Nova Scotia Health Authority v. Finkle and West

Nova Scotia Health Authority v. Finkle and West Court Court of Appeal Date 2024-10-17 Citation 2024 NSCA 87 Docket CA 531619 and 531620 Judge/Registrar/Adjudicator Farrar, David P.S. (Honourable Justice) (CA); Fichaud, Joel E. (Honourable Justice) (CA); Van den Eynden, Elizabeth (Honourable Justice) (CA) Document Type Decision Decision Content Nova Scotia Court of Appeal Citation: Nova Scotia Health Authority v. Finkle and West, 2024 NSCA 87 Date: 20241017 Dockets: CA 531619 and 531620 Registry: Halifax Between: Nova Scotia Health Authority Appellant v. Dr. Simon Neil Finkle Respondent -and- Nova Scotia Health Authority Appellant v. Dr. Kenneth West Respondent Judges: Farrar, Fichaud and Van den Eynden, JJ.A. Appeal Heard: October 1, 2024, in Halifax, Nova Scotia Subject: Availability of judicial review at common law and under Civil Procedure Rule 7 Summary: Drs. Finkle and West are nephrologists with privileges at the Queen Elizabeth II Health Centre. Further to the Health Authorities Act, S.N.S. 2014, c. 32, the Nova Scotia Health Authority (“NSHA”) manages the QE II Health Centre. Two persons filed complainants of workplace harassment against Drs. Finkle and West. The NSHA deals with harassment claims under its Respectful Workplace Policy (“Policy”). The Policy was issued under the NSHA’s Corporate Bylaws and applies to physicians with privileges under the Medical Staff Bylaws. The Corporate Bylaws and Medical Staff Bylaws are formal regulations issued under the Health Authorities Act. The investigator under the Policy found Drs. Finkle and West had committed low end harassment. The NSHA acted on the findings by sanctioning Drs. Finkle and West to take courses on leadership, teamwork and the Policy. Drs. Finkle and West applied for judicial review of the NSHA’s sanctions. They alleged denial of procedural fairness. The NSHA moved for orders that the matters were not judicially reviewable either at common law or under Civil Procedure Rule 7 (“Judicial Review and Appeal”). The motions judge dismissed the NSHA’s motions and held the matters were judicially reviewable. The NSHA appealed to the Court of Appeal. Issues: Does the Supreme Court of Nova Scotia have the authority, at common law or under Civil Procedure Rule 7, to judicially review the NSHA’s sanctions against Drs. Finkle and West? Result: The Court of Appeal granted leave to appeal and dismissed his appeal. The applications for judicial review challenge the “exercise of state authority … of a sufficiently public character” to satisfy the common law test for access to judicial review. Further, the applications satisfy the conditions for judicial review in Civil Procedure Rule 7. This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 111 paragraphs. Nova Scotia Court of Appeal Citation: Nova Scotia Health Authority v. Finkle and West, 2024 NSCA 87 Date: 20241017 Dockets: CA 531619 and 531620 Registry: Halifax Between: Nova Scotia Health Authority Appellant v. Dr. Simon Neil Finkle Respondent -and- Nova Scotia Health Authority Appellant v. Dr. Kenneth West Respondent Judges: Farrar, Fichaud and Van den Eynden, JJ.A. Appeal Heard: October 1, 2024, in Halifax, Nova Scotia. Held: Leave to appeal granted and appeal dismissed with $5,000 costs, per reasons for judgment of Fichaud, J.A., Farrar and Van den Eynden, JJ.A. concurring Counsel: Roderick (Rory) H. Rogers, K.C. and Richard Jordan for the Appellant Catherine Fawcett, K.C. and Benjamin Lord for the Respondents Reasons for judgment: [1] The Health Authorities Act, S.N.S. 2014, c. 32 establishes the Nova Scotia Health Authority (“NSHA”) as the “provincial health authority” to provide health services throughout Nova Scotia and implement the Government’s health plan. Drs. Simon Finkle and Kenneth West are nephrologists with privileges at the Queen Elizabeth II Hospital in Halifax. They are not NSHA employees and have no contract with the NSHA. The NSHA granted their privileges until March 2025. [2] The NSHA’s Medical Staff Bylaws are regulations under the Act. The Bylaws say: (1) privileges are granted by the NSHA, (2) without privileges, a physician may neither access nor provide to a patient any service offered by the NSHA, and (3) compliance with the NSHA’s “policies” is mandatory for physicians with privileges. [3] The NSHA’s Corporate Bylaws also are regulations under the Health Authorities Act. Further to the Corporate Bylaws, the NSHA issued a Respectful Workplace Policy. The Policy prohibits harassment, as defined in the Policy, and authorizes the investigation of complaints and sanctions for non-compliance. The investigator makes a recommendation which the NSHA decides whether to adopt. [4] Two persons filed complaints of workplace harassment against Dr. Finkle and one against Dr. West. The investigator found both had committed harassment, contrary to the Policy. The NSHA adopted the investigator’s findings and sanctioned Drs. Finkle and West to complete courses on the Respectful Workplace Policy, Psychologically Safe Leadership and Effective Team Interactions. [5] Drs. Finkle and West each applied in the Supreme Court of Nova Scotia for judicial review of the NSHA’s decisions. They alleged denial of procedural fairness. The NSHA countered by moving for an order that the NSHA’s decisions were not judicially reviewable. The judge dismissed the motion. He held the decisions were reviewable under the common law test in Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26, and the judicial review could proceed under Nova Scotia’s Civil Procedure Rule 7. [6] The NSHA appeals. The issues are: (1) under the test in Highwood, did NSHA’s decisions exercise “state authority” with a “sufficiently public character” to engage a superior court’s power of judicial review, and (2) does Rule 7 (“Judicial Review and Appeal”) authorize these applications for judicial review? Background [7] Section 49(1) of the Health Authorities Act, a public statute, establishes as a body corporate “a health authority for the province” to be named by regulation, and directs the authority to “provide health services to the entire Province, except for those provided by the IWK Health Centre”. Section 51 says the provincial health authority is “responsible for the Queen Elizabeth II Health Sciences Centre”, the provincial centre for tertiary care, research and academic activities. The IWK Health Centre, a children’s hospital, is not involved in this proceeding. [8] The Health Authorities Act General Regulations, N.S. Reg 16/252 as amended, O.I.C. 2015-77, N.S. Reg. 52/2015, Reg. 3 named the NSHA as the provincial health authority. [9] The