PAULA KENNEDY Applicant And: BOARD of trustees, central REGIONAL INTEGRATED HEalth AUTHORITY Respondent, 2021 NLSC 102

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Kennedy v. Central Regional Integrated Health Authority (Board of Trustees) , 2021 NLSC 102 Date : July 20, 2021 Docket : 201901G3470 Between: PAULA KENNEDY Applicant And: BOARD of trustees, central REGIONAL INTEGRATED HEalth AUTHORITY Respondent Before: Justice Katherine J. O’Brien On Judicial Review From: Decisions of the Board of Trustees, Central Regional Integrated Health Authority, dated October 2017 and April 2019. Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: April 1, 2021

Summary: The Applicant applied for judicial review of two decisions of the Respondent. The first decision was made in October 2017 by an appeal committee of the Respondent. In that decision, the appeal committee considered the Applicant’s appeal of the Chief Executive Officer’s decision to deny her appointment to medical staff. The appeal committee allowed the appeal and granted the Applicant hospital privileges for one year when the customary period is five years. The second decision was made in response to a letter from the Applicant’s lawyer in March 2019 asking that the Respondent reconsider its 2017 decision.

The Court dismissed the application for judicial review. The Court found that the Respondent had not breached its duty of proceduralfairness by denying the Applicant a de novo hearing on her appeal nor in the procedure it adopted to respond to the March 2019 letter.Only the 2019 decision was challenged on its merits. The Court found that it met the applicable standard of reasonableness. Appearances: Jerome P. Kennedy, Q.C. Appearing on behalf of the Applicant Michelle A. Willette Appearing on behalf of the Respondent Authorities Cited: CASES CONSIDERED: Canada (Minister of Citizenship and Immigration) v.

Vavilov, 2019 SCC 65; Bell Canada v. Canada(Attorney General), 2019 SCC 66; Canada Post Corp. v. Canadian Union of Postal Workers, 2019 SCC 67;Baker v. Canada (Minister ofCitizenship and Immigration), (SCC), [1999] 2 S.C.R. 817; Palmer v. R., (SCC), [1980] 1 S.C.R. 759;Mandavia v. Central West Health Care Institutions Board, 2005 NLCA 12; Young v. Central Health, 2016 NLTD(G) 145; Chandler v.Assn. of Architects (Alberta), (SCC), [1989] 2 S.C.R. 848; Batstone v. Newfoundland & Labrador (Workplace Health,Safety & Compensation Commission), 2010 NLTD 108; STATUTES CONSIDERED: Apology Act, S.N.L. 2009, c.

A-10.1; Regional Health Authorities Act, S.N.L. 2006, c. R-7.1; Citizens’Representative Act, S.N.L. 2001, c. C-14.1; Labour Relations Act, R.S.N.L. 1990, c. L-1 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c 42, Sch D TEXTS CONSIDERED: Robert W. Macaulay, James L.H. Sprague and Lorne Sossin, Practice and Procedure Before AdministrativeTribunals, (Toronto: Carswell, 1991) (looseleaf updated 2013, release 20); Ruth Sullivan, Statutory

Interpretation, 3rd ed. (Toronto:Irwin Law, 2016); Robert W. Macaulay and James L.H. Sprague, Hearings Before Administrative Tribunals, 5th ed., looseleaf(Scarborough: Carswell 2016); Ruth Sullivan and Elmer A. Driedger, Construction of Statutes, 4th ed. (Markham: Butterworths, 2002);Donald J.M. Brown and J.M. Evans, Judicial Review of Administrative Action in Canada, looseleaf (Toronto: Canvasback Publishing,1998) vol. 3 REASONS FOR JUDGMENT O’Brien, J.: INTRODUCTION [1] Paula Kennedy (“Dr.

Kennedy”) has applied for judicial review of two decisions of the Board of Trustees (the “Board”) ofCentral Regional Integrated Health Authority (“Central Health”), specifically: a. A decision of an Appeal Committee of the Board dated October 5, 2017, in which the Appeal Committee allowed Dr. Kennedy’sappeal of a decision of Central Health’s then Chief Executive Officer (“CEO”) (the “October 2017 Decision”); and b. A decision of the Board communicated by letter on April 1, 2019, in response to a request from Dr.

Kennedy to have the AppealCommittee reconsider the October 2017 Decision (the “April 2019 Decision”). [2] Dr. Kennedy is a fee-for-service radiologist who has been employed by Central Health since 2009. Her last appointment tomedical staff and grant of hospital privileges was valid from 2012 to 2017. [3] On March 23, 2017, Dr. Kennedy applied for reappointment to medical staff pursuant to

section 33 of the Medical Staff Bylawsfor the Central Health Authority, (19 July 2011) (the “Bylaws”). On July 31, 2017, the then Chief Executive Officer of Eastern Healthrefused Dr. Kennedy’s application pursuant to

section 25 of the Bylaws. On August 14, 2017, Dr. Kennedy appealed that decisionpursuant to

Part X of the Bylaws. [4] On September 10 and 11, 2017, an Appeal Committee, which is a subcommittee of the Board, heard the appeal. Dr. Kennedy

sought a hearing de novo but the Appeal Committee denied that request. The appeal proceeded and was allowed. The Appeal Committee granted Dr. Kennedy full hospital privileges for a one-year period. The Appeal Committee’s reasons, including its reasons for refusing the request for a de novo hearing, are set out in the October 2017 Decision. [ 5 ] Since that time, and up until the present application was filed, Dr. Kennedy has been on medical leave from Central Health.

As a result, Central Health effectively placed her reappointment in abeyance, taking the position that her one-year reappointment to medical staff would come into effect upon her return to work. [ 6 ] On March 26, 2019, Dr. Kennedy’s legal counsel wrote the chair of the Board requesting that the Appeal Committee reconsider the October 2017 Decision on the basis of new evidence.

