2001 SKQB 124 Q.B.G. A.D. 1998 No. 1698 J.C.R. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: DR. MAHER HANNA and DR. ETTIENNE CROUSE and DR. DAVID KIRSCH, and the PIPESTONE DISTRICT HEALTH BOARD DEFENDANTS Dr. Maher Hanna appearing for himself Richard B. Morris for the defendants Dr. Ettienne Crouse and Dr. David Kirsch Brian J. Kenny for the defendant Pipestone District Health Board JUDGMENT DIELSCHNEIDER J. March 9, 2001 [1] The plaintiff, Maher Hanna, a medical doctor, brings this action against the defendants, Ettienne Crouse and David Kirsch, also medical doctors, alleging that each of them owed a duty of trust and a fiduciary duty to act towards him in good faith in connection with an arrangement entered into by all of them to perform the on-call services required of each of them by the defendant, Pipestone District Health Board. [2] Hanna practises family medicine in Moosomin, Saskatchewan in clinic independent from the clinic in which Crouse and Kirsch practise. Hanna is member of the Moosomin Family Clinic which he owns, and Crouse and Kirsch practise family medicine in the Moosomin Family Practice Centre which they established in 1994. [3] All three medical practitioners were, during the period under discussion, members of the medical staff of the Moosomin Union Hospital where all retained privileges. The Moosomin Union Hospital is general health care facility under the control of the Pipestone District Health Board. [4] Soon after they formed their clinic, Crouse and Kirsch initiated an on-call system whereby all the medical practitioners having privileges at the hospital would perform on a rotation basis the on-call duties required of them by the hospital. The proposed system was completely voluntary. doctor could join or not join. [5] Pipestone District Health Board and Moosomin Union Hospital required of each physician having privileges to practise in the hospital to be on-call to answer the needs of patients admitted by him or her on continuous basis, 24 hours day and seven days week. In addition, each doctor was required to respond to the hospital's calls relating to its emergency cases, as for example, persons injured in highway accident. [6] The arrangement proposed by Crouse and Kirsch had one doctor respond on rotation basis to the hospital's call for treatment of all patients, regardless of which doctor had admitted them, and to all emergencies. [7] Because the arrangement was voluntary doctor choosing not to enter into the arrangement would remain on call to look after his own patients at all times, and to respond to emergencies. [8] The arrangement worked well. [9] That is to say, the arrangement worked well until it was frustrated by the conduct of Hanna. [10] In 1995 Hanna established clinic in Regina, Saskatchewan and began dividing his time between the clinic there and the one in Moosomin. Hanna was habitually late in arriving in Moosomin to respond to his weekend on-call duties when it was his turn. Sometimes he did not show at all. [11] Given these circumstances the remaining doctors set up new on-call roster which did not include Hanna. [12] There can be no question but that this action by the doctors was completely necessary in the interest of providing good patient care to the hospital. Indeed such was necessary under the bylaws governing the hospital. [13] Hanna's exclusion from the on-call roster was of course authored by his own conduct. Not only was he remiss in performing his on-call duties but there were serious questions about his professional competence. He would admit patient and fail to attend upon him or her for several days. Or he would fail to diagnose an obvious condition. [14] The situation had serious consequences for the hospital. The administrator for the hospital intervened without success as did the chief executive officer of the Pipestone District. When meeting was convened to attempt to develop resolution to the problems in the hospital caused by Hanna, he failed to attend. find totally unacceptable the reasons he gave for his absence from that meeting. [15] It is difficult to read into these circumstances those considerations which in law give rise to duties of trust or breach of fiduciary duty raised by Hanna in his pleading. [16] Hanna was unrepresented by legal counsel at this trial. Nevertheless, have studied the legal brief filed by his counsel at the pre-trial hearing. [17] And have read the briefs of counsel at trial. [18] On my review I find, first of all, no evidence of a legally binding contract between the doctors pursuant to which they would carry out their on-call obligations to the hospital. The arrangement here was entirely voluntary. There is no evidence of an expressed intention that the arrangement entered into by the doctors in 1994 was contemplated as legally enforceable one. [19] It was, in short, gentlemen's agreement. The arrangement has none of the characteristics normally attending duty of trust or fiduciary duty. The dominant and overriding obligation of each doctor was to provide continuous care to his patients, as said, 24 hours day, seven days week. It was permitted by the hospital that this obligation could be performed by fellow doctor having privileges in the hospital but the obligation itself always remained with each individual doctor. have no doubt that reliance by any doctor upon Hanna to perform his or her on-call duties risked jeopardizing his or her relationship to the hospital and had the potential of placing in jeopardy his or her privileges with the hospital. [20] Even though it is alleged in Hanna's claim that there was both duty of trust and fiduciary duty owed by the defendants, find it difficult on the facts here to distinguish between the two allegations and therefore treat them as synonymous. [21] The common characteristics defining fiduciary relationship were discussed by Cameron J.A. in Baskerville v. Thurgood, 1992 CanLII 8313 (SK CA), [1992] W.W.R. 193 (Sask. C.A.) at 203: As the judgments in LAC Minerals, supra, suggest, actions