Executive Summary: Key Legal and Evidentiary Issues

• Scope of the Nova Scotia Health Authority’s duty of procedural fairness when investigating harassment complaints against non-employee physicians holding hospital privileges.
• Interaction between the Respectful Workplace Policy and the Medical Staff Bylaws, including how policy findings can affect physicians’ privileges and annual reviews.
• Adequacy of notice, disclosure, and opportunity to be heard, given that the physicians never received the written complaints and had no chance to respond to the investigator’s final findings or proposed sanctions.
• Legality of NSHA’s procedural deviations from its own Policy, including using Medical Affairs and senior medical executives in place of the “manager” and “People Services” roles prescribed by the Policy.
• Characterization of the Policy decisions as adjudicative (with potential career-limiting consequences) versus low-stakes managerial decisions requiring only minimal fairness.
• Jurisdictional issue resolved on appeal: whether NSHA’s sanctions under the Respectful Workplace Policy are subject to judicial review due to their public, regulatory character and impact on medical privileges.

Facts of the case

Dr. Simon Neil Finkle and Dr. Kenneth West are nephrologists practising in the Nephrology Division of the Queen Elizabeth II Health Sciences Centre (QEII) in Halifax. Dr. West has practised as a nephrologist for more than 29 years and previously served as Division Head of Nephrology. Dr. Finkle has more than 20 years of nephrology practice and has held a senior administrative role as interim head of the Nephrology Division. Neither physician had been the subject of any prior complaints or disciplinary proceedings before the events in issue.

Both doctors hold privileges to practise within the Nova Scotia Health Authority (NSHA) but are not employees. Their relationship with NSHA is mediated through grants of hospital privileges and physician contracts, renewed on a cyclical basis. It is common ground in the litigation that they are independent medical professionals whose ability to treat patients in the NSHA system depends on those privileges.

In 2022, two fellow nephrologists (identified as Complainant A and Complainant B) filed formal written complaints under NSHA’s Respectful Workplace Policy (the Policy). Complainant A filed complaints dated March 21, 2022 and December 20, 2022, alleging that Dr. West and Dr. Finkle, respectively, had contravened the Policy. Complainant B filed a separate complaint on March 26, 2022, also alleging a breach of the Policy by Dr. West (the judgment text has a minor internal inconsistency about which doctor is the subject of that third complaint, but the core point is that three formal harassment complaints were advanced by two physician colleagues).

After the complaints were received, NSHA appointed an external workplace investigator, Andrea Lowes of Certitude Workplace Investigations, in accordance with the Policy’s formal resolution and investigation process. The appointment was made on May 2, 2022. Shortly before that, on May 9, 2022, each doctor was summoned to a meeting with the Head of the Department of Medicine and Chief of Central Zone, the Director of Medical Affairs, and the Senior Respectful Workplace Consultant. At those meetings, they were told that they were the subjects of formal complaints under the Policy and were given only a brief oral summary of the allegations. Both requested particulars but were told more formal notice would follow once an investigator was appointed.

On May 11, 2022, they each received an official notification letter from the Department Head, confirming appointment of an investigator under section 6.1 of the Policy and providing high-level descriptions of the types of alleged misconduct: lack of respect for dignity and comfort, abuse of authority, and exclusion or undermining, framed under the Policy’s concepts of “Offensive and Disrespectful Behaviour” and “Harassment.” They did not receive the written complaints themselves.

Counsel for both doctors, Jack Graham, K.C., promptly requested copies of the original written complaints. NSHA declined to provide them, choosing instead to have the investigator prepare summarized “allegation” documents. On May 30, 2022, the investigator sent each doctor a summary of the allegations derived from the complainants’ interviews. After the doctors sought more detail, the investigator provided expanded summaries on June 14, 2022, and there were later further refinements, including changes to time frames in the allegations against Dr. West.

On June 10, 2022, Mr. Graham wrote to NSHA to clarify how the Policy’s screening step under section 5.1 had been handled, and who within People Services would be reviewing the investigation findings for remedial action. NSHA replied that, because all parties were physicians, the initial assessment had been conducted through the Medical Affairs office, and that the investigation’s “findings and recommendations” would be reviewed by Central Zone Medical Affairs and the Department Head, not by People Services, on the basis that physicians are not employees.

Each doctor submitted a detailed written response to the final allegation summaries on August 23, 2022. The investigator then interviewed them in late September 2022. They both identified additional witnesses who might corroborate their accounts or provide context, but they were never told whether these people were contacted or what evidence they provided, if any.