The new evidence was a report of the Office of the Citizen’s Representative dated March 7, 2019, in response to a complaint that had been made by a number of physicians about senior management and administrative issues within Central Health [1] (the “OCR Report”). The OCR Report recommended that Central Health write an apology to Dr. Kennedy under

section 2 (

a) of the Apology Act , S.N.L. 2009, c. A-10.1 for using its credentialing process as a method of discipline. It also recommended that Central Health amend the Bylaws to more specifically address conflict of interest and apprehension of bias by those participating in any credentialing or disciplinary processes. [ 7 ] In the March 26, 2019 letter, Dr. Kennedy’s lawyer noted that the OCR Report also found that the (then) Regional Chief of Diagnostic Imaging, Vice President of Medical services, and CEO had all acted improperly and in a biased manner during Dr. Kennedy’s credentialing process.

This had to do with their involvement in that process during a time when they were involved, directly or indirectly, in litigation with Dr. Kennedy. Dr. Kennedy’s lawyer wrote that “[t]he [OCR Report] found that the very accusations Dr. Kennedy’s submissions highlighted to the Appeals Committee were true.” The letter concluded as follows: Dr. Kennedy’s understanding is that [the current CEO] wants to fix Dr. Kennedy’s credentials issue but was informed by Central Health’s legal counsel that there is nothing in [the Bylaws] which will allow her to overrule the past decision of the Board.

In our opinion, the Board has jurisdiction to consider the issue of Dr. Kennedy’s credentials considering its previous ruling and especially having regard to the important new evidence outlined in [the OCR Report]. If this evidence had been available to the Board it would surely have affected the Board’s decision in Dr. Kennedy’s favor. On behalf of Dr. Kennedy, we ask that the matter be reconsidered by the original Appeals Committee. We are asking that [the October 2017 Decision] be completely overturned based on the new evidence that has arisen since that decision was rendered and that Dr.

Kennedy receive five-year credentials like every other physician at Central Health. [2] [ 8 ] The Board’s response to this request is the April 2019 Decision, and it came in the form of a letter from Central Health’s legal counsel. It read: We have been provided with your correspondence dated March 26, 2018 addressed to Donald Sturge, Chair of [the Board]. A review of your correspondence indicates a number of issues which need to be addressed.

You indicate that the [OCR Report] found that [the then Regional Chief of Diagnostic Imaging, Vice President of Medical services, and CEO] all “acted improperly and in a biased manner”. In fact, the [OCR Report] found that there was no conflict of interest but instead there was a concern about reasonable apprehension of bias. There is a distinction between bias and a reasonable apprehension of bias. Further, you reference in your letter that Dr. Kennedy sought a hearing de novo before the [Appeal Committee] which was denied.

We have advised our client that had your client been of the view that the Appeal Committee process denied her procedural fairness or natural justice, or had she been dissatisfied with the reasonableness of the decision of the [Appeal Committee], then her recourse in either case would have been to file a judicial review application. Having not filed a judicial review application within a reasonable time of the Appeal Committee’s decision, we are of the view that the Appeal Committee’s decision is final and binding, pursuant to

section 62.1 of the Bylaws. We have advised our client that [the Bylaws] do not provide a basis for the [Appeal Committee] or the Board as a whole to revisit its decision of October 2017. You have indicated that, in your opinion, “…the Board has jurisdiction to consider the issue of Dr.

Kennedy’s credentials considering the previous ruling and especially having regard to the important new evidence outlined in [the OCR Report].” We have reviewed the Appeal Committee’s decision in response to your client’s administrative appeal and determined that the Appeal Committee did not reserve onto itself an ability to revisit the decision. Further, notwithstanding your assertion to the contrary, no new evidence was outlined in [the OCR Report].

In fact upon our review of [the OCR Report] and the Appeal Committee’s decision we find similarities in relation to their commentary on the process undertaken by previous administration in relation to Dr. Kennedy. That process formed the basis for the Appeal Committee’s decision. The recommendations contained in the [the OCR Report] do not disturb the findings and decision of the Appeal Committee. Dr. Kennedy obtained the relief she sought before the Appeal Committee, which has simply been postponed in light of her medical condition. The Appeals Committee’s grant of privileges to Dr.

Kennedy is still in effect, having been extended for an additional year by interim CEO, Louise Jones. Accordingly there is no rationale to have the Appeal Committee’s decision reconsidered. We trust this satisfactorily addresses the issues raised in your correspondence. Please direct all future correspondence in relation to this matter to the attention of the undersigned. [ 9 ] On May 14, 2019, the present application was filed. Oral submissions were heard on April 1, 2021. Following oral submissions, but before a decision was made, Dr.

Kennedy’s counsel wrote the Court asking that I hear an application for new evidence, specifically, a transcript of the hearing before the Appeal Committee and new Medical Staff Bylaws that were passed by the Board in

March 2021 (the “2021 Bylaws”). I agreed to accept written submissions on the issue. In her written submission, Dr. Kennedy onlysought to adduce the 2021 Bylaws. ISSUES [10] I must decide the following issues: a. Should the 2021 Bylaws be admitted as new evidence on this application? b. Should the March 2019 Decision be upheld? c. Should the October 2017 Decision be upheld? LAW RELATING TO JUDICIAL REVIEW AND PROCEDURAL FAIRNESS [11] The Appeal Committee is an administrative decision maker. Its authority to make decisions is granted by statute, specifically bythe Bylaws and the Central Health Authority Bylaws (the “Board Bylaws”), both of which are made pursuant to

section 10 of theRegional Health Authorities Act, S.N.L. 2006, c. R-7.1 (the “Act”). There is no appeal available from a decision of the AppealCommittee under the Bylaws or the Board Bylaws. Specifically,

section 61.7 of

Part X of the Bylaws states: “A majority decision of theBoard or such Committee of the Board as appointed for the purpose of hearing the appeal shall be final and binding.” [12] Although there is no right of appeal, all decisions of administrative decision makers are subject to judicial review by the courts.The Supreme Court of Canada recently revisited the law of judicial review in three companion cases: Canada (Minister of Citizenshipand Immigration) v. Vavilov, 2019 SCC 65; Bell Canada v. Canada (Attorney General), 2019 SCC 66; and Canada Post Corp. v.Canadian Union of Postal Workers, 2019 SCC 67.

