SUPREME COURT OF NOVA SCOTIA
Citation: Awan v. Cumberland Health Authority 2005 NSSC 49
Date: 20050303
Docket: SH 214285
Registry: Halifax
Between:
Shahid I. Awan
Plaintiff
v.
Cumberland Health Authority
Defendant
LIBRARY HEADING
Judge: The Honourable Justice John D. Murphy
Heard: November 22 and 23, 2004, in Halifax, Nova Scotia
Written Decision: March 7, 2005
Subject: Summary Judgment, Professional Contract Statutory Interpretation
Summary: Plaintiff physician made anaesthetic services available to the Defendant for more than 20 years pursuant to contractual arrangements. Contract provided that Plaintiff receive substantial payment, including guaranteed minimum income, and also included provisions concerning notice and payment to be received if Defendant terminated the agreement. In 2002 an Amendment was added to the Health Services and Insurance Act (HSIA) to nullify certain agreements between providers and hospitals, and to eliminate compensation payable, including termination payments. Defendant claimed the Amendment nullified contractual arrangement with Plaintiff; Plaintiff commenced action alleging Defendant wrongfully ended the relationship without providing proper notice or payment upon termination.
Defendant sought summary judgment claiming the Amendment provided a full and complete defence to Plaintiff’s claim; Plaintiff also sought summary judgment on basis Amendment did not apply to the relationship and no arguable issue arose concerning his entitlements upon contract termination.
Issues: Should either party obtain summary judgment?
Was the Defendant a “hospital” as defined in applicable legislation?
Result: Both Summary Judgment Applications denied. Defendant’s status as a hospital is dependent upon a genuine or arguable issue of material fact requiring trial.
To be a hospital under HSIA, Defendant required approval either under Hospitals Act, or by Minister for purposes of HSIA. Whether Defendant was approved as a hospital is a question of law; however, determining if events took place necessary to establish approval involves issues of material fact.
In this case, it could be determined on Summary Judgment Application that Defendant was not a hospital under the Hospitals Act with reference to Plaintiff’s claim, because required approval by Governor in Council was not in place, due to irregularities enacting and publishing Order-in-Council. However, the evidence concerning approval under HSIA did not provide sufficient factual information concerning the steps taken by the Minister, and material facts concerning the Defendant’s status under the HSIA remained in dispute, leaving a genuine or arguable issue requiring trial.
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