Jegou v Canadian Natural Resources Limited, 2021 ABQB 401

Court of Queen’s Bench of Alberta Citation: Jegou v Canadian Natural Resources Limited, 2021 ABQB 401 Date: 20210520 Docket: 1501 05244 Registry: Calgary Between: Michael Jegou Plaintiff - and - Canadian Natural Resources Ltd. Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice G.H. Poelman _______________________________________________________ Table of Contents I. Introduction . 3

II.

Summary of Plaintiff’s Evidence . 4 A. Michael Jegou . 4 1. Background and Qualifications . 4 2. Fall Case: November 19, 2014 . 4 3. Stroke Case: February 17, 2015 . 6 4. Assessment 8 B. Dr. Navraj Heran . 8 C. Amanda Jegou . 9 III.

Summary of Defendant’s Evidence . 11 A. Keith Harrison . 11 B. Alessandra Grossi 13 C. Colleen Boschee . 14 D. Dr. Johan Bouwer 15 1. General Matters . 15 2. Fall Case: November 19, 2014 . 16 3. Stroke Case: February 17, 2015 . 16 4. Assessment 17 E. Geoffrey Pyke . 18 F. Louise Palin . 19 G. John Penzo . 20 1. General Matters . 20 2. Fall Case: November 19, 2014 . 21 3. Stroke Case: February 17, 2015 . 22 4. Termination of Mr. Jegou’s Employment 22 5. Assessment 22 H. Blair Lindsay . 23 IV. Findings of Fact 24 A. General 24 B. Fall Incident 25 C. Stroke Incident 26 D. Adverse Inference: Ian McLeod . 30 V.

Summary Dismissal 31 A. General Principles . 31 B. Application . 32 1. Nature and Extent of Misconduct 32 2. Surrounding Circumstances . 33 3. Whether Dismissal Warranted . 33 VI. Damages . 34

A. General Principles . 34 B. Notice Period . 34 C. Elements of Compensation Package . 37 D. Total Damages . 40 I. Introduction [ 1 ] Canadian Natural Resources Ltd. (“CNRL”) operated an oilsands facility known as the Horizon Oil Sands approximately one hundred kilometers north of Fort McMurray, for the mining and upgrading of bitumen to synthetic crude oil. It comprised in part a plant, airport, large pit mine, firehall, clinic known as the Horizon Health Clinic, and dorm-style residential camps.

Usually there were between eight thousand and ten thousand employees and contractors on the Horizon Oil Sands site. [ 2 ] Michael Jegou was a qualified paramedic, registered with the Alberta College of Paramedics. He obtained this designation in 2003. Prior to being a paramedic, he qualified for the lesser designations of emergency medical responder (“EMR”) and emergency medical technician (“EMT”). He worked at Horizon from August 10, 2009 until his dismissal on March 18, 2015. [ 3 ] The primary issue is whether CNRL had just cause for summarily dismissing Mr.

Jegou on the ground that he failed to act according to the standards of his profession and CNRL’s requirements for paramedical employees at Horizon. In addition, it must be determined what damages Mr. Jegou would be entitled to if his dismissal was unjust, including the notice period and elements of compensation to be included. [ 4 ] The evidence comprises an agreed statement of facts, exhibits entered by agreement, additional exhibits tendered during the trial, the testimony of witnesses, and excerpts from discovery evidence read in at trial. [ 5 ] I will begin with a

summary of the evidence of the witnesses, with little comment on how I assess it. Thereafter, I will turn to my findings on the important facts, a review of the legal principles, and my conclusions on just cause and damages. II.

Summary of Plaintiff’s Evidence A. Michael Jegou 1. Background and Qualifications [ 6 ] Mr. Jegou obtained the necessary educational qualifications to work as an emergency medical technologist-paramedic (“EMT-paramedic or EMT-P”) in October 2003. At the relevant times he was registered as an EMT-P with the Alberta College of Paramedics. He first worked as a paramedic in Brooks. In 2009, he successfully applied for a position as firefighter/EMT-P at CNRL’s Horizon site near Fort McMurray.

He started as a paramedic in August 2009; one year later, he obtained a National Fire Protection Association firefighting designation. [ 7 ] He testified that his understanding, based on verbal communications from Horizon’s medical director, Dr. Johan Bouwer, was that if Dr. Bouwer was unable to answer a phone call the paramedic could deviate from CNRL’s Medical Controlled Guidelines (“ Guidelines ”) for the best interests of the patient. He reported directly to his platoon commander, Ian McLeod but was responsible to Dr. Bouwer on medical matters. [ 8 ] During his time at CNRL, Mr.

Jegou was designated a lieutenant and became the medical training officer for his shift (which did not affect his compensation). In 2014, he began to fill in from time to time as a shift captain when his captain or platoon commander were away. He received additional pay for those shifts. [ 9 ] Prior to the fall of 2014, Mr. Jegou received very positive feedback on his annual performance reviews. 2. Fall Case: November 19, 2014 [ 10 ] On November 19, 2014, Mr. Jegou was on duty, working as captain.

He received a call on emergency radio requesting medical assistance for a twenty-year-old male who had reportedly fallen about seven feet and broken a leg, arm and ankle. He went to the approximate location with a colleague, Dale Young. They had difficulty locating the patient through a busy, intricate area of the site involving a number of up and down flights of stairs and cage ladders. Radio communications were often interrupted. [ 11 ] When they located the patient by an empty storage tank, he explained that he had fallen only about five feet.

The entire distance was eight to ten feet, but the first part of the fall was broken by the “fall arrest” or harness he was wearing. Then the harness gave way and he fell approximately five feet. He landed on his wrist and chest. His wrist appeared swollen and slightly deformed. He was wearing a helmet, which was undamaged and he reported that he had not hit his head. He indicated that he had struck his left wrist and described minor injuries to his ribs. [ 12 ] Mr.

Jegou conducted physical examinations and ruled out a C-spine injury; noted that he had no spinal tenderness; and was able to turn his head from shoulder to shoulder without pain. He had no numbness but his left hand was sore.

[ 13 ] Various options were considered to remove the patient, one of which was calling for a rope rescue crew. The concerns were a risk of spinal injury and aggravating the obvious wrist injury. Calling a rope crew would have increased the amount of time the patient would be completely immobilized, as there would be considerable delay in getting a rope crew to the incident area. The exit with the assistance of the rope crew would also have been time consuming.

The patient was asked whether with assistance (someone following him down the cage ladder) he would prefer to exit immediately; he preferred that suggestion, as he did not want to be stuck on a back board. [ 14 ] Mr. Jegou testified that they really should have splinted his left wrist, to stabilize it better; however, he had come with a fire engine and did not have a splint with him. As the patient did not want to wait the time for Mr. Jegou to go down and get a splint (about ten minutes), Mr.

Jegou took the “calculated risk” that they could get him out without doing further damage to the wrist. [ 15 ] When the patient was taken out of the area, they were met by another paramedic, Tyler McLellan. He applied a splint to his wrist and transported the patient to a medical facility. Based on the patient care report prepared by Mr. McLellan, Mr. McLellan re- evaluated the patient’s spine and ruled out a spinal injury. As with Mr.

Jegou, he did not call for a back board. [ 16 ] Concerns were raised about whether, because of the potential of a spinal injury, the patient should have been kept until a rope crew could arrive to extract him; and whether his wrist should have been splinted at the site. In his statement and at a meeting called to discuss the matter, Mr. Jegou explained the delay and difficulties involved in bringing a rope crew, and the patient’s preference to exit, with assistance, by the cage ladder.

It would have taken at least twenty minutes for a rope crew to arrive, and the extraction would have taken at least an hour. [ 17 ] Further, he indicated that he did not have splint supplies with him, and elected not to return to his ambulance to procure them, because of the delay that would be involved. He agreed that he should have splinted the wrist; if the situation were to present itself again, he would definitely do so. [ 18 ] According to Mr. Jegou, Dr. Bouwer said at the meeting that he agreed with Mr. Jegou’s spinal assessment and with choosing not to immobilize the patient before removing him. Mr.

McLeod supported Mr. Jegou’s decision as well. John Penzo, a paramedic with special expertise, and Fire Chief Robert Slade both strongly disagreed, saying such cases always required immobilization. In Dr. Bouwer’s opinion, however, the wrist should have been splinted although he recognized Mr. Jegou had not brought the equipment with him. [ 19 ] As a result of these discussions, it was determined that the crew should go over spinal immobilization procedures and more rope technician courses should be arranged. Mr.

