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Medical - Public Hospitals Act (2). Abbott v. London Health Sciences Centre
In Abbott v. London Health Sciences Centre (Ont CA, 2025) the Ontario Court of Appeal dismissed an appeal, this brought against a dismissed JR, which was in turn brought against the respondent board when they "without affording the appellants a hearing, decided to (i) cease providing OR time to the appellants and reassign that time to “clinical priority tertiary, quaternary-level surgical cases”, and (ii) cancel the hospital privileges of the appellants and revoke their staff appointments related to using OR time for their private practice patients", under s. 44 ['Ceasing to operate or provide services'] of the Public Hospitals Act.
Here the court considers (and illustrates in action) PHA provisions relating to hospital privilege practices by private practitioners:[4] Under s. 44 of the PHA, if a hospital’s board of directors determines that the hospital will cease to provide a “service”, it may revoke the appointment of any “physician” to the hospital’s staff and cancel their hospital privileges associated with the cancelled service. Section 44(3) of the PHA provides that certain decisions contemplated by s. 44 may be made without holding a hearing.
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[6] For the reasons that follow, I would dismiss the appeal. I reject the appellants’ arguments that the Board was obliged to hold a hearing on the question of whether s. 44 of the PHA was applicable, that the Board adopted an unreasonable interpretation of the PHA in characterizing the appellants’ use of OR time and resources for the treatment of their private practice patients as a “service” within the meaning of s. 44, and that it was unreasonable to view the appellants, who are dental surgeons, as coming within the reach of s. 44 of the PHA. Finally, since the Board was not required to hold a hearing, I reject the argument that the Divisional Court erred, in assessing whether the Board’s decision was reasonable, by not taking into account evidence provided by the appellants which was not considered by the Board.
II. THE CONTEXT
a. Background
[7] The appellants are dental surgeons certified as specialists in oral and maxillofacial surgery. They are partners in, and practice out of, the Interface Centre for Oral and Maxillofacial Surgery, a private dental clinic in Southwestern Ontario.
[8] LHSC is one of Canada’s largest acute-care teaching hospitals. It is governed by the PHA.
[9] For many years, the appellants and three other oral surgeons – referred to collectively as the “private practice oral surgeons”[1] – had access to OR time and resources at LHSC. The OR access allowed the appellants to perform oral surgery on patients of their private practice. The appellants each held appointments at, and were granted privileges by, LHSC, limited to providing these services.
[10] The OR time at LHSC was allocated to the appellants from the oral surgery division of LHSC’s Department of Dentistry. The oral surgery division was comprised of the private practice oral surgeons, who used the OR time exclusively for patients of their private practices, and other oral surgeons on staff at the LHSC.
[11] As a public hospital, LHSC is subject to a Hospital Service Accountability Agreement (“HSAA”) with Ontario Health, an agency created by the Government of Ontario to oversee health care planning and delivery across the province, including funding of the health care sector.
[12] The HSAA sets out how funding provided to the LHSC can be used and stipulates that funding may only be used to provide “Hospital Services”, defined as “the clinical services provided by [LHSC] and the operational activities that support those clinical services…”. The HSAA also requires LHSC to transition to the Wait Time Information System (the “WTIS”), which tracks patients waiting time for a specific procedure based on their defined priority level.
b. LHSC’s Office of Capacity Management’s Concerns About the Appellants’ OR Access
[13] LHSC’s Office of Capacity Management reviews its management accountabilities for funding under the HSAA to ensure that funding is only being used for Hospital Services that comply with the HSAA. As part of its review during 2023, it formed the view that the LHSC’s “practice of providing OR rooms to private practice oral surgeons was not in line with their obligations under the HSAA” and that this service needed to end. The Office of Capacity Management further “identified that OR time allocated to the Department of Dentistry was not being used as required by the LHSC OR policy”.
[14] On September 19, 2023, the private practice oral surgeons were informed that they would no longer be allocated OR time at the LHSC effective October 1, 2023.
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III. THE BOARD’S DECISION
[18] In November 2023, LHSC’s Strategic Redevelopment Committee (the “Committee”) recommended to the Board that LHSC (i) cease providing OR time to the private practice oral surgeons and reassign that time to “clinical priority tertiary, quaternary-level surgical cases”, and (ii) cancel the hospital privileges of the private practice oral surgeons and revoke their appointments to the extent their privileges were related to using OR time for their private practice patients. In the Committee’s view, the practice of allowing OR services through private practice oral surgeons was “misaligned with LHSC’s accountabilities under the HSAA, including with respect to clinical prioritization, including because [the private practice oral surgeons] do not use the WTIS.”
