Roper v. Royal Victoria Hospital et al., [1975] 2 SCR 62

Supreme Court of Canada

Roper v. Royal Victoria Hospital et al., [1975] 2 S.C.R. 62

Date: 1974-04-29

Dr. Peter Roper (Plaintiff) Appellant;

and

The Executive Committee of the Medical Board of the Royal Victoria Hospital

and

Richard E. Long, John C. Beck, Lloyd D. MacLean, George B. Maughan, Robert A. Cleghorn, Kenneth J. MacKinnon, C. Miller Ballem, P.J. Tweedie, D.J. MacDonald

and

The Board of Management of The Royal Victoria Hospital and the Royal Victoria Hospital (Defendants) Respondents.

1974: March 19, 20; 1974: April 29.

Present: Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE COURT OF QUEEN’S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC

Physicians and surgeons—Mandamus—Application for re-appointment to medical staff of a hospital—Request to have witnesses heard at the hearing denied—Audi alteram partem rule—Hospitals Act, R.S.Q. 1964, c. 164—Regulations, Order in Council No. 288, January 31, 1969, ss. 159, 160 and 169.

After he had been a member of the medical staff of the respondent hospital for several years appellant was not re-hired in 1967 because of certain problems. About three years after this decision by the hospital, he applied for his re-appointment to the medical staff. The usual proceedings were followed and the different committees gave appellant’s application an unfavourable response. At his request he was given a hearing by the Executive Committee, during which he asked that certain individuals from whom he had written declarations in his favour be heard. The Executive Committee refused to hear any witnesses, but told appellant’s solicitor that they would be ready to hear him, or his client a few days later. Appellant sought to have this decision set aside by mandamus, relying on ss. 159 and 160 of the Regulations made under the Hospitals Act. His petition was dismissed in the Superior Court and the Court of Appeal. He accordingly appealed to this Court.

Held: The appeal should be dismissed.

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The decision to be taken by the Executive Committee was administrative in nature, and would result in the making of a recommendation to the Board of Management. This is the actual wording of s. 159 of the Regulations made under the Hospitals Act, which is in accordance with the philosophy of the Act, making the Board of Management wholly responsible for choosing and appointing its staff. In this context the audi alteram partem rule relied on by appellant loses its force, as an administrative body may not transform itself into a quasi-judicial one. The fundamental obligation of the Executive Committee is to demonstrate the objectivity and fair play essential in such matters. If in doing that it is necessary to hear the parties, and even their witnesses, the rule applies, but on an exceptional basis only. The actual wording of the Regulations gives a candidate the option to be “heard or represented”, which precisely means appearing personally or through his attorney, to present his case, but does not include the calling of other witnesses. The word “hearing” used in s. 160 is limited by these words. The Hospitals Act Regulations cannot be read apart from the context of our general enactments respecting proof and hearing. In the province of Quebec, the Code of Civil Procedure has always made a clear distinction between proof and hearing. This classic distinction made in Quebec must be applied here.

The fact that the Executive Commmittee went somewhat further than s. 159 required in agreeing to hear petitioner and his representative, and in permitting the production of documents, does not transform it into a quasi-judicial body obliged to do everything implied in the expression “proof and hearing”. If allowing the parties further latitude had this effect, the temptation would be almost irresistible to give the narrowest possible interpretation to the rights of the parties.

Komo Construction Inc. and Les Constructions du St-Laurent Limitée v. Quebec Labour Relations Board, [1968] S.C.R. 172; Guay v. Lafleur, [1965] S.C.R. 12; R. v. Randolph, [1966], S.C.R. 260, referred to.

APPEAL from a judgment of the Court of Queen’s Bench, Appeal Side, Province of Quebec, affirming a judgment of the Superior Court. Appeal dismissed.

P. Cutler, Q.C., and C. Langlois, for the plaintiff, appellant.

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N.A. Saibil, for the defendants, respondents.

The judgment of the Court was delivered by

DE GRANDPRÉ J.—Having had his petition for the issuance of a writ of mandamus dismissed by the Superior Court and by two of the three judges on the Court of Appeal, plaintiff now asks this Court to rule in his favour.

The facts are straightforward, and in summarizing them I could do no better than accept the version of Deschênes J.A. (as he then was):

[TRANSLATION] Appellant, who specialized in the field of psychiatry, applied for admission to the medical staff of the Royal Victoria Hospital in Montreal on January 26, 1970.