Jegou, in accordance with these recommendations, went over spinal immobilization procedures and the need for one when appropriate with his crew. [ 20 ] Mr. Jegou said he was never warned that discipline or termination would be possible as a result of this incident. He heard nothing more about it until after termination of his employment. 3. Stroke Case: February 17, 2015 [ 21 ] At 10:30 a.m. on February 17, 2015, Mr. Jegou and his colleague, Geoff Pyke, an EMT (thus having less medical training and qualifications than Mr.

Jegou), received a call to respond to an inquiry about an employee who had not reported for work at 6:00 a.m. Mr. Jegou and his partner traveled to Calumet Camp, where the patient had a room, and were advised en route that he had been located. Mr. Jegou and Mr. Pyke saw the patient who was with a co-worker near his room. Mr.

Jegou was informed in a call to the patient’s supervisor that it was the patient’s first rotation back from work; he had sustained a heart attack on site just before Christmas and was brought to the Northern Lights Regional Health Centre (the hospital in Fort McMurray). [ 22 ] With the approval of the security attendant, Mr. Jegou went into the patient’s room to look for medical records indicating that he was cleared for return to work and medications.

He thought this information would be of assistance in assessing the case. [ 23 ] On finding nothing, he questioned the patient and noted a facial droop, mild slurring of words and very mild decrease in strength to the left side. There was some confusion as to time; the patient appeared to believe the current month was March. Both Mr. Jegou and Mr. Pyke believed the patient had likely sustained a stroke. The last time he was seen well was sometime the prior evening; this was based on dispatch information that the patient’s swipe card had last been used ten minutes before seven the previous evening. [ 24 ] Mr.

Jegou called a fire engine for extra assistance in lifting the patient on a stretcher from the third floor of the Calumet residence to the ambulance. He suggested to Mr. Pyke that they go to the Horizon Health Clinic for an “information grab.” He was interested in seeing if there were any records of the patient’s prior medical incidents, which might show a previous stroke, which in turn might indicate whether the current symptoms fell within the normal range for him. Mr. Pyke agreed with Mr.

Jegou’s suggestion. [ 25 ] The driving distance from Calumet Camp to the clinic was about 1.1-1.2 kilometers, thus requiring only a few minutes. The driving time to Fort McMurray, in a different direction, was about one hour. [ 26 ] In the ambulance and, indeed, throughout Mr. Jegou’s time with the patient, his condition remained steady and his vitals were good. [ 27 ] Before heading to the clinic, Mr. Jegou called and spoke with one of the clinic nurses, Keith Harrison, to advise they were coming to the clinic. Mr.

Harrison strongly objected, stating that all stroke patients must be taken immediately to the hospital because no treatment would be available at the clinic. Mr. Jegou eventually hung up on Mr. Harrison because, he said, Mr. Harrison was cutting him off. [ 28 ] Mr. Jegou did not call Dr. Bouwer while en route from Calumet Camp to the clinic. He explained that he knew he was on vacation in South Africa and thought he might not have his cellphone.

[ 29 ] On arrival at the clinic, Mr. Jegou and Mr. Pyke lowered the stretcher from the ambulance and wheeled it into the clinic’s trauma bay, where the patient was left on the stretcher beside the room’s regular bed. Mr. Harrison and another nurse, Louise Palin, strongly objected to Mr. Jegou having brought the patient in, insisting that stroke protocol required him to be transported immediately to the hospital. Mr. Jegou testified that when he explained he was not intending to leave the patient at the clinic, but merely look for information, they calmed down. [ 30 ] Mr. Jegou went with Ms.

Palin to a meeting room where they attempted to access the patient’s information on “Medgate,” the electronic records system used by the clinic. They could find no records. Then they went to the pharmacy (which had to be unlocked by a nurse) to use a landline telephone to see if Dr. Bouwer could be reached on his cellphone. Mr. Jegou was able to speak briefly with Dr. Bouwer even though he was on vacation in South Africa. In the meantime, Mr.

Harrison put an intravenous (“IV”) line into the patient’s arm, although this was only a prepatory measure in the event that fluids needed to be given to the patient. [ 31 ] During his testimony, Mr. Jegou was challenged on why he made the stop at the clinic rather than drive directly to the hospital in Fort McMurray; why he took the patient into the clinic, rather than one person go in for what information could be obtained; why the stop took thirty-two minutes; and why he did not attempt to call Dr. Bouwer on his cellphone before stopping at the clinic. [ 32 ] Mr.

Jegou gave way on most of these challenges, acknowledging that he made bad judgment calls. He testified that he knew the patient would have to be taken to the Fort McMurray hospital, and never intended to leave him in the care of the clinic staff, despite concerns to the contrary – and being challenged on this point in cross-examination. As he told the clinic staff, he also believed that the patient was well outside the 4.5 hours that was the accepted window within which medical procedures could be taken to reverse the effect of a stroke.

He testified that with patients outside the window, they would still be taken to a hospital but the paramedics would not endanger other people by “blaring down the highway with lights and sirens”; he said you could take your time and make sure the patient is comfortable. [ 33 ] He persisted in his concern about privacy in making a cellphone call about a patient’s condition, rather than use a landline; but this suggestion was ridiculed by Dr. Bouwer in a later meeting, and Mr. Jegou acknowledged that there were landlines he could have used at the Calumet Camp.

He admitted that, in hindsight, he should have simply telephoned the clinic to see if they had any medical information rather than make the stop. He was unable to explain why the stop at the clinic took thirty-two minutes. [ 34 ] Ultimately, the patient was transported to the Fort McMurray hospital without further incident, with sirens and lights activated. Mr. Jegou notified the firehall that he and Mr. Pyke would be offsite for a couple of hours. [ 35 ] An investigation involving a number of statements and meetings was commenced by Dr.

Bouwer after his return from South Africa, apparently as a result of a complaint made by one of the clinic’s nurses. Following a March 12, 2015 meeting involving Dr. Bouwer, Fire Chief Robert Slade and John Penzo, Mr. Jegou was advised that he was being sent home from Horizon while the matter was considered. On March 18, 2015, he was informed by telephone that his employment was terminated, and a letter of that date was subsequently received.

The reason for his dismissal was stated in the letter as being his “failure to meet minimum standards of care required of a paramedic, and in which two patients were put at risk of serious and irreparable harm.” [ 36 ] CNRL submitted a “termination report” to the Alberta College of Paramedics on March 31, 2016, referring to the February 17, 2015, incident as the reason for Mr. Jegou’s termination of employment. As part of the proceedings by the college, Mr. Jegou with the assistance of counsel agreed to a joint submission regarding penalties.

The joint submission including his acknowledgment that his conduct was a marked deviation from the required standards of practice for his profession, that his “unskilled practice” was an isolated event and that this was his first finding of unskilled practice. The proceedings also included a lengthy recital of facts which were not in dispute, and summarized with the agreement of Mr. Jegou through his counsel. 4. Assessment [ 37 ] For the most part, during his lengthy testimony, Mr.

Jegou presented as a straightforward witness, attempting to answer the questions put to him, whether by his counsel or opposing counsel. He was not argumentative. Often, he was quick to acknowledge that he had made mistakes and should have handled the call to the stroke patient differently. Nevertheless, he frequently brought up the reasons he had used as his excuses in 2015. [ 38 ] The difficulty with his testimony is that much of what he did on February 17, 2015 makes no sense in the context of responding to an emergency medical call, which is what it had become when Mr. Jegou arrived at Calumet Camp.

It is hard to see how, even at the time, his justification for acting would have made sense to himself, as an experienced and well-trained paramedic. The unaccountable length of time for the stay at the clinic has still not been satisfactorily explained. The nature of much of his testimony on critical points is inherently problematic. [ 39 ] Finally, in my view he was evasive and untruthful when challenged about why he had not called Dr. Bouwer before arriving at the clinic. Evidence from other witnesses, as will be seen, is overwhelming to the effect that Dr. Bouwer was always available at his cellphone. B. Dr.

Navraj Heran [ 40 ] Dr. Heran was qualified as an expert in neurosurgery. In addition to his extensive qualifications as a neurosurgeon, for nearly thirteen years he has been a part of a group including paramedics and nurses as well as doctors dealing with stroke issues. [ 41 ] He described a stroke, or “cerebral vascular accident,” as blockage of a vessel in the brain affecting blood circulation. The extent of the damage depends on the blockage and its location. Brain tissue dies during a stroke. It is analogous to a heart attack, where the blockage in circulation occurs to a vessel in the heart.