[19] The Committee’s recommendations to the Board were contained in a detailed Briefing Note (the “Briefing Note”). It provided background about the history of the issue, including that provided by the Office of Capacity Management. It did not purport to summarize the affidavits the appellants had provided. It then set out the Committee’s views supporting its recommendations.
[20] The Briefing Note explained that although permitting OR access to the private practice oral surgeons provided some benefits to the community, the benefits to LHSC were limited, and the OR time could be better utilized. According to the Briefing Note, unlike the staff oral surgeons, the private practice oral surgeons were not required to treat patients admitted to LHSC other than their own private practice patients or perform on-call shifts for the Department of Dentistry. They did not all hold academic appointments at the Schulich School of Medicine and Dentistry, with which LHSC was affiliated. They billed the Ontario Health Insurance Plan or their own patients directly for the procedures they conducted and did not reimburse LHSC for their use of the OR or its staff, equipment or supplies. Freeing up OR time previously assigned to private practice oral surgeons for reassignment to higher priority surgical cases could increase funding to LHSC as well as reduce the waiting time for those surgeries.
[21] Moreover, the Briefing Note stressed what it saw as a fundamental difference between the way patients were selected, booked and prioritized for surgery by the private practice oral surgeons, and the way that occurred for all other surgeries at LHSC. Patients were booked for surgery by the private practice oral surgeons inconsistently with the LHSC’s OR booking policy and “[t]he allocation of OR time to [private practice oral surgeons was] misaligned with LHSC’s accountabilities under the HSAA”. The private practice oral surgeons “do not maintain waitlists in the [WTIS], use or track patient clinical prioritization within the [WTIS] and schedule procedures accordingly. [Their] waitlists are not captured in [WTIS]…”. Thus, their patients “who have surgery in LHSC’s ORs are not clinically prioritized based on required provincial standards prior to their procedures being scheduled.” The private practice oral surgeons’ “use of LHSC’s ORs is an outlier. All other LHSC surgical service lines follow the standard pathway: community practitioners refer patients requiring hospital-based surgery to a hospital-based surgeon for assessment, clinical prioritization and scheduling.”
[22] The Briefing Note mentioned that the appellants had commenced legal proceedings challenging the cancellation of their OR time. It referred the Board to s. 44 of the PHA stating that:where a hospital board makes a decision to cease to provide a service, the board may revoke, cancel or substantially alter the hospital privileges of any physician which relate to the provision of that service, and revoke the appointment of that physician. The board is protected from liability where these decisions are made in good faith.
The Briefing Note also pointed out that adopting its recommendations would not harm patients of the private practice oral surgeons, as those requiring procedures in a hospital OR could be referred to the LHSC’s staff oral surgeons, as is the standard practice for other community-based practices. [23] The Board approved the Committee’s recommendations on November 29, 2023 but also determined that the private practice oral surgeons should receive 30 days’ notice of the cancellation of their privileges. At a December 20, 2023 Board meeting, January 31, 2024 was set as the date on which LSHC would cease providing “operating room services” for the private practice oral surgeons and as the date on which “the hospital privileges of [the private practice oral surgeons] that are related to the [private practice oral surgeons’] operating room services be cancelled” and “any dentist’s appointment [to the LHSC] be revoked”.
[24] The appellants were not provided with notice of the Board’s meetings or deliberations, and they were not given an opportunity to respond or provide input into the decision or the decision-making process. Although they had provided affidavits, the affidavits were not considered by the Board before making the impugned decision.
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a. The Legislative Scheme
[32] Broadly speaking, the appellants’ complaint is about a decision concerning their hospital appointments and privileges that was made without providing them with procedural fairness. And, broadly speaking, the PHA does not tolerate such a result. Sections 37(3) to (7) and ss. 38 to 43 of the PHA entitle a person aggrieved by a decision of a hospital about a staff appointment or hospital privileges to reasons for the decision, a hearing, and certain appeal rights.
[33] But where s. 44 of the PHA applies, the situation is different. This section becomes applicable in two circumstances.
[34] The first, contemplated by s. 44(1) of the PHA, is where a hospital board determines, or a Ministerial order requires, that a public hospital “cease to operate”. Where such a decision is made, s. 44(1.1) empowers the hospital’s board to revoke, alter or cancel appointments and hospital privileges of “any physician”.
