Fynn v. College of Physicians and Surgeons of Nova Scotia, 2012 NSSC 265

SUPREME COURT OF NOVA SCOTIA Citation: Fynn v. College of Physicians and Surgeons of Nova Scotia, 2012 NSSC 265 Date: 20120711 Docket: Hfx No. 401520 Registry: Halifax Between: Dr. John Fynn Applicant v. The College of Physicians and Surgeons of Nova Scotia and the Cumberland Health Authority Respondents Judge: The Honourable Justice Glen G. McDougall Heard: July 10, 2012, in Halifax, Nova Scotia Oral Decision: July 11, 2012 Written of Oral Decision: July 18, 2012 Counsel: Thomas P. Donovan, Q.C., and Joseph M. Herschorn, Ll.B., for the applicant Dr. John Fynn Marjorie A.

Hickey, Q.C., for the respondent College of Physicians and Surgeons of Nova Scotia Dennis James, Ll.B. and L. Martina Munden, Ll.B., for the respondent Cumberland Health Authority By the Court : [ 1 ] On Friday, July 6, 2012, counsel for Dr.

John Fynn asked for court approval to have a Motion for an Interim Injunction heard on an emergency basis pursuant to Civil Procedure Rule 28. [ 2 ] The request was granted provided notice was given to all parties who were to be named as respondents in a judicial review “ of decisions of the Cumberland Health Authority ( “ CHA ” ) and the College of Physicians and Surgeons of Nova Scotia (the “ College ” ). ” These decisions were alleged to have jeopardized Dr. Fynn ’ s license to practice medicine in the Province of Nova Scotia.

[ 3 ] The Notice for Judicial Review was filed on Monday, July 9, 2012. The exact time and day that had been set aside for the hearing of the Motion for an Interim Injunction was included in the Notice provided to the two named respondents – the “ College ” and “ CHA ” . [ 4 ] It should be noted that the person who has been acting as Dr.

Fynn ’ s sponsor, a requirement of the Medical Act , S.N.S. 1995- 96, c. 10 (henceforth the “ Act ” ) and the Regulations made thereunder to allow a foreign trained medical doctor to practice medicine in Nova Scotia as a registrant in the Defined Register, is not named as a party in these proceedings. [ 5 ] Dr. Celina D. White has acted as a sponsor for Dr. Fynn since agreeing verbally to do so on October 18, 2010. This was done in a telephone conversation she had with Dr. Bill Lowe, Deputy Registrar of the College on that day. [ 6 ] Dr.

White was appointed as Chief of Staff at the Cumberland Health Authority on October 4, 2010. In all Dr. White serves as sponsor for 11 physicians on defined licences with the CHA. [ 7 ] On June 28, 2012 Dr. White advised the College that she was withdrawing her sponsorship of Dr. Fynn effective immediately. She states in her letter “ that due to concerns of the negative impact of Dr. Fynn ’ s behaviour on patients, his colleagues and the staff at the Cumberland Health Authority, that I am unable to continued my sponsorship for Dr. Fynn. ” [ 8 ] A copy of this letter sent to Dr.

Gus Grant, the Registrar and CEO of the College was provided to Dr. Fynn and to Dr. William Lowe, the College ’ s Deputy Registrar and also to Mr. Bruce Quigley, CEO of the Cumberland Health Authority. [ 9 ] Apparently after having discussions with representatives of the College, Dr. White agreed to extend her sponsorship of Dr. Fynn to July 11, 2012. This decision was communicated to Dr. Fynn by way of correspondence from Dr. Gus Grant dated July 5, 2012. [ 10 ] By way of further correspondence sent to Dr. Fynn by Dr. William Lowe on July 9, 2012, Dr.

Lowe advised that the Council of the College confirmed the position taken by the Registrar and CEO, Dr. Grant, as stated in his earlier correspondence of July 5, 2012 in which Dr. Grant advised Dr. Fynn “ that your Defined License would no longer be valid as of July 11, 2012, in view of Dr. White ’ s withdrawal of sponsorship. ” [ 11 ] Dr. Lowe ’ s letter also clearly states: It is the responsibility of Defined Licensees to find and retain a sponsor who is nominated by the District Health Authority where the physician practices, and who is approved by the College.

I advise that you take immediate steps to seek a new sponsor for College approval prior to July 11, 2012, in which case your Defined Licence will continue in effect. In the event you do not obtain an approved sponsor prior to July 11, I encourage you to take steps as quickly as possible thereafter to obtain a new sponsor for College approval, following which your Defined Licence will be reinstated assuming you continue to meet the requirements for the holding of a Defined Licence set out in the Medical Act and its regulations. [ 12 ] Dr.

Lowe ’ s letter goes on to say: I advise that the Executive of Council is prepared to meet on an urgent basis to consider any request from you for approval of a sponsor who has agreed to take on this position, and who is nominated by the health authority where you will be practising. [ 13 ] What led to Dr. White ’ s decision to withdraw her sponsorship of Dr. Fynn was a complaint made by another physician regarding an incident that happened just outside the hospital ’ s operating room on Sunday, June 17, 2012. [ 14 ] After receiving the written report outlining the complaint of Dr. Justyna Krol-Lass, Dr.

