



COURT OF APPEAL FOR ONTARIO

CITATION: Beattie v. Women's College Hospital, 2018 ONCA 872

DATE: 20181031

DOCKET: C65171

Hoy A.C.J.O., Sharpe and Fairburn JJ.A.

BETWEEN

Dr.
    Douglas Beattie
,
Dr. George Luczkiw
, and
    Dr. Dominick Shelton

Appellants (Plaintiffs)

and

Womens College Hospital

Respondent (Defendant)

Natalie C. MacDonald and Kathryn Marshall, for the
    appellants

John J. Morris and Kate Deakon, for the respondent

Heard: October 18, 2018

On appeal from the
    judgment of Justice Jane Ferguson of the Superior Court of Justice, dated March
    1, 2018, with reasons reported at 2018 ONSC 1852, 46 C.C.E.L. (4th) 131.

REASONS FOR DECISION

[1]

The appellants are both doctors who practiced for many years in the
    respondent hospitals urgent care centre. The respondent closed the urgent care
    centre and, as a consequence, terminated their privileges. The trial judge
    dismissed the appellants action for damages for wrongful dismissal on the ground
    that it was barred by s. 44(5) of the
Public Hospitals Act
, R.S.O. c.
    P.40. That provision provides that if the board of a hospital decides to cease
    to provide a service:

No action or other proceeding for damages or
    otherwise shall be instituted against [the hospital] for any act done in good
    faith in the execution or intended execution by a board of its authority [to
    cease to provide the service] or for any alleged neglect or default in the
    execution in good faith by a board of such authority.

[2]

Section 44(5) is one component of the integrated scheme the Act provides
    to govern a hospitals cessation to operate or provide services. If a hospital
    board decides to cease to provide a "service under s. 44(1.2)(a), then
    the hospital board may decide to cancel or substantially alter the privileges
    of any physician relating to the provision of that service under s. 44(2).4.
    Sections 44(3) and 44(4) establish that the hospital board is not required to
    hold a hearing when it makes such a decision and the normal procedural and
    appeal rights provided for in the Act do not apply. Section 44(5) immunizes a
    hospital from liability for acts done by its board in good faith under s.
    44(2).

[3]

Here, it is not in dispute that the urgent care centre was a service and
    that the respondents board decided to cease providing that service. The trial
    judge found that that by closing the urgent care centre, the respondents board
    also decided to cancel or substantially alter the privileges of the two
    appellants. Accordingly, she concluded that s. 44(5) applied to immunize the
    respondent from liability for the appellants wrongful dismissal claims.

[4]

The appellants submit that s. 44(5) does not bar their claim for two
    reasons.

[5]

First, they argue that the legislative history indicates that at the
    time s. 44(5) was enacted, the Legislature expected it to have limited duration
    and that the Minister would be able to make exceptions to it by regulation.

[6]

Second, the appellants argue that the trial judge conferred upon them
    the status of dependent contractors, a legal category they say did not exist
    at the time s. 44(5) was enacted. They submit that their claim is therefore
    exempt from its application because the Legislature could not have intended to
    deprive of rights the members of a legal category that did not exist at the
    time of the provisions enactment.

[7]

We are unable to accept these arguments.

[8]

The intention of s. 44(5) is clear. It precludes all proceedings for
    damages for acts done in good faith under ss. 44(1) and 44(2) by hospitals which
    close or cease to provide a service. The Legislature enacted s. 44(5) as part
    of the
Savings and Restructuring Act, 1996
, S.O. 1996, c. 1. This Act
    created the Health Services Restructuring Commission, a body given a mandate to
    restructure Ontarios hospitals to make them more efficient and cost-effective.
    While the legislative debates indicate that parts of the package of legislation
    enacted along with s. 44(5), including the Health Services Restructuring
    Commission, would be temporary in nature, the legislature did not extend the
    four-year sunset provision to s. 44(5). Nor has the legislature repealed or
    amended s. 44(5) since it was enacted to limit its application. This provision remains
    intact despite the Legislatures decision in 2006 to make extensive amendments
    to the
Public Hospitals Act
, including to other subsections of s. 44, by
    enacting the
Local Health System Integration Act
, SO. 2006, c. 4.

[9]

As a court of law we are required to apply the legislation as it was
    enacted, not as it could have been drafted or might have been amended.
    Legislative history can be used to interpret legislation but not to create
    exceptions to legislation that may have been contemplated but were never
    enacted. The statements by Members of the Legislative Assembly that the
    appellants point to are at best equivocal. This court cannot use them to
    contradict the meaning and purpose that arises from reading the words of the
    provision in the context of the statute as a whole.

[10]

Nor
    does the regulation-making power in the
Public Hospitals Act
assist
    the appellants. The Legislature did consider the possibility of enacting
    regulations to confer certain procedural rights. Indeed, s. 32(1)(v) of the
Public
    Hospitals Act
gives the Minister of Health and Long-Term Care the power to
    provide alternative procedures and appeal rights where the procedures and
    appeal rights provided for in the statute do not apply. However, the Minister
    has never enacted any such regulations. In any case, the power to enact a
    regulation to provide certain procedural rights under s. 32(1)(v) cannot overcome
    the specific language of s. 44(5) barring actions for damages.

[11]

We
    do not accept the contention that because the trial judge characterized the
    legal status of the appellants as dependent contractors, their claims are
    exempt from the reach of s. 44(5). Doctors in the situation of the appellants whose
    privileges are terminated by the good faith decision of a hospital board as a
    consequence of a hospital boards decision to cease to provide a service have
    been precluded from suing for damages since 1996, however the legal nature of
    their relationship to the hospital is characterized. The language of s. 44(5)
    is all embracing and it would be inappropriate to read-in an exception that the
    Legislature did not provide: see
Ordon Estate v. Grail
, [1998] 3
    S.C.R. 437, at para. 134. Section 44(5) bars any and all proceedings for claims
    arising from a hospitals decision to cease to provide a service and the
    specific legal characterization of the terminated doctors status has no impact
    on its application.

[12]

Accordingly,
    the appeal is dismissed. The respondent is entitled to costs in the agreed
    amount of $15,000 inclusive of disbursements and taxes.

Alexandra
    Hoy A.C.J.O.

Robert J. Sharpe
    J.A.

Fairburn J.A.