Health Authorities Act states the NSHA’s objects: Objects 50 The objects of the provincial health authority are to govern, manage and provide health services in the Province and to implement the strategic direction set out in the provincial health plan. [10] Section 7 of the Act says the “provincial health plan” prescribes “the health services to be provided or made available in the Province”, the “principles upon which the provision of health services are to be based”, the “goals, objectives and priorities for the provision of health services” and objectives governing “resource management” and “human resources planning”. [11] Section 4(1) of the Act says, if there is a conflict between the Health Authorities Act or its regulations and any other enactment respecting a hospital, the Health Authorities Act or its regulation prevails. [12] Drs. Kenneth West and Simon Finkle are licensed medical practitioners. They work in the Nephrology Division of the Queen Elizabeth II Hospital in Halifax. Dr. West has practiced nephrology for 29 years and, from 2009 to November 2021, was Division Head of Nephrology. Dr. Finkle has practiced for 23 years and, in November 2021, was appointed Interim Division Head of Nephrology, replacing Dr. West. [13] By separate letters of June 20. 2022, the NSHA’s Board of Directors granted to Dr. Finkle and Dr. West medical staff appointments and “Active with Admitting” privileges for Nova Scotia’s “central zone”, which includes the Queen Elizabeth II Hospital. The letters say the NSHA’s board of directors approved the appointments under the Medical Staff Bylaws. The letters say the privileges extend to March 3, 2025. [14] The Medical Staff Bylaws: The Medical Staff Bylaws establish the legal framework within which the NSHA manages physicians. [15] Section 21 of the Health Authorities Act authorizes the Minister to “make by-laws respecting the granting, variation, suspension and revocation of privileges in relation to physicians”. Section 22(1) says: “[s]ubject to the approval of the Minister, a health authority may make by-laws respecting medical and dental staff …” and, in particular, respecting “(b) categories of privileges” and “(d) the rules governing medical and clinical staff”. [16] Further to s. 21, the Minister enacted Parts A and C of the Nova Scotia Health Authority Medical Staff Bylaws. Further to s. 22(1), the NSHA issued Part B of those Bylaws which the Minister approved. See N.S. Reg. 187/2015 (Part A), 188/2015 (Part B) and 189/2015 (Part C), amended by N.S Reg. 133/2021. I will term Parts A, B and C as the “Medical Staff Bylaws”. They are formal regulations with subordinate legislative effect. [17] These Medical Staff Bylaws were repealed and replaced on May 17, 2023 by the Nova Scotia Health Authority Medical Staff Bylaws, N.S. Reg. 86/2023. However, the NSHA’s decisions that are challenged by Drs. Finkle and West were dated May 1, 2023, before the repeal and replacement. Consequently, as the parties have agreed, this appeal is governed by, and my reasons refer to the Medical Staff Bylaws of 2015. [18] No contract between NSHA and Drs. Finkle and West: As I will discuss later, the availability of judicial review at common law may turn on whether the relationship between the NSHA and Drs. Finkle and West was contractual. [19] The motions judge found neither Dr. Finkle nor Dr. West had a contract with the NSHA (2023 NSSC 426, paras. 72 and 93#1). At the hearing in this Court, the NSHA’s counsel confirmed the NSHA has not appealed that finding, and also confirmed no evidence in the appeal record supports a finding Dr. Finkle or Dr. West had a contract with the NSHA. [20] The only evidence in the record to establish the relationship between the NSHA and either Drs. Finkle or West is the NSHA’s letter of appointment for each, dated June 20, 2022, summarized above [para. 13]. The letters notified them of their appointments and defined their privileges. [21] The Medical Staff Bylaws, Part A, ss. 3.3, 3.3.1 and 3.3.2 [particularly s. 3.3.2.2] say: (1) physicians may have either “contracts for services” with the NSHA or a relationship with the NSHA “established solely through the granting of privileges”; and (2) if there is a contract, “nothing in these by-laws is intended to entitle such a person to access the provisions of Part C of these by-laws”. Part C elaborates on privileges and provides a process to resolve disputes between the NSHA and physicians with privileges. Sections 3.3 through 3.3.2.2 say: 3.3 Any medical practitioner or dentist whose relationship with the health authority is established solely through granting of privileges shall be subject to these by-laws. 3.3.1 NSHA may enter into contracts for services with persons who are subject to these by-laws including but not limited to, medical practitioners, dentists or members of the affiliated staff. 3.3.2 Any person who is subject to these by-laws and has a relationship with the Board established by means of a contract or a contract and privileges, whereby the person is provided compensation for services, either as an independent contractor or as an employee, must have the renewal, extension or termination of that contract and, if applicable, the variation, suspension, non-renewal or revocation of privileges under that contract determined in accordance with the terms of that contract. Without restricting the generality of the foregoing and for greater clarity: … 3.3.2.2 if a medical practitioner or dentist has been granted membership in the medical staff by virtue of a contract and has not had his/her relationship with the NSHA granted solely through privileges under Part C of these by-laws and Section 21 of the Health Authorities Act, nothing in these by-laws is intended to entitle such a person to access the provisions of Part C of these by-laws; … [bolding added] [22] The NSHA’s factum to this Court, para. 106, says if the NSHA had disciplined Drs. Finkle and West for not taking the courses as directed in the sanction letters, “the Respondents could then have challenged the Decisions under Part C, which includes facilitated mediation and two levels of appeal”. According to the Medical Staff Bylaws, Part A, s. 3.3.2.2, if they had a contract with the NSHA, they would not be entitled to access Part C. The NSHA’s para. 106 effectively acknowledges Drs. Finkle and West had no contract with the NSHA. [23] In short, the relationship between the NSHA and Drs. Finkle and West, in the words of s. 3.3 in Part A of the Medical Staff Bylaws, was “established solely through the granting of privileges”, without a contract. [24] The NSHA’s use of privileges to manage physicians: Section 1.20 