White asked three other physicians to look into the matter and to report back to her. This panel was not appointed pursuant to Cumberland Health Authority ’ s Medical Staff Rules and Regulations but rather in accordance with Dr. White ’ s normal practice.

[ 15 ] After the panel met with Dr. Krol-Lass and Dr. Fynn and the two operating room nurses who were present and who had witnessed the incident that led to the complaint, Dr. White met with the panel one June 26, 2012 to discuss their findings. It was as a result of their report that Dr. White advised them “ that based on the information presented to me, it is very likely that Dr. Fynn will be asked to resign and if he does not agree then I will be withdrawing as his sponsor effectively leaving him without a license to practice. ” [Notes made by Dr.

White based on the meeting which was held on Tuesday, June 26, 2012 at 2 pm at the CHA office – attached as Exhibit J to Dr. Celina White ’ s affidavit sworn on July 9, 2012] [ 16 ] In her affidavit Dr. White states that her decision, first of all to sponsor Dr. Fynn and subsequently to provide notice of her intention to withdraw the sponsorship, was a personal decision and was in no way influenced by the CEO or the Board of Directors of the Cumberland Health Authority. [ 17 ] The alleged misconduct of Dr. Fynn by Dr. Krol-Lass was witnessed by two operating room nurses.

They supported the version of events contained in the written complaint of Dr. Krol-Lass which included the use of profanities and verbal as well as physical intimidation tactics directed towards Dr. Krol-Lass by Dr. Fynn. All of this occurred in the presence of the patient who was awaiting surgery. The patient had to be transferred to another hospital to have the delayed procedure performed. [ 18 ] Dr. White decided to meet with Dr. Fynn to discuss the results of the investigation. She asked the Cumberland Health Authority ’ s CEO, Mr. Bruce Quigley, to attend the planned meeting. When she contacted Dr.

Fynn to set up the meeting he asked if he could have someone attend with him. Dr. White agreed to the request. Counsel for Dr. Fynn intervened and asked that the meeting be postponed. It has never taken place. [ 19 ] Dr. White sent the letter to the College the following day – on June 28, 2012. [ 20 ] It should be noted that this is not the first occasion on which a sponsor withdrew sponsorship of Dr. Fynn in the approximately six years that he has provided medical services to the CHA. [ 21 ] Dr. David A. Gass, the former Chief of Staff for the CHA, had previously been Dr. Fynn ’ s sponsor.

By correspondence dated December 2, 2008 Dr. Gass notified the College that he was withdrawing his sponsorship. Another physician, Dr. Krystof Bienkowski, acted as an interim sponsor for Dr. Fynn until Dr. Gass resumed the role on or about June 24, 2009. There were a number of conditions attached to the sponsorship which were required by the Executive Committee of the College of Physicians and Surgeons. These various conditions were accepted by Dr. Fynn. These conditions remained in place when Dr. White became his sponsor in 2010.

They were considered by her when she made the decision to withdraw her sponsorship. [ 22 ] All of this is provided by way of background. It is not intended to be an exhaustive review of all the facts pertaining to the Motion that is now before this court. It is simply provided to offer some context for the decision that I am about to make. Legal Framework [ 23 ] The Motion for an Interim Injunction is brought pursuant to a Notice for Judicial Review filed on the 9 th day of July, 2012.

If granted a hearing to decide whether an interlocutory injunction should be granted is proposed to be heard on the same day set for the hearing of the Motion for Directions which is August 8, 2012 at 11:00 o ’ clock a.m. [ 24 ] What this court is being requested to grant is “ a stay of the enforcement of the decision under judicial review. ” [ 25 ] Motions for interim and interlocutory injunctions are governed by Civil Procedure Rule 41. The Rule defines an “ interim injunction ” as an order for an injunction effective before a motion for an interlocutory injunction is determined.

As previously stated, the applicant has indicated that he proposes to file a Motion for an Interlocutory Injunction if he is successful in his efforts to obtain an

interim injunction. His counsel intends to file the proper notice before July 13, 2012 and proposes that it be heard on the date suggestedfor the Motion for Directions. Counsel for the two respondents have already indicated that they are not available on that day. Legal Analysis and Discussion [26] Counsel for the parties all agree that the legal test to be applied for either a stay or an interim injunction is that set out in RJR MacDonald Inc. v. Canada, (SCC), [1994] 1 SCR 311; 111 DLR (4th) 385; 54 CPR (3d) 114. 1.

First, there needs to be a preliminary assessment to determine if there is a serious issue to be tried; 2. Second, will the applicant suffer irreparable harm if the stay is not granted; and 3. Third, a balance of commercial test must be performed to determine which of the parties would suffer greater harm from thegranting or the refusal of the remedy pending a hearing on the merits. [27] Counsel for the applicant has raised concerns with some of the content contained in the affidavit of Mr. Bruce Quigley whichwas filed on behalf of the Cumberland Health Authority.