In these decisions, particularly in Vavilov, the Supreme Court of Canada gave lowercourts new guidance with respect to how to conduct judicial reviews. I will highlight the most important holdings of Vavilov relevant tothe present case: a. If the governing statute or regulations do not give a right of appeal or specifically state the standard of review, the court must firstdetermine the applicable standard. b.

If the merits of the administrative decision are at issue, the presumption is that the standard is “reasonableness.” There areexceptions where the rule of law requires that the standard be “correctness,” however, none of those exceptions apply in the present case. c. To be “reasonable” a decision must be acceptable and defensible on the facts and the law in terms of the outcome and thejustification or rationale given. Reasonable decisions are logically coherent with a rational chain of analysis. They bear the hallmarks ofjustification, intelligibility, and transparency.

They are also made within the legal and factual constraints relevant to the decision. d. If a decision is reviewed on a standard of reasonableness, and it meets this standard, then the court will not interfere and thedecision will be upheld. e. If the decision is reviewed on a standard of correctness, the court will determine if the administrative decision maker was correct inits application of the law to the facts before it. If the decision is correct, in this sense, the court will not interfere and the decision will beupheld. f.

If the issue on judicial review is not about the merits of the decision, but is rather related to a breach of natural justice and/or theduty of procedural fairness, then the reviewing court should be guided by Baker v. Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817. According to Baker and other decisions of the Supreme Court of Canada cited therein, theduty of procedural fairness in administrative law is eminently variable, inherently flexible, and context-specific.

Where a particularadministrative decision-making context gives rise to a duty of procedural fairness, the specific procedural requirements that the dutyimposes are determined with reference to all of the circumstances (Baker, para. 21). g. In Baker, the Supreme Court of Canada set out a non-exhaustive list of factors that inform the content of the duty of proceduralfairness in a particular case.

Those factors include: (1) the nature of the decision being made and the process followed in making it; (2)the nature of the statutory scheme; (3) the importance of the decision to the individual or individuals affected; (4) the legitimateexpectations of the person challenging the decision; and (5) the choices of procedure made by the administrative decision maker itself. h. If an administrative decision maker denied a party procedural fairness or breached the principles of natural justice, then its decisioncannot stand. i.

If, having conducted a review based on these principles, the court decides that the administrative decision maker’s decision shouldnot be upheld, then usually the court will remit the matter back to the administrative decision maker for reconsideration. In some limitedcases, the court may simply make the decision it determines should have been made. Issue 1: new evidence of The 2021 Bylaws Law Relating to New Evidence [13] Both parties agree that a judicial review proceeding is typically conducted on the basis of the record that was before theadministrative decision maker. There are some exceptions. In Robert W.

Macaulay, James L.H. Sprague and Lorne Sossin, Practice andProcedure Before Administrative Tribunals (Toronto: Carswell, 1991), (looseleaf updated 2013, release 20), the authors describe theseexceptions at pages 28-822, 823 as follows: A court on judicial review will not accept new evidence that was not before the agency unless:

a) The grounds for review are the various forms of error (such as breaches of natural justice including bias, no evidence to supportfindings, etc.) where the nature of the alleged error is such that it can only be proven by looking beyond the record; or

b) Where the material is submitted for the sole purpose to assist the reviewing court to better understand the record or the issuesrelevant to the judicial review. There are also some references to evidence from outside the record being admitted in the “interests of justice”. In many cases thisreference is simply a recasting of admissibility to better understand the record/issues. Otherwise, the existence of such an exceptionappears problematic. [14] Both Counsel also agree that in order to be admitted on judicial review new evidence should meet the test enunciated in Palmerv.

R., (SCC), [1980] 1 S.C.R. 759, at 775: a. The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial; b. The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial; c. The evidence must be credible in the sense that it is reasonably capable of belief; and d. The evidence must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected tohave affected the result. Positions of the Parties regarding the New Evidence [15] Dr.

Kennedy submits that the procedure for applications for reappointment to medical staff has been changed in the 2021Bylaws. For example, the CEO no longer makes the decision in the first instance. Dr. Kennedy submits that these changes highlight theinequity of the procedure used in 2017 and is an implicit acceptance and confirmation by the Board of the lack of procedural fairness thatshe was afforded. As such, Dr.

Kennedy says the 2021 Bylaws are relevant and can be used by this Court to determine that a new hearingis appropriate. [16] The Board submits that the 2021 Bylaws are neither retroactive nor retrospective in nature and thus are not relevant to Dr.Kennedy’s hearing. Additionally, although it acknowledges that there has been changes to the reappointment procedure, the Board doesnot agree that those changes, even if they were applied to Dr. Kennedy’s case, would affect the result of this judicial review. Forexample, the Board notes that an appeal committee working under the 2021 Bylaws,

Part X may establish its own rules of procedure andis not mandated to hold a de novo hearing. Analysis of Issue 1 [17] The Palmer criteria related to due diligence and credibility are both met in this case. The 2021 Bylaws were not in existence atthe time of the appeal, and they are credible. The Palmer criteria that must be analyzed in more detail are relevance and a reasonableexpectation of effecting the result. [18] The first matter to consider is the temporal operation of the 2021 Bylaws. The Board filed Mandavia v.

Central West HealthCare Institutions Board, 2005 NLCA 12, a decision in which our Court of Appeal considered retroactive and retrospective legislation. InMandavia, terms were defined as follows: retroactive application is to change the past legal effect of a past situation while retrospectiveis to change the future legal effect of a past situation. The Court of Appeal went on to review some of the well-established common lawrules governing the temporal application of statutes and regulations, relying on Ruth Sullivan and Elmer A.

Driedger, Construction ofStatutes, 4th ed. (Markham: Butterworths, 2002) (see Mandavia, para. 103). Briefly stated, they are as follows: a. There is a strong presumption against the retroactive application of legislation. Normally, it can be rebutted only if the statute orregulation in question contains language clearly indicating that it, or some part of it, is meant to apply retroactively. b. There is a weaker presumption that the legislature does not intend to interfere with vested rights.