of Appendix 1 to the Medical Staff Bylaws defines “medical staff” as “medical practitioners … not employed by a health authority … who have privileges granted by the Board”. Section 1.21 defines “member” as “a member of the medical staff”. By Appendix 1, s. 1.4, the “Board” is the NSHA’s Board of Directors. Drs. Finkle and West are “members” of the “medical staff”. [25] The statement of “purpose and application” prefacing the Medical Staff Bylaws, Part A, titled “Provisions of General Application”, includes a guarantee of procedural fairness to medical staff “at all times”: 3 Purpose and application 3.1 The by-laws are developed and enacted in order to: … - define the rules governing the medical staff including the key elements of appointment, reappointment, privileging and the orderly resolution of issues while, at all times ensuring the principles of due process/procedural fairness are maintained; … - address processes through which issues respecting the medical staff relationship with the NSHA may be considered and resolved. [bolding added] [26] According to their appointment letters of June 20, 2022, the NSHA’s appointments of Drs. Finkle and West were “per the NSHA the Medical Staff Bylaws, Part B, s. 2.2”. Sections 1 and 2 of Part B prescribe how the NSHA uses privileges to manage medical staff: 1.2 No medical practitioner, dentist or other health professional, not employed by the Health Authority, is authorized to admit, provide any service to a patient, conduct research in or access any service provided by the NSHA or the IWK unless such medical practitioner, dentist or health professional holds an appointment to the medical staff of that Health Authority which includes the privileges to do so, or has been otherwise authorized by the Board to do so. … 2 Medical staff categories 2.1 Members shall be appointed to appropriate medical staff category as determined by the Board. … 2.3 Documentation granting medical staff appointments to the NSHA must stipulate the zone, health care facility, program or service which shall serve as the primary site for the member’s privileges and also outline any other services, programs or health care to which the member may hold any category of privileges. … 2.4 Duties, responsibilities and activities and any limitations pertaining to privileges granted to any member of the medical staff must be further defined by the Board’s decision which grants the privileges and are subject to the provisions of these by-laws, the rules [and] regulations and the NSHA’s policies and procedures, all as may be amended from time to time. 2.5 Duties, responsibilities, activities and any conditions or limitation pertaining to any category of medical staff privileges as outlined in these by-laws may, in the Board’s discretion, be clarified in the NSHA’s rules, regulations and policies, all as they may be amended from time to time. 2.6 Members must abide by these medical staff by-laws, the rules [and] regulations and policies and procedures of the NSHA, all as they may be amended from time to time. [bolding added] [27] The NSHA appoints a physician with privileges for a fixed term, usually three years. Then the physician must apply for re-appointment. [28] Compliance with the NSHA’s policies is a criterion for the renewal of privileges. The NSHA’s “Medical/Dental Staff Re-Appointment Application” governs the re-appointment. That document includes 19 “yes/no” questions respecting “Legal/Disciplinary/Complaints”, preceded by the bolded notation: If you answer yes to any of the following questions, please provide details under separate cover, marked confidential, to the Chair, Credentials Committee, NSHA. [29] Similar inquiries appear in the credentialing requirements of other provinces, as appears from the exhibits attached to Dr. Finkle’s affidavit. [30] The Medical Staff Bylaws, Part B, s. 13.2 prescribes an annual review of each physician by the NSHA’s Zone Department Head. Under ss. 13.2.3 and 13.2.5, the review includes a “determination as to compliance with … workplace behaviour requirements as outlined in these by-laws … and in the HA [Health Authority]’s policies and procedures” and “information on any discipline actions taken by the … HA”. Sections 13.3 and 13.4 prescribe a “comprehensive performance review”, to include “as a minimum” the items required by s. 13.2, in the year when the physician is seeking re-appointment with privileges. [31] The Respectful Workplace Policy: The Medical Staff Bylaws, s. 2.6, quoted above, says the privileged physician “must abide by … the … policies … of the NSHA”. The requirement is reiterated by ss. 2.4 and 2.5. Appendix 1 (“Definitions”), s. 1.24, defines “policy” as “guidance and directives approved by the health authority respecting the operation of health care facilities, services or programs within the health authority”. [32] One such “policy” is the Respectful Workplace Policy. Its provenance is: • Section 20 of the Health Authorities Act authorizes the Minister to “make by-laws respecting the conduct and management of the affairs of a health authority …”. Further to s. 20, the Minister enacted as regulations the Nova Scotia Health Authority Corporate Bylaws, N.S. Reg. 29/2017, amended by N.S. Reg. 58/2019 (“Corporate Bylaws”). The Corporate Bylaws are formal regulations with subordinate legislative effect. • Section 2.1 of the Corporate Bylaws says the NSHA’s “Board shall determine the policies and procedures of the NSHA, including any delegation of its powers in relation to policies and procedures …”. • On April 1, 2015, the NSHA’s Board passed a Resolution titled “Policy Determination (Development and Approval) Delegation” which approved “the delegation of its policy determination authority” in accordance with its Schedule A. Schedule A said human resource policies, including those respecting a “Respectful Workplace”, were delegated to the “Responsible VP” (i.e. the Vice President, People and Organizational Development) for initial approval, and the “ELT” (i.e. the Executive Leadership Team) for final approval. • On September 25, 2017, effective October 2, 2017, the Vice President, People and Organizational Development adopted NSHA’s “Respectful Workplace Policy” after which it was approved by the Executive Leadership Team. [33] The Respectful Workplace Policy is a written Policy numbered AD-HR-020 in the NSHA’s Administrative Manual. It is not a regulation. It was issued under the authority of regulations (the Corporate Bylaws) and applies to physicians with privileges by adoption in regulations (the Medical Staff Bylaws). [34] Section 80 of the Health Authorities Act says regulations, such as the