RULESWATCH

July 3, 2010

Doctor with privileges not an “employee” and barred from judicial claim for wrongful dismissal or damages: Fornazzari v. Centre for Addiction and Mental Health, 2010 ONSC 2884

Filed under: Uncategorized — ruleswatch @ 9:38 pm

Fornazzeri was an Ontario psychiatrist whose 2008 application for annual re-appointment to the staff of the defendant hospital was accompanied by a compulsory requirement that she acknowledge that, on accepting reappointment, she would effectively agree to a lower rate of pay.

The Ontario Hospital followed the model that members of the medical staff were independent contractors. Ontario legislation, the Public Hospitals Act, R.S.O. 1990, c.P.40, provided that disputes over privileges were to be determined at first at the hospital Board level and then appealed to the provincial Health Profession Appeal and Review Board.

The doctor, arguing that the legislation did not address the issue of pay and that this, coupled with the allegation that the Hospital had suggested the unethical step that she could make up her pay by billing OHIP for unnecessary medical assessments. amounted to constructive dismissal in a claimed contract of employment, sued.

The Hospital applied to strike the claim on the basis that disputes over reappointment were to be settled under the Public Hospitals scheme and that the court had no jurisdiction.

The Plaintiff contended that the scheme did not deal with the issue of compensation and that this justified the claim.

The Ontario Superior Court of Justice found that the scheme was a comprehensive one, that the remedy of the Plaintiff would have been to refuse to sign the reappointment application “If she had failed to do so, she would not have been reappointed and her remedy was to proceed with the scheme set out in the Act, not to issue a claim in the courts.”

The theory was only once the statutory procedure had been invoked adopting earlier authority: “‘…it is only after establishing the basis through the statutory process that it is open for the applicant to then bring an action for damages in the ordinary courts…’” In this case, Beiko v. Hotel Dieu Hospital St. Catharines, 2007 CanLII 1912 (ON S.C.), Beiko and three other opthamologists had sued because, following their re-appointment, and contrary to representations it had made when they had applied for renewal, their hospital had reduced their operating room time. Beiko and the others had appeared before their defendant hospital’s Medical Advisory Committee and its Board of Trustees. The doctors had initiated a staturoty appeal to the Health Profession Appeal and Review Board but subsequently withdrew it.

They then commenced their action alleging breach of contract, intentional interference and negligence by the hospital and an administrator. They also sought punitive and exemplary damages.

The action was struck and the court’s decision was upheld by the Court of Appeal. v. Centre for Addiction and Mental Health, 2010 ONSC 2884; identical reasons were issued on the same day in Bagheri v. Centre for Addiction and Mental Health, 2010 ONSC 2886 (CanLII), an identical claim by another pyschiatrist.

Fornazzari

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