2019 QCCA 1372, 2019 QCCA 1372

P.L. c. McGill University Health Centre 2019 QCCA 1372 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-027202-175 (500-17-089956-158) DATE: August 13, 2019 CORAM: THE HONOURABLE GENEVIÈVE MARCOTTE, J.A. MARK SCHRAGER, J.A. CLÉMENT SAMSON, J.A. (AD HOC) P.L. APPELLANT - Plaintiff v.

McGILL UNIVERSITY HEALTH CENTRE JEAN-MARC TROQUET RESPONDENTS – Defendants JUDGMENT CONFIDENTIALITY OF THE IDENTITY OF PETITIONER ORDERED IN FIRST INSTANCE [ 1 ] The appellant (“P.L.”) appeals a judgment rendered on November 3, 2017, by the Superior Court, district of Montreal (the honourable Silvana Conte), which dismissed her action seeking, inter alia , a declaratory judgment and a permanent injunction ordering the Respondents not to interfere with her privileges to treat acute care patients at McGill University Health Center (MUHC), to reinstate her as Medical Student Director of the Department of Emergency Medicine [1] , as well as to post her self-evaluations. [ 2 ] For the reasons of Justice Marcotte, with which Justices Schrager and Samson ( ad hoc ) concur, THE COURT : [ 3 ] DISMISSES the application to present indispensable new evidence; [ 4 ] DISMISSES the appeal with legal costs.

GENEVIÈVE MARCOTTE, J.A. MARK SCHRAGER, J.A. CLÉMENT SAMSON, J.A. (AD HOC) Mtre Marie France Tozzi Mtre Jacques Jeansonne JEANSONNE AVOCATS INC. For the Appellant Mtre Patrick Trent BORDEN LADNER GERVAIS For the Respondents Date of hearing: February 18, 2019 REASONS OF MARCOTTE, J.A.

[ 5 ] This appeal concerns a judgment rendered on November 3, 2017, by the Superior Court, district of Montreal (the honourable Silvana Conte) [2] , which dismissed P.L.’s action seeking a declaratory judgment and permanent injunction.

She asked that the Respondents be ordered not to interfere with her privileges to treat acute care patients at McGill University Health Center (MUHC), to reinstate her as Medical Student Director of the Department of Emergency Medicine, as well as to post her on-line self-evaluations. [ 6 ] In appeal, P.L. is challenging all three of the trial judge’s findings regarding: (1) the restriction of her privileges to treat acute care patients (2) her removal from the position as Medical Student Director and (3) the completion of her self-evaluation process.

FACTS [ 7 ] A short review of the salient facts referring to specific dates for each topic is appropriate. P.L.’s scope of privileges [ 8 ] In July 2002, P.L. received confirmation that she was admitted into the Emergency Department ( “ the Department ” ) at the Royal Victoria Hospital, a unit of the McGill University Health Centre ( “ MUHC ” ) as a full-time emergency physician. She began working in the Department in October, where she received thirty days of training, after which she was placed under the supervision of the site director, Dr. Guy.

In the following months, the latter quickly expressed dissatisfaction with her performance. [ 9 ] On February 3, 2003, P.L. made a critical and potentially fatal error, which led Dr. Béïque, the head of the Department at the time, to impose an exceptional measure and impose one-on-one tutoring. As a result, P.L. was prevented from working in acute care shifts [3] until the end of her tutoring sessions. [ 10 ] Even though she was to resume acute care shifts after September 2003, she was only assigned a total of seven shifts in the ensuing two-year period. [ 11 ] In the summer of 2004, Dr.

Béïque informed P.L. that her practical skills in acute care would need to be formally evaluated during her September shifts. She contested this evaluation through demand letters sent by her attorneys, alleging that it was unfair to test her after she had been deprived of practical experience over a two-year period. As a result, the formal evaluation never took place. [ 12 ] In the fall of 2004, P.L. was the subject of several complaints from nurses and physicians, including Dr.

Laliberté who noted her incapacity to properly diagnose patients and document their records, and the resulting chaos for the physicians taking over her patients. [ 13 ] In January 2005, Dr. Béïque informed P.L. in writing that her privileges would be renewed for the time being, but that her shifts would not include acute care, given his concerns regarding her practical skills ( “ the 2005 limitation ” ).

He suggested that she find another field of medicine best suited to her strengths and that they reach a solution by March 2005. [ 14 ] Letters were exchanged between P.L.’s attorneys and the MUHC, with the latter reiterating that no shifts in acute care would be assigned to her. P.L. did not challenge the 2005 limitation. [ 15 ] On May 10, 2005, she wrote to Dr.