On December 8, 2022, the investigator delivered three written reports to NSHA, one on each complaint. In the complaint by Complainant A against Dr. West, the investigator concluded that 15 of 18 particularized allegations did not constitute harassment or a course of conduct under the Policy, but that 3 allegations did amount to harassment “on the lower end of the spectrum.” For Complainant A’s complaint against Dr. Finkle, the investigator rejected 7 of 9 allegations as Policy breaches but found that, taken together, certain actions were unwelcome and inconsistent with his role as Interim Head of Nephrology, constituting harassment under the Policy. In the complaint by Complainant B, the investigator found that all of the conduct alleged against Dr. Finkle occurred (though not always with the tone or intent asserted) and concluded that it formed a course of unwelcome conduct amounting to harassment on the low end of the spectrum; the allegation of discriminatory conduct was not made out.

The investigators’ reports and recommendations were then considered by senior NSHA medical executives. In place of the “manager and People Services” structure specified in the Policy, NSHA assigned the Zone Medical Executive Director (ZMED), Dr. Aaron Smith, and the Medical Affairs Lead for the Western Zone, Alejandro Ocampo, to act as decision-makers on the complaints. These were not the roles contemplated in the text of the Policy for handling employee complaints, but NSHA treated them as analogous to a manager/People Services combination for physicians.

On May 1, 2023, Dr. Smith and Mr. Ocampo issued virtually identical decision letters to each doctor. The letters accepted the investigator’s findings that the respective physicians had engaged in harassment under the Policy and imposed three mandatory remedial measures:

1. review the Respectful Workplace Policy and complete an NSHA e-learning module (“Introduction to Respectful Workplace Policy”) within three months;
2. complete a certificate course in Psychologically Safe Leadership offered through NSHA and the University of New Brunswick within six months; and
3. attend the Canadian Medical Protective Association “Effective Team Interactions” workshop within twelve months.
   The letters required the doctors to self-report completion in writing to the Central Zone Medical Executive Director and warned that failure to complete the actions on time “may result in the consideration of a more comprehensive approach, which could include a medical bylaws process,” thereby signalling a possible escalation to the disciplinary regime under the Medical Staff Discipline Bylaws.

The policy framework and the medical bylaws

The Respectful Workplace Policy, designated AD-HR-020 in NSHA’s Administrative Manual, was originally approved in 2017 by delegation from the NSHA Board through its Corporate Bylaws. It is a human resources policy that applies to “Staff,” a defined term broadly including employees, physicians, learners, volunteers, and other individuals performing work activities within NSHA, unless a given policy is expressly limited. It prohibits “harassment” and “offensive and disrespectful behaviour” and contemplates consequences “up to and including termination” of the relationship allowing an individual to work in NSHA facilities.

Under the Policy, a formal complaint triggers an initial assessment (screening) by a People Services designate to decide whether the matter should proceed formally, be redirected to an informal process, or be dismissed. If a formal investigation is undertaken, an internal or external investigator is appointed, who is required by section 6.1.4 to conduct the investigation in a “fair, unbiased and timely manner.” The investigator must gather evidence, interview the parties and witnesses, and prepare a written report with findings and recommendations. Section 6.3.1 of the Policy then directs that the “findings and recommendations of the Investigation Committee are reviewed by the manager(s) and People Services to determine the appropriate remedial action(s) to be taken.”

The Policy is closely intertwined with NSHA’s statutory and regulatory framework under the Health Authorities Act and the Medical Staff Bylaws. Physicians practising in NSHA facilities must comply with NSHA policies as a condition of their privileges. Part C of the Medical Staff Discipline Bylaws sets out the process for complaints about physician misconduct, including behaviour “contrary to the values, policies and procedures of the HA,” and allows the CEO, VP Medicine, a ZMED, or a Department Head to initiate formal disciplinary proceedings that may lead to suspension, variation, or revocation of privileges. Those Bylaws contain a more elaborate procedural code, including notice, mediation opportunities, hearings, and rights of appeal.

