two Certified Records of the Proceedings were produced: one from AHS and one from Covenant Health. Documents date from 2008 and some were repeated in both Records.

The Records contain planning documents, minutes from various committees meetings, notices and advertisements, various agreements, PowerPoint presentations, hospital data, rules and PowerPoint regulations, and a question from the Alberta Hansard about the consultation process. [ 8 ] Dr. MacDonald supplied an affidavit sworn and filed on March 21, 2013 that explained that he is a medical doctor who has practised general surgery and emergency medicine in Banff for over 20 years.

He is one of the principals of the Banff Alpine Medical Clinic, where doctors have been providing obstetrical care for patients of the Bow Valley since 1988. The Banff Mineral Springs Hospital had provided obstetrical care since 1886. It is said to be fully modern and equipped with 2 surgical units. Dr. MacDonald outlined the ways in which he believed the Banff obstetrics practise was extremely safe and effective, citing a markedly lower caesarean

rate and perineal tear rate than those obtained in Canmore. [ 9 ] Dr. MacDonald stated that normally, obstetrical issues at the Banff Hospital were traditionally dealt with at regular monthly meetings of a body called the Acute Care Liaison Committee. He stated that he was first summoned in December 2012 to a meeting with the Banff Hospital administration where it was announced that the obstetrical unit would be closed effective March 25, 2013. It is his testimony: “Neither I, nor anyone actively involved in obstetrics in Banff- with the possible exception of Dr.

Edgar, who is now practising in Canmore- were consulted in any way prior to the decision being announced.” He averred that he would have reasonably expected such a consultation to have taken place prior to the decision being made. It is his view that as a result of the decisions being made, pregnant women in Banff will be at an increased risk. As a general statement he said that “removing local maternity services increases maternal and neo-natal risks”. It is his belief that the decision to close the obstetrical unit was based on economic issues alone.

He says that he will undertake to be liable for damages to allow a delay such that proper and full consultation takes place. [ 10 ] Three affidavits were filed on behalf of the Respondents, all sworn April 19, 2013. No issue was taken with respect to the Respondents filing affidavits in addition to the Records. The affidavits came from Dr.

Robert Douglas Wilson, the Zone Clinical Department Head of Obstetrics for the Calgary Zone of AHS, which includes Banff and Canmore; David Russel Shorten, the Executive Director, Rural Health and Facilities, Calgary Zone of Alberta Health Services; and Cindy Mulherin, the Executive Director of Covenant Health at the Banff Hospital. [ 11 ] There was no cross-examination on any of the affidavits. [ 12 ] At the outset it is important to emphasize that Dr. MacDonald does not challenge the merits of the decision to move the obstetrics unit to Canmore, although he referred to health risks and cost considerations.

Much of the material in the Records and in the Respondents’ affidavits addressed their reasons, research and thinking, with extensive contrary evidence on the concerns raised by Dr. MacDonald. For example, both Records and the expert opinion evidence spoke to patient safety and the importance of maintaining a critical mass of obstetrical patients to ensure that health care providers maintain and develop their skills in this area. Ms.

Mulherin explained that the number of deliveries done in Banff were reducing and those in Canmore were growing: the total number of deliveries in Banff were 108 in 2008; 85 in 2009; 103 in 2010; 110 in 2011; and 51 in 2012. The total number of deliveries in Canmore increased over the same time frame from 187 in 2008; 249 in 2009; 240 in 2010; 224 in 2011; and 267 deliveries in 2012. All deliveries in Banff in 2012 were done by Dr. Fowke.

The low volume of births meant that it was difficult for nurses to maintain their skill level and confidence and they could not fill nursing vacancies because of the need to have skills in obstetrics. In 2009, the obstetrical program in Banff was temporarily suspended for 5 months due to insufficient nurse coverage for obstetrics. During that time no expectant mother was unable to reach Canmore and no emergency cases presented in Banff.

In response to the issue of increased travel times, there is evidence that Canmore Hospital and the Banff Hospital are only about 24.5 km apart (which is approximately an 18 minute drive). Expectant mothers in the Calgary Zone and across Alberta frequently have to travel more than this distance to safely access obstetrical service. [ 13 ] The affidavit of Dr.

Robert Wilson, the Calgary Zone Clinical Department Head of Obstetrics for AHS, and the Head of the Department of Obstetrics and Gynaecology and Medical Genetics at the Faculty of Medicine at the University of Calgary pointed out that the caesarean rates between both hospitals are not substantially different, that caesarean rates are not a good indicator of the quality of medicine and the use of perinatal tear rate as a measure of patient safety is unreliable as the recording is very dependent on the physician’s quality and accuracy of documentation.

He was of the view that moving all obstetrical services to Canmore will allow staff and physicians to acquire new specialized skills more often with an increased number of deliveries, which is vital for patient quality, safety, staffing, and sustainability. [ 14 ] While a list of pros and cons on the proposal prepared by Covenant Health suggested the decision “[m]ay not be cost neutral”, Ms. Mulherin attested that the steps taken are cost neutral and were done in the best interests of patient care and sustainability of obstetrics in the Bow Valley Corridor, and not to save money.

As the merits of the decision are not in dispute the court need not weigh or assess this evidence. [ 15 ] In this application Dr. MacDonald limits his challenge to the consultation process: arguing that the decision to close the obstetrics unit of the Banff Hospital was made without necessary, appropriate and meaningful consultation with what the Applicant refers to as the “interested parties”, defined as affected physicians, nursing staff, interested parties, and the community at large.