Béïque that “[w]hilst it is true that you have the authority and discretion to make changes to my schedule, as you have done in the past, particularly in removing me from acute shifts (to which I have objected), I am not looking for any accommodation or special treatment but only that I be treated fairly and equitably.” [ 16 ] At that time, P.L. was in the midst of another dispute before the Superior Court on an application for judicial review of a decision made by the Department of Neurology in 1999, which had forced her to leave the department where she was then completing her residency.

Her application was dismissed on November 2, 2005. [ 17 ] On November 9, 2005, the Board of Directors of the MUHC renewed P.L.’s privileges in accordance with “the privileges agreed upon between [P.L.] and [the] department head”. She continued her work in the Department with reduced privileges. Complaints from colleagues regarding her work performance continued as well. [ 18 ] In March 2008, she was granted a leave of absence because she had to undergo elective surgery. Her privileges were renewed in June 2008, under the same terms as previously. She returned to work in September 2008.

However, due to complications from her surgery, she worked half time, performing 6 shifts per month. By the end of the year, Dr. Guy suggested that she consider working at another hospital in minor care because of her slower pace, which she refused. [ 19 ] On July 1, 2009, Dr. Troquet replaced Dr. Béïque as the new head of the Department. Dr. Troquet did not allow P.L. to treat acute care patients.

Her work focused on minor care shifts and swing shifts. [4] [ 20 ] On April 15, 2011, P.L. sued the Royal Victoria Hospital, seeking an injunction ordering the hospital to cease to interfere with her privileges by reducing her shifts to part-time as opposed to full-time work. Given that she had previously been working part-time for a year, for medical reasons, she contested Dr. Troquet’s decision to keep her on a part-time

schedule when no longer required by her medical condition. She did not however raise any issue at the time with respect to the 2005 limitation pertaining to the treatment of acute care patients. [ 21 ] On April 23, 2013, P.L.’s application was granted by the Superior Court (Justice Borenstein) who ordered the MUHC to assign her full-time work in accordance with her privileges. [ 22 ] Throughout the years and prior to April 2015, P.L. was reminded on several occasions not to treat acute care patients.

[ 23 ] In April 2015, the Emergency Department changed its location to the new Glen site. The new layout provided for two acute care areas (Horizontal-1 and Horizontal-2) and an ambulatory care area (Vertical area), with no more sub-acute area where stable acute care patients were formerly placed while they awaited transit to another department. [ 24 ] In July 2015, P.L. received her

schedule for the months of September and October 2015, with shifts restricted to the vertical area, save for three H-1 and H-2 (horizontal) shifts which were mistakenly attributed to her. [ 25 ] On August 3, 2015, P.L. served a demand letter on the Respondents, seeking to be assigned acute care shifts and night shifts. [ 26 ] On February 29, 2016, P.L.’s privileges were renewed until June 30, 2018 under the same terms as the previous letters of renewal, being “with the privileges agreed upon between [P.L.] and [the] department head”. [ 27 ] In September 2016, P.L. served proceedings in contempt of court on the MUHC for not respecting the decision rendered by Justice Borenstein.

The application was dismissed by Justice Gaudet of the Superior Court, on the basis that the decision, which ordered that P.L. be assigned full-time work, did not deal with acute care shifts, as expressed in the following extract: [5] [34] Il est remarquable que la procédure instituée par la Dre S.W. ne mentionne rien quant aux restrictions relatives aux types de gardes qu’on lui octroie. Or, la preuve a révélé qu’il y avait de telles restrictions depuis 2005.

Rien n’est cependant mentionné à cet égard, l’ensemble de la procédure visant plutôt à permettre à la Dre S.W. de recommencer à obtenir les 144 tours de garde annuels qui correspondent à un statut de « full time equivalent ». [35] Dans ces circonstances, il est permis de penser que lorsque la juge Borenstein ordonne à la défenderesse « de ne pas s’immiscer dans les privilèges ni dans le FTE de la demanderesse tant qu’il n’y aura pas de décision du conseil d’administration », elle ne vise alors que le nombre de tours de garde dans une année, et non pas le type de garde , car cette dernière question ne faisait aucunement

partie du litige qui était devant elle . Cela est d’autant plus plausible que l’ordonnance d’injonction, qui suit immédiatement la conclusion déclaratoire, vise manifestement à rendre celle-ci exécutoire. Or, la déclaration du paragraphe précédent ne vise très clairement que le « statut de S.W. comme membre à temps plein avec les privilèges associés ». [36] D’ailleurs, la lecture des motifs de la juge Borenstein démontre clairement que l’objet du litige qu’elle tranchait était la question du statut « full time equivalent » de la demanderesse et rien d’autre . On peut référer à cet égard aux paragraphes 10 à 20 et 32 à 38 dans la

section des faits, ainsi qu’aux paragraphes 47 à 50, 54 et 64 à 66 de la

section intitulée « Discussion », lesquels sont éclairants à cet égard. [37] Dans ces circonstances, bien que les termes utilisés par l’ordonnance de la juge Borenstein (par. 72 du jugement) puissent en théorie viser autre chose que le nombre de tours de garde annuels, il n’est pas du tout évident que la juge Borenstein avait autre chose en tête. D’ailleurs les autres conclusions de la juge (par. 71, 73 et 74 du jugement) confirment encore là que la question du nombre de tours de garde était le véritable objet du litige. [38] D’ailleurs, les représentations du procureur de la Dre S.W. le confirment également.