The weight of the presumptionvaries depending on factors such as the nature of the protected right and how unfair or arbitrary it would be to abolish or curtail the right. c. At common law, there is no presumption against the retrospective or immediate application of legislation as those terms are definedin Mandavia. However, many instances of retrospective and immediate application are covered by the presumption against interference with vested rights or by the general transitional rules found in all Canadian

Interpretation Acts[3]. [19] These principles are reviewed, and expanded upon, in Ruth Sullivan, Statutory

Interpretation, 3rd ed. (Toronto: Irwin Law,2016). At pages 369 and 370 of that text, Sullivan discusses transitional provisions and notes that, subject to a few constitutionalconstraints on the jurisdiction of legislatures (none of which are applicable here), a legislature may enact whatever transitionalprovisions it thinks appropriate, expressing its intention to make new legislation retroactive, retrospective, or immediate, as well as itsintention to interfere with or preserve vested rights.

These legislative expressions can clarify or override the general rules. [20] The 2021 Bylaws contains transitional provisions: 68.1 The replacement of a Medical Staff Bylaw does not: 68.1.1 affect the previous operation of the replaced Bylaw or anything done or permitted according to it; 68.1.2 affect a right or obligation acquired under the replaced Bylaw; 68.1.3 prevent or affect any investigation or disciplinary proceedings, and any investigation or proceeding may be continued and

enforced and any penalty or sanction imposed as if the Bylaw had not been replaced. [ 21 ]

Section 68.1.1 is clear, the 2021 Bylaw does not operate retrospectively. The Appeal Committee operated under the Bylaw in effect at the time of its decision, and I have to review its actions in light of that fact. This significantly reduces the relevance of the 2021 Bylaws to the present application. [ 22 ] Even if they do not apply directly to her case, Dr. Kennedy argues that the changes made in the 2021 Bylaws prove the procedural unfairness of their predecessor. With respect, I cannot agree. [ 23 ] Dr.

Kennedy’s chief complaint with the October 2017 decision is that by denying her a hearing de novo , the Appeal Committee acted in a procedurally unfair manner. The procedure as it unfolded in 2017 was either unfair or it was not. Changes to the procedure for reappointment for medical staff after the fact are not particularly relevant to this inquiry. I do not accept that by making changes to its bylaws the Board has implicitly accepted or confirmed a lack of procedural fairness in the earlier version. There may be many reasons as to why bylaws are amended.

Statues and regulations are regularly revisited and revised. My role is not to do an assessment of the reasons for the changes, or of the changes themselves. The fairness of the procedure in the 2021 Bylaws is not before me. Even if I accept that the 2021 Bylaws have some relevance to this judicial review, I cannot find that they could reasonably be expected to affect the result.

In short, I do not find that the Palmer criteria are met. [ 24 ] The 2021 Bylaws are not needed to prove or establish any procedural error by the Appeal Committee nor are they needed to assist me to better understand the record or the issues relevant to this judicial review. Dr. Kennedy’s submissions are readily understood within the context of the record as it stands. As such, I am refusing her request to admit new evidence. Issue 2: THE April 2019 Decision Positions of the Parties [ 25 ] In her initial application, Dr. Kennedy raised a number of concerns with the April 2019 Decision including: (

i) the decision did not meet the requirements of justification, transparency, and intelligibility; (ii) the decision was unreasonable; (iii) the Board erred in concluding that it could not reconsider its previous decision; (iv) the Board erred in concluding that the OCR Report was not new evidence; and (

v) the Board did not provide her procedural fairness or comply with the principles of natural justice. In subsequent submissions, particularly those made after Vavilov was published and the parties were invited to make further submissions in respect of its application, Dr. Kennedy focused mostly on the Board’s duty to give reasons and its alleged procedural unfairness. In particular, Dr.

Kennedy submits that the Board acted unfairly by not allowing her the opportunity to be heard, whether by oral submission or by a more extensive written submission. [ 26 ] The Board submits that the April 2019 Decision is not a decision that attracts judicial review. In support of this position, the Board states that the Bylaws do not provide the Board with the authority to reconsider a final and binding decision of the Appeal Committee, nor contain any provisions that oblige it to consider “ad-hoc” correspondence from Dr. Kennedy’s legal counsel.

In these circumstances, the Board submits that no procedural fairness was due to Dr. Kennedy in relation to the March 26, 2019 letter from her counsel. In the alternative, the Board submits that the level of procedural fairness due was very low and that it was satisfied by the April 2019 Decision. To the extent that the merits of the April 2019 Decision are in question, the Board submits that the applicable standard of review is reasonableness.

It submits that the Appeal Committee had no jurisdiction to reconsider the October 2017 Decision because it was functus officio (that is, without legal authority because its mandate had expired) and that, moreover, the OCR Report was not “new” evidence, in that the issues raised in the OCR Report were already considered by the Appeal Committee and addressed in the October 2017 Decision. Finally, the Board submits that by virtue of ss. 34 and 42 of the Citizens’ Representative Act , S.N.L. 2001, c. C-14.1 , the OCR report is not admissible in evidence in any proceeding other than a trial for perjury.

Is the April 2019 Decision an Administrative Decision that can be judicially reviewed? [ 27 ] At paragraph 20 of Baker , the Supreme Court of Canada affirmed that the fact that a decision is administrative and affects “the rights, privileges or interests of an individual” is sufficient to trigger the application of the duty of fairness. [ 28 ] Although the Board was not sitting as an Appeal Committee engaged in quasi-judicial work when it received the March 26, 2019 letter, it was an administrative body that, in refusing to have the Appeal Committee reconsider its decision or to accept the “new” evidence, made a decision that affected Dr.

Kennedy’s interests. As such, I find that the April 2019 Decision is subject to judicial review. What is the standard of review? [ 29 ] With respect to the merits of the April 2019 Decision, following the Supreme Court of Canada’s direction in Vavilov , both parties agree that the standard of review is reasonableness. I also agree. [ 30 ] With respect to issues of procedural fairness raised by Dr.