Sometimes the damage caused by a stroke is reversible. [ 42 ] He assumed as accurate information provided for the basis of his opinion, such as timeline of events, distances and times of

travel. He observed that there was no defined time for the onset of the stroke – at latest, it would have been the time the patient was due to report for work (6:00 a.m.). He was also given documentation from the hospital (with the patient’s name redacted). [ 43 ] He noted the reported symptoms were drooping left side of the face, slurring of speech, weak left-sided grip and mild confusion. Mr. Jegou had been informed that the patient had suffered a heart attack just before Christmas, and was on his first rotation back at work.

The National Institutes of Health Stroke Scale score was reported to be in the range of five to nine – with most of the information indicating five or seven, both at the low end of severity. The lower the stroke score, the less likely intervention would be justified because of reduced benefit and the risk of bleeding and other complications caused by intervention. Typical interventions would include administering medications intravenously to dissolve clots. [ 44 ] Dr. Heran agreed with the general proposition that upon recognition of a stroke, no time should be wasted in getting the patient to a hospital.

Efficiency is very important; as time goes on there is less possibility of reversing the damage.

Generally, if someone called him advising of symptoms such as those exhibited by this patient, his advice would be to get the person to the closest hospital as soon as possible. [ 45 ] However, in 2015, medical practice accepted that the intravenous stroke window was 4.5 hours (meaning that it would be unlikely that the Fort McMurray hospital could administer effective reversing treatment after that time), and the anterior circulation intraarterial stroke window was six hours (meaning that after that time, it would be unlikely that an Edmonton hospital could intervene with more advanced procedures). [ 46 ] Based on his review of records, the patient was extensively managed at the Fort McMurray hospital and remained there for six days.

The records show no deterioration in the patient’s condition while in the care of the paramedics or the hospital. [ 47 ] He was informed that Mr. Jegou had stopped at the Horizon Health Clinic because he thought it might have patient information in light of the patient’s recent heart attack that could benefit hospital staff. However, the delay of about half an hour did not have an effect on the treatment that would have been available either at the Fort McMurray hospital or at an Edmonton hospital.

It was suggested to him that it was not a paramedic’s role to determine whether a patient was out of time for treatment, to which he responded that one would have to use their common sense. [ 48 ] Dr. Heran gave his evidence in a clear, fair and balanced manner. He answered questions of both lawyers freely and confidently without becoming argumentative. There were no concerns arising from his demeanour. C. Amanda Jegou [ 49 ] Ms. Jegou is a registered nurse who worked for CNRL from 2008 through to and including the events at issue in this lawsuit.

Her services were initially performed through a company contracting clinical workers to CNRL, but as of August 2012 she worked for CNRL directly. She has two speciality certifications, one in emergency nursing and the other in occupational nursing. It was in the latter capacity that she was working for CNRL during 2014 and 2015. [ 50 ] She met Mr. Jegou while they were both working at the Horizon site. They have been married since 2013. [ 51 ] She was working her normal shift at the clinic on February 17, 2015. From her office, she heard the backdoor open and went to say hello to those coming in.

She saw her husband and Mr. Pyke with a patient on a stretcher in the trauma room. She got about eight to ten feet from the patient, whom she described as an older gentleman who seemed unkempt. She did not see any obvious signs of a stroke, but did not look at him carefully and did not do any form of assessment. [ 52 ] Also in the trauma room were Ms. Palin and Mr. Harrison. She saw Mr. Jegou and Ms. Palin standing “toe to toe” and her husband using his “stern voice.” She told him to be nice to her nurses and went back to her office. She did not see Ms. Boschee. [ 53 ] She did not witness Mr.

Jegou raise his arm or “get into” Ms. Palin’s face, but they were close. She has never seen him get into someone’s personal space or use threatening gestures. [ 54 ] Over the course of the half hour that Mr. Jegou was at the clinic, she was following him around to some degree. She was hoping to ask him about the moment of tension she had observed, but never had the opportunity. [ 55 ] During the half hour, she saw him with Ms. Palin looking at a computer for a patient file, in one of the examination rooms. Everything was calm between them again.

She later saw him using the telephone in the pharmacy. [ 56 ] At one point she went back to the trauma room, and saw Mr. Harrison starting to put an IV into the patient. She made some small talk with Mr. Pyke, but cannot remember what it was about. She was within six to eight feet of the patient but did not notice any of the stroke symptoms. When Mr. Jegou came back to the trauma room, she asked him what was going on and he indicated that he was going to town with the patient. [ 57 ] She could not explain what took the thirty-two minutes spent at the clinic. She did not remember Mr. Jegou taking out any supplies.

She suggested that perhaps the nurses had a role in delaying him. [ 58 ] When asked whether nurses at CNRL had a protocol for dealing with strokes, she testified in her direct examination that she did not remember. As pointed out in her cross-examination, this contrasted with her full description in an August 26, 2016, interview she gave to an interviewer for the Alberta College of Paramedics: describing how a stroke patient would be treated in the triage process, taken back to the trauma centre, paramedics called, the doctor called and then stabilized for transfer. [ 59 ] Dr.

Bouwer was the person to whom she reported directly on medical matters. He had designated days and hours at the clinic, but otherwise was generally available by telephone. She called him daily, as all nurses did. In her direct examination, she testified that he

was normally available by phone, although there were occasions where he was not and the nurses would then collaborate with each other and with the paramedics on what to do. Later in her testimony, she was confronted with the transcript of her Alberta College of Paramedics interview, where she indicated that the doctor was reachable “by phone 24/7, . . . regardless of anything.

Regardless of holidays; regardless of vacations; regardless of anything.” Further, she stated in her interview that anytime the nurses needed to do anything a little beyond their scope, they had to call the doctor and had to do it under his orders. [ 60 ] Her earlier interview statement also conflicted to some degree with her trial testimony, where she said that the nurses sometimes deviated from their usual scope of practice; and that Dr. Bouwer told her he had no issues with how she would handle patients as long as it could be medically justified. [ 61 ] Ms. Jegou was highly trained in the Medgate system.

All patient information was stored on this system, which was commonly used by many oil and gas companies but not by Alberta Health Services. Anytime someone came into the clinic, a record was created for them on the Medgate. Patient information could usually be accessed on Medgate simply by typing in the last name. She observed that nurses at the clinic might have more patient information available than at the Fort McMurray hospital, but acknowledged that this was a guess. [ 62 ] There was a very smooth, good working relationship between the nurses and paramedics.

There was no hierarchy between them; rather, their positions were relatively lateral. At the end of the day, each was responsible to its own governing body for the patient in their care. [ 63 ] In my view, Ms. Jegou was not always fair and balanced in her testimony. She was at pains to make a few points which, it appeared, were inconsistent with information she gave during the Alberta College of Paramedics investigation. This was particularly notable in her testimony on stroke policy (apparently trying to make the point that there was no strict policy for such matters) and her suggestion that Dr.

Bouwer allowed a certain amount of latitude and other employees had to use their own judgment on occasions when he was not available. Finally, it is remarkable in light of her training and experience that she did not show an interest in the patient’s condition. I find it likely she was seeking to minimize the evidence of a stroke in her testimony. III.

Summary of Defendant’s Evidence A. Keith Harrison [ 64 ] Mr. Harrison is a registered nurse at the Horizon Health Clinic, and has worked in that capacity since August 2014. He graduated from nursing school in 2011 and has certificates for emergency nursing and acute care life support. He has worked in various nursing positions since his graduation. [ 65 ] For the relevant period (2014-15), the main services at the clinic were drug and alcohol testing, occupational injury, and non- occupational illnesses and injuries. [ 66 ] As of early 2015, Mr. Harrison reported directly to Dr. Bouwer on medical matters.

The nurses worked 12-hour shifts. Three were on duty for the day shift and two for the night shift. The clinic was not part of the emergency services personnel working at the firehall but there was frequent contact between them. [ 67 ] The patient records system used by the clinic was Medgate. The system had all of the patient’s records, including the patient care reports prepared by paramedics. Mr. Harrison had access to Medgate by logging in, typing in a name or adding patient names. [ 68 ] The procedure for transferring patients to the Fort McMurray hospital involved calling Dr.

Bouwer (whose permission was required for any transfers off the CNRL site). He would give instructions as to whether the transfer would be by advanced life support (“ALS”), which meant a paramedic would have to take the patient, or basic life support (“BLS”), which meant an EMT could make the transfer. [ 69 ] As a nurse, Mr. Harrison has been contacted by the Fort McMurray hospital from time to time. It would occur if they were looking for information, history on a patient.