Medical Staff Bylaws, may “adopt or incorporate” standards, rules or other documents: Incorporation by reference 80(1) A regulation made under this Act may adopt or incorporate by reference, in whole or in part or with modifications, a written standard, rule, regulation or other document relating to any matter in respect of which a regulation may be made under this Act. (2) A standard, rule, regulation or other document that is adopted or incorporated by reference under subsection (1) may be adopted or incorporated as it reads on a prescribed day or as it is amended from time to time. [bolding added] [35] Section 2.6 of Part B of the Medical Staff Bylaws says the physician with privileges “must abide by these … policies and procedures of the NSHA, all as they are amended from time to time”. Sections 2.4 and 2.5 have similar effect. These provisions enable the NSHA to apply the Respectful Workplace Policy to physicians with privileges. Hence, under ss. 80(1) and (2) of the Act, the Medical Staff Bylaws have “adopted or incorporated” the Respectful Workplace Policy. [36] The Respectful Workplace Policy prohibits “harassment”, as defined in its Appendix A, and other disrespectful conduct. An aggrieved person may file a formal complaint. The Policy prescribes a process by which the complaint is investigated, after which the investigator makes a recommendation to the NSHA. The NSHA decides whether to adopt the recommendation. Respecting sanctions, the Respectful Workplace Policy includes: POLICY STATEMENTS … 6. Complaints are taken seriously and addressed in an appropriate and timely manner. Discipline up to and including termination may result if: 6.1. There is a failure to abide by this Policy; … PROCEDURE … 6.3. Remedial Actions and Discipline: 6.3.1. The findings and recommendations of the Investigation Committee are reviewed by the manager(s) and People Services to determine the appropriate remedial action(s) to be taken, including but not limited to 6.3.1.1. Mediation or conflict resolution; 6.3.1.2. Education, training or coaching; and/or 6.3.1.3. Discipline, up to and including termination. [bolding added] [37] The Respectful Workplace Policy does not provide a right of appeal and is silent on judicial review. [38] The Policy’s process respecting Drs. Finkle and West: Before the complaints that I will discuss next, neither Dr. Finkle nor Dr. West had a disciplinary record. [39] In written complaints dated March 21, 2022 and December 20, 2022, respectively, Complainant A accused Drs. Finkle and West of infringing the Respectful Workplace Policy. In a written complaint dated March 26, 2022, Complainant B accused Dr. Finkle of infringing the Respectful Workplace Policy. [40] The NSHA appointed Poirier ADR Inc., carrying on business as “Certitude Workplace Investigations” (“Certitude”), to investigate the three complaints further to the process in the Respectful Workplace Policy. Andrea Lowes, a Workplace investigator with Certitude, had conduct. The Agreement between the NSHA and Certitude directed the investigator to “[b]ase the findings of the investigation on all of the evidence and draw reasonable inferences therefrom” and provide the NSHA’s representative with “an investigation report that sets out the Investigator’s findings, conclusions, and recommendations”. [41] By letters of May 9, 2022, the NSHA notified Drs. Finkle and West of the complaints and the investigator’s appointment. The letters also notified Drs. Finkle and West that, effective immediately, the NSHA was altering their shift rotations during the investigation. [42] On December 8, 2022, Ms. Lowes delivered to the NSHA three reports with findings on the complaints. The reports included assessments of credibility, findings of fact, analyses, conclusions and recommendations. The reports found most of the complaints were unfounded, but: • three of Complainant A’s allegations against Dr. West “did amount to harassment, albeit on the lower end of the spectrum”, • two of Complainant A’s allegations, taken together, constituted harassment by Dr. Finkle, and • respecting Complainant B, Dr. Finkle’s “course of conduct” was “harassment under the Policy, albeit on the lower end of the spectrum” and, in two respects, Dr. Finkle’s conduct was “problematic”, “inappropriate, unfair and unnecessary”, constituting harassment under the Policy. [43] On January 30, 2023 for Complainant A, and February 1, 2023 for Complainant B, Dr. Aaron Smith, the NSHA’s Zone Medical Executive Director, wrote to Drs. Finkle and West, and summarized the investigator’s findings. [44] On April 25, 2023, the legal counsel for Drs. Finkle and West wrote to Dr. Smith to set out concerns respecting the process, the investigator’s reasoning and conclusions. [45] By letters of May 1, 2023, Dr. Smith, as the NSHA’s Zone Medical Executive Director, wrote separately to Drs. Finkle and West. The letters were co-signed by Alejandro Ocampo, the NSHA’s Medical Affairs Lead, adopted the investigator’s findings and issued sanctions against Drs. Finkle and West. These are the “decisions” that Drs. Finkle and West seek to challenge by judicial review. The letters said: As you are aware, the independent investigation under the NSH Respectful Workplace Policy has concluded. We have considered the Investigator’s recommendations with respect to the appropriate actions to be implemented. As such, we would like to inform you of the actions that will be required of you. (1) You will complete a review of the Nova Scotia Health Respectful Workplace Policy and complete the Learning Management System training module “Introduction to Respectful Workplace Policy”. The module can be accessed through the LMS portal: https://elearning.nshealth.ca. This Policy review and the module must be completed within the three months of the date of this letter. (2) You will complete the certificate course in Psychologically Safe Leadership course offered jointly through Nova Scotia Health and the University of New Brunswick. The course is described in the attached document and can be accessed through NS Health People Services. This course will be completed within six months of the date of this letter. (3) You will complete the “Effective Team Interactions” workshop offered through the Canadian Medical Protective Association (CMPA). The course can be found here: https://www.cmpa-acpm.ca/en/education-events/workshops/effective-team-interactions. This workshop must be completed within 12 months of the date of this letter. Upon completion of each of these items, you will self-report in writing to the Central Zone Medical Executive Director. Failure to complete these actions within the