Kennedy, both parties agree that the Baker factors should be applied to determine the specific requirements of the duty of procedural fairness in this case and that, if those requirements have not been met, then the decision cannot stand. I also agree. What level of procedural fairness was owed to Dr. Kennedy? [ 31 ] The level of procedural fairness due to Dr. Kennedy in April 2019 is not necessarily the same as that which was due to her during the consideration of her application for reappointment and the appeal before the Appeal Committee.

The duty of procedural fairness is context-specific and it can vary depending on the stage of the process. For the April 2019 Decision, I have to consider the Baker factors as they apply to the circumstances of that decision.

The nature of the decision and the process followed in making it [ 32 ] The April 2019 Decision was made in response to a letter received approximately 19 months after the Appeal Committee had rendered its decision allowing Dr. Kennedy’s Appeal and reinstating her with full privileges for one year. The decision was to refuse to consider the matter further because the Bylaws did not provide a basis to revisit the October 2017 Decision and the Appeal Committee had not reserved unto itself an ability to revisit the decision.

The process followed was to communicate the decision in a letter from the Board’s legal counsel. Follow up correspondence clarified that that counsel’s letter was responding on behalf of the Board. The nature of the statutory scheme [ 33 ] In Young v. Central Health , 2016 NLTD(G) 145, Goodridge J. (as he then was) judicially reviewed a decision rejecting a doctor’s application for medical privileges and appointment to medical staff at an early, screening-type, stage.

At paragraph 38 of Young , Goodridge J. noted that the Act accords considerable discretion to Central Health by allowing it to establish bylaws and procedures for the granting of hospital privileges and making appointments to medical staff. He referred to the Bylaws as “comprehensive.” [ 34 ] The scheme set out in the Bylaws does not anticipate or address requests such as that made in the March 26, 2019 letter. As already noted,

section 61.7 of the Bylaws states that a decision of the Appeal Committee is final and binding. There is no statutory right of reconsideration. This is in contrast to some other statutory schemes. For example, section 19(2) of the Labour Relations Act , R.S.N.L. 1990, c. L-1 states that the Labour Relations Board may review, rescind, amend, alter or vary an order or decision made by it. The importance of the decision to Dr. Kennedy [ 35 ] Any decision that impacts a person’s career and earning capacity is of importance. However, I note that the April 2019 Decision did not result in Dr.

Kennedy being denied hospital privileges or an appointment to medical staff. Dr. Kennedy had been successful on her appeal of the CEO’s decision denying her reappointment, and she had been reappointed and granted privileges for one year. [ 36 ] That being said, both sides agree that a five-year appointment is usually granted to physicians. Dr. Kennedy described the effect of granting her a lesser term as prejudicial to her in that, if applying for work outside of Central Health, she would have to disclose that she only had a one-year grant of hospital privileges, which could raise questions or concern.

The legitimate expectations of Dr. Kennedy [ 37 ] At paragraph 26 of Baker , L’Heureux-Dubé J. described the doctrine of legitimate expectations as: …based on the principle that the “circumstances” affecting procedural fairness take into account the promises or regular practices of administrative decision-makers, and that it will generally be unfair for them to act in contravention of representations as to procedure, or to backtrack on substantive promises without according significant procedural rights. [ 38 ] There is no evidence before me to support Dr.

Kennedy having a legitimate expectation , in this sense, of a formal hearing or a rehearing based on new evidence.

The choices of procedure made by the Board [ 39 ] At paragraph 27 of Baker , L’Heureux-Dubé J. stated: Fifth, the analysis of what procedures the duty of fairness requires should also take into account and respect the choices of procedure made by the agency itself, particularly when the statute leaves to the decision-maker the ability to choose its own procedures, or when the agency has an expertise in determining what procedures are appropriate in the circumstances: Brown and Evans, supra, at pp. 7-66 to 7-70.

While this, of course, is not determinative, important weight must be given to the choice of procedures made by the agency itself and its institutional constraints [cites omitted.] [ 40 ] The Board chose to deal with Dr. Kennedy’s request by providing a letter setting out its decision and giving brief reasons for it. It did not choose to reconvene the Appeal Committee to hear the matter, or to hear further submissions from Dr. Kennedy, either in writing or orally.

Conclusions on the content of procedural fairness [ 41 ] The Act gives the Board broad discretion to determine its procedures for granting hospital privileges and appointments to medical staff. The Board developed comprehensive Bylaws to address that procedure, which included a first determination by the CEO and a right of appeal to the Appeal Committee. Dr. Kennedy was successful before the Appeal Committee. During her submission to the Appeal Committee she requested that she be given privileges for a year, or even three months, to make it work [4] . Although I accept that

any reduction of privileges from the normal five-year period carries some prejudice to Dr. Kennedy, the prejudice here was much lessthan it would have been had the decision resulted in her not being reappointed. I have found that Dr. Kennedy had no legitimateexpectation of a formal hearing or a rehearing in the sense that the doctrine is applied in Baker. Given that 19 months had passed sincethe decision was made, any expectation that Dr. Kennedy might have held should reasonably have been diminished. A consideration ofthe above factors leads me to conclude that the level of procedural fairness owed to Dr.

Kennedy in response to her letter of March 26,2019 was low. [42] In terms of the content of the duty of procedural fairness, I find that Dr. Kennedy had the right to have her request considered byan unbiased and impartial decision maker. I also find that she had a right to disclosure of any information considered by the Board incoming to its decision and a right to know the reasons for that decision. I do not find that the low level of procedural fairness owed to herin these circumstances included the right to a formal hearing before the Appeal Committee or a right to call evidence and cross-examinewitnesses.

The Board needs to have the flexibility to deal with requests such as that in the March 26, 2019 letter in an efficient way.Requests made to the Board outside of the procedures established by the Bylaws may be fairly responded to without engaging formalhearing procedures. Was there a breach of the duty of procedural fairness? [43] Dr. Kennedy does not allege any bias, reasonable apprehension of bias, or partiality by the Board. There is no evidence tosuggest that in evaluating Dr. Kennedy’s request the Board was biased or partial.