He argued that AHS and Covenant Health ought to have identified all interested parties affected by this decision and met with them in advance of the Decision in order to have meaningful consultation. In addition and specifically, he argues that both he and the body known as the Acute Care Liaison Committee at the Banff Hospital should have been consulted. 3. Issues

[16] Three issues arise: First, does Dr. MacDonald have standing to challenge the Decision? Second, if yes, when was the Decisiontaken and what, if any, prior consultation occurred? Third, did the level of consultation concerning the closure, if any, meet theprocedural requirements of fairness? A. Does Dr. MacDonald have standing to challenge the Decision? [17] The Respondents argue that Dr.

MacDonald lacks both personal and public interest standing to bring this application.Standing refers to who may come to court and make arguments and the Respondents have produced various authorities, which I haveread and considered. Onischuk v Alberta, 2013 ABCA 129 is cited in support of the Respondents’ position that Dr. MacDonald has noprivate standing or public interest standing; that without standing, Dr.

MacDonald is merely a “busybody litigant”. [18] Alberta Liquor Store Association v Alberta (Gaming and Liquor Commission), 2006 ABQB 904, 406 AR 104 [Alberta LiquorStore] is further cited to support the Respondents’ position that a litigant requires standing. Personal interest standing and public intereststanding are the two types that are referred to in this case.

It is further argued that in order to establish personal interest standing, aperson must be a “person aggrieved” or that person will suffer some “peculiar grievance of their own beyond some grievance suffered byhim in common with the rest of the public”. The Respondents’ refer to Real Estate Council of Alberta v Henderson, 2007 ABCA 303,417 AR 39, where the Court of Appeal at para 16 states: The aggrieved person category is undefined and deliberately so. Much will depend on context. As Slatter, J. (as he then was) observed inAlberta Liquor Store Association et al. v.

Gaming and Liquor Commission (Alta.) et al., 2006 ABQB 904 , [2006] A.J. No.1597; 406 A.R. 104; 2006 ABQB 904 at para. 9: “The courts have always weighed a number of factors in determining whether a party is ‘aggrieved’. An important factor is ‘therelationship between the applicant and the challenged decision’, or how directly the challenged administrative act will affect the legally-recognized interests of the applicant. ...

There is no finite list of interests that the law will recognize in determining issues of standing, butbusiness, professional, employment and property interests have traditionally been recognized.” [19] The Respondents’ position is that Dr. MacDonald is not a “person aggrieved” and therefore lacks standing on that basis. [20] The Respondents’ also submit that there is no public interest standing. The test for granting public interest standing isimported through Canada (AG) v Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45 at para 37, [2012] 2SCR 524.

The Respondents’ submit that there is no “serious justiciable issue” as Dr. MacDonald is not challenging the merits of theDecision, but rather a deficiency in the consultation process. [21] Dr. MacDonald’s counsel did not respond to such allegations, arguing that standing was obvious. [22] While not obvious, I have found that, on balance, Dr. MacDonald does have standing as a person aggrieved by the Decision.Issues of standing require a contextual determination. The Applicant practices within a medical group and the closure will directlyimpact the manner in which they are able to treat their patients.

While families in Banff will be generally affected, the potential impactsare increased as a physician has multiple patients. The Applicant comes forward on the basis of an asserted legitimate expectation andthis helps support the existence of a “peculiar grievance” of his own, beyond some grievance suffered by him in common with the rest ofthe public. See Alberta Liquor Store at para 8. While Dr. Fowke may be more directly affected and the common law identity of husbandand wife no longer exists, they also practice together.

Many of his interests are affected by the impugned administrative decision:including economic, personal, professional, and employment interests. Such remains the case even if he and other Banff physicians mayalso have hospital privileges in Canmore and knowing that he does not personally practice in obstetrics, although there was an indicationin the Record that he performs caesarean sections. [23] Although it is not necessary to decide this issue, Dr.

MacDonald may also have been able to base his standing on publicinterest factors: Canada (AG) v Downtown Eastside Sex Workers United Against Violence Society at para 37. There is a seriousjusticiable issue, he has a real stake and genuine interest and, in all the circumstances, the application at bar is a reasonable and effectiveway to challenge the Decision, even if the only ground raised is an alleged absence of procedural fairness. Dr. MacDonald meets the

components for the applicable test: he has resources, this is a matter of public interest and taking a practical and pragmatic view, the court is an appropriate forum. I will therefore proceed on the basis that Dr. MacDonald has a sufficiently substantial interest and is prejudicially affected by the Decision. B. When was the Decision taken and what, if any, consultation took place ? [ 24 ] On December 11, 2012, Dr. MacDonald and Dr. Fowke were called to a meeting and personally informed of the Decision. On that same day, the Decision was made public and an extensive public communication campaign commenced.

Many things had happened before then. [ 25 ] The Records and evidence indicate that the idea to have one facility for obstetrics in the Bow Valley Corridor was not a new one and that the process leading up to the Decision progressed through various phases: moving from idea through to recommendation, study and then acceptance by those who with the authority to both decide and implement the Decision. There were many different levels and layers of discussion and decision making, and multiple parties were involved.

