Quebec Court of Appeal Highlights the Need for Prompt Action by Physicians Seeking to Challenge Decisions by Hospitals and Universities
In this blog post, we summarize the case of P.L. c. McGill University Health Centre, 2019 QCCA 1372, a recent decision from the Quebec Court of Appeal that centres on a privileging dispute between a physician, P.L., and McGill University Health Centre (“MUHC”). There are two main takeaways from this case:
Physicians seeking to challenge privileging decisions should act promptly to avoid dismissal for delay or acquiescence; and
Courts are hesitant to interfere with decisions made by universities unless there are exceptional reasons to do so, including those made by universities affiliated with an academic hospital.
Although this is a Quebec decision, these takeaways are also important considerations in the Ontario context. Following a summary of the case, this blog will set out how these issues have played out in Ontario courts.
Summary
P.L. began working at MUHC in 2002 as a full-time emergency physician. Over the next three years, P.L.'s colleagues and hospital leadership expressed concerns regarding her practical performance, leading to several failed attempts to address the issue through additional education and mentorship, and by redirecting P.L. to other areas of practice.
Restriction from acute care
In January 2005, P.L. was informed in writing by her department head that her privileges would be renewed for the time being, but that due to concerns regarding her practical skills, she would not be assigned to acute care shifts (“the 2005 limitation”). It was further suggested that P.L. find another field of medicine better suited to her strengths.
P.L. continued to work in the MUHC Emergency Department with restricted privileges from 2005 to 2011. During this time, P.L. was assigned primarily to minor care shifts and swing shifts, during which she covered ambulatory patients, patients in the sub-acute care area, and acted as back-up for the physician assigned in the acute care area. In April 2015, the MUHC Emergency Department changed locations and the new layout did not include a sub-acute care area. This further limited P.L.'s shifts and appears to have motivated P.L. to revisit the 2005 limitation and bring legal action against MUHC.
Position as Medical Student Director
From 2007 to 2015, P.L. had also held the position of Medical Student Director of the Department of Emergency Medicine at McGill University Faculty of Medicine (the “Faculty”). In 2011, P.L. was advised that this position would be subject to renewal in line with McGill University's by-laws for an additional term of four years. P.L. disagreed, arguing that her position had no term.
The Faculty then formalized the appointment process for all administrative positions, including the Medical Student Director position, resulting in all administrative positions within the Faculty being subject to posting after two consecutive terms of four years. P.L. did not challenge this policy change and, as a result of the change, P.L. had several additional years’ reprieve, during which she was not required to apply for renewal of her position.
In 2015, P.L. was advised that her term had come to an end and that her position was up for renewal. P.L. responded through her counsel that her position was not subject to a term, and demanded that the Faculty allow her to continue in her position. This strategy was not successful, and the Faculty posted the position. Although P.L. had been invited to reapply for the position, she did not, and the position was filled by two co-directors instead.
Superior Court Action
On August 11, 2015, P.L. initiated legal action against MUHC regarding the events discussed above and sought a declaratory judgment and a permanent injunction ordering MUHC and her department head at MUHC:
not to interfere with her privileges by preventing her from treating acute care patients at MUHC;
to reinstate her as Medical Student Director of the Department of Emergency Medicine at McGill University Faculty of Medicine; and
to post her prior self-evaluations.
The trial judge determined that P.L.’s privileges had initially entitled her to work in all areas of the Emergency Department, including acute care, and that MUHC had failed to follow the formal process provided in the applicable Quebec legislation. As a result, the trial judge found that the 2005 limitation of P.L.’s privileges to be unlawful. Despite this finding, the trial judge dismissed P.L.’s application on the grounds that P.L. had acquiesced to the 2005 limitation in a letter to MUHC administration and through her conduct by complying with the restrictions on her privileges without opposition for ten years. The trial judge noted that P.L. had even sued MUHC on two prior occasions in the interim without raising the issue of her restriction from acute care shifts.
Additionally, the trial judge found that the public interest consideration of patient safety justified her refusal to force MUHC to assign P.L. to acute care after so many years of absence. The trial judge emphasized that she was not making a determination as to P.L.’s competence or skill to work in acute care shifts, as that would be outside of her jurisdiction. However, the trial judge was clear that the public interest and safety outweighed P.L.’s private rights in this matter and that it informed the judge’s decision choice not to exercise her discretion to grant P.L.’ s desired remedies.