timeframes specified above may result in the consideration of a more comprehensive approach, which could include a medical bylaws process. We thank you in advance for your attention to these items. [underlining in Dr. Smith’s letters] [46] The direction that Drs. Finkle and West complete the courses was further to section 6.3.1.2 of the Respectful Workplace Policy, quoted above [para. 36]. [47] The “medical bylaws process” mentioned at the end of Dr. Smith’s letter refers to Part C, ss. 5-9 of the Medical Staff Bylaws. Section 5.1 says “behaviour contrary to the values, policies and procedures of the HA” [Health Authority] is a ground that may lead to the revocation, suspension or alteration of the physician’s privileges under the process set out in ss. 5-9. [48] The judicial proceedings: On June 6, 2023, Drs. Finkle and West filed separate Notices of Judicial Review in the Supreme Court of Nova Scotia. The Notices were amended on August 31, 2023. The Notices challenge the NSHA’s decisions on several grounds, including alleged denial of procedural fairness. The parties agreed any hearing would be concurrent. [49] On December 18, 2023, the NSHA made a preliminary motion on each proceeding. The motions submitted that the judge had no jurisdiction to consider the judicial review. On December 18, 2023, Justice John Keith heard the motions. [50] Justice Keith dismissed the NSHA’s motions with a “bottom line” ruling on December 28, 2023, followed by written reasons on January 22, 2024 (2023 NSSC 426). The judge held that the NSHA’s decisions of May 1, 2023 resulted from “an exercise of state authority … of sufficiently public character” to engage the superior court’s power of review at common law under the Supreme Court of Canada’s test in Highwood, para. 14. He also held that Civil Procedure Rule 7, titled “Judicial Review and Appeal”, authorized the applications for judicial review. Orders dismissing the NSHA’s motions followed on March 12, 2024. [51] On March 12, 2024, the NSHA filed Notices of Application for Leave to Appeal and Notices of Appeal on both matters. [52] On April 30, 2024, Justice Coughlan of the Supreme Court of Nova Scotia adjourned the judicial review hearings to May 2025, pending the Court of Appeal’s Decision on these appeals. [53] On October 1, 2024, this Court heard the two appeals together. Issues [54] The List of Issues in the NSHA’s factum is confined to errors of law. [55] The issue is whether the judge committed an appealable error by ruling the Supreme Court of Nova Scotia had the authority to judicially review the NSHA’s decisions to sanction Drs. Finkle and West. The NSHA submits judicial review is unavailable as the applications by Drs. Finkle and West do not satisfy either (1) the Supreme Court’s common law test in Highwood or (2) the conditions of Nova Scotia’s Civil Procedure Rule 7. [56] This appeal does not involve the merits of (1) the allegations by Complainants A or B, or (2) the investigator’s findings, or (3) the challenges by Drs. Finkle and West to either the investigator’s findings or the NSHA’s decisions. My reasons should not be taken as addressing those issues. Leave to Appeal [57] An appeal from an interlocutory order requires leave to appeal: Judicature Act, R.S.N.S. 1989, c. 240, s. 40; Civil Procedure Rule 90.09. Leave is granted if the Appellant raises an arguable issue. “Arguable” means a submission that is not merely academic but, if accepted, could result in the appeal being allowed: Homburg v. Stichting Autoriteit Financiëlle Markten, 2016 NSCA 38, para. 18, per Saunders J.A. The NSHA’s submissions raise arguable issues. I would grant leave to appeal. Standard of Review [58] On an appeal from a decision of a judge, the appellate standard is correctness for an issue of law, including an extractable legal issue from a conclusion of mixed fact and law, and palpable and overriding error for a finding of fact or mixed fact and law with no extractable legal issue. Housen v. Nikolaisen, [2002] 2 S.C.R. 235, paras. 8, 10, 19-36; H.L. v. Canada (Attorney General), [2005] 1 S.C.R. 401, paras. 65 and 69. [59] The principles governing the court’s authority to conduct judicial review involve issues of law, subject to correctness: J.W. v. Canada (Attorney General), 2019 SCC 20, para. 109, per Côté J., concurring; Khorsand v. Toronto Police Services Board, 2024 ONCA 597, para. 62. [60] The interpretation of Rule 7 is an issue of law, to which I will apply correctness. First Issue: Is Judicial Review Available at Common Law? [61] In Highwood, para. 1, Justice Rowe for the Court said: The central question in this appeal is when, if ever, courts have jurisdiction to review the decisions of religious organizations where there are concerns about procedural fairness. … [62] The decision-maker was the Judicial Committee of the Highwood Congregation of the Jehovah’s Witnesses, an unincorporated voluntary religious association with no constating private statute (paras. 3 and 22). Justice Rowe said judicial review was unavailable, for three reasons. His reason that pertains to the NSHA appeal is: “judicial review is limited to public decision makers, which the Judicial Committee is not” (para. 23). [63] Justice Rowe explained when judicial review is available at common law: [12] … judicial review is reserved for state action. In this case, the Congregation’s Judicial Committee was not exercising statutory authority. … [13] The purpose of judicial review is to ensure the legality of state decision making …. Private parties cannot seek judicial review to solve disputes that may arise between them; rather, their claims must be founded on a valid cause of action, for example, contract, tort or restitution. [14] Not all decisions are amenable to judicial review under a superior court’s supervisory jurisdiction. Judicial review is only available where there is an exercise of state authority and where that exercise is of a sufficiently public character. Even public bodies make some decisions that are private in nature – such as renting premises and hiring staff – and such decisions are not subject to judicial review: Air Canada v. Toronto Port Authority, FCA 347, [2013] 3 F.C.R. 605, at para. 52. In making these contractual decisions, the public body is not exercising “a power central to the administrative mandate given to it by Parliament”, but is rather exercising a private power (ibid.). Such decisions do not involve concerns about the rule of law insofar as this refers to the exercise of delegated authority. [15] … Public law remedies such as certiorari may not be granted in litigation relating to contractual or property rights between private parties: [citation omitted]. Certiorari is only available where the decision-making power at issue has a sufficiently public character: [citation omitted]. [bolding added] [64] Justice Rowe then discussed the two lines of argument that have been advanced to support judicial review of decisions by “churches and other voluntary associations” (para. 17). He said, “[n]either line of argument should be taken as authority for the broad proposition that private bodies are subject to judicial review” (para. 17): • The first line of argument involved bodies incorporated by private statute. Justice Rowe said “… a private Act is not a law of general application and its effect is quite limited…”. (para. 18). • As to the second category, Justice Rowe said: [19] A second line of cases that allows for judicial review of the decisions of voluntary associations that are not incorporated by any Act (public or private) looks only at whether the association or the decision in question is sufficiently public in nature: [citations omitted]. These cases find their basis in the Ontario Court of Appeal’s decision in Setia v. Appleby College, 2013 ONCA 753, 118 O.R. (3d) 481. … [20] In my view, these cases do not make judicial review available for private bodies. … The problem with the cases that rely on Setia is that they hold that where a decision has a broad public impact, the decision is of a sufficient public character and is therefore reviewable: [citations omitted]. These cases fail to distinguish between “public” in a generic sense and “public” in a public law sense. In my view, a decision will be considered to be public where it involves questions about the rule of law and the limits of an administrative decision maker’s exercise of power. Simply because a decision impacts a broad segment of the public does not mean that it is public in the administrative law sense of the term. Again, judicial review is about the legality of state decision making. [21] Part of the confusion seems to have arisen from the courts’ reliance on Air Canada to determine the “public” nature of the matter at hand. … But, what Air Canada actually dealt with was the question of whether certain public entities were acting as a federal board, commission or tribunal such that the judicial review jurisdiction of the Federal Court was engaged. The proposition that private decisions of a public body will not be subject to judicial review does not make the inverse true. Thus it does not follow that “public” decisions of a private body – in the sense that they have some broad import – will be reviewable. The relevant inquiry is the legality of state decision making at issue. [22] The present case raises no issues about the rule of law. The Congregation has no constating private Act and the Congregation in no way is exercising state authority. [bolding added] [65] In J.W. v. Canada (Attorney General), 2019 SCC 20, [2019] 2 S.C.R. 224, the issue was whether an adjudicator’s finding respecting the distribution of proceeds in a class action should be reconsidered. The contractually agreed process for distribution had not been followed. Justice Abella for the plurality, at para. 31, said the parties should be governed by their agreement, and did not comment on Highwood. Justice Côté, concurring, discussed the availability of judicial review under Highwood: [101] Judicial review is the means by which the courts “supervise those who exercise statutory powers, to ensure that they do not overstep their legal authority” (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 28). This Court recently set out the factors to be applied in determining the availability of judicial review in Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26, [2018] 1 S.C.R. 750. As the purpose of judicial review is to ensure the legality of state decision making, it is available only where there is “an exercise of state authority” that is “of a sufficiently public character”. (para. 14). … [103] The appellants err in suggesting that the courts’ supervisory powers include an obligation to ensure that the class members receive the promised benefits of the IRSSA and that this entitles the courts to judicially review IAP decisions … The courts’ general supervisory jurisdiction allows them to ensure that this contractual commitment is fulfilled, but this does not mean that IAP adjudicators are state actors [citation omitted]. [104] … The availability of judicial review depends on the source of the decision maker’s authority, not the identity of the parties [citation omitted]. In this case, the IAP adjudicators’ authority was conferred on them by the parties to the IRSSA, not by any act of the legislature or the exercise of prerogative powers. [105] … The critical factor is not the source of the courts’ authority, but rather the source of the authority of the adjudicators whose decisions are at issue [citation omitted]. [Justice Côté’s italics; bolding added] [66] In Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, Justices LeBel and Bastarache presaged the approach stated later in Highwood and by Côté J. in J.W: [81] … Where a public employee is employed under a contract of employment, regardless of his or her status as a public office holder, the applicable law governing his or her dismissal is the law of contract, not general principles arising out of public law. … [102] In our view, the existence of a contract of employment, not the public employee’s status as an office holder, is the crucial consideration. Where a public office holder is employed under a contract of employment the justifications for imposing a public law duty of fairness with respect to his or her dismissal lose much of their force. [bolding added] [67] Turning to this case, under the test in Highwood, para. 14, was there “an exercise of state authority … of a sufficiently public character”? [68] The exercise of authority was by the NSHA, not the investigator. The investigator made recommendations that had no binding effect on Drs. Finkle or West. It was the NSHA’s letter of May 1, 2023 that adopted the recommendations, applied them to Drs. Finkle and West and issued sanctions. [69] The NSHA’s factum, para. 9, says “a legislative nexus is necessary for the Decisions to be judicially reviewable, which is absent in this case”. [70] I disagree a legislative nexus is absent. [71] The NSHA is not like Highwood’s unincorporated voluntary association without even private statutory status. Neither is it akin to a private retailer whose only statutory connection is its incorporation under the Companies’ Act, an example cited as comparable by the NSHA in argument. [72] The Health Authorities