The Record outlines the organizational chart of the various bodies and their respective roles and responsibilities. The Covenant Health Record contains excerpts of meetings of its Senior Management Group Medical Advisory Group, the Medical Advisory Committee and the Acute Care Liaison Committee that relate to subject matter of this litigation. [ 26 ] As early as 2010, the Medical Advisory Committee at the Banff Hospital was interested in looking into obstetrical services and the low risk clinic being established in Canmore.

The January 10, 2010 Minutes from the Medical Advisory Committee state: Cindy spoke of communication with Dr. Congdon, who has agreed that a meeting needs to occur with Dr. Edgar and the other physicians involved in Obstetrics. All agreed that there needs to be one site for Obstetrics in the Bow Valley, with the resources being consolidated. [ 27 ] It appears that Dr. Edgar who delivered babies in Banff at that time was at those meetings and eventually she moved her deliveries to Canmore before the Decision was made or announced. Dr.

Shigeishi, a physician who also worked at the Alpine Medical Clinic, was also at that meeting. [ 28 ] Covenant Health prepared a time line in its Record which described that in January and March 2010 it consulted with about 60 people, including members of the community and 25 health care providers, in relation to overall planning and priorities for health care in the Bow Valley Corridor. The Timeline outlined that: “Recommendations developed based on two consultations with the view of two hospitals 22 km apart serving two communities and a large visitor population.

Recommendations included consolidation of Surgery, Obstetrics, Medicine, and Endoscopy.” [ 29 ] The 2011 Community and Rural Health Planning Framework recommended the need to further consolidate services between Canmore and Banff. While this provided a framework, the particulars of what would be moved when and where were left to another date. [ 30 ] In 2011, Covenant Health and AHS started a joint planning process to create a three year service plan for health care in the Bow Valley Corridor.

This joint planning process involved a small Core Project Management Group consisting of: Maz Rahman, the Project Manager of Community and Rural Planning with AHS; Barb Shellian, AHS Director of Bow Valley Community and Rural Health, which includes Canmore General Hospital; and Cindy Mulherin, the Executive Director of Covenant Health. [ 31 ] The September 12, 2011 Minutes of the Medical Advisory Committee state that: Dr. Edgar has met with Dr. Congdon and Cindy Mulherin and Dr. Anderson have met with the AHS team regarding the issue of Obstetrics in the Bow Valley.

Some ongoing work needs to occur with respect to this issue - there has been agreement at Covenant Health and AHS to move forward with a decision regarding obstetrics. A low-risk obstetrics clinic has already opened in Canmore. There is an understanding between Covenant Health and AHS Calgary zone that a template for Bow Valley service rationalization needs to be developed to move this forward. To remain on the agenda until a resolution has occurred.

[ 32 ] On December 12, 2011, the Medical Advisory Committee noted that ongoing meetings were occurring surrounding obstetrics in the Bow Valley. [ 33 ] The Minutes dated December 13, 2011 of the Senior Leadership Team of Covenant Health state: 9.0 Obstetrics services in Banff -Suggestion is that obstetrics will move to Canmore and that plastics and vascular services will move to Banff as of April 1, 2012. Going to the Minister of Health for approval. SLT supports the direction. -Communication is developed based on announcing the decision.

Need to make a comm. plan incase [sic] information is spread before official announcement is made. [ 34 ] Minutes from this same group on December 20, 2011 state: “Moving forward with Banff/Canmore changes in service. On pause until the Minister of Health can review their first week of January. Physician groups on Banff are onside with the changes.” [ 35 ] Dr. MacDonald argues that the Decision was taken around this time, when there had been no consultation at all. I do not think this is an accurate assessment.

Moving obstetrics to Banff is put forward as a “suggestion” only and many more steps were both taken and required before the Decision could be pursued further. What this statement shows however, is that AHS and Covenant Health had agreed upon a desired direction. [ 36 ] On February 9, 2012, in Canmore, and on February 16, 2012, in Banff, the Core Project Management Group held what it called “Community Engagement Sessions” with the purpose of gathering qualitative data from stakeholders in the medical and broader community. Participants came by invitation and eighty-one individuals attended these meetings.

Copies of the invitation and slide presentation were in evidence. The overall goal of these sessions was to use this information to inform the development of a three year service plan for the area. [ 37 ] Documents from these meetings show that these sessions were attended by a mixture of community, staff, physicians, elected officials, and community groups. These consultations addressed general topics and priority setting from a high level of abstraction. Topics included: 1. Optimization of Resources and Facilities within Bow Valley Corridor 2. Mental Health/Addictions and STI Prevention 3.

Options for Senior’s/Community Housing 4. Access to Services 5. Transportation Issues [ 38 ] At these Community Engagement Sessions, no concrete or specific suggestions were discussed about how to implement any of these topics, like optimization. Specifically, the session materials contain no reference to closing the obstetrics unit in Banff. [ 39 ] The Applicant and Dr. Fowke attended the evening meeting in Banff on February 16, 2012.

The Respondents point to the evaluation forms they completed about that session to show that they found the session valuable, they were able to contribute ideas, they felt listened to, and the information provided reflected the health needs of the community. With respect, their evaluations of this session have very little probative value and in no way limit their ability to now criticize the process employed. Their answers were snapshots in time on particular questions. Saying a discussion was well organized does not prevent that person from later impugning subsequent actions taken by the organizing body.

At that time, the discussion addressed goals like creating critical mass, and seeking better integration between sites and communities. The discussion did not concern the particular decision currently under dispute.