Vers la fin de sa plaidoirie, celui-ci explique que sa cliente demande d’abord une déclaration sur son statut et ensuite une ordonnance pour rendre le tout exécutoire et qu’il n’y a aucune difficulté d’exécution car tout ce qu’elle demande est le retour aux 144 tours de garde : Donc, la première chose qu’on demande, c’est une déclaration. Et après, on dit : « Ordonnez au défendeur d’arrêter d’interférer avec les privilèges ». C’est tout. Et donc, ça se traduit par un acte très simple. C’est celui de donner douze (12) gardes par mois en moyenne, cent quarante-quatre (144) par année, pas la moitié de douze (12).

C’est d’une facilité d’exécution totale 20 . [39] C’est donc un litige quant au nombre de tours de garde dont était saisi la juge Borenstein, c’est ce litige qu’elle a tranché et l’ordonnance qu’elle a rendue doit être comprise dans ce contexte précis, nonobstant qu’une interprétation littérale de l’ordonnance rendue puisse laisser croire qu’autre chose était également visé. [ 28 ] At the time, PL’s challenge of the investigation led by the College of Physicians to assess her skills in the acute care area was also pending before the courts.

P.L.’s application for judicial review and for nullity of the decision of the professional inspection committee of the Collège des Médecins was dismissed by Justice Benoit Moore of the Superior Court on November 12, 2018. [6] Leave to appeal this judgment was denied by a judge of this Court. [7] P.L.’s Position as Medical Student Director [ 29 ] On May 21, 2007, P.L. was appointed Medical Student Director for McGill University’s Faculty of Medicine. [ 30 ] On April 6, 2011, following a meeting, Dr.

Troquet advised her that her position as Medical Student Director would be subject to renewal in accordance with McGill University’s by-laws for an additional term of four years. P.L. disagreed, arguing that her position had no term. [ 31 ] On April 8, 2011, Dr. Troquet asked the Associate Dean of McGill’s Faculty of Medicine to formalize the appointment process for all administrative positions, including the Medical Student Director position.

As a result, all administration positions became subject to posting after two consecutive terms of four years. [ 32 ] On February 9, 2015, P.L. was reminded that her position would be posted after the end of her second term and she was invited to re-apply, which she did not do. [ 33 ] On June 3, 2015, P.L. was advised in writing that her term had come to an end. She replied through her attorneys that her position as Medical Student Director was not subject to a term and put Dr.

Troquet on notice to allow her to continue in her position. [ 34 ] On July 30, 2015, two emergency physicians were appointed as co-Medical Student Directors for a four-year term.

P.L.’s Evaluation Process [ 35 ] On July 29, 2010, P.L. was informed of the implementation of a new performance evaluation for full-time clinical staff, whereby (1) the physician would be required to complete a self-evaluation, (2) the evaluation would be reviewed by the department chief or a delegate and re-submitted online with changes, in some cases, and (3) the physician would be invited to either discuss the changes or to simply acknowledge them in order to complete the evaluation process. [ 36 ] On October 15, 2010, P.L. sent her self-evaluation form for the period of July 1, 2009 to June 30, 2010 to the site director, Dr.

Lorne Scharf. She also completed self-evaluations for the academic years of 2012 and 2013. None of these evaluations were entered into the evaluation system. [ 37 ] On April 18, 2016, she completed a self-evaluation for 2015. [ 38 ] On May 2, 2016, Dr. Troquet’s assistant sent P.L. a revised evaluation for 2015 and invited her to discuss same with Dr. Clark (the Department Chief’s delegate). The revised evaluation was filed into the system. [ 39 ] On May 25 and 27, 2016, P.L. received emails asking her to acknowledge the self-evaluation in order to finalize the process.

She failed to do so and instead, on May 30, 2016, a demand letter was sent on her behalf to the Respondents, requesting, amongst other things, that the 2015 self-evaluation be removed from her online profile. [ 40 ] On March 31, 2017, P.L. filed her self-evaluation for the academic year of 2016. [ 41 ] Again, on May 2, 2017, Dr. Troquet’s assistant sent P.L. a revised self-evaluation for 2016, informing her once again that she could make an appointment with Dr. Clark to discuss same, which she never did.