Such calls were, however, rare. [ 70 ] The clinic had a large number of radios placed around the premises, which were tuned to the emergency channel. Staff could listen when there were incidents and have advance notice of things that might require their involvement at the clinic. [ 71 ] Thus, the first Mr. Harrison heard of the February 17, 2015 stroke incident was the dispatch call for EMS to go to the Calumet Camp. He could hear the personnel responding and information about the incident as it was occurring. [ 72 ] Eventually, he received a telephone call from Mr.

Jegou, who said he had found a patient with stroke symptoms, wandering into the wrong room, slurring, having left-sided weakness, and uncharacteristically absent from work. Mr. Harrison responded to the effect of “it sounds like you have to go to the hospital.” Mr. Jegou said “nope, I’m taking him to you.” Further discussion was ended when Mr. Jegou hung up on him. [ 73 ] After the phone call, Mr. Harrison talked to Ms. Palin and Ms. Boschee to tell them the patient was coming into the clinic. He took them along to meet Mr. Jegou at the back emergency entrance because Mr.

Jegou had said he was giving the patient to them. Mr. Harrison was expecting an issue and had only seven months’ time at the clinic as of that date. [ 74 ] The three nurses met Mr. Jegou, Mr. Pyke and the patient on a stretcher as they were going into the trauma room. Mr. Jegou got defensive. Ms. Palin asked the patient his name, and it was evident that he was really slurring his words. Ms. Palin checked the left- sided foot, and Mr. Harrison grabbed the left side hand. There was left-sided weakness. The patient had lots of facial drooping and sagging on his left side, and a great deal of drooling.

[ 75 ] Then, an argument started. Ms. Palin asked Mr. Jegou what he expected the clinic could do for the patient? He needed to go to the hospital for a CT scan. Mr. Jegou responded by saying words to the effect of “I don’t know, just have him.” Three to four times, Mr. Jegou said that the patient was outside of the timeframe. He had said this on the telephone call to Mr. Harrison as well. Mr. Harrison made the point that they did not know when the stroke had occurred. Ms. Palin expressed the concern that he could be bleeding and it was important for him to go to the hospital. [ 76 ] Mr.

Jegou did two quick shuffle steps toward Ms. Palin, thrust out his arm and pointed his finger at her about one foot away. Mr. Harrison told Ms. Palin that they should just let Mr. Jegou finish his report, as he wanted to deescalate the situation. (A paramedic making an oral report is usually the preliminary to transferring care of the patient.) [ 77 ] Because sending an ambulance offsite required Dr. Bouwer’s approval, Mr. Harrison asked who was going to call him. Mr. Jegou responded with a sigh, and said that he would do it. Ms. Palin said that she would take him to a phone, and they left together.

They were going to use the phone in the pharmacy, which required a nurses’ passkey to access. As Mr. Jegou was leaving, over his shoulder he told Mr. Pyke “put an IV in, get him ready, I’ll be back.” [ 78 ] Before Mr. Jegou left to make the phone call, those present in the trauma room were Mr. Jegou, the patient, Mr. Pyke, Mr. Harrison, Ms. Boschee and Ms. Palin. [ 79 ] Mr. Harrison remained in the trauma room with the patient the entire time he was at the clinic, wanting to make sure he did not “crash and die.” He assisted Mr. Pyke with the IV. Five or ten minutes after leaving the room, Mr.

Jegou came back, carrying four or five boxes of gloves. He was asked if Dr. Bouwer had been called, and responded “yes, we’re going.” He put the boxes of gloves on the stretcher. He left again, and came back with two oxygen bottles (each about two and half feet tall, six inches in diameter). He put these on the stretcher as well. [ 80 ] Mr. Harrison said that Ms. Jegou was never in the trauma room. He saw her pass by twice. [ 81 ] The patient’s symptoms remained the same throughout. [ 82 ] Mr. Harrison said that in his opinion it was an emergency, and in such situations, one does not know the timeframe.

The only thing to be done, at least initially, is a CT scan to see if there is a clot or bleeding. The CT scan can only be done at the hospital. Clinic nurses are not permitted to even give the patient an aspirin until such a test is done. There was nothing he could do to treat the patient. [ 83 ] Later that day, in the afternoon, Mr. Jegou was back at the clinic. He heard him speaking with Ms. Palin. Afterwards, Ms. Palin told Mr. Harrison that Mr. Jegou had apologized for his behaviour in the morning. [ 84 ] Mr. Harrison said that he did not recall Mr.

Jegou ever saying he had come for an “information grab.” Nor does he recall Mr. Jegou and Ms. Palin looking up patient information on Medgate. [ 85 ] Mr. Harrison was an impressive witness as to both his reliability and overall credibility. He answered all questions straight forwardly and without evasion or argument. No bias could be detected in his testimony. B. Alessandra Grossi [ 86 ] Ms. Grossi is a CNRL employee, who works in the human resources department at Horizon. [ 87 ] Because Horizon is a remote site with anywhere from five to ten thousand people on site, many people lived in camp facilities.

There are many amenities and necessaries provided, such as a firehall and a medical clinic. The emergency services team, working out of the firehall, was part of a group she looked after in her role as a human resources adviser in 2015. [ 88 ] In her testimony, she confirmed that based on employment records, Mr. Jegou was hired as a “paramedic/firefighter.” In her testimony, she was taken through a number of documents which formed part of the employment package he agreed to upon being hired.

She also reviewed the details of many forms of compensation applicable to his position, which are set out in the agreed exhibits and the amended statement of agreed facts. [ 89 ] Her involvement in the incident with the stroke patient was limited to her participation in a meeting and preparation of the termination paperwork. [ 90 ] She was contacted on March 11, 2017 by Robert Slade, Chief of the firehall, who advised her of the incident involving the stroke patient and that a meeting was being set up to which she would be a witness. She was to be a “mutual third party” to assist both Mr.

Jegou and CNRL, take notes and witness the discussions. She did not have much of a speaking role. [ 91 ] Most of the discussions were between Dr. Bouwer and Mr. Jegou directly. Only after some argument did Mr. Jegou eventually say he was sorry and acknowledge that he had made the wrong decisions. Ms. Grossi felt that his apology and acknowledgement were not genuine, but something he believed was necessary as he had not prevailed in the argument. [ 92 ] After Mr. Jegou left the meeting, Ms. Grossi stayed while Dr. Bouwer and Mr. Slade continued their discussion.

Part of the discussion was whether they could pursue a course of performance management or whether termination would be required. Dr. Bouwer and Mr. Slade felt that the stroke patient incident, when combined with the November 2014 fall incident, justified termination. [ 93 ] Ms. Grossi had no role in the decision, but agreed with it because of the significance of the issue and the prior incident. On instructions, she prepared the necessary termination documentation. [ 94 ] Ms. Grossi’s evidence was given in a clear, straight forward way, often helpfully explaining very complex compensation packages.

There are no concerns about her credibility or reliability.

C. Colleen Boschee [ 95 ] Ms. Boschee is a registered nurse, having graduated from the Foothills Hospital and University of Calgary. She has extensive specialized nursing experience with various institutions and private organizations. She began her employment at the Horizon Health Clinic in summer 2014, and before that worked for another oilsands medical clinic owned by CNRL. [ 96 ] For part of the time at Horizon, she still worked part-time in the Foothills Hospital Emergency department. She has taught cardiology to nursing students, nurses, paramedics and doctors. [ 97 ] As with Mr.

Harrison, her first awareness of the patient with stroke symptoms was from the callouts and communications on the radios placed throughout the clinic. About fifteen or twenty minutes after the initial callout, she saw Mr. Harrison put down the phone after a call, saying “he hung up on me.” He then said “they’re bringing him to the clinic” and Ms. Boschee thought that must mean the person was deteriorating rapidly and needed help. [ 98 ] The three nurses went to the back of the clinic and waited for the arrival.

The EMS crew came in with the patient on the stretcher and pushed it into the trauma room, moving the clinic’s stretcher out of the way to make room. [ 99 ] Ms. Palin told Mr. Jegou that he had to get the patient to the hospital now. Ms. Boschee observed the patient had left side facial droop and drool coming out. All of the nurses joined in the request that he be taken to the hospital. [ 100 ] Mr. Jegou responded that “they can’t do anything for him now anyway.” Ms. Boschee suggested that they go to call Dr. Bouwer on a private phone and took him in into the pharmacy. She did not hear any part of the call.