[ 40 ] However, it is clear from a screen capture from February 1, 2012 from Dr. MacDonald ’ s Alpine Medical Clinic asking people to “ come out and support our local hospitals to keep programs such as obstetrics, ” that he had specific knowledge of the types of matters at stake in the more general discussions. This reference shows some actual knowledge that changes were being contemplated with respect to obstetrics at the Banff Hospital. [ 41 ] On April 12 and 18, 2012, two smaller workshops, again by invitation, were held in Banff and Canmore respectively.

In attendance were about 21 people, including representatives from Addiction and Mental Health, Family and Community Social Services, Banff Emergency Services, Bow Valley Primary, Banff Family Medicine, and Directors and lead Physicians from both hospitals, as well as clinical management staff from both hospitals. These workshops were intended to recommend steps based on the priorities established by the prior Community Engagement Sessions. The top priorities for the region were said to be the optimization and coordination of services between Banff and Canmore.

One recommended step discussed at these workshops was the consolidation of obstetrics at the Canmore Hospital and the transfer of vascular and plastic surgery services to the Banff Hospital. [ 42 ] Working groups then developed concrete plans to implement the recommended steps. Minutes of the Medical Advisory Committee from April 16, 2012 reiterate that the next step in the process was to implement specific working groups to address the five priorities under the Three Year Service Plan, which they thought would take place by the end of May 2012.

They envisaged that the largest and most difficult of the priorities “will likely be the optimization of services / facilities.” [ 43 ] On May 14, 2012, that group discussed the composition of the Optimization of Services Working Group and their desire to invite a physician to be a part of that group. [ 44 ] AHS says that Dr. David Megran, the Executive Vice President and Chief Medical Officer, Clinical Operations of AHS and Chris Mazurkewich, the Executive Vice President and Chief Operating Officer of AHS made the Decision on behalf of AHS.

An internal AHS email on June 14, 2012 about the consolidation stated: “ we are to proceed ” and “ [d]iscussions with Docs to proceed. ” [ 45 ] On July 17, 2012, the Covenant Health Senior Leadership Team Meeting Minutes state: 8.0 Banff Service Changes -Service change announcement scheduled for today and tomorrow put on hold. -Need to get official approval from the Minister’s office to make the changes. -Will look at rescheduling announcement for the end of August if approval has been received by then. -Increasing numbers of people know about the changes.

Need to have key messages as a contingency plan incase [ sic ] changes are leaked before the formal announcement. [ 46 ] From my reading of the record, a firm decision had been taken in August 2012 to take the steps necessary to move obstetrics from Banff to Canmore, including securing the Minister’s approval. [ 47 ] By August 23, 2012, a Briefing Note submitted by Cindy Mulherin from Covenant Health states that: Potential engagement activity that may be needed at this point is clearly not about seeking input into the decision to relocate services but to inform.

In collaboration with AHS, Covenant Health will develop a timely and responsive communication plan of the decision to relocate services to ensure that accurate information is available to those who are most affected by the changes and that it is tailored where appropriate to different stakeholder groups. [ 48 ] The Core Management Project Group worked with others and by the fall of 2012 had developed 2 documents: A Picture of

Health Three Years Service Plan and the Supplementary Document of Appendices. The draft Three Year Service Plan was developed and sent to those who participated in the workshops for feedback. [ 49 ] Only the Final Three Year Service Plan dated August 2012 was in the Record. On page 30 a “Potential Solution” would be “to identify overlaps and potential benefits/risks”.

As an action item it stated: “Complete scan of current surgeries/surgeries at each site and determine potential “quick wins” that lie in moving certain programs to a specific site.” These included: “Moving gynecology and obstetrical services exclusively to Canmore” and “Moving plastic surgery and vascular surgery to Banff”. [ 50 ] Around October 25, 2012, the Service Plan and Appendices were posted publicly on the AHS website. [ 51 ] In Minutes dated September 11, 2012, it was noted that any shifts in service between Banff and Canmore would be based on consultations, working group recommendations and “will be subject to Ministerial approval”. [ 52 ] Minutes from the Bow Valley Working Group on September 13, 2012 said that the agreed upon priorities were, among others, moving gynaecology and obstetrical services exclusively to Canmore.

However, prior to implementation they decided to list the pros and cons of such a move and to outline the anticipated and actual risks to strategy implementation. This was identified to be the focus of the next meeting, and such a list is in the Record from the Working Group dated October 28, 2012. [ 53 ] After the intention to proceed with the decision was widely announced in December 2012, the evidence shows an extensive public relations campaign to explain why AHS and Covenant Health believed this decision improved the health and safety of women and children. Mr.

Shorten testified that AHS and Covenant Health provided months of advance notice to patients and the public about the consolidation of obstetrical services to Canmore beginning in December 2012. Information was given to pre-natal class organizers and there were announcements in the Banff Crag and Canyon, the Canmore Leader, and the Rocky Mountain Outlook, throughout January, February, and March. Materials were also available on the website.

The consolidation is explained and individuals are invited to : “ learn more about our plans and we would like to hear from you at the number and email below. ” [ 54 ] Most of these announcements explain a decision already taken and only as a secondary matter seem to solicit input.