[35] Section 44(1.2) of the PHA describes the other circumstance in which s. 44 is applicable, namely, where the board of a hospital determines, or a Ministerial order is made requiring, that the hospital will “cease to provide a service”. Section 44(1.2) provides that:Subsection (2) applies if,
(a) a board of a hospital determines that the hospital will cease to provide a service;
(a.1) the Minister responsible for the administration of the Connecting Care Act, 2019 has made an order under that Act that requires a hospital to cease to provide a service[.] [36] Section 44(2) of the PHA then provides for decisions about staff appointments and hospital privileges of “any physician”. It states:If one of the conditions set out in subsection (1.2) applies, the board of the hospital mentioned in that subsection may make any of the following decisions that the board considers necessary or advisable in order to implement the decision or requirement to cease to provide a service:
1. Refuse the application of any physician for appointment or reappointment to the medical staff of the hospital if the only hospital privileges to be attached to the appointment or reappointment relate to the provision of that service.
2. Refuse the application of any physician for a change in hospital privileges if the only privileges to be changed relate to the provision of that service.
3. Revoke the appointment of any physician if the only hospital privileges attached to the physician’s appointment relate to the provision of that service.
4. Cancel or substantially alter the hospital privileges of any physician which relate to the provision of that service. [37] Under s. 44(3) of the PHA, “the Board may make a decision under subsection [44](1) or (2) without holding a hearing”. Under s. 44(4) of the PHA, “[s]ubsections 37 (3) to (7) and sections 38 to 43 do not apply where the board makes a decision under subsection [44](1) or (2).”
[38] Section 44(5) of the PHA protects a corporation that owns or operates a hospital for any act done in good faith by its board in execution or intended execution of its authority under ss. 44(1) and (2).
[39] The PHA does not define “service” as it is used in s. 44. It does, however, define “physician”, another term used in that section, to mean “a member of the College of Physicians and Surgeons of Ontario or another prescribed person”: s.1 of the PHA (emphasis added).
[40] Section 32 of the PHA provides for the making of regulations on a variety of topics, including “prescribing persons for the purposes of the definition of a ‘physician’ in section 1”. The regulation under the PHA, the Hospital Management, R.R.O. 1990, Reg. 965, provides, subject to a non-applicable exception, that for the purposes of the PHA “‘physician’ includes a person who is exempted from subsections 9 (1) and (3) of the Medicine Act, 1991 [,S.O. 1991, c. 30]”: s. 1.1(1) of the Hospital Management.
[41] Subsections 9(1) and 9(3) of the Medicine Act address who may use the title, and hold themselves out as, among other things, a “surgeon”. Section 9(2) of the Medicine Act creates an exception from s. 9(1) for the use of the title of surgeon “by a member of the Royal College of Dental Surgeons of Ontario.”
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[59] The appellants’ argument that the no hearing provision in s. 44(3) did not apply to the threshold determination by the Board that LHSC would cease to provide a service is contradicted by the language of s. 44(3) itself. Section 44(3) of the PHA provides that “[t]he Board may make a decision under subsection (1) or (2) without holding a hearing unless a hearing is required by or under this Act.”
[60] By its own terms, s. 44(3) of the PHA is not limited to nullifying any obligation of the Board to hold a hearing for decisions to cancel privileges or revoke appointments under s. 44(2). It also applies to decisions under s. 44(1). The reference to subsection 44(1), in context, should be read to embrace ss. 44(1.1) and 44(1.2) of the PHA, the latter of which refers to the Board’s power to determine that the hospital will cease to provide a service. This is so, for two reasons.
[61] First, a reading of s. 44(3) of the PHA that excludes ss. 44(1.1) and (1.2) from its ambit creates an unlikely mismatch that the legislature could not have intended. Under that reading, the legislature exempted from the obligation to hold a hearing, decisions to close a hospital (under s. 44(1)), while not exempting from the obligation to hold a hearing, decisions about privileges and appointments that are taken under s. 44(1.1) to implement a hospital closing decision. And it would mean that a decision to cease to provide a service under s. 44(1.2) of the PHA – a less intrusive decision than to close a hospital – is not exempted from the obligation to hold a hearing, while decisions under s. 44(2) about staff appointments and privileges related to the cancelled service would be exempt from a hearing requirement. In other words, the context suggests that the reference, in s. 44(3) of the PHA, to s. 44(1) should be read to mean all of s. 44(1) including ss. 44(1.1) and (1.2).
