2014 QCCA 453, 2014 QCCA 453

Centre de santé et de services sociaux de la Basse-Côte-Nord c. Tribunal administratif du Québec 2014 QCCA 453 COUR D'APPEL CANADA PROVINCE DE QUÉBEC GREFFE DE MONTRÉAL N o : 500-09-024244-147 (500-17-077101-130) PROCÈS-VERBAL D'AUDIENCE DATE: Le 5 mars 2014 L’HONORABLE YVES-MARIE MORISSETTE, J.C.A.

PARTIE REQUÉRANTE AVOCAT CENTRE DE SANTÉ ET SERVICES SOCIAUX DE LA BASSE-CÔTE-NORD Me Teddy Goloff Me Jacques Bélanger Robinson Sheppard Shapiro sencrl

PARTIE INTIMÉE TRIBUNAL ADMINISTRATIF DU QUÉBEC

PARTIE MISE EN CAUSE AVOCATE E... P... Me Julie Chenette Chenette, Boutique de litige inc.

REQUÊTE AMENDÉE POUR PERMISSION D'APPELER D’UN JUGEMENT RENDU VIVA VOCE LE 12 FÉVRIER 2014 (TRANSCRIT LE 17 FÉVRIER 2014) PAR L’HONORABLE KIRKLAND CASGRAIN DE LA COUR SUPÉRIEURE DANS LE DISTRICT DE MONTRÉAL (Art. 26 et 494 C.p.c .) REQUÊTE POUR ORDONNANCE DE SURSIS (Art. 834.1 al. 2 et ss. C.p.c . et art. 2 et 20 C.p.c .) REQUÊTE DE BENE ESSE POUR EXÉCUTION PROVISOIRE (Art. 497 et 550 C.p.c .) Greffière d'audience : Nadia Samy Salle : RC.18 AUDITION 9 h 59 : Début de l’audience.

Identification des procureurs. 9 h 59 : Argumentation de Me Goloff. 10 h 37 : Argumentation de Me Chenette. 11 h 15 : Réplique de Me Goloff. 11 h 28 : Suspension de l'audience. 12 h 57 : Reprise de l'audience. 12 h 57 : Jugement – voir page 3. 13 h 00 : Fin de l’audience. Nadia Samy Greffière d'audience

JUGEMENT [1] The petitioner seeks leave to appeal from a judgment of the Superior Court which, on February 12, 2014, dismissed its motionfor judicial review of a decision of April 28, 2013, rendered by the Tribunal administratif du Québec. In issuing an order pursuant tosection 107 of the Act Respecting Administrative Justice, R.S.Q., c.

J-3, the Tribunal suspended an earlier decision of December 12,2012, whereby the petitioner’s board of directors had declined to renew the status and privileges of the respondent, at the time aphysician practising medicine within the petitioner’s hospital and network of other facilities. [2] In addition to a motion for judicial review, this decision of April 28, 2013, was also met by the petitioner with a motion for asuspension order.

This ancillary motion was heard and granted by the Superior Court on May 15, 2013. [3] The net effect of these proceedings as I understand it appears to have been that, between December 2012 and today, therespondent was unable to practise medicine within the petitioner’s hospital and other facilities. [4] The judgment in respect of which the petitioner seeks leave to appeal effectively reinstated the suspension order of April 28,2013.

As a result, the matter of the non-renewal of the respondent’s status and privileges is now set to be heard on its merit by theTribunal and hearings are scheduled to commence next April.

Meanwhile, and pending a final decision by the Tribunal, the respondentmay resume her practice within the petitioner’s hospital and other facilities. [5] The petitioner raises a range of grounds of appeal against the judgment of February 12, 2014, but in reality they come down totwo central contentions. [6] First, in dismissing the motion for judicial review, and thus effectively confirming the suspension order of April 28, 2013, theSuperior Court substituted to the reasons set out by the member of the Tribunal in his decision its own set of reasons, which are distinctfrom, and possibly incompatible with, the former reasons. [7] Second, the Superior Court failed to address a breach of natural justice by the Tribunal, which breach occurred when thepresiding member declined to reopen the hearing and allow the presentation of additional evidence by counsel for the petitioner. [8] Various authorities are submitted in support of these grounds but I am of the view that both would fail and that, in any event, thecase as it stands emphatically does not give rise to the sort of issue which is contemplated by the second paragraph of

article 26 C.c.p. [9] Appeals lie against orders, not reasons, and the dismissal of the petitioner’s motion for judicial review must be understood as anorder based on the conclusion, in law, that the Tribunal’s decision of April 28, 2013, was reasonable pursuant to the applicable standardof review. When, as is illustrated by a judgment of a judge of this Court in the recent case of Syndicat des travailleuses et des travailleursen alimentation de Place Noranda-CSN v.

Provigo Distribution inc., 2014 QCCA 379, it is appropriate to allow an appeal to proceed onthe ground that the reviewing judge substituted his own reasons to those of the statutory decision maker, there must nonetheless be anindication that the reliance on an erroneous standard of review resulted in the reversal of a decision which, to paraphrase the relevantcase-law, fell within "a range of possible acceptable outcomes which are defensible in respect of the facts and law”.

It is at the very leastimplicit, if not actually explicit, in the judgment below that the judge did reach this conclusion, and debating whether or not he mighthave phrased his reasons more auspiciously in a judgment rendered orally at the conclusion of the hearing is not a question of principle inneed of a ruling by this Court. [10] As for the alleged breach of the rules of natural justice, it bears repetition here that not every departure from a punctiliousenforcement of all conceivable or purported rules of natural justice necessarily translates into an excess of jurisdiction warranting reviewin accordance with a strict standard of correctness.

What the record evinces here is that the petitioner had ample opportunity to make itscase against the suspension of its own decision and that the Tribunal merely rejected a request to adduce further corroborating evidencein support of its position. To characterize this sort of decision as a grave breach of natural justice is, at best, rhetoric and an exaggeration.In a recent and unanimous judgment of this Court, my colleague Justice Bich observed, referring to the judgment of the Supreme Court ofCanada in Moreau-Bérubé v.

Nouveau-Brunswick (Conseil de la magistrature), 2002 SCC 11 , [2002] 1 R.C.S. 249, par. 75, :“il est vrai également que la justice naturelle et l'équité procédurale se déclinent en diverses formes et manières : parlant de la règle audialteram partem, il n'est donc pas qu'une seule façon d'assurer qu'une

partie soit entendue et puisse se défendre”. Those are appositewords in the context of this case, which has been fraught with preliminary skirmishes and should now proceed without delay to a hearingon the merits instead of being further delayed by an appeal which could not be perfected and heard before the fall of 2014. [11] For these reasons, the motion for leave to appeal is DISMISSED, with costs.

YVES-MARIE MORISSETTE, J.C.A.