People are invited to learn more about the transition of health services or to ask questions but at this point in time the decision had already been made. [ 55 ] According to the November 30, 2012 Communication Plan by both AHS and Covenant Health about the consolidation of Obstetrical and Plastic and Vascular Surgery in the Bow Valley Corridor, there was to be continued engagement with the community but the next steps were to enhance community understanding and “[p]rovide further opportunity for health care leaders to interact with key stakeholder groups to hear from them on their issues and any concerns that may influence their understanding, acceptance of and adjustment to the consolidation of services.” As the words accept and adjust suggest, any contact subsequent to the Decision having been taken appeared to be intended to explain and justify their decision, and not to consult on its acceptability, wisdom or impacts. [ 56 ] Dr.

Fowke provided feedback on the Decision to Covenant Health between January 8, 2013 and March 19, 2013, prior to the closure of the obstetrics unit at the Banff Hospital. She criticized the failure to speak with her and the increased risks to patients by the move. Ms. Mulherin was of the view that none of the information or points raised by Dr.

Fowke were new to the decision makers or sufficiently persuasive to change their approach. [ 57 ] A further meeting was held in Banff on February 13, 2013 after over 1,200 persons residing in Banff and other locations expressed their disappointment and dissatisfaction with the planned withdrawal of obstetrical service from the Banff Hospital. A petition was signed and a letter sent to the Minister requesting the reinstatement of obstetrics in Banff. The letter criticized the process for being behind closed doors and by invitation only and for failing to take into consideration the needs of the community.

It asked AHS to reconsider its decision. [ 58 ] The claimed purpose of that community information session, entitled “Let’s Talk” on February 13, 2013 was to hear and

respond to community concerns and questions about the planned changes to obstetrics, vascular surgery and plastic surgery. Despite itstitle, this session looked like a further opportunity for the decision makers to explain why they thought this plan was in the best interestsof women, children and families. Ms. Mulherin testified that they received no new or persuasive information at that meeting which ledthem to change course. [59] Ms. Mulherin stated that Dr. MacDonald did not, to her knowledge seek further information or provide his input on theDecision. C.

Did the level of consultation concerning the closure meet the procedural requirements of fairness? [60] Dr. MacDonald argues that the process was flawed and advances two different arguments. First, that he had a legitimateexpectation that he and the Banff Hospital Acute Care Liaison Committee would be consulted before the Decision was made.

Second, amore general claim that the process of consultation was insufficient as it failed to include all interested parties, as he has defined thatterm. [61] The Respondents each use a different legal means to reach the shared conclusion that there was no obligation to consult withDr. MacDonald in respect of this health care decision. [62] AHS invokes the position that a duty of procedural fairness is subject to the relevant contextual considerations of theparticular case.

The factors as set out in Baker v Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2SCR 817, 174 DLR (4th) 193 [Baker], were reviewed to support the position that a duty of fairness requires only minimal proceduralsafeguards in this case. In particular, they maintain the position that there was no duty to consult Dr. MacDonald, and further there wereno legitimate expectations that gave rise to such a duty. Their position is such that Dr. MacDonald and Dr. Fowke hold no specialposition where there would be an obligation to consult them in a manner different than the rest of the community at large.

Canada (AG)v Mavi, 2011 SCC 30 at para 68, [2011] 2 SCR 504 [Mavi] is cited to support AHS’s position that a legitimate expectation can only arisewhen representations made are “clear, unambiguous and unqualified”. [63] Covenant Health invokes the doctrine of legitimate expectations as set out in Canadian Union of Public Employees v Ontario(Minister of Labour), 2003 SCC 29, [2003] 1 SCR 539. Their position is that a legitimate expectation of consultation is dependent oncontext. Here Covenant Health submits that Dr.

MacDonald must provide evidence of clear, unambiguous and unqualified establishedpractices, conduct or representations giving rise to his expectation. They continue by stating that no such evidence was provided andfurther that no representations were made to give rise to a legitimate expectation of consultation. [64] Covenant Health continues by distinguishing Bar C Ranch and Cattle Co v Red Rock Sawmills Ltd, 2004 ABQB 170, 48 CPC(5th) 107 [Bar C Ranch], which is used by Dr. MacDonald to argue that a duty of meaningful consultation may become necessary wherecontroversy and contentiousness of a decision arises.

It is submitted that in Bar C Ranch, an explicit promise was made in writing.Covenant Health takes the position that the passage in this case which Dr. MacDonald relies upon is obiter. AHS also addresses thisargument in their brief by distinguishing this case on the basis that no clear and unambiguous representations were made to Dr.MacDonald to give rise to a duty to consult. [65] The Minister’s argument is similar in that it reaches the conclusion that a duty to consult through legitimate expectations didnot arise.

It is submitted that nothing in the RHAA, nor any other legislation gives rise to a duty to consult Dr. MacDonald. As with theother Respondents, the Minister also reiterates the argument that Dr. MacDonald cannot point to any specific representations that weremade to him to create a legitimate expectation which gives rise to a duty to consult. i. Did Dr. MacDonald have a Legitimate Expectation of Consultation? [66] It is important to recognize that the term “legitimate expectations” has a legal meaning different from its common placeunderstanding of what a person may reasonably anticipate.