Nor is there any evidence to suggest that, in coming tothe April 2019 Decision, the Board relied upon any evidence or information that was not known to Dr. Kennedy. It is apparent from theApril 2019 Decision itself that the Board considered: Dr. Kennedy’s letter, the OCR Report, the Bylaws, and the October 2017 Decision.All of this information was known to Dr. Kennedy. [44] The April 2019 Decision is not long, but I find that it satisfies the requirement that written reasons be intelligible, transparent,and justified.

The April 2019 Decision clearly sets out what information the Board considered and its reasons for its decision. AlthoughDr. Kennedy sought the minutes of the meeting in which the Board considered her request, I do not find that these needed to be disclosedto satisfy the requirement of transparency. At paragraph 44 of Baker, the Supreme Court of Canada recognized that in the administrativecontext, transparency may take place in various ways. [45] In light of the above, I find that in rendering the April 2019 Decision the Board acted in a procedurally fair manner. Is the April 2019 Decision reasonable? [46] Dr.

Kennedy focused her submission on the procedural fairness of the April 2019 Decision, as I have already addressed.However, because her Originating Application challenged the merits of the April 2017 Decision, I will address them briefly. Applyingthe law of Vavilov, the standard of review for the merits of the April 2019 Decision is reasonableness. That is the presumptive standardand this is not one of those exceptions where the rule of law requires that the standard be correctness. The onus is on Dr.

Kennedy toestablish that the decision is unreasonable. [47] Following the direction of Vavilov, I start with a review of the April 2019 Decision itself. It must be acceptable and defensibleon the facts and the law both in terms of its outcome and the justification or rationale given. The logic of the decision is fairlystraightforward: the Bylaws do not provide a basis for the Appeal Committee or the Board to revisit the October 2017 Decision. In theApril 2019 Decision, the Board pointed to

section 62.1 of the Bylaws, which states that a decision is final and binding. It also consideredwhether the Appeal Committee had reserved the possibility of revisiting its decision and concluded that it had not. I find this to be arational chain of analysis supported by a reasonable reading of the Bylaws and the October 2017 Decision. I have kept in mind that theBoard has been given broad discretion by the Act to establish its own procedures. [48] Dr. Kennedy has submitted that the Board was not functus officio and that it could have reconsidered its decision. Dr. Kennedyrelies primarily on Chandler v.

Assn. of Architects (Alberta), (SCC), [1989] 2 S.C.R. 848, and commentary on thatdecision from leading authors in the area of administrative law. In Chandler, Sopinka J. writing for the majority, found that the principleof functus officio applies to administrative tribunals but that its application should be more flexible and less formalistic in respect toadministrative decisions that are subject to appeal only on a point of law. This is compared to the doctrine’s application to judicialdecisions where there are full rights of appeal. [49] Dr.

Kennedy filed materials from authors who have articulated policy reasons that support administrative tribunals having theauthority to reconsider their decisions (Robert W. Macaulay and James L.H. Sprague, Hearings Before Administrative Tribunals, 5th ed.,looseleaf (Scarborough: Carswell 2016), at 27A-2 - 27A-4; Donald J.M. Brown and J.M. Evans, Judicial Review of AdministrativeAction in Canada, looseleaf (Toronto: Canvasback Publishing, 1998) vol. 3, at 12-99 – 12-100).

Neither of these texts suggest that thedoctrine of functus officio has no place in administrative law. [50] In Chandler, Sopinka J. wrote: 76 … As a general rule, once such a tribunal has reached a final decision in respect to the matter that is before it in accordance withits enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction orbecause there has been a change of circumstances. It can only do so if authorized by statute or if there has been a slip or error within theexceptions enunciated in Paper Machinery Ltd. v. J. O.

Ross Engineering Corp., supra. 77 To this extent, the principle of functus officio applies. It is based, however, on the policy ground which favours finality of

proceedings rather than the rule which was developed with respect to formal judgments of a court whose decision was subject to a full appeal. For this reason I am of the opinion that its application must be more flexible and less formalistic in respect to the decisions of administrative tribunals which are subject to appeal only on a point of law.

Justice may require the reopening of administrative proceedings in order to provide relief which would otherwise be available on appeal. 78 Accordingly, the principle should not be strictly applied where there are indications in the enabling statute that a decision can be reopened in order to enable the tribunal to discharge the function committed to it by enabling legislation . [Emphasis added.] [ 51 ] Although the Board did not cite Chandler in the April 2019 Decision, its reasoning aligns with these comments insofar as the Board did not find indications in its enabling regulation that a decision could be reopened; it found the opposite.

Dr. Kennedy has not identified any part of the Act or of the Bylaws that would indicate that a decision of the Board can be reopened. I find that the April 2019 Decision is both acceptable and defensible with respect to the law as articulated in Chandler . [ 52 ] Given that it found it had no jurisdiction to revisit its decision, the Board’s comments on the OCR Report contained in the April 2019 Decision could be considered superfluous. However, given the submission by Dr. Kennedy, it was reasonable for the Board to address the key points she raised. The Board did not agree with Dr.

Kennedy that the OCR Report was “new evidence.” Having reviewed the OCR Report, the Board found that it did not outline anything “new” and also found that there were similarities in the analysis undertaken by both bodies. These conclusions by the Board are supportable by a reading of the OCR Report and the April 2019 Decision. [ 53 ] In conducting a judicial review on a standard of reasonableness, I am not doing a de novo analysis or seeking to find the correct answer, rather I am reviewing the Board’s decision to ensure that it has been justified and supported.

Having considered the above, I find that the April 2019 Decision is reasonable, and I would not interfere with it. [ 54 ] In coming to this decision, I have not considered whether sections 34 and 42 of the Citizens’ Representative Act would operate to prevent the OCR Report from being admissible as evidence before the Appeal Committee at a hearing. The Board did not raise this point in the April 2019 Decision and consideration of it is not necessary for this review.