Act, a public statute, establishes the NSHA as a body corporate and appoints it as the “provincial health authority”. The Act mandates the NSHA to “provide health services to the entire Province”, about one million people, and to implement the government’s “provincial health plan”. The Act says that plan is to prescribe “the health services to be provided or made available in the Province” including “human resource planning”. The Act specifically assigns to the NSHA responsibility for the Queen Elizabeth II Health Centre, the provincial centre for tertiary care such as nephrology. To implement its mandate, further to subordinate legislation (the Corporate Bylaws) the NSHA has issued the Respectful Workplace Policy which the NSHA applies to physicians via subordinate legislation (the Medical Staff Bylaws). [73] Legislative empowerment pervades the NSHA’s endeavours. [74] Next, the NSHA likens these circumstances to what Highwood termed the inherently “private” function of “hiring staff” (para.14). The NSHA’s counsel said the NSHA’s function equates to a grocery store hiring a checkout clerk. [75] I respectfully disagree. Justice Rowe said hiring staff is private because “in making these contractual decisions, the public body is … exercising a private power” (para. 14). [76] Drs. Finkle and West are not employed by and have no contract with the NSHA. Their relationship is governed by the conditions attached to their privileges, a legislative construct. The NSHA’s powers respecting privileges, i.e. their issuance, conditions, variation, revocation and renewal, derive from the Health Authorities Act and its regulations, the Medical Staff Bylaws. [77] The NSHA’s authority to sanction Drs. Finkle and West was not a “private power” and did not emanate from a private source, such as contract or property rights, as referenced in the passages I have quoted from Highwood (paras. 12-15), J.W. (paras. 103-5) and Dunsmuir (paras. 81, 102). Similarly, in Chedrawy v. Nova Scotia (Health Authority), 2023 NSSC 116, paras. 28, 39, 44, 49-53, 57-58, Justice Arnold emphasized that the relationship between Dr. Chedrawy and the NSHA was contractual. That is not this case. The NSHA exercised state authority. [78] Finally, the NSHA submits that requiring a physician to take a betterment course is common fare, not a “serious determination” (factum, para. 99) and is not “central” to the NSHA’s public mandate, according to Highwood, para. 14 [79] I prefer a different perspective. This case is not about continuing education, to which Drs. Finkle and West have no objection. Rather, the NSHA’s management functions at play are (1) the promotion of comity in the workplace through the Respectful Workplace Policy and (2) the sanctioning of physicians through the leverage of privileges. The former promotes the efficacy of care through leadership and teamwork. The latter would generate a record of non-compliance with NSHA “policy” by Drs. Finkle and West that may imperil the renewal of their privileges. Without privileges, their career path is obstructed and their renal patients may not access the NSHA’s services such as dialysis. Both management functions are central to the NSHA’s mandate to provide health services. [80] Lastly, I will comment on the factors stated by the Federal Court of Appeal in Air Canada v. Toronto Port Authority, 2011 FCA 347, [2013] 3 F.C.R. 605, para. 60. Justice Stratas cited a matrix of eight criteria to determine whether a matter was sufficiently “public” to be judicially reviewable: • the character of the matter for which review is sought, • the nature of the decision maker and its responsibilities, • the extent to which a decision is founded in and shaped by law as opposed to private discretion, • the body’s relationship to other statutory schemes or other parts of government, • the extent to which a decision maker is an agent of government or is directed, controlled or significantly influenced by a public entity, • the suitability of public law remedies, • the existence of compulsory power, and • an “exceptional” category of cases where the conduct has attained a serious public dimension. [81] Before Highwood, Air Canada’s factors were taken to govern whether state action was sufficiently “public”: e.g. Setia v. Appelby College, 2013 ONCA 753. [82] However, in Highwood, the Supreme Court bridled its enthusiasm for Air Canada’s factors and Justice Rowe disagreed with a key aspect of Setia and Air Canada (Highwood, paras. 20-21). [83] Since Highwood, the Air Canada factors have been treated as guidance, whose utility varies with the circumstances, but not as a strict test or binding checklist: see Fairburn, A.C.J.O.’s review of the authorities and academic commentary in Khorsand (O.C.A.), paras. 67-76; see also Strauss v. North Fraser Pretrial Centre (Deputy Warden of Operations), 2019 BCCA 207, para. 42. [84] In Khorsand, the Ontario Court of Appeal attached an “important caveat” to the Air Canada factors (para. 75). Highwood, paras. 20-21, had said that breadth of impact does not make a private decision “public”. After quoting Highwood, Fairburn, A.C.J.O. continued: [76] This passage makes clear that it is wrong to apply the Air Canada factors to transform the decision of a private actor – such as a church, sports club, or other voluntary association – into a public decision. In my view, the passage also cautions against characterizing a decision of a public body as public in function simply because a broad segment of the public may be interested in or impacted by it. For instance, a government decision to enter into a contract to purchase property may be of significant interest to, and have an impact on, a broad segment of a community; however, that would not transform the contractual decision into a public one. In other words, it is important to distinguish between “public” in the generic sense and “public” in the sense that the legality of state decision making is at play. [bolding added] [85] I share the views on the Air Canada factors expressed in Khorsand. [86] In this case, the motions judge discussed those factors from Air Canada’s list that the judge determined to be applicable to the circumstances (paras. 