Case: Northern Health Authority v. du Plessis, 2026 BCCA 143 (CanLII)
Keywords: COVID-19; pediatrician; scope of appellate jurisdiction; Arbitration Act, S.B.C. 2020, c. 2
Synopsis:
During the COVID-19 pandemic, the Appellant Northern Health Authority (“NHA”) employs the Respondent pediatrician under a service contract. NHA then terminates the contract after the Respondent does not receive a COVID-19 vaccination due to health concerns (i.e., suffered a heart attack requiring coronary bypass surgery in 2019; medication he received for thrombosis). (See paras. 7, 12). NHA takes the position that refusing the vaccine frustrates the contract; the Respondent is “required to obtain vaccination” in accordance with an order issued by the Provincial Health Officer. (See paras. 1, 15). The Respondent disputes the termination; commences arbitration seeking redress (i.e., a declaration that he was wrongfully dismissed and damages). (See para. 16). The arbitrator finds NHA breached the contract and awards damages and costs totalling $388,582.13. (See para. 2).
NHA appeals. The Respondent cross-appeals on the issue of remedy. By agreement, the parties consolidate these two appeals and waive the requirement to seek leave under s. 59(2)(b) of the Arbitration Act, S.B.C. 2020, c. 2. Importantly, however, there is still an obligation to identify a question of law arising out of the arbitral awards. (See para. 3). The Court of Appeal (Butler, Riley, and Mayer JJ.A.) finds neither party identifies a “pure question of law arising from the awards thus bringing the appeals within [the] Court’s appellate jurisdiction under s. 59(1) of the Arbitration Act”. (See paras. 4-5). The appeals are dismissed for want of jurisdiction. (See para. 116).
Importance:
As reproduced by the Court of Appeal, s. 59(1) of the Arbitration Act provides:
59 (1) There is no appeal to a court from an arbitral award other than as provided under this section.
(2) A party to an arbitration may appeal to the Court of Appeal on any question of law arising out of an arbitral award if
(a) all the parties to the arbitration consent, or
(b) subject to subsection (3), a justice of that court grants leave to appeal under subsection (4).
[…]
(4) On an application for leave under subsection (3), a justice of the Court of Appeal may grant leave if the justice determines that
(a) the importance of the result of the arbitration to the parties justifies the intervention of the court and the determination of the point of law may prevent a miscarriage of justice,
(b) the point of law is of importance to some class or body of persons of which the applicant is a member, or
(c) the point of law is of general or public importance. (See para. 38; emphasis by Court of Appeal).
For the Court of Appeal, the Legislature has left “only a very small window for appellate review of arbitral decisions”. (See para. 40; Greater Vancouver Sewerage and Drainage District v. Wastech Services Ltd., 2019 BCCA 66 at para. 4; MSI Methylation Sciences, Inc. v. Quark Venture Inc., 2019 BCCA 448 at para. 60). In other words, one must clearly demonstrate that one’s appeal is grounded in a question of law alone.
At paras. 41-43, the Court of Appeal explained the distinction between questions of fact, law and mixed questions. The Court highlighted four principles from MSI Methylation Sciences which are relevant to determining the scope of the Court of Appeal’s jurisdiction over arbitration decision, as follows:
- Appeals are limited to questions of law arising out of the award. If the proposed question is not a question of law arising out of the award, there is no jurisdiction to grant leave to appeal.
- A question of law may be explicit or implicit in the award. If the question of law is explicit in the award, the statutory precondition is met. If the asserted question of law is implicit in the award, in the sense that it must be extricated from the application of the law to the facts, care must be taken to distinguish between an argument that a legal test has been altered in the course of its application (a question of law) and an argument that application of the legal test should have resulted in a different outcome (a question of mixed fact and law).
- One means of determining whether the challenged proposition is a question of law or part of a question of mixed fact and law is to consider the level of generality of the question. If the answer to the proposed question can be expected to have precedential value beyond the parties to the particular dispute, the question is more likely to be characterized as a question of law. On the other hand, if the answer to the proposed question is so tied to the particular circumstances of the parties to the arbitration that its resolution is unlikely to be useful for other litigants, the question will likely be considered a question of mixed fact and law. I would add to this that when the “question” is stated as a ground of appeal that is integrally tied to the facts of the case, it will more likely be characterized as a question of mixed fact and law, the answer to which cannot be of general application because of the integration of the particular facts of the case to the question. The more the question can be abstracted from the particular facts to a question of principle, the more likely it is that the challenged proposition will be characterized as a question of law with potential precedential value.
- A narrow scope for what constitutes extricable questions of law is consistent with finality in commercial arbitration. (See MSI Methylation at para. 72).
Applying these principles, the Court determined that the questions raised by the Appellant NHA on appeal were “mainly questions of mixed fact and law which this Court is without jurisdiction to entertain on appeal”. For example, the Court indicated that whether the defence of frustration was or was not made out “will almost always be fact dependent and require an assessment of the particular circumstances”. (See paras. 44, 47, and 54-59). In this case, the arbitrator concluded that the Provincial Health Officer’s order did not capture the Respondent’s “unique situation” and did not prevent him from lawfully fulfilling the terms of his contract. (See para. 17). As described by the Court, this conclusion was based on a number of key factual findings about the nature of the parties’ contractual obligations, including “that the parties agreed that [the Respondent] would not exercise hospital privileges” and “agreed that all [the Respondent’s] work was to be provided virtually from his residence and there was no intention that he would be performing other work”. (See para. 18).
Going further, however, the Court indicated that “[e]ven if the NHA’s appeal raises a question of law with regard to the interpretation of the PHO Order, I would conclude that the arbitrator’s decision was correct.” (See paras. 44, 76-80). For the Court, it does not matter whether the Public Health Officer “intended” to impose as broad a mandate as possible because, “[t]o state the obvious, interpretation of a PHO order does not depend on the subjective intent of the PHO, it must be based on the language of the statutory instrument.” (See para. 80).
The Court of Appeal applied the same general principles to the Respondent’s cross-appeal, again finding no jurisdiction-providing question of law. (See para. 114).
Counsel for the Appellant/Respondent on Cross Appeal: Angus Gunn, K.C. and Jared Cummings (Eyford Partners, Vancouver)
Counsel for the Respondent/Appellant on Cross Appeal: David Aaron (Arsenault Aaron Lawyers, Vancouver)