Many people may understand why Dr. MacDonald reasonably anticipatedthat he and others, including the Acute Care Liaison Committee and Dr. Fowke, would have been consulted about moving obstetrics toCanmore. They were a small group of service providers with years of hands on experience and personal knowledge about the needs oftheir patients in Banff and the safety of the procedures they performed. They no doubt had valuable information about ways to improvehealth care in the Bow Valley Corridor. Those who actually deliver a service are uniquely well situated to provide input about what

problems exist, what solutions are responsive to those problems and to assess the consequences, even the unintended externalities, thatmay arise from a proposed course of conduct. It is often important to have a 360 degree view of any proposed decision and wideconsultation tends to improve the quality of the eventual conclusion, as well as ensuring that people have had the opportunity to providetheir views. From the point of view of common sense, good management, and sound human relations, it is easy to appreciate why Dr.MacDonald feels the situation could have been handled differently.

During argument counsel could not provide an adequate answer tothe simple question of why there was no specific, personal and direct consultation with the physicians in Banff who would be directlyaffected by this decision. [67] However, the issue before me is not what ought to have been done to promote the best or most inclusive decision possible.Rather, the Court’s focus is restricted to what the law establishes as the requirements for procedural fairness.

Under the legal doctrine oflegitimate expectations, the applicant must show that there was a particular promise or representation that a certain process would befollowed and it was not. [68] The principle of legitimate expectations is part of natural justice and procedural fairness and affords a party affected by thedecision of a public official an opportunity to make representations in circumstances in which there otherwise would be no suchopportunity.

The Supreme Court in Reference Re Assistance Plan (BC), (SCC), [1991] 2 SCR 525 dealt with thisdoctrine in the context of a constitutional dispute between the Provinces and the Federal government. The particular issue was whetherthe doctrine of legitimate expectations applied to prevent the Cabinet from introducing a money bill. In that case, the Court was clear thatwhere applicable, the doctrine cannot create substantive rights: but only creates a right to make a representation or to be consulted,without fettering the decision maker’s authority.

The Court held that the doctrine did not apply in that case because what was at issue inthat case was the introduction of a law into the legislative process. [69] The doctrine has its origins in the 1990 decision of the Supreme Court of Canada in Old St Boniface Residents Assn Inc vWinnipeg (City), (SCC), [1990] 3 SCR 1170 at 1204: The principles developed in these cases is simply an extension of the rules of natural justice and procedural fairness.

It affords a partyaffected by the decision of a public official an opportunity to make representations in circumstances in which there would otherwisewould be no such opportunity.

The Court supplies the omission where, based on the conduct of the public official, a party has been led tobelieve that his or her rights would not be affected without consultation. [70] In Baker, the Court stated that where a claimant has a reasonable expectation that a certain process would be adhered to, or acertain substantive promise has been made, then the duty of procedural fairness requires the administrative body to accord moreextensive procedural entitlements. [71] Legitimate expectations can only arise when there are representations made by an official “within the scope of his or herauthority to an individual about an administrative process that the government will follow”: Mavi at para 68.

Furthermore, therepresentation must be “clear, unambiguous and unqualified”: Mavi at para 68. [72] Dr. MacDonald does not come forward with evidence that he was ever promised a particular form of consultation in relationto the impugned decision. While the Record shows there was some discussion about how consultation should occur, nonetheless Ms.Mulherin averred that neither she, nor to her belief anyone else from Covenant Health ever made any promises or commitments to Dr.MacDonald or Dr. Fowke that their personal perspectives or interests would be sought out separately from the community engagementconsultation.

The uncontroverted evidence is that no promises, commitments or representations were made to the Applicant or Dr.Fowke that their views would be sought outside the community engagement sessions or that provided grounds to lead the Applicant tobelieve that his rights would not be affected without consultation. There is also no evidence of any such promises to others. [73] In my view, Bar C Ranch can be distinguished from the case at bar. First, that decision arose in the context of an applicationfor an injunction where the applicable principles involved the tripartite test for an injunction.

The test involved only the raising of aserious issue to be tried and there was never subsequent litigation to determine what had in fact occurred. Second, that case dealt with thecompeting economic interests of claimants who held some form of property rights to the public lands at issue. That applicant held landand various permits. Third, there was a letter written to that applicant outlining a particular process to be followed.

The Lands and ForestService informed that applicant that it would be conducting surveys for harvesting forests on lands it leased from the Crown as a firststep and would be contacting it to give it an opportunity for comments and recommendations. Four meetings were held and the AssistantDeputy Minister, Public Lands and Forestry Division of Sustainable Resource Development (SRD) sent a further letter stating that bothwould be given the opportunity for further input once the detailed block plans had been designed.

The Court found that there was nonew opportunity for input after that letter except that which arose from the process already set in motion before that letter was written. In

that case, there was a clear and unambiguous representation that a certain process would be followed. The Judge in that case found that “clear and unambiguous words” in a letter to the applicant from the Assistant Deputy Minister responsible “left ... no other impression but that [the applicant] would have an opportunity to provide input directly to SRD on what was ultimately to transpire”: Bar C Ranch at paras 60 and 68, respectively.

On the basis that this was a representation made to the applicant that raised a legitimate expectation of further consultation that had not been met, the motions judge found there was a serious issue to be tried. In the case at bar, there were no such clear and unambiguous representations made to Dr. MacDonald concerning consultation with him or to others. [ 74 ] Dr. MacDonald also relied upon Bar C Ranch to support the position that where there is a legitimate difference of view, the decision maker cannot simply gather information and make a decision.