Proceedings [ 42 ] On August 11, 2015, P.L. filed the proceedings [8] that gave rise to the judgment under appeal. [ 43 ] On October 30, 2018, P.L. filed an application to present indispensable new evidence, which was deferred to the present bench. The evidence to be adduced consists of a letter dated September 27, 2018, addressed by Dr.

Pierre Gfeller, President and Executive Director of the MUHC, confirming that the Board of Directors of the MUHC renewed P.L.’s appointment for the period of May 10, 2018 to November 9, 2019 which reappointment was “accompanied by the privileges agreed upon between [P.L.] and [the] department head”. [ 44 ] P.L. admits that the terms of this letter are almost identical to those of the previous letters sent by the MUCH confirming her reappointment already filed into the Court record. [9] Hence, while the letter that P.L. seeks to adduce is contemporaneous to the judgment rendered and is considered new as such, it does not serve any useful purpose that would allow it to qualify as “indispensable evidence” under

article 380 C.C.P. In the absence of a demonstration of a useful or relevant purpose of this new evidence, I propose to dismiss the application. JUDGMENT UNDER APPEAL [ 45 ] The trial judge determined that, in 2002, P.L. had been granted the privilege to work in all areas of the Emergency Department, including acute care. She concluded that the 2005 limitation imposed by Dr. Béïque was unlawful, given that the formal process to restrict privileges, provided in the Act Respecting Health Services and Social Services [10] , had not been followed. [ 46 ] Yet, despite that finding, she dismissed P.L.’s application on the grounds that:

(1) P.L. had waived her right to challenge the 2005 limitation

(2) P.L. had expressly acquiesced to the 2005 limitation and alternatively (3) the public interest of safety justified the refusal to force the MUHC to assign P.L. to acute care shifts since she had not worked such shifts for over 12 years. [ 47 ] The trial judge began by underlining the discretionary nature of the remedies sought, which included a declaration that P.L.’s privileges were being violated and a permanent injunctive order to assign her to acute care shifts. [ 48 ] She found that P.L.’s inaction for over ten years and her subsequent conduct constituted an acquiescence or a waiver of her right to challenge the 2005 limitation. [ 49 ] She dismissed P.L.’s argument that the basis of her action was the 2015 assignment of vertical shifts following the MUHC’s move to the Glen site, considering that the restrictions imposed were a mere continuation of the 2005 limitation.

She further pointed out that P.L. had failed to act sooner because she was content with these limitations in her practice prior to the move to the Glen site, which spared her from working night shifts while allowing her to see sub-acute care patients in the last hour of her swing shifts. [ 50 ] Moreover, the trial judge held that P.L. had expressly acquiesced to the limitations imposed on her privileges in her letter of May 2005, in which she acknowledged that Dr.

Béïque had the discretion to remove her from acute care shifts. [ 51 ] She noted that P.L. had sued the Royal Victoria Hospital on two occasions, in 2005 and 2011, without a word of contestation regarding the nature of her shift assignments. She referred to the representations made by P.L.’s attorneys before Justice Borenstein in 2012, confirming that she was not challenging the decision to exclude her from acute care shifts but rather only the decision to refuse her a full-time schedule. She further underlined that P.L. had accepted her limited shift assignments for a period of more than 10 years.

Moreover, she pointed out that the terms of the letters sent by the Board of Directors of the MUHC stated that the nature and scope of her privileges were those determined between her and the head of the Department, which showed that they had relied on her acquiescence, to the extent that her privileges were renewed without assigning P.L. to any acute care shifts. [ 52 ] While concluding that the finding of acquiescence would be sufficient to dismiss the application for a permanent injunction, the trial judge added that, in any event, she would have refused to exercise her discretion to compel the MUHC to assign P.L. to acute care

shifts after a 12 year absence. [53] The trial judge emphasized that she was making no determination as to P.L.’s competence or skill to work in acute care shifts,because such matter fell outside of her jurisdiction; she refused to intervene and order P.L.’s reintegration in the acute care and horizontalshifts given the potential impact to public safety and the fact that the public interest for safety outweighs P.L.’s private rights.

In thiscontext, she dismissed P.L.’s argument regarding the presumption of her competence resulting from the renewal of her privileges since2002 and held that such presumption was rebutted by the evidence put forward by the Respondents questioning her ability to work underpressure in acute care after a 12 year absence. [54] With respect to the loss of P.L.’s position as Medical Student Director at the end of her second term, the trial judge stated thegeneral principle whereby courts will generally refrain from intervening in internal decisions made by universities, barring exceptionalcircumstances, such as arbitrariness or discrimination.

