Category Archives: Administrative Law

Money attracts procedural fairness: The case of the overbilling doctor

Cases Considered: Searles v. Alberta (Health and Wellness), 2008 ABQB 307

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Government compensation payable to physicians in Alberta is differentiated under the Alberta Health Care Insurance Plan based upon the type of service provided: in short, some service categories pay better than others for physicians. In 2002 Dr. Gordon Searles received notice from Alberta Health and Wellness that his billings to the Alberta Health Care Insurance Plan were being reviewed. This review led to a reassessment under section 18 of the Alberta Health Care Insurance Act, R.S.A. 2000, c. A-20, which provides the Minister of Health and Wellness with authority to reassess physicians’ billings on select grounds including where the Minister is of the opinion that “the total amount of benefits paid for service was, in the circumstances, greater compensation to the practitioner for that service than it should have been.” In this case, the Minister’s reassessment (via her delegate) required Dr. Searles to repay $985,777.09 having concluded upon review of his billings that he was overcompensated. The reassessment was based upon the Minister’s conclusion that between April 2000 and February 2004 Dr. Searles’ billing submissions were calculated on the provision of a service category with a higher billing rate than the actual service Dr. Searles had administered to his clients. Dr. Searles subsequently applied to the Court of Queen’s Bench to have the Minister’s reassessment quashed on judicial review for procedural unfairness.

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The Incredible Shrinking Jurisdiction of the Alberta Utilities Commission

Cases Considered: ATCO Gas and Pipelines Ltd. v. Alberta (Energy and Utilities Board) 2008 ABCA 200

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Introduction

In 2006 the Supreme Court of Canada held that the then Alberta Energy and Utilities Board (“Board”) (now the Alberta Utilities Commission (“Commission”)) had no jurisdiction to allocate proceeds of disposition on the sale of a utility asset, even to ameliorate harm to customers that might arise from that sale. The Court held that while the Board has some jurisdiction to impose conditions on the sale of an asset – to, for example, give “due consideration to any new economic data anticipated as a result of the sale” (ATCO Gas and Pipelines Ltd. v. Alberta (Energy and Utilities Board) 2006 SCC 4 at para. 81 (“AGPL”)) – that power did not allow the Board to “confiscate” any net gains enjoyed by a utility upon disposition.

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Disinterment of RCMP Officer may proceed despite parents’ wishes

Cases Considered: Johnston v. Alberta (Vital Statistics), 2008 ABCA 188

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In a previous post, I reviewed a number of decisions of the Alberta courts relating to the disinterment of Constable Leo Johnston, one of four RCMP officers killed near Mayerthorpe, Alberta in March 2005. The Johnston case involves a public death, and an ensuing private dispute now playing itself out in a very public way.

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Dunsmuir: Much Ado about Nothing

Cases Considered: Dunsmuir v. New Brunswick, 2008 SCC 9

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The majority judgment in Dunsmuir, written by Justices Bastarache and Lebel JJ. (writing also for Fish, Abella, and McLachlin JJ.), begins by setting out its grandiose intention to re-examine judicial review principles in Canadian administrative law with the view to making them more workable and coherent. In an initial glance, one is immediately struck by how such an immense and significant task is built upon a seemingly insignificant set of facts. The appellant, a former non-unionized provincial employee who was dismissed with pay in lieu of notice, sought to uphold a grievance arbitrator’s ruling that his employment be reinstated. In dismissing the appeal, the Supreme Court judgment follows that of both the New Brunswick Court of Queen’s Bench and Court of Appeal. One cannot also help but notice that in purporting to reformulate the pragmatic and functional approach to substantive judicial review, Dunsmuir consists of three concurring but inconsistent sets of reasons. Indeed, it is difficult to envision Dunsmuir as a defining moment in Canadian administrative law along the lines of CUPE Local 963 v. New Brunswick Liquor Board, [1979] 2 SCR 227, Nicholson v. Haldimand-Norfolk Police Commissioners, [1979] 1 SCR 311, Knight v. Indian Head School Division, [1990] 1 SCR 653, Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982, or Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817. This is because Dunsmuir falls well short of its lofty ambitions. Binnie J.’s reasons aside, Dunsmuir is little more than formal acknowledgement of recent shifts in, and deficiencies with, the Supreme Court’s attitude towards substantive judicial review.

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Dunsmuir v. New Brunswick: Standards of Review and Employment Contracts

Cases Considered: Dunsmuir v. New Brunswick, 2008 SCC 9

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Dunsmuir was employed by the Province of New Brunswick as an office holder “at pleasure”. His probationary period was extended twice and the employer reprimanded him three times during the course of employment. Finally, a formal letter of reprimand was sent to Dunsmuir warning him that failure to improve his performance would result in further disciplinary action up to and including dismissal. The employer concluded that Dunsmuir was not right for the job, and a formal letter of termination was delivered to Dunsmuir’s lawyer the next day. A grievance was denied and then referred to adjudication under New Brunswick’s Public Service Labour Relations Act (“PSLRA”), R.S.N.B. 1973, c. P 25. A preliminary issue of statutory interpretation arose as to whether, where dismissal was with notice or pay in lieu thereof, the adjudicator was authorized to determine the reasons underlying the province’s decision to terminate. Ultimately, the adjudicator made no finding as to whether the discharge was or was not for cause. As Dunsmuir’s employment was hybrid in character, the adjudicator held that he was entitled to and did not receive procedural fairness in the employer’s decision to terminate his employment. He declared that the termination was void ab initio and ordered Dunsmuir reinstated as of the date of dismissal, adding that in the event that his reinstatement order was quashed on judicial review, he would find the appropriate notice period to be eight months.

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