The sanctions had a 'sufficiently public character' to fall under court's supervisory jurisdiction
The Nova Scotia Court of Appeal ruled that two doctors sanctioned by the Nova Scotia Health Authority (NSHA) for workplace harassment can seek judicial review, as the NSHA's actions had a public character under its regulatory authority.
The dispute in Nova Scotia Health Authority v. Finkle and West, 2024 NSCA 87 involved Dr. Simon Finkle and Dr. Kenneth West, nephrologists practising at the Queen Elizabeth II Hospital in Halifax. They faced workplace harassment complaints and were sanctioned by the NSHA under its Respectful Workplace Policy.
The physicians, who are not NSHA employees but hold medical privileges granted until March 2025, were directed by the NSHA to complete specific courses following an investigation that found both doctors had committed harassment. The doctors challenged this, alleging a denial of procedural fairness, and sought judicial review of the NSHA’s decision.
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In its appeal, the NSHA argued that its actions were not subject to judicial review because the physicians had no contractual employment relationship with the authority. However, the Court of Appeal found that the NSHA’s decision to impose sanctions had a “sufficiently public character” to engage the court’s supervisory jurisdiction. The court referenced a decision by the Supreme Court of Canada, which limits judicial review to cases involving the exercise of state authority.
The court emphasized that the NSHA operates under the Health Authorities Act, which mandates it to provide health services across the province. The court further noted that the NSHA’s Medical Staff Bylaws, which are formal regulations, gave the authority legislative authority to regulate and discipline physicians holding privileges. Therefore, its decisions to impose sanctions affected the doctors' professional standing and access to hospital resources, carrying a public dimension.
The Court of Appeal also dismissed the NSHA’s argument that the complaints process was purely private, akin to hiring decisions, stressing that the physicians’ relationship with the NSHA was established solely through the granting of privileges governed by statutory regulations. The court further ruled that the sanctions, which included mandatory completion of several training courses, were not merely routine disciplinary measures but tied directly to the doctors' ongoing privileges and careers.
The court’s decision allowed Drs. Finkle and West to proceed with their applications for judicial review, which will be heard in 2025.