In this instance, she found no such circumstance and held that the MUHC wasentitled to adopt the formalized process provided in the by-laws and to apply it with respect to all administrative positions. Furthermore,she concluded that P.L.’s application had not been brought within a reasonable delay and was prescribed, since she was aware of theimplementation of the by-laws in April 2011 and only commenced her proceedings in this respect in August 2015. [55] Finally, the trial judge also concluded that P.L.’s professional evaluation process had not been carried out in an arbitrary ordiscriminatory fashion.

She dismissed the allegations that Dr. Troquet had modified P.L.’s evaluations and further outlined that theseevaluations had not been finalized because of P.L.’s own refusal to discuss or accept the evaluations of her site director, Dr. Clark. Issues in Appeal [56] P.L. raises four issues in appeal: 1. Did the trial judge commit a palpable and overriding error when she applied the theory of laches (acquiescence) to this case? 2.

Did the trial judge commit a jurisdictional error in seizing herself of the question of P.L.’s competence with respect to public interestto safety, which falls under the exclusive jurisdiction of the Tribunal administratif du Québec (T.A.Q.)? 3. Did the trial judge err in law and in fact by concluding that there was no evidence of bad faith or arbitrary or discriminatory acts thatwould warrant the Court’s intervention with respect to P.L.’s removal from her position as Medical Student Director? 4.

Did the trial judge err in law and in fact by concluding that there was no evidence of bad faith or arbitrary or discriminatory acts thatcould justify the Court to intervene in the professional evaluation process of the Faculty of Medicine? ANALYSIS 1.

Did the trial judge commit a palpable and overriding error when she applied the theory of laches to this case? [57] P.L. argues that the trial judge erred in applying the theory of laches (or acquiescence) to the case: firstly, because theRespondents were estopped from raising this theory because of their own unfair and illegal conduct and, secondly, because P.L. neveracquiesced nor waived her rights, explicitly or implicitly, to treat acute patients or access acute care shifts. [58] According to P.L., the trial judge’s reasons are based on the premise that the recourse arose from the 2005 limitation imposedby Dr.

Béïque, while in fact it was Dr. Troquet’s 2015 decision to restrict her to vertical shifts that triggered her recourse. [59] She argues alternatively that, even assuming that the proceedings were based on the 2005 limitation, the trial judge erred inconcluding that the nature and scope of P.L.’s renewed privileges were subject to the restrictions illegally imposed by Dr. Béïque in 2005and that she had agreed to these restrictions, based on a letter sent by P.L. to Dr.

Béïque and on representations made at Court in anothercontext. [60] While inspired by common law, the injunction remains a statutory remedy that is exceptional and discretionary by nature.

It requires the demonstration of circumstances that warrant the imposition of this potentially intrusive remedy.[11] [61] The theory of laches has not been applied consistently.[12] Laches will generally not be available when a statutory limitation has yet to expire.[13] Delay in itself is not a determinant factor and must be combined with the knowledge of one’s infringed rights and inaction lasting over an unreasonable period of time.[14] [62] In the case at hand the theory of laches was used by the trial judge in the sense of an acquiescence equivalent to a waiver ofrights.

Estoppel due to MUHC’s wrongful behaviour [63] P.L. argues that the Respondents were estopped from raising the defence of laches because of the MUHC’s wrongful behaviourin restricting her privileges in 2005. She cites the following extract of the Supreme Court decision Manitoba Metis Federation v. Canadain support of her proposition: [150] Moreover, a court exercising equitable jurisdiction must always consider the conscionability of the behaviour of both parties: see Pro Swing Inc. v.

Elta Golf Inc., 2006 SCC 52 , [2006] 2 S.C.R. 612, at para. 22.[15] [64] The behaviour of the parties is however only one of the many factors to be taken into account in the exercise of the trial judge’sdiscretion.

[ 65 ] Here, P.L. raises various factual considerations in an effort to highlight the MUHC’s illegal and abusive conduct and, in so doing, is arguing the case anew, inviting the Court to re-examine the facts of the entire case. In the process, she fails to identify a palpable and overriding error in the judge’s appreciation of these facts or to demonstrate how the exercise of the judge’s discretion would have been unreasonable. Given the stringent standard of review applicable to a decision of this nature, which commands deference [16] , P.L. has failed to show that Dr.

Troquet’s decision to assign her to vertical shifts after the move to the Glen site was abusive in light of her conduct and inaction since 2005; the restrictions were a mere continuation of those put in place at the time. P.L. never acquiesced or waived her rights [ 66 ] The trial judge dismissed P.L.’s argument that her recourse was based on the MUHC’s decision of 2015 (following the move to the Glen site): [131] The Court does not agree with Plaintiff's argument that the 2015 restrictions form the basis of this action and thus there was no unreasonable delay in instituting the action.