I reviewed the OCR Report because it was one of the documents considered by the Board in coming to its April 2019 Decision and, as such, I considered it a part of the record supporting that decision. Issue 3: THE October 2017 Decision Positions of the parties [ 55 ] Dr. Kennedy does not challenge the October 2017 Decision on its merits. Rather, she alleges that by refusing her request for a de novo hearing the Appeal Committee denied her procedural fairness. She asserts that a de novo hearing was necessary for her to fully respond to issues raised by the CEO and to explore the issues of bias and partiality. Dr.

Kennedy requests that this Court overturn the October 2017 Decision and either send the matter back for consideration by the Appeal Committee or reinstate Dr. Kennedy’s privileges for five years. [ 56 ] The Board submits that Dr. Kennedy is out of time to judicially review the October 2017 Decision. In the alternative, it submits that I should give the issue of timeliness substantial weight in considering whether to grant a remedy to Dr. Kennedy. The Board also states that the October 2017 Decision was made in a procedurally fair manner and that it is reasonable.

In the event that this Court were to find that the decision was not procedurally fair or reasonable, the Board states that the proper remedy is to send the matter back to the Board for reconsideration. Is Dr. Kennedy out of time for judicial review of the October 2017 Decision? [ 57 ] Pursuant to Rule 54.06 of the Rules of the Supreme Court, 1986 , S.N.L. 1986, c 42, Sch D (the “ Rules ”), an application for judicial review in the nature of certiorari must be made “within a reasonable time” after the date of the decision to which it relates. [ 58 ] In Batstone v.

Newfoundland & Labrador (Workplace Health, Safety & Compensation Commission) , 2010 NLTD 108 , Chief Justice Orsborn (as he then was) held that what is an unreasonable delay in any given case will depend on an assessment of all of the circumstances. He also noted that, generally speaking, the assessment of the timeliness of an application for judicial review should be done as part of the judge's consideration of whether or not to grant a remedy to which the applicant may otherwise be entitled.

That is, timeliness should be simply one factor to be considered in determining whether or not the court's discretion should be exercised to grant the remedy. He held that only in exceptional cases the issue of the lack of timeliness may be so apparent as to warrant dealing with the issue as a preliminary question. ( Batstone , paras. 15-17 .) [ 59 ] I accept that in the circumstances of the present case, a delay of approximately 19 months to seek judicial review of the October 2017 Decision is a significant delay.

However, I do not find that this is one of the exceptional cases that warrant dealing with the issue as a preliminary question. Dr. Kennedy’s decision to seek judicial review was influenced by events that unfolded following the October 2017 Decision. In denying her March 2019 request for a rehearing, the Board made clear its position was that the October 2017 Decision was final subject only to judicial review (for which it considered Dr. Kennedy to be out of time). Dr. Kennedy filed the present application shortly after getting that decision.

In these circumstances, I find that timeliness should be simply one of the factors for me to consider, not a determinative one. What level of procedural fairness was owed to Dr. Kennedy?

[ 60 ] I have already stated that the duty of procedural fairness is context-specific and it can vary depending on the stage of the process. I have no hesitation finding that the level of procedural fairness owed for the October 2017 Decision is higher than that owed for the April 2019 Decision. The former was made in the context of the formal process for applications for hospital privileges established by the Bylaws, while the latter was made in response to a request from Dr. Kennedy made outside of the Bylaws procedure. Yet, simply stating that it is higher is not sufficient.

I must consider both the level and the content of procedural fairness owed Dr. Kennedy during the process. [ 61 ] I am aided in my evaluation by the decision in Young , which I have already referenced. In Young , Goodridge J. determined that Dr. Young was owed at least procedural fairness at the mid-point, writing: 48 Overall, I find that the content or level of the duty of procedural fairness owing to Dr. Young is at least the mid-point. This would include an obligation on the decision- maker to share all relevant information with Dr. Young, and afford Dr.

Young a reasonable opportunity to respond (in writing or in person) before the decision was made. … [ 62 ] In coming to that decision, Goodridge J. considered each of the Baker factors. I will briefly review that analysis and consider its application to Dr. Kennedy’s case. The nature of the decision and the process followed in making it [ 63 ] In Young , Goodridge J. determined that the nature of the decision and the process employed suggested a mid-point duty of procedural fairness. He was dealing with an application for an initial appointment to medical staff, whereas Dr. Kennedy applied for reappointment.

The procedures under the Bylaws are different for each, but not substantially so. Both procedures are investigative and inquisitorial. Goodridge J. rejected the argument that there was a lower level of procedural fairness due for initial appointment compared to renewal of an existing appointment so this difference does not distinguish his analysis ( Young , paras. 33 and 34). Nor is the fact that Dr.

Young’s application was rejected at an earlier stage of the proceedings distinguishing because Goodridge J. also rejected the argument that Central Health was merely conducting a screening role that was due less procedural fairness ( Young , para. 35). That being said, the procedures for appointment and reappointment are distinct, and Dr. Kennedy was at the stage of an appeal of the CEO’s determination, very unlike Dr. Young who had no right of appeal from the early stage determination. [ 64 ] The Appeal Committee found that the process set out in

Part X of the Bylaws did not contemplate a de novo hearing nor contemplate that witnesses be called, compelled to provide sworn testimony, and be subject to cross-examination (April 2019 Decision, paras. 23-32). There was nothing in the Bylaws to suggest that these hallmarks of a judicial process were engaged. The procedure the Appeal Committee followed, which it found was supported by the Bylaws, was described in paragraphs 19 and 20 of the April 2019 Decision: Following receipt of submissions by the parties made at the outset of the Hearing, the Committee adjourned to consider the submissions.

Following the adjournment, the Committee reconvened, and advised the parties that its decision was that the hearing would not be a hearing de novo , but rather would be conducted largely as a hearing “on the record”, to be supplemented by presentations from Dr. Kennedy and her counsel, and by the CEO and her counsel. The Committee had previously advised the parties that it intended to invite representatives from the Credentials Committee and the Medical Advisory Committee that had been involved in the process.