By turns the Credentials Committee (February 25, 1970), the Medical Advisory Committee (March 4, 1970) and the Executive Committee (March 20, 1970) gave appellant’s application an unfavourable response.

On April 3 appellant requested a hearing before the Executive Committee, in accordance with s. 159 of the Regulations made under the Hospitals Act (1).

This hearing was granted and took place in two stages, on April 21 and June 9, 1970.

On April 21 the Executive Committee furnished to appellant the complete record relied on by the Credentials Committee in making its recommendation.

On June 9 appellant cited to the Executive Committee written declarations, favorable to appellant, signed by the Registrar of the Allan Memorial Institute, ten other doctors and two other members of the staff. Appellant asked that these persons be heard as a means of enabling him to refute the unfavourable allegations presented to the Credentials Committee, and suggested that it might perhaps be more convenient if the record were returned to the Credentials Committee so that the latter could reconsider, after hearing the witnesses and the appellant.

(1) Order in Council No. 288, January 31, 1969, published in the Quebec Official Gazette, 1969, Vol 101, p. 1593, effective April 1, 1969.

The Executive Committee, after considering this request, decided “that it would not refer the application as requested, nor did it intend to

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hear any witnesses”. In advising appellant’s counsel of this decision the Executive Committee told him that it would be ready to hear him, or his client, a few days later. It is this decision that appellant seeks to have set aside. For this purpose he relies on ss. 159 and 160 of the Hospitals Act Regulations, which sections are set out below:

Section 159

When the executive committee does not recommend a candidate to the board of management for appointment or a renewal of appointment, or it recommends a change in the status and privileges of a member of the medical staff, it must inform, in writing, the candidate or the member concerned of its recommendation.

The candidate or member concerned may, within a delay of two (2) weeks, be heard or represented, according to his choice, before the executive committee or the board of management.

Section 160

If the hearing takes place before the executive committee, the latter must inform, in writing, the candidate or member concerned of its recommendation to the board of management.

Accordingly the only question is as to whether the Superior Court and the majority of the Court of Appeal were correct in finding that, in a case of this nature, the Executive Committee was right, having regard to all the circumstances, in refusing to hear witnesses. Before going further, I would say that I agree with the judgment a quo.

In his support appellant relies on the maxim audi alteram partem, and he submits that the refusal by the Executive Committee to hear his witnesses was in breach of that rule. As to this it should be recalled that, as Mr. Justice Pigeon noted in Komo Construction Inc. and Les Constructions du St-Laurent Limitée v. Quebec Labour Relations Board[1], at p. 175:

[TRANSLATION] So far as application of the audi alteram partem rule is concerned, it should be noted that the rule does not mean a hearing must always be

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granted. The requirement is that a party shall be given an opportunity to present his case.

In the case at bar appellant was not a stranger. The following facts may be briefly noted:

—in 1959 he joined the staff of the hospital as a psychiatrist;

—in the years following problems arose between him and some of his colleagues, in particular the heads of the Psychiatry Department;

—on October 4, 1966 the Medical Board of the hospital, in accordance with the Regulations then in effect, adopted a resolution recommending that the Board of Governors not re-hire plaintiff-appellant as a member of the medical staff, as of January 1, 1967;

—appellant began by lodging a complaint with the College of Physicians, but the latter advised him “that the procedures followed in your case by the Royal Victoria Hospital were in order”;

—appellant then moved for an interlocutory injunction against the hospital, a motion which resulted in a lengthy trial and was dismissed by Deslauriers J. of the Superior Court on January 16, 1967;

—as appellant did not accept the decision that he was no longer a member of the medical staff, the hospital was obliged in its turn to take proceedings for an injunction, and judgment was given in its favour by Reid J. on February 28, 1967.

This background is clearly not in itself a bar to the application for admission made by appellant on January 26, 1970, in accordance with the new Hospitals Act Regulations introduced by Order in Council No. 288. However, it is part of the overall picture which the Executive Committee had the power, and even the duty, to consider.