The vertical shift assignments (minor care shifts) at the Glen site in 2015 are a direct consequence of the January 4, 2005 decision that Plaintiff not be assigned to work the acute care shift and a continuation of the limited shift assignments that have been in place for more than ten years. [132] Plaintiff offers no valid excuse justifying the ten-year delay to contest the restrictions imposed on her privileges. She was well aware of the importance of acting within a reasonable delay.

The 2005 judicial review of the 1999 McGill University decision to oust her from the Neurology Department was dismissed on the basis of unreasonable delay. Rather, the evidence demonstrates that Plaintiff did not act sooner because, until the move to the Glen in 2015, she was content with the limitations on her practice.

Plaintiff did not work the less desirable night shifts and would see sub-acute care patients in the last hour of her swing shifts. [ 67 ] Again, P.L. failed to show that these conclusions of fact contain any palpable and overriding error. [ 68 ] These conclusions of fact were sufficient to dismiss P.L.’s action.

The trial judge nevertheless added to these reasons that P.L. had expressly acquiesced to the limitations imposed on her privileges: [133] This inaction over a period of more than ten years constitutes acquiescence or an inference that Plaintiff's rights have been waived. [134] Moreover, it is not just that Plaintiff was negligent in asserting her rights for more than ten years, she also expressly acquiesced to the limitations imposed on her privileges. [ 69 ] These reasons were merely an alternative ground of dismissal and even if erroneous, are not “overriding”. [ 70 ] Moreover, while I may not entirely agree with the trial judge’s qualification of the “express” nature of the acquiescence, given P.L.’s indication that she objected to the removal of her acute care shifts in her letter to Dr.

Béïque dated May 10, 2005, it is undeniable that she failed to challenge these restrictions for a whole decade. Despite having commenced numerous other legal proceedings with the benefit and advice of legal counsel, she never raised the issue before 2015.

This, in itself, supports a finding of a tacit or implied acquiescence. [ 71 ] The trial judge’s conclusion that the Respondents relied on her acquiescence and did not believe it necessary to undertake a formal process to restrict her privileges, is supported by the evidence. [ 72 ] At the hearing, L.P. argued at length that she did treat some acute patients through the years in the context of her swing shifts despite the 2005 limitation.

However, the evidence shows otherwise: she saw mostly sub-acute patients in reassessment throughout the years and she did not treat acute care patients alone. [ 73 ] P.L. has failed to demonstrate how the trial judge would have erred in considering that the renewal of her privileges took place in a context where she did not practice in the acute area. [ 74 ] Consequently, the first ground of appeal must fail. 2.

Did the trial judge commit a jurisdictional error in seizing herself of the question of P.L.’s competence in regard to the public interest to safety, a jurisdiction belonging entirely to the Tribunal administratif du Québec (T.A.Q.)? [ 75 ] P.L. submits that the trial judge erred in dismissing her application based on an argument of competence given the exclusive jurisdiction of the Tribunal administratif du Québec in this regard, by virtue of the Act respecting health services and social services (the “ Act ”). [17] [ 76 ] Alternatively, she argues that, if the trial judge had such jurisdiction, she erred by concluding that the evidence was sufficient to determine that her reintegration could potentially cause harm to public safety.

She also mistakenly concluded that some of her colleagues questioned her ability to work in acute care, while their comments were limited to the fact that she was slower than other physicians, an insufficient reason to restrict her privileges. [ 77 ] The trial judge only examined P.L.’s abilities in acute care in the context of the argument of a presumption of competence that the latter had raised in the expectation that the trial judge would accept them at face value. [ 78 ] The judge wrote in this respect: [140] Plaintiff argues that there is a presumption of competence that results from the renewal of Plaintiff's privileges since 2002.

The Court disagrees. As mentioned previously, the renewal of privileges occurred in a context where Plaintiff did not work the acute care shift and, therefore, there is no presumption of competence to work in the acute care area. Second, even if such a presumption would exist, Defendants evidence rebuts such a presumption. The Court heard the very credible testimony of two heads of Department as well

as, several colleagues and the head nurse that put into question Plaintiff's abilities to work under pressure in the acute care area, especially after a twelve-year absence. […] [142] In such circumstances, without making any determination as to Plaintiff’s competence or skill to work the acute care shift, which is a matter outside the Court’s jurisdiction, the Court will not intervene and order her reintegration in the acute care or [horizontal] shifts given the potential impact to public safety. [ 79 ] In doing so, the trial judge did not commit a jurisdictional error and she explicitly refused to make any determination about P.L.’s competence.