founded in breach of fiduciary duty fall to be determined along these lines: (1) Was the relationship between the parties of such class or category, or of such nature in fact, as to have given rise to fiduciary duty in one of them? If so, (i) what was the nature of the fiduciary duty and its obligations, (ii) did the conduct complained of fall within the scope thereof, and (iii) did it constitute breach? (3) If so, what remedies are available and which is appropriate? And at 210: As the cases demonstrate, those calling for fact-based approach to deciding whether relationship gave rise to fiduciary duty are often difficult to determine. There is no "formula" for their determination, as Justice Sopinka observed in LAC Minerals, though "certain common characteristics are so frequently present in relationships that have been held to be fiduciary that they serve as rough and ready guide": (1) The fiduciary has scope for the exercise of some discretion or power. (2) The fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary's legal or practical interests. (3) The beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion or power. [22] This case must, in my view, be resolved on consideration of the implications raised by Cameron J.A.'s first question, namely, was the relationship between all the doctors, or even those of one clinic set up against those of the other clinic, such that it gave rise to fiduciary relationship. The first question coming to my mind is, was there fiduciary, person, that is to say, one of the doctors, in position of dominancy? Did that person have power over the other members of the on-call arrangement? Was there any member of that arrangement who had power over Hanna? The answer, on the facts here, is resounding no. There being no fiduciary with power over anyone there is no fiduciary relationship, and of course no breach giving rise to an action for damages. [23] turn then to consider whether there existed fiduciary relationship between the hospital and Hanna. [24] The first point make is that the hospital was neither the originator of the on-call arrangement introduced by the doctors nor party to it. On my review believe it is fair to say that the administrator of the hospital and the chief executive officer for Pipestone District tolerated the plan and, to that extent only co-operated with the doctors in its implementation because when it operated well it delivered to the hospital the services it required. But there is no evidence that Pipestone District formally approved the system or was party to it. [25] The relationship between hospital and its doctors, here between Pipestone District Health and Crouse, Kirsch, Hanna and such other doctors having privileges in the Moosomin Union Hospital is one that is defined by The Hospital Standards Act, R.S.S. 1978, c. H-10, The Hospital Standards Regulations, 1980, Sask. Reg. 331/79, and the bylaws of Pipestone District Health. Not to be omitted from the consideration is the impact brought to bear upon that relationship by the College of Physicians and Surgeons for Saskatchewan. hospital is never, at least on the facts here, in the position of fiduciary towards its doctors. [26] The relationship between the Moosomin Union Hospital or Pipestone District Health was not compromised by the arrangement entered into by the doctors to deliver on-call services. Nor was that relationship one governed by the rules governing trustees or fiduciaries. [27] There is no basis either in fact or in law supporting the existence of a trust or a fiduciary relationship between Hanna and the defendant Pipestone District Health. [28] For the foregoing reasons I dismiss Hanna's action against Crouse and Kirsch with costs to be taxed. And I also dismiss Hanna's action against Pipestone District with costs to be taxed.
The medical doctor alleged the other medical doctors owed a fiduciary duty to act in good faith with respect to their agreement to perform on-call services for the District Health Board. Under the voluntary arrangement doctors who chose not to enter the arrangement remained on-call to look after their own patients and to respond to emergencies. It worked well until Hanna established another clinic and began dividing his time between Regina and the Moosomin clinic. HELD: The actions against the doctors and health district were dismissed with taxed costs.  1)Hanna's exclusion from the roster was authored by his own conduct. When he was habitually late on his weekend on-call duties and sometimes failed to show at all, the remaining doctors set up a new on-call roster which did not include him. Such action was necessary under the bylaws governing the hospital and to provide good patient care to the hospital. He was not only remiss in performing his on-call duties but there were serious questions about his professional competence. He would admit a patient and fail to attend upon him or her for several days. Or he would fail to diagnose an obvious condition. His reasons for his failure to attend a meeting convened by the hospital administrator to resolve the problems was unacceptable. 2)There was no evidence of a legally binding contract between the doctors. The on-call arrangement was voluntary. There was no expressed intention that it be legally enforceable. 3)The common characteristics defining a fiduciary relationship were discussed in Baskerville v. Thurgood. There was no fiduciary with power over anyone and therefore no fiduciary relationship with respect to the doctors.  4)The relationship between the hospital and its doctors having privileges in the hospital is one that is defined by the Hospital Standards Act and Regulations and bylaws of the Health District. Consideration was also given to the relationship with the College of Physicians and Surgeons. A hospital is never, on the facts, in the position of a fiduciary towards its doctors. There was no basis in law or fact supporting the existence of a fiduciary relationship between Hanna and the Health District.