The Committee also advised the parties that it wished to have included in the Record the interim report of Wayne Marsh, who had been retained by Central Health as an independent facilitator relating to issues arising in the Diagnostic Imaging service of Central Health, and who also facilitated meetings and discussions with Dr. Jeff Cole, Vice President of Medical Services for Central Health, and Dr. Kennedy. That report (the “Marsh Report”) was subsequently provided by the parties, along with the e-mail correspondence of April 22, 2017, transmitting the report to Drs.

Cole and Kennedy. [ 65 ] Overall, I find that the nature of the decision and the process employed suggest a higher mid-range level of procedural fairness. At the appeal stage, the process remained investigative and inquisitorial without significant hallmarks of a judicial process such as compellability of witnesses and sworn testimony. However it had indicators suggestive of higher procedural fairness than the earlier stage of Dr. Young’s case, including the right to be represented by legal counsel and the right to make a presentation.

The nature of the statutory scheme [ 66 ] I have already noted that at paragraph 38 of Young , Goodridge J. found that the Act accords considerable discretion to Central Health by allowing it to establish bylaws and procedures for the granting of hospital privileges and making appointments to medical staff. He found that the wide authority and discretion granted to Central Health to establish its own process, and the comprehensive Bylaws laying out the process, signal deference to the administrative decision maker.

As a result, he found the statutory scheme suggests a low level of procedural fairness due, in the sense that nothing more is required than is stated in the Bylaws ( Young , para. 39). I agree with this analysis and find that it applies equally in the present case. The importance of the decision to Dr. Kennedy [ 67 ] I have already noted that any decision that impacts a person’s career and earning capacity is of importance. At the stage of her appeal of the CEO’s earlier decision denying her privileges, Dr. Kenney was at risk of being denied hospital privileges or an appointment to medical staff.

I find that this supports a high level of procedural fairness. A similar finding was made in Young .

The legitimate expectations of Dr. Kennedy [ 68 ] There is no evidence before me to support Dr. Kennedy having a legitimate expectation, as that doctrine is described in Baker , of a de novo hearing. Although there was evidence filed supporting that de novo hearings are used in similar situations in other provinces, Central Health followed the procedure that was set out in its Bylaws, which were known to Dr. Kennedy, and there was nothing to suggest a past practice or representation by Central Health that would suggest to Dr. Kennedy that any other procedure would be applied. Dr.

Kennedy’s legitimate expectations support a finding of a level of procedural fairness commensurate with that which is set out in the Bylaws. The choices of procedure made by the Board [ 69 ] At paragraph 47 of Young , Goodridge J. wrote: “[t]he Act leaves to Central Health the ability to choose its own procedures, indicating that the court should be reluctant to impose added procedures to achieve fairness.” I agree with this analysis and find it equally applicable to this case. Conclusions on the content of procedural fairness [ 70 ] Overall, I found that the level of duty of fairness owed to Dr.

Kennedy before the Appeal Committee was at the higher mid- range. Although the importance of the decision to Dr. Kennedy was great, the Act gives the Board broad discretion to determine its procedures for granting hospital privileges and appointments to medical staff. The Board developed comprehensive Bylaws to address that procedure, which included a first determination by the CEO and a right of appeal to the Appeal Committee. The procedure adopted by the Appeal Committee was consistent with that published in the Bylaws and with Dr.

Kennedy’s legitimate expectations. [ 71 ] In terms of the content of the duty of procedural fairness, I find that Dr. Kennedy had the right to have her request considered by an unbiased and impartial decision maker. I also find that she had a right to disclosure of any information considered by the Appeal Committee in coming to its decision and a right to have the reasons for that decision in writing. She also had the right to make representations and respond to evidence that could be used against her before a decision was made.

I do not find that the level of procedural fairness owed to her in these circumstances included the right to a de novo hearing, the right to compel witnesses, or to cross- examinations. Deference should be given to the procedure that was adopted by the Board, and they chose not to adopt a procedure with all of the hallmarks of a judicial process. Rather, it chose a procedure that was largely investigative and inquisitorial. Was there a breach of the duty of procedural fairness? [ 72 ] Dr. Kennedy does not allege any bias, reasonable apprehension of bias, or partiality by the Appeal Committee.

There is no evidence to suggest that in rendering the October 2017 Decision the Appeal Committee was biased. Nor is there any evidence to suggest that in coming to the October 2017 Decision the Board relied upon any evidence or information that was not known to Dr. Kennedy. The Appeal Committee did not only rely upon the record that had been considered by the CEO. It supplemented and informed that record with presentations by: the Chairs of the Credentials Committee and the Medical Advisory Committee; Dr. Kennedy and her counsel; the then-CEO; and the counsel for Central Health Administration.

It also supplemented the record with the Marsh Report. [ 73 ] The Appeal Committee gave written reasons for its decision that included reasons for its denial of Dr. Kennedy’s request for a de novo hearing. The decision justifies the Appeal Committee’s decision in an intelligible and transparent manner. I find that it fulfills the requirements of duty of procedural fairness.

The reasonableness of the decision has not been challenged. [ 74 ] In light of the above, I find that in rendering the October 2017 Decision the Board acted in a procedurally fair manner. [ 75 ] In coming to this decision, I have not had to consider the timeliness of Dr. Kennedy’s application. Had I been left with some uncertainty as to whether the duty of procedural fairness had been met, this factor would have tended to cause me to exercise my discretion to uphold the Appeal Committee’s decision. Time always causes some prejudice. People have moved on from the roles that they had when Dr.

Kennedy’s appeal was heard. Memories have undoubtedly faded and may even have been changed by intervening events. Dr. Kennedy was successful on her appeal. She asked the Appeal Committee to give her a period of reappointment for as short as three months, and they gave her longer than that. In these circumstances, principles such as fairness, efficiency, and finality weigh against sending the matter back for rehearing. DISPOSITION [ 76 ] Dr.

Kennedy’s application for judicial review is dismissed. [ 77 ] Central Health is awarded the costs of this application, taxed on the Rules , Rule 55 , Appendix 1, Scale of Costs, Column 3.

KATHERINE J. O’BRIEN Justice