That left her two coworkers, the EMT and the patient in the trauma room. [ 101 ] The clinic was very busy. After Ms. Boschee left Mr. Jegou in the pharmacy, she went to the front to continue her triaging work. She admitted a few patients, and then saw a few. While she did not return to the trauma room again, she did go by at one point and saw people were still there. [ 102 ] In her view, the patient’s symptoms were obvious signs of stroke and in such a case the patient had to go to the hospital immediately.

There was nothing clinical staff could do for someone in such condition, other than monitor vital signs and ensure open airways. [ 103 ] She found Mr. Jegou’s behaviour on arrival at the clinic odd. It was almost like he was grinning at them. However, she does not remember him being physically aggressive or finger pointing. She does not remember Mr. Jegou saying he wanted information on the patient. Nor does she remember Ms. Palin and Mr. Jegou going to get patient information, although she added she was only with the group a short time. [ 104 ] Ms. Boschee was a fair and balanced witness.

She obviously did not agree with Mr. Jegou’s actions, but showed no bias against him in her testimony. D. Dr. Johan Bouwer 1. General Matters [ 105 ] Dr. Bouwer is a physician who initially qualified in South Africa in 1992, did his residency in the United Kingdom in 1993 and 1994 and, after some follow up training and experience in both counties, immigrated to Canada in 2003. Despite some of his post- qualification training, he considers himself a generalist – certainly no specialized training in neurology or neurosurgery. [ 106 ] He started a clinic in Fort McMurray in 2003, which he continues to operate.

He practices general medicine and provides some private contracting work through that clinic as well. As a result of an approach by CNRL, beginning in 2008 he has been director of medical services at the Horizon Health Clinic and medical director of emergency medical services operating out of the firehall. [ 107 ] At the relevant times, he was at the clinic several days a week and always available by cellphone. Until testifying in court, he said, he had not turned his cellphone off for fifteen years. [ 108 ] At the clinic, he oversaw the work of nurses.

For emergency medical services, there were three levels of staff: • EMR, with very basic training qualifications of a couple of weeks; • EMT, with more advanced training of about six months, having a more advanced scope of work and able to provide a few medications; and • Paramedic, involving more advanced care with authority to give more medications and manage a patient’s airways. [ 109 ] Paramedics reported to Dr. Bouwer on medical issues.

When on emergency calls, they were under his supervision, in that they worked under his license and guidelines. [ 110 ] The Guidelines with a revision date of April 2012 were the ones in effect as of 2014 and 2015. They were prepared by Dr. Bouwer and Mr. Penzo, taken with modifications from a variety of sources (including AHS’s emergency protocols and guidelines for medical conditions such as strokes), to suit the circumstances at the Horizon site. Dr. Bouwer agreed that a better name would have been “protocol” rather than “guidelines” and the title of the document has since been changed. [ 111 ] Dr.

Bouwer wanted to know about each transfer of a patient offsite, for a variety of reasons. This was an oral protocol or

direction, not included in the Guidelines . It was standard practice and had been followed for years. [ 112 ] It was suggested to him that the part of the Guidelines on “Clinic Bypass/Site Physician Notification” actually expressly required notifications and covered only some circumstances. Dr. Bouwer said this was not relevant to the spinal and stroke conditions expressly dealt with elsewhere in the Guidelines. [ 113 ] Any patient requiring urgent or emergency care was required to be transported to the hospital, not the clinic.

If there was any difference of opinion between nurses and EMS personnel, and they could not talk to Dr. Bouwer the default mode of transportation was by ALS (with a paramedic), to the hospital. He advised staff of this in an email of April 2, 2014. [ 114 ] There could be deviation from the Guidelines in rare cases, where a paramedic had advanced experience in the patient’s problem. However, this would always require a call to Dr. Bouwer first. The Guidelines were intended to be followed, and were very specific for that reason. [ 115 ] Patient confidentiality is an expectation of all medical personnel.

It is engrained in them from initial training and throughout their careers. Communications by cellphone are well within the standard of practice for confidentiality and is a method of communication Dr. Bouwer uses all the time with his staff and other physicians. There has never been a privacy concern or complaint about this. 2. Fall Case: November 19, 2014 [ 116 ] Mr. Slade involved Dr. Bouwer in reviewing a patient call made by Mr. Jegou on November 19, 2014. It related to a patient who had fallen about ten feet with a partial break of the fall by a harness, injuring his wrist.

It was in a very remote area, in a tank. Mr. Jegou was the first at the scene. [ 117 ] There were two concerns involving Dr. Bouwer’s responsibilities. The first was that the

section of the Guidelines on “spinal injury” indicated that in high risk situations (which included falls from elevations greater than one meter) spinal immobilization with a back support was required. That had not occurred in this case. The second concern was that the wrist should have been immobilized, at least with a splint, because of uncertainty on the nature of the injury. While there was nothing specific in the Guidelines , treating injuries of this nature with a splint or similar device was “basic training.” [ 118 ] A meeting was called for November 24, 2014 to discuss the incident, at which Mr.

Slade, Mr. Penzo, Eric St. Pierre (Deputy Fire Chief), Dr. Bouwer and Mr. Jegou attended. During the meeting, Dr. Bouwer expressed his view that the spine should have been immobilized, pursuant to the Guidelines ; and similar treatment should have been given to the wrist. (The discussion about how the patient descended the ladder was within Mr. Slade’s and Mr. Penzo’s areas.) [ 119 ] Dr. Bouwer asked Mr. Jegou if he could exclude the possibility of a spinal injury at the site. Mr. Jegou explained what he had done to take that possibility into account, and Dr. Bouwer commended him for what he did.

When asked whether he was satisfied that the spinal issue had been adequately addressed at site, Dr. Bouwer testified that he was not satisfied that it was ideal, but accepted the difficulties of the location and that Mr. Jegou had addressed as well as he could the possibility of the spinal injury. He confirmed that he did not advise Mr. Jegou of any disciplinary concerns raised by the incident. [ 120 ] Dr. Bouwer agreed that a paramedic should not force a patient onto a backboard or force him to accept a splint on his wrist. 3. Stroke Case: February 17, 2015 [ 121 ] Dr.

Bouwer’s initial involvement in the call to the stroke patient was a very short call he received from Mr. Jegou. He believed the call was made en route to the hospital because he believed he heard vehicle noise, but could not be certain. In almost all cases, he said he receives such calls while the vehicle is moving. [ 122 ] All that was discussed on the call was that Mr. Jegou was already going to the hospital with a stroke patient which was obviously an ALS transfer. [ 123 ] Dr. Bouwer was in South Africa on vacation at the time of the call. When he returned, Ms.

Boschee spoke to him about the incident expressing concerns about how it had been handled. Dr. Bouwer therefore asked Mr. Jegou for a meeting to talk about the incident, and involved Mr. Slade in the communication – although the first meeting was between Mr. Bouwer and Mr. Jegou only. [ 124 ] Mr. Bouwer’s initial concerns were based on his review of the patient care report prepared by Mr. Jegou. In his view, there was a long, unexplained delay in the transfer from the Horizon OilSands site to the hospital.

It involved approximately half an hour at the clinic, but about forty-five minutes at the Horizon site overall. He wanted to give Mr. Jegou an opportunity to explain. [ 125 ] Mr. Jegou, in the meeting on March 11, told Dr. Bouwer that he stopped for an “information grab.” He mentioned that there had been a heated exchange with the nurses. He also expressed concerns about patient privacy as the reason he had not made a call to the clinic. [ 126 ] Dr. Bouwer told Mr. Jegou that he believed it to be a serious deviation from standard practice and did not accept the concerns about privacy as being valid.

He told him that he had done a good job in preparing the patient care report and a good diagnosis, but asked why he went to the clinic. He was not satisfied with the explanations. [ 127 ] The follow-up meeting involved Mr. Slade, Mr. St. Pierre, Mr. Penzo, Ms. Grossi, Dr. Bouwer and Mr. Jegou. Some of the discussion from the previous meeting was repeated. Dr. Bouwer expressed his view that Mr. Jegou’s reasons for stopping at the clinic were not strong arguments. He expressed the opinion that patient care was significantly affected in terms of the standard of care. He again commended Mr.

Jegou on his preparation of the report and his diagnosis.

[ 128 ] Dr. Bouwer then asked Mr. Jegou whether he had done anything wrong, and the response was no. Dr. Bouwer then asked whether if he could go back and do it over, would he do anything different. Again, the answer was no. [ 129 ] Mr. Jegou’s response was a particular concern to Dr. Bouwer. Not only was there a serious departure from practice, but he showed lack of insight into the situation. Including the case of the patient who had fallen, there were now two occasions where Mr. Jegou had not followed standards. It was critical for Dr.