She was not required to even address the argument of presumption of competence which could only be raised before the Tribunal Administratif du Québec which has the jurisdiction and expertise to examine whether the presumption is valid or whether it is rebutted in light of the relevant evidence. [ 80 ] It is precisely the lack of any determination as to P.L.’s skills in acute care coupled with her twelve-year absence that led the trial judge to exercise her discretion to refuse to grant the exceptional remedy sought, given its “potential” impact on public safety. [ 81 ] In the exercise of her discretion, she concluded that the issuance of a permanent injunction, which would force the reintegration of P.L. in acute care, would be inappropriate in such circumstances. [ 82 ] As mentioned previously, P.L. did not treat acute care patients alone after the 2005 limitation and she acknowledged in her own testimony that she was deprived of acute care skills as a result. [ 83 ] In light of this context, the trial judge’s refusal to force the Respondents to reintegrate P.L. in acute care was reasonable and it was the result of a legitimate exercise of her discretion.

In my view, there is no reason for the Court to intervene in this regard. [ 84 ] The second ground of appeal should be set aside. 3. Did the trial judge err in law and in fact by concluding that there was no evidence of bad faith or arbitrary or discriminatory acts that would justify the Court to intervene in the removal of P.L.’s Medical Student Director position? [ 85 ] P.L. argues that Dr. Troquet did not have the authority to remove her from her position as Medical Student Director, in the absence of a term. [ 86 ] At the end of a departmental meeting on April 6, 2011, Dr.

Troquet told P.L. that her position had expired, in accordance with the rules of the Council of Physicians, Dentists and Pharmacists (CPDP). Most members had already left the meeting by then.

This new proposal had not been circulated before the meeting. [ 87 ] P.L. claims that this new proposal was not validly adopted, in the absence of a proper vote by the members of the Department and a proper quorum, given that the majority of members had already left when the proposal was made. [ 88 ] P.L. did not contest the adoption of the proposal and now argues that her claim is not prescribed, because she could not challenge the decision until she lost her position, on August 13, 2015. Her proceedings were commenced fourteen days later. She is seeking the following relief: DECLARE that Respondent Dr.

Jean-Marc Troquet’s decision of June 3 rd , 2015 removing Appellant’s Medical Student Director position is null and void; DECLARE that Appellant will be entitled to reinstate her Medical Student Director position on July 30, 2019, the current expiry of the first 4-year term of the current holders of this position or before should the current holder(

s) of the position be replaced or resign before July 30, 2019; [ 89 ] P.L. is essentially seeking the judicial review of an administrative decision, by asking for the nullity of the decision dismissing her as Medical Student Director, which in turn depends on the nullity of a regulation adopted in 2011. Under the disguise of a declaratory conclusion, the remedy sought remains injunctive in nature, as P.L. is seeking an order to force the MUHC to reinstitute her in her former position.

Judicial Review of Universities’ Internal Decisions [ 90 ] The Medical Student Director is nominated by McGill Faculty members under the recommendation of the chief of the Department. The position is held however within the McGill Faculty of medicine rather than the MUHC. The regulation imposing a term on all administrative positions was adopted by the chief of the Department in collaboration with the Associate Dean of the Faculty of Medicine.

P.L.’s claim for judicial review therefore concerns a decision regarding the internal affairs of the university, which is not a party to the proceedings. [ 91 ] Yet, even assuming for a moment that this is not an impediment to her recourse, it is well-established that courts will generally refrain from intervening into the internal functioning of universities [18] , save in exceptional circumstances, such as situations involving bad faith, arbitrary or discriminatory conduct. [19] [ 92 ] The Respondents demonstrated that the purpose of the regulation was to make the selection and nomination process more transparent, to insure that positions were available to more members and to promote change.

Dr. Troquet testified that the regulation applied to all administrative positions. [ 93 ] The trial judge did not commit any error by dismissing P.L.’s claim on the ground that there was no evidence of bad faith,

arbitrary or discriminatory conduct, given that the by-laws apply to all administrative positions, and not only to P.L. [ 94 ] The trial judge also held that her action had not been brought within a reasonable delay and was prescribed. [ 95 ] While she did commit an error of law by mistakenly referring to prescription and

article 2925 C.C.Q. which does not apply to matters of judicial review, her mistake had no bearing on the outcome of her analysis, as she also concluded that P.L.’s claim had not been brought “within a reasonable delay” which she calculated from the moment that P.L. was made aware of the imposition of a term in April 2011. [ 96 ] In appeal, P.L. argues that the decision being challenged is not the adoption of the regulation imposing a term on her position in April 2011, but rather the loss of her position on July 30, 2015. [ 97 ] This argument is inconsistent with her claim that Dr.

Troquet did not have the authority to adopt the regulation for the new appointment process. To agree with P.L. that she is not challenging the regulation imposing a term on administrative positions would also lead to an incongruous result, whereby she would be reinstated as Medical Student Director subject to the term imposed by the regulation. [ 98 ] Article 529 (3) C.C.P. provides that an application for judicial review must be served within a reasonable time after the act or the fact on which it is based.