[62] Second, this reading is consistent with the way s. 44(5) of the PHA has been interpreted. Sections 44(4) and (5), of the PHA, like s. 44(3) each refer to decisions under ss. 44(1) and (2). This court held, in Beattie v. Women’s College Hospital, 2018 ONCA 872, leave to appeal refused, [2018] S.C.C.A. No. 524, that s. 44(5) was applicable in a case where the hospital had decided to cease to provide a service under s. 44(1.2). At para. 8 of Beattie, the court stated that: “[t]he 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.”
[63] Accordingly, nothing in the text, context or purpose of s. 44(3) renders unreasonable the Board having addressed the “threshold” question of ceasing to provide a service without holding a hearing.
[64] Similarly, nothing in the text, context or purpose of s. 44(1.2) renders unreasonable the view that the Board, in terminating OR access of the private practice oral surgeons, was deciding that LHSC would “cease to provide a service” such that s. 44 applied. No case law or other authority required “service” to be restricted to an entire service in the sense of all dentistry or all oral surgery.[2] It was open to the Board to proceed based on an interpretation of the phrase that takes into account not only the ultimate treatment that a patient received (i.e., oral surgery) but also the way patients were selected for treatment (i.e., only patients of the private practice oral surgeons), and that their surgery was prioritized by an “outlier” method that did not use WTIS and was out of compliance with LHSC’s obligations under the HSAA and its own OR policy. The Board was entitled to contrast those features with the way all other surgical patients were referred and prioritized, to identify that the OR access of the private practice oral surgeons was a distinct service within the meaning of s. 44(1.2).
[65] Third, the Board did not adopt an unreasonable interpretation of s. 44(2) by applying it to the appellants. While s. 44(2) applies to physicians, both s. 1 and s. 32 of the PHA contemplate that an extended meaning may be given to that term by the regulations. As described above in paragraphs 39-41, the interaction of the regulations under the PHA and the Medicine Act extends the term “physician” to oral surgeons, such as the appellants. . West Grey (Mun.) v. South Bruce Grey Health Centre
In West Grey (Mun.) v. South Bruce Grey Health Centre (Div Ct, 2025) the Divisional Court allowed a motion to quash a JR, here where the JR opposed "a decision made by South Bruce Grey Hospital Centre (“SBGHC”) to relocate 10 inpatient hospital beds from its site in Durham to its sites in Kincardine and Walkerton".
Here the court holds that, due to the private corporate nature of the South Bruce Grey Hospital Centre (SBGHC) - and despite it's public function, it was not subject to JR:[3].... The Decision was made by a private not-for-profit corporation that controls its internal management and allocation of resources to meet the performance standards expected of it as a public hospital. The Decision is not sufficiently of a public character to make it subject to judicial review.
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Position of the intervenor
[17] The Ministry of the Attorney General agrees with SBGHC that internal management and operational decisions made by the Board of Directors of a hospital corporation are not subject to judicial review. It submits that decisions of this nature are not exercises of state authority nor sufficiently public in nature to come within the scope of judicial review.
[18] The Ministry of the Attorney General submits that the Ministry of Health and Ontario Health provide oversight and funding, but they do not control the internal operations and day-to-day decision making of the hospitals as private corporations. The directors are not government employees or appointees. Hospitals are not Crown corporations or agencies established through legislation. The Ministry of the Attorney General submits that the Decision to move inpatient beds was not required by any legislation, regulation or government policy. The Decision of SBGHC’s Board of Directors did not require the Ministry of Health’s approval. It is the Ministry’s position that the Decision of SBGHC as a private corporation was not an exercise of state power and not sufficiently public to come within the scope of judicial review. The Ministry submits that the motion by SBGHC should be granted, and the Application be dismissed.
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[29] The purpose of judicial review is to ensure the legality of decisions made by the state. This purpose has been described by the Supreme Court of Canada in Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26 (“Wall”) as the means by which the courts are able to supervise the use of state power and to ensure those individuals exercising authority in government do not overstep their legal authority. The Supreme Court defined judicial review as a public law remedy in these terms:
[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, 2011 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.