Bouwer to have full confidence in his senior medical staff at all times. [ 130 ] In his thirteen years at the Horizon Health Clinic, Dr. Bouwer is not aware of another case of an EMS staff member bringing a patient to the clinic with stroke symptoms. [ 131 ] Dr. Bouwer acknowledged that most of the employees at Horizon fall into a younger demographic, and not many patients present with signs of stroke. However, the fact that Mr. Jegou may not have seen a stroke patient in five years did not mean he was not trained for it. In fact, he said, paramedics did training for this type of problem all the time. 4.

Assessment [ 132 ] Dr. Bouwer presented as a fair, competent, disinterested witness. He easily gave way on points that might not have been in CNRL’s interest. On a few points, he became somewhat argumentative, but they were points having to do with what he considered misleading or uninformed suggestions, rather than points which favoured one party or another. E. Geoffrey Pyke [ 133 ] Mr. Pyke is an EMT, a qualification he obtained through a 4-month college course.

He is not qualified as a paramedic: that would require an additional two year college program. (He has other, unrelated post-secondary education.) He worked as an EMT for the Fort McMurray Fire Department for three and a half years before joining the fire department staff at Horizon in October 2013. [ 134 ] The Guidelines were in all the ambulances. EMTs and paramedics follow them on all medical calls. Mr. Pyke testified that if there were to be any deviations from the guidelines, they would have to call Dr. Bouwer to receive permission first. [ 135 ] The attending paramedic or EMT would take notes on a call.

These would constitute the patient care report, which was to be a picture of the entire emergency call from start to finish, detailing the patient’s vitals, their pertinent information and a narrative or

summary of everything that happened on the call. [ 136 ] He is qualified to perform a rope rescue, and has the designation of a rope rescue technician. He was on duty on November 19, 2014, but not involved in the call for the person who fell. For a rope rescue, a minimum of five people would be required: at least two trained in rope rescues, and the other three having some basic knowledge of the procedure. [ 137 ] On February 17, 2015, along with Mr. Jegou, he responded to a call about someone initially reported as missing, and then located at Calumet Camp.

They found him on the third floor, where security had located him sitting on a bed in a room which was not his own. [ 138 ] Mr. Pyke started checking his vitals, while Mr. Jegou asked him pertinent questions. Mr. Jegou was in and out of the room, making cellphone calls. Mr. Pyke did not know who Mr. Jegou was calling, but said it was common during responses to medical calls to telephone Dr. Bouwer. [ 139 ] They observed that the patient was a poor historian, in that he was unable to tell the date or where he was – although he could tell them how he got there the night before.

He also gave them a history about his heart attack. He was very disheveled in appearance: not clean-shaven, very frail, unhealthy looking. Their neurological assessment, based on facial droop, arm drift, and slurred speech, led them to conclude that he had suffered a stroke. [ 140 ] They decided the patient needed medical attention. They were concerned that he was having a stroke, had cancer and a history of heart attack. These three factors combined to indicate he needed further attention by a doctor at the hospital. Mr. Jegou called another crew to get lift assistance in bringing him down to the ambulance.

Before entering the ambulance, Mr. Jegou made the decision to have Mr. Pyke (who was driving) go to the clinic, which Mr. Pyke understood was to obtain more information on patient history. Mr. Pyke did not object to this decision or raise concerns. Mr. Jegou was his senior officer, known to be an experienced paramedic and Mr. Pyke trusted his judgment. [ 141 ] Mr. Pyke recalled very little of what happened at the clinic. He could remember nothing out of the ordinary: for example, no intense arguments or Mr. Jegou acting in an intimidating manner. He could recall only one nurse involved, that being Mr.

Harrison, who assisted with inserting an IV. [ 142 ] He could remember nothing about whether patient information was available at the clinic, nor could he recall how long they stayed. [ 143 ] At some point, Mr. Jegou told Mr. Pyke that they were taking the patient directly to the hospital. Mr. Pyke drove, activating lights and sirens. It was still considered an emergency call. [ 144 ] There was a form of debriefing by Mr. St. Pierre and Mr. McLeod sometime following, at which Mr. Pyke was present, along with everyone else who was on his shift. By this time, Mr. Jegou was no longer working at the site. Mr.

Pyke was not reprimanded or disciplined. During the debriefing, they were told if Dr. Bouwer could not be reached for any reason, they should call the nurses who would then seek to contact him. However, Mr. Pyke observed, he did not know if this was a change in procedure. Further, he said he had never been involved on a call where Dr. Bouwer could not be reached.

[ 145 ] Mr. Pyke was asked to explain his understanding of the “clinic bypass” flowchart in the Guidelines . As applying to a stroke patient, he said it indicated that the attending paramedic would be required to update Dr. Bouwer prior to leaving the site. [ 146 ] Mr. Pyke presented as a straightforward, disinterested witness who answered all questions fairly and to the best of his ability. His memory, however, was weak with regard to the incident involving the stroke patient, and on many occasions, he indicated that he did not remember. F. Louise Palin [ 147 ] Ms. Palin is a registered nurse.

She has been working at the Horizon clinic for a little more than seven years. Before that, she was an emergency room nurse for nine years at the Fort McMurray hospital. [ 148 ] She was familiar with the stroke protocol followed at the Fort McMurray hospital (the same as the AHS protocol).

As there was no neurologist, they were connected to University of Alberta hospital so that treatment would be recommended in conjunction with its staff, the emergency physician in Fort McMurray, and a radiologist. [ 149 ] Their protocol required that within ten minutes of a patient’s arrival, staff had to have completed an assessment, taken a history, performed an ECG to rule out cardiology problems. A CT scan would have to be done within twenty minutes and assessed within forty- five minutes.

Staff always attempted to beat those timelines, based on the “time is brain” mantra. [ 150 ] There were no diagnostic tools at the Horizon clinic. For strokes, the required diagnostic tool is a CT scan, available at the Fort McMurray hospital. [ 151 ] She first became aware of the stroke patient by overhearing the radio reports. She was told by Mr. Harrison that, despite his protest, the EMS crew were bringing the patient to the clinic. [ 152 ] When she first saw the patient in the trauma bay, Mr. Harrison and Ms. Boschee were already there, along with Mr. Pyke, Mr. Jegou and the patient. Ms.

Palin stood at the bottom of the stretcher, and interrupted Mr. Jegou who was giving his verbal report. She told him that the patient needed to go to the hospital right away. Mr. Jegou became aggravated, held his hands up, and told her she needed to stop. She responded by insisting that he needed to go. [ 153 ] Mr. Jegou said that the patient was out of time in any event. All three of the nursing staff insisted that he had to go to the hospital. [ 154 ] When Mr. Jegou said that he brought the patient there to see if there was any information, she agreed to go and search.

She quickly did so in a nearby examining room computer, and found nothing. She performed the search on her own, and then returned to the trauma room to report. [ 155 ] It became clear that Dr. Bouwer had not been called. After discussion, it was agreed that Ms. Boschee would go with Mr. Jegou so he could make the call. Before they left, Ms. Palin went back to her duties. [ 156 ] She only remembered seeing Ms. Jegou on one occasion. She was in the hallway when Ms. Palin was returning to report that she had found no records. She does not recall Ms. Jegou ever telling Mr.

Jegou to go easy on her nurses. [ 157 ] At some point, before the patient was taken out of the clinic, Mr. Jegou approached Ms. Palin in the examination room, and said something to the effect of “are we okay?” She responded to the effect of, “yes, just go.” [ 158 ] Ms. Palin confirmed that she checked the patient’s leg strength and saw a bit of a left-sided facial droop. [ 159 ] Ms. Palin gave her evidence in a clear, straight forward way, responding without hesitation to all questions asked of her. There are no concerns about her testimony. G. John Penzo 1. General Matters [ 160 ] Mr.

Penzo graduated from paramedic school in 1997, after first being qualified as an EMT. He has had a variety of positions for various organizations as a paramedic and in related roles including dispatch supervisor for 911 calls.

He has many fire and rescue certificates, and taught and developed the curriculum for paramedic training at the Southern Alberta Institute of Technology (“SAIT”) for two years. [ 161 ] During his time as an active first responder, from 1997 to 2011, he responded to over 6000 medical calls, 40-50 of which would have been strokes. [ 162 ] He has created medical control guidelines for various institutions, including CNRL. The Guidelines at CNRL were prepared by him, with reference to and incorporating other standard protocols.