Courts generally consider that the delay to initiate proceedings is 30 days, unless the plaintiff demonstrates exceptional circumstances. [20] [ 99 ] The trial judge has a broad discretion in determining the reasonableness of the delay to institute a proceeding in judicial review [21] and this Court will generally refrain from intervening in the absence of a palpable and overriding error or of an unreasonable exercise of the trial judge’s discretion. [22] [ 100 ] P.L. knew about the proposed regulation in 2011, and she also knew it would affect her position as Medical Student Director.

She was well aware of the view of the MUHC and even expressed her disagreement. She could not but be aware of the prejudice that she would suffer from the regulation. Nor can she successfully argue that her interest to challenge the regulation only arose in 2015 when she lost the position. This, especially given that she initially challenged the decision imposing a term on her position in 2011 and later abandoned the claim during the proceedings, when Dr. Troquet agreed to reappoint her for a second mandate.

She remained happy with the regulation imposing terms of appointment on administrative positions as long as she could remain the Medical Student Director. The trial judge’s conclusion regarding the unreasonable delay to institute proceedings based on P.L.’s knowledge of the adoption of the regulation (April 2011) as the starting point of the delay does not suffer from any reviewable error. [ 101 ] In any event, P.L.’s submission pertains to the procedural irregularities affecting the adoption of the regulation. She claims that no vote took place at the Department meeting, contrary to internal department rules.

However, she fails to explain or justify the delay in raising this argument, while she personally attended the meeting and was well aware of this alleged procedural irregularity. [ 102 ] Moreover, the internal department rules stipulate that the regulations may be modified without the approval of the majority of the members and the Department Chair, provided that the proposals are in writing, distributed to all members at the meeting prior to the vote, and circulated to all members not present at the meeting.

P.L. has failed to demonstrate that this process was not followed here nor does she explain why the formalities of the internal department rules should even apply to a McGill University position. [ 103 ] The only evidence to suggest that these rules might apply to this situation is found in an email from Dr. Troquet and the minutes of a Department meeting held on April 6, 2011, which state that the new regulation will be incorporated in the internal department rules.

Yet, no copy of the rules containing the regulation in question has been produced in the record. [23] This would tend to support the proposition that the regulation imposing terms on administrative positions did not even need to be incorporated into the internal department rules in order to be in force. [ 104 ] This may also serve to explain why the trial judge chose to assess Dr. Troquet’s authority to adopt the regulation relating to an administrative position of an academic nature related to the Faculty of Medicine of McGill University in accordance with

section 5.7

k) of the CPDP by-laws, which empowers the Department Chief as follows : 5.7 Under the authority of the Director of Professional Services, the Chief shall:

k) ensure the overall administration, supervision and development of programs of medical education in the department in conjunction with the Chair of the department of McGill University where applicable and the university educational bodies so that programs of education are conducted efficiently and effectively; [ 105 ] In this context and in view of the lack of evidence before this Court regarding the adoption of the regulation, P.L. fails to show any palpable and overriding error which would justify the Court to intervene regarding the trial judge’s refusal to reinstate P.L. as Medical Student Director. [ 106 ] This third ground of appeal is without merit, in my view. 4.

Did the trial judge err in law and in fact by concluding that there was no evidence of bad faith or arbitrary or discriminatory acts that would justify the Court to intervene in the professional evaluation process of the Faculty of Medicine? [ 107 ] P.L. argues that her self-evaluations were modified by Dr. Troquet and submitted without her consent, thereby damaging her professional record. She also claims that the Respondents purposefully failed to follow the academic evaluation process in order to hinder her progress within the MUHC.

She seeks an order to force the Respondents to submit her self-evaluations for the academic years of 2009/2010, 2012 and 2013 into her online academic profile and her file at the Faculty of Medicine of McGill University, as well as the self-evaluations she submitted, the whole without changes, for the years 2015 and 2016.

[ 108 ] The trial judge held that there was no evidence of bad faith or arbitrariness or discriminatory acts. As for the years 2009/2010, 2012 and 2013, Dr. Troquet testified that none of the physicians’ self-evaluations were filed in the online academic system. [ 109 ] Dr. Clark confirmed that it was him rather than Dr. Troquet who modified P.L.’s self-evaluations for the years 2015 and 2016. She was invited to discuss the matter with him and chose not to, as a result of which, her professional evaluations have not been finalized to this day.

These findings are supported by the evidence and P.L. shows no error on the part of the trial judge in this regard. [ 110 ] The fourth ground of appeal should also be dismissed. [ 111 ] For all these reasons, I propose that this Court dismiss the appeal with legal costs. GENEVIÈVE MARCOTTE, J.A.