The decision to be taken by the Executive Committee was undoubtedly administrative in nature, and would result in the making of a

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recommendation to the Board of Management. This is the actual wording of s. 159 of the Regulations, which wording moreover is in accordance with the philosophy of the Act, which makes the Board of Management wholly responsible for administering the hospital and for choosing and appointing its staff. In this context the audi alteram partem rule, relied on by appellant, loses its force considerably, as an administrative body may not transform itself into a quasi-judicial one. The fundamental obligation of the Executive Committee is to demonstrate the objectivity and fair play essential in such matters. If in doing that it is necessary to hear the parties, and even their witnesses, the rule applies, but on an exceptional basis only. This Court has ruled on the point several times, and we need only refer to Guay v. Lafleur[2]; R. v. Randolph[3].

Of course, the actual wording of the Regulations could have imposed such an obligation to hear the witnesses presented by appellant. Indeed, this was the conclusion arrived at by Deschênes J.A. However, with respect, I do not see how it is possible to form such a conclusion from a provision which gives a candidate the option of being “heard or represented”. On this point, I concur without hesitation in the majority opinion of the Court of Appeal, in particular the following passage from the reasons of Gagnon J.A.:

[TRANSLATION] …with respect for the contrary view, I am unable to see that s. 159 gives him more than the right to be “heard or represented”. To me, “se faire entendre ou se faire représenter”, as is indicated by the use of the personal pronoun, precisely means, appearing to present one’s case, but does not include the calling of other witnesses. The word “hearing” used in s. 160 is limited by these words. This seems to me, after consideration, the better meaning to be given to the words used, and in my view it was not the intention of the Lieutenant Governor in Council to require the Executive Committee to set itself up as a kind of commission of inquiry, of which, moreover, it has none of the usual powers, such as for example the power to swear witnesses or compel them to testify.

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I do not think appellant can benefit from s. 169 of the division relating to discipline:

Section 169

The council on discipline must allow accused to be heard personally, with or without his attorney, or through his attorney if he so wishes.

It is true that in this instance the legislator had added the word “personally”, but the section as a whole seems to me to repeat the philosophy of s. 159, namely that in such matters the person concerned must either choose to appear in person to be heard, or choose to appear through an attorney.

I also feel that the Hospitals Act Regulations cannot be read apart from the context of our general enactements respecting proof and hearing. In the province of Quebec, the Code of Civil Procedure has always made a clear distinction between proof and hearing, as may be seen from re-reading Title Five of the Code, covering art. 274 et seq. This Title relates to “Administration de la preuve et audition”, in English “Proof and Hearing”, and the sections as a whole indicate that the words “proof” and “hearing” are not interchangeable.

Similarly art. 943, under the heading “Arbitration”, states that “the arbitrators must hear the parties and receive their evidence”—“les arbitres doivent entendre les parties et recevoir leur preuve”. In my view, this classic distinction made in Quebec must be applied here.

One final word. Appellant submitted the following proposition to the trial judge: even if s. 159 of the Hospitals Act Regulations did not require the Executive Committee to hear witnesses, the Committee itself did in fact expand the procedure considerably herein, and in view of that expansion must go all the way and hear all witnesses presented to them. Mitchell J. answered it as follows:

Petitioner attempts to draw from the fact that the executive committee went somewhat further than

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section 159 required in agreeing to hear petitioner and his representative, and in permitting the production of documents, the conclusion that it committed itself to a quasi‑judicial hearing, relying on re: Otjes & General Supplies Limited (1964), 49 W.W.R. 488. The Court is unable to accept this decision as sound support for the petitioner’s contention. Moreover, the judgment in Regina vs. Metropolitan Police Commissioner, [1953] 1 W.L.R. 1150 upon which the Court relied in reaching its decision in the Otjes case is far from supporting its conclusion.

I am in agreement with that conclusion. If, every time an administrative body decided to allow the parties further latitude, it were to be transformed into a quasi-judicial body obliged to do everything implied in the expression “proof and hearing”, the temptation would be almost irresistible to give the narrowest possible interpretation to the rights of the parties. The mere mention of such a consequence shows the danger of the proposition.

For all these reasons I would dismiss the appeal with costs.

Appeal dismissed with costs.

Solicitors for the plaintiff, appellant: Cutler, Langlois & Castiglio, Montreal.

Solicitors for the defendants, respondents: McMaster, Meighen, Minnion, Patch & Cordeau, Montreal.