After the times relevant to this action, the Guidelines were replaced by the AHS protocol. [ 163 ] During the years 2014 and 2015, Mr. Penzo’s title was “Emergency Services Specialist.” As such, he was outside the chain of command governing firehall employees (paramedics, EMRs and EMTs). He reported directly to the firehall manager. Approximately two years ago, he took over the position of Fire Chief when Mr. Slade retired, and has responsibility for both the Horizon and Albion OilSands sites.

[ 164 ] Mr. Penzo has instructed all levels of emergency responders – EMRs, EMTs and paramedics. Instruction for all three involves stroke patients as a main component. The core piece is the same for all three levels, rapid recognition and rapid transportation to a hospital. Little can be done outside of hospital-based CT scans and follow-up treatment. [ 165 ] On ALS calls, there is usually a paramedic and an EMT working together.

The paramedic has the responsibility for what happens, as the highest medically-trained person on the call. [ 166 ] CNRL provided regular continuing education programs – shorter sessions for night shifts on a weekly basis, more extensive two-day courses annually and on a rotating basis, sending personnel to Texas for in-depth refresher courses. Samples from some of the materials used during CNRL courses were explained by Mr. Penzo. A few examples: (

a) Cincinnati Prehospital Stroke Scale: identify stroke on the basis of three physical findings – facial droop, arm drift and abnormal speech, enabling the evaluation of a patient in less than one minute. (

b) Emphasizing rapid EMS-system transport and prearrival notification to the receiving hospital. [ 167 ] Some of these materials note the significance of establishing the time when the patient was last known to be normal. Mr. Penzo said this could usually be determined from the patient or bystanders or family members. However, he said getting such information should not delay transportation. Information could be obtained by telephone during the trip to the hospital. [ 168 ] Telephones were available at Calumet Camp, where CNRL’s contractors stayed when onsite. Every room had a desk phone.

There was adequate coverage for cellphones. There were public phones available on the main level of the camp, at various points. [ 169 ] Calumet Camp had security personnel who also assisted EMS personnel as necessary. They could drive an ambulance and assist in carrying stretchers, for example – functions for which they were trained. [ 170 ] The Guidelines were intended to be followed without deviation, except where required for the patient’s wellbeing and in consultation with Dr. Bouwer – who has always been available everyday, every hour, by cellphone.

Likewise, if for some reason a subject was not covered in the Guidelines , Dr. Bouwer was to be consulted. 2. Fall Case: November 19, 2014 [ 171 ] Mr. Penzo was involved in the fall case at the request of Mr. Slade, in his role as a subject matter specialist. [ 172 ] His initial understanding was that a worker fell fifteen to eighteen feet (which he acknowledged on cross-examination was incorrect, as the height was seven to ten feet), landed on a hard metal surface, and fractured his wrist. Mr. Jegou ruled out a spinal injury so did not use back support in extracting the worker.

Without splinting the wrist, he had him descend a cage ladder with the first responders supporting him below. [ 173 ] Mr. Penzo attended a meeting to discuss this incident with Mr. Jegou and others. He expressed the view that Mr. Jegou had not followed the Guidelines for “spinal injury.” These Guidelines indicated that where there was a fall from an elevation greater than one meter, the case qualified as uncertain or high risk and required spinal immobilization.

Even if the assessment was low risk, the Guidelines required spinal immobilization if it was a “unreliable patient,” meaning a patient whose experience of spinal injury symptoms would be masked by other injuries. [ 174 ] Thus, a rope rescue was required which could be accomplished in one of two ways, both involving back supports while the patient was brought down the ladder.

Even if trained rope rescuers were not on duty, they could be called from off duty or another site, and be at the firehall in twenty minutes and the site of injury in less than a further five minutes. [ 175 ] He agreed that if a patient refused treatment (such as a rope rescue or splint) that might justify not providing that treatment – but such a basis for deviation would require documentation in the patient care report. He agreed that a paramedic would have some discretion in determining what was a distracting injury. 3.

Stroke Case: February 17, 2015 [ 176 ] For the case involving the stroke patient, once again Mr. Penzo’s involvement came at the request of Mr. Slade, because he was a subject matter expert. [ 177 ] He attended the March 12, 2015 meeting, and expressed the opinion that the patient should have been taken by rapid transportation directly from Calumet Camp to the Fort McMurray hospital. There was no reason to go to the clinic. He did not recall Dr. Bouwer praising the quality of the patient care report nor raising the question of what “we did wrong.” Further, he did not agree that Mr.

Jegou took responsibility for making a mistake and going to the clinic. [ 178 ] James Dunn, another paramedic and another subject matter expert, completed an audit of the PCR done by Mr. Jegou on the February 17, 2015 incident, entitled “CNRL PCR Review Toolbox.” Horizon had implemented an audit of PCRs approximately two months before, with the first stage intended to monitor compliance with the formal aspects of completing PCRs: ensuring all of the boxes were ticked, and the appropriate information included.

A second stage would start later, when the PCRs were also audited for the substantive quality of response to the call. [ 179 ] The audit of Mr. Jegou’s PCR for the stroke patient indicated that everything was completed, and included the commendation “all good!” One of the areas checked off was “skills,” which was explained as correct techniques, timely, MCP deviations documented, equipment issues noted.

4. Termination of Mr. Jegou’s Employment [ 180 ] After the March 12, 2015 meeting, Mr. Penzo was asked to prepare a

summary of the two situations in which Mr. Jegou’s performance had been questioned: the fall and the stroke cases. His analysis included summaries of the relevant parts of the Guidelines and excerpts from other standard protocols, together with his conclusion about where Mr. Jegou had deviated from the standard level of care required of a paramedic. [ 181 ] Mr. Penzo was not involved in the decision about whether to terminate Mr. Jegou. He became aware of it after the fact. Mr. Slade asked if he supported the decision, and he told him that he did, because of the two incidents in which Mr.

Jegou had not followed required protocols. 5. Assessment [ 182 ] Mr. Penzo is highly trained, skilled and knowledgeable as a paramedic and obviously well suited to his role as a subject matter specialist in 2014 and 2015. In my view, however, he was not a disinterested witness. [ 183 ] Much of Mr. Penzo’s background prior to dealing with Mr. Jegou involved developing and applying the Guidelines and other protocols, which he was personally responsible for preparing. When he was involved in Mr. Jegou’s matters, it was as an expert in whether appropriate practices were followed.

He was a “by-the-book” individual with little tolerance for anyone not meeting his exacting standards. [ 184 ] Clearly, Mr. Jegou fell short of his standards. Mr. Penzo did not notice or remember the comments Dr. Bouwer made that were complimentary to or more accepting of Mr. Jegou’s work. From the evidence, these include the quality of the patient care report on the stroke case and the decision not to use a rope rescue on the fall case. When testifying in direct examination, Mr.

Penzo exaggerated the height of the fall, something that had to be pointed out during cross-examination. [ 185 ] There is no concern that Mr. Penzo is untruthful or deliberately misleading. There is a concern, however, that his focus on written documents easily led him to prejudge Mr. Jegou’s standard of care; and once he reached that conclusion, he became committed to it. [ 186 ] Thus, while on the whole his evidence is informative and helpful, I treat some of it with caution. H.

Blair Lindsay [ 187 ] Blair Lindsay was qualified as an expert on the standard of care for paramedics in Alberta for the purpose of giving an opinion on the role of Mr. Jegou, as paramedic during the February 17, 2015 call. [ 188 ] Mr. Lindsay first graduated with his qualifications as a paramedic from SAIT in 1985, after having previously qualified as an EMT. Since 1985, he has maintained his registration.

He also has a Bachelor of Health Sciences (2003) and a Master of Arts in Distributed Learning (2006), for which his thesis focused on simulation to assist in teaching paramedic students. [ 189 ] He worked actively as a paramedic between 1985 and 2005, after which his career has focused on teaching.

He is a full-time instructor at SAIT in the paramedics program and has a specialization in using and developing patient simulation practices to assist in teaching. [ 190 ] Through his role as an instructor (which has included curriculum development), he is very familiar with the course content of the programs generally, including Advanced Cardiac Life Support courses. [ 191 ] Mr.

Lindsay stated that “strokes evolve quickly, are frequently life-threatening, and frequently life-altering, even when not fatal.” Only hospitals are equipped to properly intervene with treatment. [ 192 ] From the information received, Mr.