The 2025 decision emphasizes that documentation of complaints and their disposition under the Policy is retained in an “Employee Record” and is effectively made available for the annual review each physician undergoes. As part of that annual process, the department head and credentials committees must evaluate each physician’s compliance with NSHA policies, codes of ethics, and behavioural expectations. A harassment finding under the Policy can therefore directly affect renewal of privileges and broader professional standing, even if no separate disciplinary proceeding is commenced under Part C of the Medical Staff Discipline Bylaws. The Court accepted that this created a real risk to the doctors’ ability to continue practising in NSHA’s facilities and thus to pursue their chosen profession.

Procedural history and the jurisdiction issue

Before the 2025 merits decision by Justice Rowe, there had been preliminary litigation in both the Supreme Court of Nova Scotia and the Nova Scotia Court of Appeal. NSHA initially brought a motion to strike the doctors’ applications for judicial review, arguing that the decisions to require training under the Policy were not subject to judicial review and that the matter was essentially private or contractual in nature. The motion judge, Justice Keith, rejected that argument in Finkle v. Nova Scotia Health Authority, 2023 NSSC 426, concluding that the Supreme Court did have jurisdiction at common law and under Civil Procedure Rule 7 to review NSHA’s decisions. He characterized NSHA’s actions as an exercise of public authority with potential regulatory consequences for the physicians’ privileges.

NSHA appealed. In Nova Scotia Health Authority v. Finkle and West, 2024 NSCA 87, the Court of Appeal heard the two appeals together and dismissed them, upholding Justice Keith’s conclusion that judicial review was available. The Court of Appeal held that the NSHA’s decisions to sanction Drs. Finkle and West under the Respectful Workplace Policy had a sufficient public dimension, linked to NSHA’s statutory mandate and regulatory authority, to attract judicial review. The appellate court stressed that this was not merely about internal continuing education; it was about the promotion of workplace comity and the sanctioning of physicians through the leverage of hospital privileges, with potential consequences for the doctors’ ability to practise and for patient access to services. The practical effect of the appellate decision was to allow Drs. Finkle and West to proceed with their applications for judicial review of the NSHA’s decisions on the merits.

The Court of Appeal was explicit that it was not deciding the merits of the harassment complaints or the fairness of the NSHA process. Those questions were left to be addressed later by the reviewing judge—ultimately, Justice Rowe in 2025.

Legal issues before Justice Rowe

By the time the applications for judicial review proceeded to a full hearing in May 2025, the central merits question had crystallized: whether NSHA had breached its duty of procedural fairness (natural justice) to the applicants when dealing with the harassment complaints and imposing the remedial measures under the Policy.

Building on Canadian administrative law principles, particularly Baker v. Canada (Minister of Citizenship and Immigration), Justice Rowe proceeded through the five well-known contextual factors used to determine the content of the duty of procedural fairness:

1. the nature of the decision and process;
2. the nature of the statutory scheme;
3. the importance of the decision to the individuals affected;
4. the legitimate expectations of those individuals; and
5. the procedural choices made by the decision-maker itself.

On the first factor, NSHA argued that the process was investigative and managerial, involving modest training requirements and calling only for a low to moderate degree of fairness. The doctors argued that the process was adjudicative in substance—investigator appointment, evidence gathering, findings of harassment, and binding remedial directions with potential future disciplinary consequences—and thus required a higher level of fairness. Justice Rowe agreed with the doctors, finding the process to be adjudicative in character and the required standard to be moderate-to-high at the investigation stage and high at the decision-making stage.

On the second factor (statutory scheme), NSHA maintained that neither the Health Authorities Act nor the Medical Staff Bylaws prescribed any particular process for Policy complaints against physicians and that, in the absence of a statutory code, it enjoyed broad discretion with only minimal common law fairness obligations. The doctors countered that the Policy formed part of a larger regulatory framework governing physicians’ privileges and discipline, such that an adverse Policy decision had real consequences under the Bylaws and required robust procedural safeguards. Justice Rowe accepted the applicants’ view, emphasizing the Policy’s express application to physicians as “Staff,” its potential for discipline up to “termination” of the working relationship, its integration with the Medical Staff Bylaws’ behavioural and privilege-review regime, and the fact that a ZMED (who also had powers under the Discipline Bylaws) was one of the decision-makers. In this context, the Policy and Bylaws were “interrelated” rather than siloed, and a high degree of procedural fairness was warranted.

The third factor—the importance of the decision to the individuals—also favoured a high level of fairness. Although NSHA portrayed the decision as merely educational (requiring training courses), the Court underscored that a formal harassment finding under a major workplace policy, coupled with a non-compliance warning tied to the “medical bylaws process,” could materially affect the doctors’ reputations, their annual performance and privileges reviews, and ultimately their ability to continue practising nephrology within NSHA facilities. The Court cited long-standing authority that when the right to continue in one’s profession or employment is at stake, the duty of fairness is at its highest.