91-94). Justice Keith found (1) this was not a private matter, as the NSHA exercised authority further to subordinate legislation under the Health Authorities Act, rather than applying contractual or business considerations, (2) the NSHA’s power was compulsory for physicians with privileges and (3) a public law remedy was suitable. The judge’s analysis displays no error of law. [87] The applications for judicial review initiated by Drs. Finkle and West challenge the “exercise of state authority … of a sufficiently public character” to satisfy the test in Highwood, para. 14. [88] The Medical Staff Bylaws confirm this conclusion. Part A, s. 3, defines the Bylaws’ “purpose and application” as “at all times ensuring the principles of due process/procedural fairness are maintained”. “[A]t all times” includes May 1, 2023 when, further to ss. 2.4, 2.5 and 2.6 of Part B of the Medical Staff Bylaws, the NSHA adopted the investigator’s recommendations and sanctioned Drs. Finkle and West. Without access to judicial review, a plenary guarantee of procedural fairness is a barren pasture. [89] I would dismiss the NSHA’s ground of appeal respecting the common law test. Second Issue: Does Civil Procedure Rule 7 apply? [90] The NSHA submits Rule 7 does not entertain these applications for judicial review. The Rule’s material provisions are: JUDICIAL REVIEW AND APPEAL Interpretation of Rule 7 7.01 In this Rule, “decision”, includes all of the following: (i) an action taken, or purportedly taken, under legislation, (ii) an omission to take action required, or purportedly required, by legislation, (iii) a failure to make a decision; “decision-making authority” includes anyone who makes, neglects to make, takes, or neglects to take a decision. Scope of Rule 7 7.02 (1) This Rule provides procedures for a judicial review by the court, or an appeal to the court. (2) This Rule applies to each of the following: (a) judicial review of a decision within the supervisory jurisdiction of the court; (b) review of a decision under legislation authorizing review other than by appeal; (c) habeas corpus for civil detention, and an application for habeas corpus to which the Criminal Code applies is started under Rule 64 – Prerogative Writ; (d) an appeal to the court in accordance with legislation, except a summary conviction appeal is provided for in Rule 63 - Summary Conviction Appeal. … [91] The NSHA submits that, according to Rule 7.01(i), a “decision” must be “under legislation” or some authority analogous to legislation, and the Respectful Workplace Policy is not “legislation”. Hence, the NSHA’s letters of May 1, 2023 would not be “decisions” and the Supreme Court of Nova Scotia would have no authority to judicially review the sanctions in those letters. [92] The motions judge disagreed (paras. 48-50). Justice Keith held that the word “includes” in the introduction to Rule 7.01 expanded the meaning of “decision” to embrace the scope of judicial review at common law that the Supreme Court approved in Highwood. [93] In the Court of Appeal, the NSHA repeats its submission. [94] My views are these. [95] Rule 7.01’s three items of “decision” are prefixed by “includes”. Consequently, the items in paras. (i), (ii) and (iii) of Rule 7.01 are illustrations of a broader group and are not confining: Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 34, para. 42, per Abella and Moldaver JJ. for the majority; Fraser v. Nova Scotia Barristers’ Society, 2024 NSCA 63, paras. 24-27; Lienaux v. Nova Scotia Barristers’ Society, 2009 NSCA 11, para. 59; Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Markham: LexisNexis Canada, 2014), p. 74, #4.39 [Sullivan’s passage quoted in Fraser, para. 25]. [96] The question is – what else is a “decision”? [97] The NSHA submits that, to be “included”, the items must be analogous or ejusdem generis to the items listed in Rule 7.01, meaning any “decision” must have “legislative” status which, says the NSHA, the Respectful Workplace Policy lacks. [98] I respectfully disagree for each of two reasons. [99] First: Rule 7.02 is titled “Scope of Rule 7”, which includes Rule 7.01. Clearly, Rules 7.01 and 7.02 are complementary. They must be read consistently, not discordantly. [100] Rule 7.02(2)(a) says the Rule “applies” to “the supervisory authority of the court”. In Highwood v. Wall, the Supreme Court defined the scope of the court’s supervisory authority at common law. The NSHA’s factum acknowledges (para. 135) “the Appellant does not dispute that the phrase, the ‘supervisory jurisdiction of this court’ would likely encompass the common law test in Wall …”. I agree. [101] As I have discussed, these applications for judicial review satisfy the tests in Highwood v. Wall. [102] Consequently, under Rule 7.02(2)(a), Rule 7 “applies” to these applications for judicial review and these applications occupy the “scope of Rule 7”. Reading Rules 7.01 and 7.02 consistently, these applications for judicial review are “included” under Rule 7.01. [103] Second: The NSHA’s letters of May 1, 2023 were decisions “purportedly taken … under legislation” within Rule 7.01(i). [104] The Respectful Workplace Policy was issued under the Corporate Bylaws. [105] Drs. Finkle and West had no contract with the NSHA. Their relationship with the NSHA stemmed solely from the conditions attached to their privileges. Those conditions derived in the Medical Staff Bylaws, Part B, s. 2.6, supported by ss. 2.4 and 2.5, that require compliance with the NSHA’s “policies” as a condition of privileges. [106] As regulations, the Corporate Bylaws and the Medical Staff Bylaws are subordinate “legislation” under Rule 7.01(i). [107] Section 80(1) of the Health Authorities Act says a regulation, such as s. 2.6 of the Medical Staff Bylaws, Part B, may “adopt or incorporate” a written standard or other document. By applying the Respectful Workplace Policy to physicians through their privileges, s. 2.6 adopts or incorporates the Policy. Further to s. 80(1) of the Act, a standard “adopted” or “incorporated” by regulation has sufficient “legislative” status to satisfy Rule 7.01(i). [108] This conclusion is bolstered by further subordinate “legislation”, i.e. s. 3.1 of the Medical Staff Bylaws, Part A: The bylaws … define the rules governing the medical staff including the key elements of … the orderly resolution of issues while at all times ensuring the principles of due process/procedural fairness are maintained” [bolding added]. “[A]t all times” includes the process culminating with the NSHA’s letters of May 1, 2023. Ensuring procedural fairness involves access to judicial review. [109] The NSHA’s authority to make the challenged decisions is sourced in “legislation” within the meaning of Rule 7.01(i). [110] I would dismiss the NSHA’s ground of appeal related to Rule 7. Conclusion [111] I would grant leave to appeal but dismiss the appeal. I would order the NSHA to pay Drs. Finkle and West appeal costs of $5,000, the quantum agreed by the parties, all-inclusive for both appeals. The costs should be paid forthwith in any event of the cause. Fichaud J.A. Concurred: Farrar J.A. Van den Eynden J.A.