Lindsay believed that the patient received good assessment and provisional diagnosis. [ 193 ] However, in his view the decision to delay transport directly to the hospital and, instead, stop at the clinic “was inappropriate and unreasonable and contrary to establish standards of paramedic training, practice and protocols” including CNRL’s protocol, which was consistent with common protocols. “There was no possible benefit to the patient,” according to Mr. Lindsay, “and only the risk of further harm in an already life-threatening situation.” [ 194 ] Mr.

Lindsay said all medical practitioners wish for an extensive patient history, but this is not always possible and seeking to obtain new information cannot justify a delay in rapid transport to the nearest hospital. It is very unlikely that the value of any information would offset the potential detriment of delaying transportation. Time is absolutely crucial, and every minute may be precious in saving brain cells. [ 195 ] In his view, it is not within the scope of a paramedic’s role to make decisions such as whether a patient was beyond the time window for treatment of a stroke.

First, he said, sometimes the time the patient was last seen well may change as later information develops, so one can never be certain. Second, even when out of time for the theoretical window for reperfusion (procedures to restore blood flow after blockage) there may be therapies that can improve patient outcome. There may be complications of a stroke such as seizures, variation in body temperature and airway problems that are best addressed at hospital. Reperfusion, within the theoretical timelines, is not the sole therapy available. [ 196 ] Mr.

Lindsay emphasized that CNRL’s protocol, AHS and standard practice do not leave room for alteration or delay on the basis that a paramedic believes nothing can be done for the patient anyway. A paramedic’s course of action is always the same for a stroke patient: rapid transportation, no exceptions.

[ 197 ] He acknowledged that each step of a paramedic’s response to a call requires some time, including collection of information at the scene and en route. However, the priority is always rapid transportation. [ 198 ] Despite concerns about patient privacy, cellular phones are regularly used throughout the medical profession. One can avoid using a patient’s name where possible, but should not hesitate to do so where it is important for the patient’s welfare. [ 199 ] Mr. Lindsay was not asked to give an opinion on whether Mr. Pyke, as EMT on the call, met the standard of care.

He agreed that EMTs are accountable for their own actions. However, he was asked to address the conduct of Mr. Jegou, and together, the two of them did not meet the standard of care. [ 200 ] Mr. Lindsay was a well-qualified, articulate expert in his field. Despite the fact that he has not actively worked as a field paramedic for some years, he has maintained his involvement by extensive teaching and research in the field and, until six years ago, was still doing ride-a-longs to maintain current awareness of conditions on the ground. IV. Findings of Fact A.

General [ 201 ] Having summarized the main parts of the testimony, I turn now to the facts that I find from the evidence. My findings are based on the oral testimony together with the documents, agreed facts and discovery evidence read in at trial. [ 202 ] Mr. Jegou was an experienced paramedic by November 2014. He obtained his qualifications in October 2003 following a two- year program of studies, added to the earlier period required to qualify as an EMT.

Then, he worked a number of years based in Brooks before starting at CNRL’s Horizon site in August 2009. [ 203 ] As a number of witnesses said, a paramedic (now known as an advanced care paramedic) is the highest of the three levels of paramedicine in Alberta. Usually, Mr. Jegou was the person with the highest medical training responding to a dispatch call. [ 204 ] On matters governing treatment, care and transportation of patients, he was required to follow the Guidelines and obtain permission from Dr. Bouwer, the medical director, for any deviations. Dr.

Bouwer was to be notified of any patient transfers off the Horizon site. B. Fall Incident [ 205 ] Mr. Jegou, temporarily acting as a shift captain, arrived at the scene of a reported fall with a fire truck, assisted by Dale Young (presumably an EMT, although the evidence is not clear). They were told to look for someone who had reportedly fallen approximately eight to ten feet by or into an empty tank. [ 206 ] It was difficult to locate the patient through a maze of ladders and into an area by a thickening tank that was under construction. Cellphone reception was available intermittently.

On locating the patient, it was determined that he had fallen about five feet, after his initial fall had been interrupted by a harness. He had a sore chest and what seemed to be a very swollen, broken wrist. [ 207 ] Mr. Jegou conducted a physical examination to rule out a C-spine injury. Based on this he determined it was not necessary to have the patient brought out with support of a back board using a rope rescue team. He should have splinted the wrist but decided not to take the ten minutes needed to return to his vehicle to obtain a splint.

The patient was extracted from the scene by being assisted down cage ladders with someone supporting him from below. [ 208 ] Tyler McLellan, another paramedic, assumed charge of the patient when he was brought out of the area. He did his own spinal examination and agreed with Mr. Jegou’s results. No back board was used. He splinted the wrist. [ 209 ] In follow-up meetings, there were concerns about Mr. Jegou’s decision not to immobilize the spine with a back board and having the patient brought out by a rope rescue crew. Those participating in the meetings – Dr.

Bouwer, Fire Chief Slade and a paramedic who worked as a subject specialist, Mr. Penzo – all agreed that the Guidelines for “Spinal Injury” defined the incident as high risk because the fall was greater than one meter. Thus, spinal immobilization was required. Even if the incident fell within a low risk category, there was an “unreliable patient” in the sense that he had another distracting injury that might interfere with the ability to diagnose pain or restriction in the C-spine. [ 210 ] However, Dr. Bouwer said Mr.

Jegou had done a good examination of the spine and while he was not satisfied the method of moving the patient was ideal, he accepted the difficulties of the location and that Mr. Jegou had addressed as well as he could the possibility of the spinal injury. Mr. Jegou said his platoon chief, Ian McLeod also supported his decision not to wait for the rope rescue crew. It is noteworthy that Mr. McLellan did not use a back board either, although presumably this was because the patient was then on a stretcher. Fire Chief Slade and Mr.

Penzo firmly remained of the view that the patient should have been put on a back board and brought down by rope rescue. [ 211 ] Everyone, including ultimately Mr. Jegou, agreed that the wrist should have been splinted to avoid possible further injury, as that would have required only another ten minutes. As well, Mr. McLellan splinted the wrist when he took over care of the patient. The Guidelines do not expressly require splinting, but the evidence establishes that it is part of the elementary practice requirements for qualified paramedics to follow. Mr.

Jegou was well aware of it. [ 212 ] Recommendations were made following the debriefing meetings to review with crew members, among other things, splint and immobilization techniques for ambulatory patients. Mr. Jegou did this with his crew.

[ 213 ] In the result, there were criticisms of Mr. Jegou’s conduct. Regarding the concern about possible spinal injury, Dr. Bouwer was ultimately satisfied that Mr. Jegou followed a reasonable, if not ideal, course. I infer that, if Dr. Bouwer was contacted at the time, he would have approved Mr. Jegou’s procedure. Everyone believed it was an error not to splint the wrist, although that was apparently given less attention in the meetings. [ 214 ] There was no reprimand or other form of discipline following the fall incident.

Rather, the meetings seem to have been held to discuss what happened with a view to ensuring proper protocol was followed in similar cases in the future.

The results of the meetings also expressly recognize that “the patient’s eagerness to exit the area may have contributed to the lack of proper splinting of the wrist and patient management.” Further, it was “determined that lack of proper rope rescue training and rope rescue team members on duty may have contributed to the choices made to remove the patient.” [ 215 ] While there was no discipline, the nature of the investigation and review had the effect of emphasizing that those responsible for overseeing paramedicine operations required compliance with Guidelines and a paramedic’s scope of practice. C.

Stroke Incident [ 216 ] The call to Calumet Camp on November 17, 2015 was initially not classified as an emergency, when it was considered a search for a missing employee. It became an emergency call when the patient was discovered with stroke symptoms and remained an emergency call throughout Mr.

Jegou’s subsequent involvement. [ 217 ] The Guidelines ’ algorithm for stroke patients is very simple: “identify signs and symptoms of possible stroke” then “immediate general assessment and stabilization” (involving a number of items, almost all of which can be performed in the ambulance), and finally “rapid transport to stroke centre.” The ambulance traveling time to Fort McMurray’s hospital from Calumet Camp was less than one hour – in this case, from the clinic (a little further from the camp, in the wrong direction) it took fifty-one minutes. But from the time Mr. Jegou and Mr.

Pyke arrived at Calumet Camp (10:35 a.m.) to arrival at the hospital was two hours. [ 218 ] Some of the testimony was critical of how much time the team took to load the patient into the ambulance and leave Calumet Camp. They spent twenty minutes at the patient’s side in the camp before he was on the way to the clinic, and Mr. Jegou was unable to explain the reason for much of th

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