Regarding legitimate expectations, the doctors argued that they reasonably expected any serious disciplinary-type complaint about their conduct to be handled under the Medical Staff Discipline Bylaws, with their built-in safeguards such as notice, opportunity to respond, mediation, hearing, and appeal. NSHA responded that it had never clearly promised to use the Bylaws for Policy complaints and that there was no past practice giving rise to such expectations. Justice Rowe held that, even if there was no explicit promise, the integrated regulatory context and NSHA’s own reference in the decision letters to possible escalation under the “medical bylaws” supported an expectation of at least moderate-to-high procedural protections.

On the fifth factor, Justice Rowe examined NSHA’s procedural choices, including its deviations from the literal Policy text. Among other things, NSHA: used Medical Affairs personnel rather than a People Services designate for initial screening; designated the ZMED and Medical Affairs Lead, rather than the “manager and People Services” contemplated in section 6.3, to review the investigator’s report and choose remedies; and did all of this without providing the applicants with the written complaints, the full investigation reports before the decisions, or any opportunity to respond to the investigator’s findings and the proposed sanctions. The Court acknowledged that an investigator has latitude to control the investigative process subject to fairness, and found that the investigation itself, while imperfect, broadly met a moderate standard. The more serious fairness deficits lay at the decision-making stage, where the doctors were denied a meaningful chance to be heard before being branded as policy violators and sanctioned.

Findings on procedural fairness and outcome

Justice Rowe ultimately concluded that NSHA had failed to meet the content of the duty of fairness owed to Drs. Finkle and West. Several aspects of the process were highlighted as problematic.

First, the initial screening and informal resolution options in the Policy were effectively driven by complainant preference and NSHA administrative choice, with no meaningful engagement of the doctors in the possibility of informal resolution. They were told of the complaints and the move to formal investigation, but not offered the full range of Policy pathways at the outset.

Second, they never received the written complaints themselves, only investigator-generated summaries. This prevented them from knowing which elements were the complainants’ own words and which reflected the investigator’s framing. While they could and did respond in writing to the summaries, the lack of primary documents constrained their ability to challenge the factual underpinnings of the case against them.

Third, although they responded in detail to the allegation summaries and later sat for interviews with the investigator, they were not re-interviewed or allowed to comment after the investigator had completed her fact-finding, synthesized all witness evidence, and formed preliminary conclusions. Nor were they given a real opportunity to contest how the Policy’s broad definition of “harassment” was being applied to their conduct.

Fourth and most significantly, there was no opportunity for them to make submissions to the actual decision-makers—Dr. Smith and Mr. Ocampo—either on the investigator’s findings or on the proposed sanctions, before NSHA issued formal decision letters determining that each had breached the Policy and prescribing mandatory remedial steps backed by an implicit threat of disciplinary escalation under the Medical Staff Discipline Bylaws. NSHA also failed to respond to a detailed letter from their counsel, sent shortly before the decision, that raised concerns about screening, complaint development, misapplication of definitions, and the allegedly vexatious nature of the complaints.

Given the adjudicative nature of the decisions, their integration with the privileges and discipline framework, and the potential impact on the doctors’ professional futures, the Court held that a high level of procedural fairness was required but not met. The physicians were effectively denied a fair right to be heard at the most crucial stages of the process.

In the result, Justice Rowe allowed the applications for judicial review. She held that the decisions made by NSHA under the Respectful Workplace Policy against Dr. Finkle and Dr. West were procedurally unfair and therefore unlawful. The Court quashed the May 1, 2023 decision letters in respect of both doctors. NSHA advised that the Policy had since been amended, and it was unclear whether the matters could simply be remitted under the amended framework. Justice Rowe therefore directed the parties to confer and attempt to agree on an appropriate further process; failing agreement, the Court would receive further submissions on both process and costs within 30 days.

The successful parties in the litigation were the applicants, Dr. Simon Neil Finkle and Dr. Kenneth West, whose judicial review applications were granted and whose NSHA disciplinary decisions were set aside. No damages were claimed or awarded, and the 2025 decision does not set or quantify any costs or other monetary award in their favour; the amount of any costs payable, if ultimately ordered, cannot be determined from the decisions currently available.