Regarding P.L.’s request to be reinstated to her former position as Medical Student Director, the trial judge noted that courts will generally refrain from intervening in internal decisions made by universities, barring exceptional circumstances, such as arbitrariness or discrimination. The trial judge also noted that the delay of four years in commencing these proceedings was unreasonable.
Court of Appeal
On appeal, P.L. argued that the trial judge had made several errors in denying the remedies sought and renewed her demands for reinstatement of her acute care privileges, her faculty position, and the posting of her self-assessments. The Court of Appeal rejected P.L.’s arguments and affirmed the reasoning and decisions made by the trial judge. P.L.’s appeal was dismissed in its entirety, as was her application to the Supreme Court of Canada.
Application in Ontario
As we stated at the outset of this blog, there are two takeaways from this case: the need for prompt action in challenging privileging decisions, and the reluctance of courts to interfere with administrative decisions made by universities unless there are exceptional circumstances. These takeaways apply in the Ontario context as well, with a few minor differences which are discussed below.
Decisions by Universities
Decisions made by a university affiliated with an academic hospital regarding administrative positions are distinct from those made by the hospital itself and are therefore subject to different procedural rules and rights of appeal. Some decisions may be challenged through an application for judicial review to Divisional Court. Courts are generally hesitant to interfere with decisions made by universities unless there are exceptional circumstances which call for the intervention of the court. In Ontario, courts are reluctant to intervene in university decisions unless there is “manifest unfairness” (see AlGhathy v University of Ottawa, 2012 ONSC 142), which is similar in meaning to “exceptional circumstances, such as arbitrariness or discrimination”, as relied on by the Court of Appeal in dismissing P.L.’s appeal.
Timelines and DelayThe issue of delay featured prominently in this case, contributing to the courts’ dispositions regarding both P.L.’s hospital privileges and faculty position. P.L.’s inaction and the prolonged delay were fatal to what may have otherwise been a successful challenge to the 2005 limitation. Given the trial judge’s determination that the 2005 limitation of P.L.’s privileges was indeed unlawful, it stands to reason that P.L. may have succeeded in challenging this decision had she challenged this decision in a timely manner. The extreme delay in challenging this decision was one of the grounds the trial judge relied on in her finding that P.L. had acquiesced to the decision.
In an Ontario case regarding decisions of a hospital that affected a physician’s privileges, Abramson v Medical Advisory Committee (North York General Hospital), 2011 CanLII 93929, the Health Professions Appeal and Review Board (“HPARB”) determined that a physician could likely have appealed certain decisions made by the hospital which likely amounted to a substantial alteration in his privileges under section 41(1) (b) of the Public Hospitals Act (“PHA”) but that they would not intervene due to the six-year delay in the physician challenging the decision of the hospital. Challenging the decision of a hospital in Ontario is typically conducted first through an internal process detailed in the PHA, with a right of appeal to HPARB that must be exercised within 7 days of the physician receiving the hospital’s written decision following a hearing before the Medical Advisory Committee and hospital board, respectively. HPARB decisions may be appealed to Divisional Court.
The Court of Appeal in the P.L. case also highlighted that the legislated timeline for bringing an application for judicial review in Quebec is 30 days. In Ontario, there is no specific time limit set out in legislation, however, it is still advisable to bring and perfect an application for judicial review promptly as courts in Ontario also have the discretion to dismiss an application for delay. The related case law indicates that a delay exceeding six months constitutes grounds for dismissal unless there is a good explanation for the delay (see Toronto District School Board v. Child and Family Services Review Board, 2019 ONSC 7064).
The Ontario Legislature is currently considering formalizing the timeline for bringing an application for judicial review through Bill 161, The Smarter and Stronger Justice Act, 2020. If brought into force, the new provisions of the Judicial Review Procedures Act included in Bill 161 would require applicants to bring an application for judicial review no later than 30 days after the date the decision to be reviewed was made. This deadline would also be subject to the court’s discretion to extend the time allowed where they are satisfied that there are apparent grounds for relief and that no substantial prejudice or hardship will result to any person affected by reason of the delay.
Ontario physicians should therefore ensure that they act promptly to challenge a decision that they disagree with through the relevant steps and mechanisms in place to challenge said decision. Otherwise, they risk losing future recourse to the courts.
If you require advice regarding a decision made by a hospital or university that effects your practice, please contact us.
