Canadian Employment Law Today

Canadian Employment Law Today | 7 Canadian HR Reporter, a Thomson Reuters business 2018 Cases and Trends pointment of any physician if the only hospi- tal privileges that appointment has is related to the provision of a service the board has decided to end — to end the doctors' ten- ure. at section also states that "no action or other proceeding for damages or other- wise shall be instituted against a corporation which owns or operates a hospital for any act done in good faith in the execution or in- tended execution by a board of its authority under (the section) or for any alleged neglect or default in the execution in good faith by a board of such authority." Both doctors commenced an action for wrongful dismissal. ey claimed there was no evidence the hospital's board made any decision to stop providing a service and it "simply closed the (urgent care centre) and left the (doctors) to suff er the consequences." ey also argued that they should be consid- ered employees because the hospital con- trolled their work, owned the tools of their work, and assumed the risk and profi t op- portunity from their job performance. In addition, the doctors sought punitive damages for civil fraud stemming from the fact the hospital represented to the pub- lic that it would provide a portion of the $125 payment charged to out-of-country patients for physician's services on its "Re- sponsibility for Payment Form Urgent Care Centre Visit Only" when in fact it kept its earnings from such services — a repre- sentation based on a 2006 agreement with the doctors that the hospital would pay the doctors' service portion of the out-of-coun- try payment. e court found that the doctors were not employees, as they identifi ed themselves as "member of the medical staff " and not "em- ployee" in hospital documentation, they were credentialed physicians under the hos- pital bylaws and the Public Hospitals Act, they were members of the Canadian Medi- cal Association, and they identifi ed them- selves as self-employed on their income tax returns. However, the court noted that the doctors met the criteria to be considered in the spe- cial category of "dependent contractors" due to the fact they depended on the hospital for most of their income and hours of work, but they were excluded from receiving damages in lieu of reasonable notice under the Public Hospitals Act. If this exclusion didn't exist, the court said, Dr. Beattie would have been entitled to 23 months' notice and Dr. Lucz- kiw 26 months' notice for dismissal. As for the civil fraud claim by the doctors, the court found that any such agreement by the hospital to pay the urgent care centre doctors a portion of the fee charged to out- of-country patients was never followed and the doctors took no steps to enforce it until the wrongful dismissal suit. e court la- belled "the issue of out-of-country billing to be a misunderstanding between the parties" that wasn't enough to be considered fraudu- lent behaviour by the hospital. "By not taking any steps to enforce the agreement or to carry out their 'side of the bargain' by following the process described by (a hospital administrative employee at the time), the doctors have waived any rights they may have had under the agreement," said the court. e court dismissed the doctors claims for wrongful dismissal and punitive damages. For more information see: • Beattie v. Women's College Hospital, 2018 CarswellOnt 3613 (Ont. S.C.J.). Dependent contractors but exempt from damages « from DOCTORS on page 1 NOMINATIONS CLOSE JUNE 1 Is your safety team a lineup of super stars that are always motivating the workforce to make safety a priority? Throw your hard hat in the rink for Canada's Safest Employers awards. Now in its 8th year, the awards recognize the safest companies from coast to coast. Awards for Wellness, Psychological Safety, Young Worker Safety and Canada's Best Health + Safety Culture also available. www.safestemployers.com CELEBRATING SAFETY MVPs EMPLOYERS SAFEST 2018 CANADA'S Presented by Strategic Partner Platinum Sponsor Bronze Sponsor Gold Sponsor Silver Sponsor Silver Sponsor Bronze Sponsor EXPERTS IN OCCUPATIONAL TESTING Reception Sponsor

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