The Applicant read that decision as establishing an increasing duty to consult as the extent of the controversy rises. The Record indicates that AHS and Covenant Health were well aware, throughout the process, that any decision to move obstetrics from Banff to Canmore would meet with resistance even significant opposition. However, even significant resistance does not create a representation when none was made.

Further, while controversy may increase the political stakes, in the circumstances of the case at bar it does not create or augment any legal obligation to consult. [ 75 ] Nor can it be said that there was any representation, or even an implicit undertaking arising from past practice, that the Acute Care Liaison Committee of the Banff Hospital would have been consulted. Under this argument and in relation to any general duty to consult, there was no legal obligation to consult with the Acute Care Liaison Committee at the Banff Hospital.

The Acute Care Liaison Committee at Covenant Health is a committee that includes members of the medical staff, management, nursing staff, and pharmacy staff of the hospital. The Respondents claim it is a forum for discussion, not a decision making body for selecting which services and programs are offered.

It is a forum for information and problem solving for those who work in the acute care unit. [ 76 ] My reading of the terms of Reference of the Acute Care Liaison Committee and the Minutes from the Acute Care Liaison Committee in the Record for June 20, 2011; January 24, 2012; June 4, 2012; and October 4, 2012, confirm that this body was more concerned with the “how to” aspects of nursing and medical practice. This standing committee, which reported through its Chair to the Medical Advisory Committee, was responsible for the “planning, organization and quality improvement of patient care on the Acute Care unit”.

Dr. Fowke was a member of the Acute Care Liaison Committee at the Banff Hospital. Dr. MacDonald was not. The Minutes are directed to such topics as training, skills, drills, in service requirements, staffing issues, and coverage when a physician is not available. However, there was also a note on October 4, 2012 about the work of the Optimization of Services Working Group, but it appeared to be reporting information rather than seeking advice or input.

In sum, the Record does not indicate that the Acute Care Liaison Committee performed a policy or decision making role, even if practice issues concerning obstetrics had been discussed in the past, such that it would have a legitimate expectation that it would be consulted. [ 77 ] The Medical Advisory Committee at the Banff Hospital is the committee charged with, among other things, considering programs and services at the hospital and is the more policy based body . The Chair of the Acute Care Liaison Committee is a member of the Medical Advisory Committee.

While the Applicant was not part of the Medical Advisory Committee, another member of the Banff Alpine Medical Clinic, Dr. Shigeishi, was. Dr. Shigeishi was president of the medical staff and participated in the discussions of the Medical Advisory Committee. In this role he attended these meetings to represent the interest of medical staff colleagues. The consolidation of obstetrics was a topic discussed at the meetings of the Medical Advisory Committee. Until April 1, 2012, Dr.

Edgar, who was a doctor delivering babies at the Banff Hospital, was a member of the Medical Advisory Committee . [ 78 ] There were no representations or promises made that the Acute Care Liaison Committee would be consulted. Nor is there evidence of a past practice that would have supported a legal duty to consult this Committee. The applicant cannot succeed under the legal doctrine of legitimate expectations. ii.

General Duty of Procedural Fairness [ 79 ] Although there is a duty of procedural fairness on every public body making an administrative decision which affects the rights, privileges or interests of individuals, the requirements of that duty depend on the context in which it arises. [ 80 ] The Supreme Court of Canada outlined the relevant considerations in Baker and again in Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v Lafontaine (Village) , 2004 SCC 48 at para 5 , [2004] 2 SCR 650:

The content of the duty of fairness on a public body varies according to five factors: (1) the nature of the decision and the decision-making process employed by the public organ; (2) the nature of the statutory scheme and the precise statutory provisions pursuant towhich the public body operates; (3) the importance of the decision to the individuals affected; (4) the legitimate expectations of the partychallenging the decision; and (5) the nature of the deference accorded to the body: Baker v.

Canada (Minister of Citizenship andImmigration), (SCC), [1999] 2 S.C.R. 817. [81] The factors, as applied in the case at bar, indicate that the duty of fairness requires only minimal procedural safeguards. Thenature of the Decision is administrative, policy based and polycentric; the Decision engages the expertise of AHS and Covenant Healthand affects the broader public and is not aimed at specific individuals. AHS and Covenant Health do not resemble a quasi-judicial orjudicial body in either the types of decisions they make or the way they make them.

In terms of the importance of the decision to theindividuals affected, it will impact on the community in various ways but it does not call for the same type of procedural safeguardsestablished in cases involving the deportation of individuals in decisions such as Baker. I have discussed the presence or absence oflegitimate expectations in a prior

section of the judgment and my conclusions militate against a requirement of consultation arising fromthis factor. [82] The statutory scheme gives AHS flexibility as to how it makes decisions within the terms of its broad powers. No statutoryprocess is mandated and there is no statutory requirement to consult. The RHAA provides that the decisions of AHS are final and nostatutory right of appeal is provided. In Holy Cross Surgical Services v Calgary Health Region, 2005 ABQB 760 at paras 34 and 36,[2006] AWLD 867, LoVecchio J. described the authority conferred on the Calgary Health Region (now AHS) by

section 5 of the RHAAas follows: The responsibilities and the powers of the regional health authorities are broad, as befits entities charged with addressing the diversehealth needs of the different health regions. To fulfil its mandate, the CHR [now AHS] must make choices while simultaneously balancing numerous interests, and the benefits andcosts of its options. [83] Under the RHAA, AHS is accorded “procedural autonomy” as to how it exercises its expertise in both medicine and healthcare administration and how it makes decisions.