[30] The Supreme Court in Wall confirmed that judicial review is only available where two fundamental conditions are present: first, where there is an exercise of state authority, and second, where that exercise of state authority is of a sufficiently public character. Justice Rowe stated in Wall that even public bodies make some decisions that are private in nature and that such a decision is therefore not subject to judicial review. Judicial review enables the court to protect the rule of law by ensuring that the exercise of state power is based on a legal source: Khorsand v. Toronto Police Services Board, 2024 ONCA 597, at para. 63.
Decision of a public authority or private entity
[31] In keeping with the principles in Wall on the availability of judicial review as a public law remedy, the first condition requires that the decision under review must be an exercise of state authority.
[32] Counsel for West Grey referred to the recent decision of the Nova Scotia Court of Appeal in Nova Scotia Health Authority v. Finkle and West, 2024 NSCA 87 on the availability of judicial review of decisions made in the field of health care management.
[33] The issue before the Court of Appeal in Finkle turned on whether the Nova Scotia Health Authority (“NSHA”) was acting under legislative authority when it acted on the hospital’s recommendation to sanction two doctors. If it had that legislative connection, its decision was of a public nature and was therefore judicially reviewable. The Court held that the NSHA was established under the Health Authorities Act and that it was therefore established as the “provincial health authority.” The Court held that sanctioning the doctors was not the exercise of a private power stemming from an employment relationship, as they were not employed by the NSHA. Instead, their hospital privileges were suspended by the NSHA as the public body enabled by statute to grant those privileges. The power to grant privileges and to take them away was therefore statutory, derived from the Health Authorities Act and its regulations.
[34] West Grey raises s. 30 of the Connecting Care Act, 2019 as the legislative “nexus” that establishes the obligation of SBGHC to consult with Ontario Health about decisions for the allocation of resources. Section 30 reads as follows:Integration
Identifying integration opportunities
30 The Agency and each health service provider and integrated care delivery system shall separately and in conjunction with each other identify opportunities to integrate the services of the health system to provide appropriate, co-ordinated, effective and efficient services. [35] It is clear from the language of s. 30 that the legislation requires Ontario Health and each hospital to identify opportunities for the integration of health-related services. The Connecting Care Act, 2019 does not provide that the transfer of hospital services from one hospital site to another in a health network constitutes an integration under the Act. The decision to transfer beds from Durham to other sites in the SGBHA was made on grounds particular to staffing and other operational issues, and not under s. 30 of the statute.
[36] The private nature of a hospital was examined by the Supreme Court in Stoffman v. Vancouver General Hospital, 1990 CanLII 62. It was held by the majority of the court that the hospital in that case was an autonomous body. Despite providing a public service, its operation did not qualify per se as a government function for the purposes of the Charter. The Court went on to hold that the Vancouver General Hospital did not form part of the “administrative branch” of government just because it was incorporated to provide health care services to the public.
[37] The Court in Stoffman drew the distinction between ultimate or extraordinary decisions, and routine or regular control over functions of the hospital. There are matters that are routine or regular in nature such as policy decisions. In Stoffman, the renewal of admitting privileges was controlled by the Board of the hospital and was not subject to government control, barring extraordinary circumstances.
[38] The first affidavit of Ms. Shaw was dated July 26, 2024 and describes how SGBHC was formed from the amalgamation of four hospitals pursuant to an Amalgamation Agreement dated January 1, 1998. Each of the four hospitals was a public hospital subject to the Ontario Public Hospitals Act. At the time, the Health Services Restructuring Commission that had been created by legislation in 1996 changed the landscape of public hospitals operating in Ontario through various mergers as well as closures to make the health care system in Ontario more efficient. Upon receiving the approval of the Minister of Health, SGBHC emerged as a private corporation governed by its own board of directors and has operated in that form for the past 26 years.
[39] From these guiding principles and the evidence given by Ms. Shaw, it is our view that SGBHC is a not-for-profit corporation having control of its own management. It is responsible for the allocation of its resources to meet the needs of the public it serves in Grey and Bruce counties.
Decision not of a sufficiently public character
[40] The Supreme Court in Wall recognized that private entities sometimes make decisions that have a broad impact on the public or have the appearance of a public character. The Supreme Court explained that this appearance does not transform the decision made by a private entity into an exercise of state power.