I do not propose to parse the affidavit as my decision is not significantlyinfluenced by its’ content. [28] The effect of the remedy being sought would be to enjoin and prevent Dr. Celina White from withdrawing her sponsorship ofDr. Fynn which (unless he can find a suitable replacement who the CHA is willing to nominate and the College is prepared to approve)would prevent him from practising medicine in this Province. Dr. White is not a named party to these proceedings. Nonetheless she,along with Dr. Fynn, is at the centre of things.

She provided a very comprehensive affidavit detailing her involvement in the matters thatled to her decision to withdraw her sponsorship. [29] Although the Chief of Staff at CHA, Dr. White is not Dr. Fynn’s sponsor solely due to the position she holds at the HealthAuthority. In the past Dr. Fynn has had at least one other sponsor who was not the Chief of Staff. [30] Furthermore, the College has made it perfectly clear that they are prepared to work with Dr.

Fynn to approve some othersuitable candidate for sponsor provided he or she gains the nomination of the CHA. [31] Counsel for the CHA has indicated to the Court that they, too, are prepared to work with Dr. Fynn but it is up to Dr. Fynn toidentify someone who is prepared to assume a sponsorship role. [32] The College persuaded Dr. White to continue her sponsorship of Dr. Fynn until July 11, 2012. Initially she gave notice that thewithdrawal of her sponsorship was effective the day she sent written notice of same to the College’s Registrar and CEO, Dr. Gus Grant. [33] Dr.

Fynn has had two weeks to find a suitable replacement for Dr. White. After working at the CHA for the past six yearssurely he must be familiar with most, if not all, the physicians who work in that area. [34] The CHA has not made a decision to remove or even reduce Dr. Fynn’s privileges. The College of Physicians and Surgeonshas done nothing other than to alert Dr. Fynn of the need to have a sponsor in order to continue to meet the requirements for a DefinedLicense.

It is a statutory requirement. [35] The Notice of Judicial Review names two respondents, namely the College of Physicians and Surgeons and CumberlandHealth Authority. The Notice sets out the decisions to be reviewed as those of the CHA and the College.

[ 36 ] This Motion asks that there be a stay of the enforcement of the decision under judicial review. What it really boils down to is a request to stay the effect of the decision of Dr. White to withdraw her sponsorship of Dr. Fynn effective July 11, 2012. Dr. White ’ s decision was a personal decision she has every right to make. One would hope that a decision of this nature would not be made in a cavalier or vindictive manner. The College has approved “ Guidelines for Sponsoring Physicians ” which provide guidance to a sponsor in instances such as this.

Under the heading “ when sponsorship ends ” , the first bullet entry states: ● The sponsor may withdraw sponsorship at any time. This is a serious decision because upon withdrawal of sponsorship the defined license is no longer valid. It is advisable that the sponsor discuss the matter with the mentor and the College before making a final decision. The sponsor must notify in writing the College, the mentor and the defined licensee of withdrawal of sponsorship. [ 37 ] There is no requirement for the sponsor to give reasons for her or his decision.

The decision to become a sponsor or to withdraw as a sponsor is entirely a personal decision. It is not an administrative decision that is subject to review by this Court. [ 38 ] I will not comment on the factors that might have influenced Dr. White ’ s decision. I will say, however, that she did not have to engage the services of the Medical Staff Conflict Resolution Committee under the Medical Staff Rules and Regulations of the CHA. [ 39 ] Nor did she even have to appoint the three-person panel to investigate the complaint made against Dr. Fynn by Dr. Krol-Lass.

She could have made the decision to withdraw sponsorship without any type of formal process whatsoever. The decision was hers to make. Any fallout affecting Dr. Fynn comes from that decision. It does not arise from any decision made either by the College of Physicians and Surgeons or the Cumberland Health Authority. No decision was made by either of these entities. [ 40 ] I have concluded there is no serious issue to be tried. If I had decided there was, I would have also denied the Motion on the basis that there is no irreparable harm to the applicant should the interim injunction not be granted.

Losses, if any, suffered by the applicant could be compensated for in monetary damages. He is remunerated under a contract with the Health Authority. He has worked in the District for the past six years. Should he suffer any losses that are compensable in damages they could be easily ascertained. [ 41 ] Based on the foregoing I do not think it necessary to have to deal with the third branch of the test. My conclusions on the first two decide the issue. [ 42 ] For these reasons, the Motion for an interim injunction is denied. I will leave it to counsel to discuss costs.

Should the Court ’ s further intervention be required to resolve this issue counsel can file written submissions within 30 days of today ’ s date. [ 43 ] I will conclude by putting the onus back on Dr. Fynn where the Medical Act and its Regulations clearly place it. It is for him to identify another suitable sponsor who is prepared to serve in that capacity. [ 44 ] I expect that the College and the CHA will do whatever they can to accommodate and facilitate his bona fide efforts to regain his Defined Licensee status. McDougall, J.