This is the type of decision that attracts a high degree of deference from a court, whetherit is accepted or disputed by the public.

There may be public outcry and political consequences that remain beyond the role or reach ofthe court tasked with measuring whether the minimum standards of procedural fairness have been met. [84] A consideration of the Baker factors leads to the conclusion that the procedural fairness requirements in this case are minimal,amounting to little more that providing the affected public with an opportunity to have some input into the decision making process.When measuring that opportunity, the court is to consider what occurred before the Decision was made.

This would exclude contactpursuant to the extensive communications plan as these efforts happened after the Decision was made and were intended to explain aDecision already taken. Providing public information and answering questions are not the same as consultation. [85] The actual consultation conducted was not perfect and may not stand as a shining example of best practice. Nevertheless, onbalance, the multiple steps taken do not fall short of what is legally required when bodies such as AHS and Covenant Health areconsidering multiple needs within a complex allocation system.

There was the solicitation of views, at various levels of abstraction, fromdiverse perspectives, including the users and providers of the services. The decision makers employed recognized forms of consultationthat brought various view points into the decision making process even though the choices made served to limit direct input from certainaffected persons.

Meetings such as the Community Engagement Sessions and subsequent workshops were done by invitation and theonly open meeting occurred after the Decision was announced and was intended to address the negative public reaction to the removal ofobstetrics from Banff. At the Community Engagements Sessions the discussion was of a very general nature: it involved planningpriorities and preferences but did not address moving obstetrics from Banff to Canmore.

No further Community Engagement Sessionswere held later in the process when AHS and Covenant Health were considering moving obstetrics from Banff or even later in theprocess when a concrete proposal had begun to work its way through the multi-leveled decision making system. [86] There was no direct or specific request for the views of the Acute Care Liaison Committee or the one physician who wasperforming all the deliveries in Banff, either before or after AHS and Covenant Health had a particular proposal to move obstetrics toCanmore.

However, there was extensive consultation with medical personnel and the consideration of medical concerns throughappropriate committees, working groups, workshops and engagement sessions. There were various representatives of medical personnel

and the medical perspective involved throughout and at various points in time. The Respondents state they received support from healthcare personnel for the Decision, including 5 physicians and a nurse who had provided a letter of support.

In all the circumstances, therewas no legal obligation to consult any further on the specific proposal to have one site for obstetrics given the involvement of thedifferent bodies and organizations after this was determined to be a desired direction by the decision makers. [87] Even had there been a procedural irregularity, it is not clear that the Applicant would have been entitled to a stay. Bowen vCanada (AG) (1997), (FC), 2 FC 395, 139 FTR 1 concerned a decision to close airstrips located in the Banff andJasper National Parks.

The Judge found that certain statements by the Minister created a reasonable expectation as to the decision makingprocess and that process was not followed. However, the Judge refused to exercise his discretion to reverse the decision on that groundand stated at para 86: I do not believe that there is any purpose in acting to reverse the decision making process which has taken place on the basis of a failureto meet the legitimate expectation identified.

This is so because such action would only result in yet another opportunity to make therepresentations which have been rejected in the past ... [88] As also held by the Court of Appeal in Bridgeland Riverside Community Association v Calgary (City), 1982 ABCA 138 at 33-34, 37 AR 26: In my view, no concept is more sterile than that which says that a proceeding is a nullity for failure of compliance with a procedural ruleand without regard to the effect of the failure ... I would put aside the debate over void or voidable, irregularity or nullity, mandatory or directory, preliminary or collateral.

These areonly ways to express the question shall or shall not a procedural defect (whether mandated by statute or common law) vitiate aproceeding. In my view, absent an express statutory statement of effect, no defect should vitiate a proceeding unless, as a result of it,some real possibility of prejudice to the attacking party is shown, or unless the procedure was so dramatically devoid of the appearanceof fairness that the administration of justice is brought into disrepute. [89] The Applicant therefore fails on this ground. 4. Conclusion [90] Of the issues put forth on this judicial review, Dr.

MacDonald has sufficient standing to bring this action on the basis that hehas a sufficiently substantial interest and is prejudicially affected by the Decision. Alternatively, he may also establish standing on thebasis of public interest. The Decision had been taken in August 2012, which remained subject to Ministerial approval, to move obstetricsservices to Canmore.

A limited group of individuals comprised of key community stakeholders and health care providers were consultedprior to the Decision being made in community engagement sessions, workshops, working groups and certain hospital committees.Given the nature of the Decision and the high degree of deference awarded to decisions of this nature, there was no legal obligation forconsultation on the specific proposal to move services. Furthermore, there were never any representations made to Dr.

MacDonald thatwould lead to a legitimate expectation of consultation to him specifically. [91] As the requirements for procedural fairness in this case have been met, this application for judicial review is dismissed. Heard on the 20th day of June, 2013. Dated at the City of Calgary, Alberta this17th day of July, 2013.

S.L. Martin J.C.Q.B.A. Appearances: Clint G. Docken, Q.C. and Nicholas Sawkiw for the Applicant Dr. Ian MacDonald Frank R. Foran, Q.C. and Julie G. Hopkins for the Respondent Alberta Health Services Blair R. Carbert and Bryan L. Gallant for the Respondent Covenant Health Cynthia R. Hykaway and Kristen Thomasen for the Respondent The Minister of Health