[41] Prior to Khorsand, the court would determine whether a matter fell within the scope of judicial review by applying the factors set out in Air Canada v. Toronto Port Authority, 2011 FCA 347. Those factors were set out in Air Canada for the court to apply when determining whether a decision was sufficiently of a public character to make it subject to judicial review:a. The character of the matter for which judicial review is sought;
b. The nature of the decision-maker and its responsibilities;
c. The extent to which a decision is founded in, and shaped by law as opposed to private discretion;
d. The body’s relationship to other statutory schemes or other parts of government;
e. The extent to which a decision maker is an agent of government or is directed, controlled or significantly influenced by a public entity;
f. The suitability of public law remedies;
g. The existence of a compulsory power; and
h. An exceptional category of cases where the conduct has attained a serious public dimension. [42] The Court of Appeal in Khorsand re-examined the applicability of the Air Canada factors when making that determination. In considering the approach for the courts to take in Ontario, Fairburn ACJO wrote that Wall does not preclude the use of the Air Canada factors for “teasing out” why the functional criteria of a decision are or are not met to determine if a decision is sufficiently public in nature. Fairburn ACJO accepted the view of the British Columbia Court of Appeal in Strauss v. North Fraser PreTrial Centre (Deputy Warden of Operations), 2019 BCCA 207 that the Air Canada factors are merely guidelines when deciding whether a decision made by a public official or tribunal has a sufficiently public character.
[43] The Court in Khorsand went on to conclude that the Air Canada factors do not provide a strict checklist, but instead play a helpful role to focus the attention of the court and its reasoning process. However, the Associate Chief Justice emphasized that this methodology is applied in the following context:[75] This is all subject to one important caveat. Wall cautions against using the Air Canada factors to transform a private decision into a public one on the basis that a decision impacts or is of significant interest to a broad segment of the public. Rowe J. said the following, at paras. 20-21: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: Graff v. New Democratic Party, 2017 ONSC 3578, 28 Admin. L.R. (6th) 294 (Div. Ct.)], at para. 18; West Toronto United Football Club v. Ontario Soccer Association, 2014 ONSC 5881, 327 O.A.C. 29 (Div. Ct.)], at para. 24. 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.
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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 whether the legality of state decision making is at issue. [Emphasis added.] [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. [44] Whether the Decision is “public” in the sense it calls into question the legality of state decision making is the live issue here. The determination that a decision is sufficiently public to attract judicial review and qualify for a public law remedy depends to a large degree on the nature of the decision itself.
[45] Of the factors listed in Air Canada, West Grey relies on the guideline that the more suitable a decision may be for public law remedies, the more the court will be inclined to regard it as public in nature.
[46] The intervenor Attorney General supports the principle recognized by this Court in cases such as Sprague v. Ontario (Ministry of Health), 2020 ONSC 2335 (Div. Ct.) and in Wise Elephant Family Health Team v. Ontario (Minister of Health), 2021 ONSC 335 (Div. Ct.) that decisions of hospital boards regarding the internal allocation of resources do not involve the legality of state decision-making. In Wise Elephant, the Minister of Health decided to terminate a health clinic’s funding agreement. This court held that the Minister’s decision to terminate the funding agreement was a private contractual matter and not subject to judicial review.
[47] The decision of this court in Sprague dealt with a challenge to the hospital’s visitor policy during the early days of the COVID-19 pandemic. This Court held that the decision was not of a sufficient public character to engage the application of public law.
[48] In O.N.A. v. Rouge River Valley System, 2008 CarswellOnt 6985, the hospital was a multi-site hospital operating as one corporate entity under the PHA. To reduce its operating deficit, the board decided to consolidate its mental health program and to close an inpatient mental health unit at one of its two sites. On a challenge of the decision, the Divisional Court held that the internal decisions of a board of a non-profit corporation seeking to address serious budgetary problems are not statutory decisions and are not subject to judicial review.
[49] The first affidavit of Nancy Shaw highlights the nature of each location of SGBHC where it provides medical services to the public. SBGHC is now a multi-site health care facility organized and operated by a board of directors who are responsible to know what resources the hospital has available to deliver that health and medical care, and to decide the best way to allocate them.
[50] The question of whether the Decision rises to the level of being sufficiently of a public character because it results in the transfer of inpatient beds within the same hospital system is, in our view, readily answered by the analysis in Khorsand. Despite the fact that the decision of the SGBHC will have an impact on the local community, the position taken by Dr. Pillisch that the transfer of those beds is essentially the thin edge of the wedge that presages total closure of the hospital in Durham is not supported by the record.
[51] The decision of the SGBHC to relocate the 10 beds from the Durham site to other sites in the hospital operated by SGBHC is a private decision. The Decision is not sufficiently of a public character to make it subject to judicial review under s. 2 of the JRPA.
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