Sun | Sep 24, 2017

Judge chastises regional health authority

Published:Sunday | December 6, 2015 | 12:00 AM

An appellate judge has deviated from the general rule that costs should be awarded to the successful party in an appeal and ordered the North East Regional Health Authority (NERHA) to bear its own expenses in a claim against it by a former employee.

NERHA had challenged Supreme Court Justice Georginia Fraser's order striking out its defence to a claim by its dismissed Director of Finance Ryan Anslip, who sought compensation from the health management body for breach of contract.

In the written decision in late November, Court of Appeal Justice Patrick Brooks said that despite NERHA's success in challenging the striking order, the health authority acted unreasonably and in breach of the overriding objective in refusing to comply with Anslip's request for inspection of documents he ostensibly intended to use to support his claim.

"As a result of that unreasonable approach, Mr Anslip was at an unfair disadvantage when the case came on for hearing on 7 January 2015," Justice Brooks said, having set aside the Supreme Court ruling.

"NERHA's conduct in this matter has been so unreasonable that this is an appropriate case in which to deviate from the general rule that costs should be awarded to the successful party," the judge said. "As a result, each party should bear its own costs of the appeal."

NERHA should, however, stand the costs of the day for the January 7, 2015 trial date, he added.

Justice Brooks also ordered that NERHA, at its own cost, provide to Anslip's attorney, on or before December 4, 2015, copies of all the documents requested, failing which its statement of case shall stand as struck out without the need for any further application.

He also ordered that the registrar of the Supreme Court fix a new date for the trial of the claim.

Anslip filed his claim on August 23, 2011 seeking damages for breach of contract following NERHA's decision to terminate his employment.

The Gleaner had reported on February 8, 2011 that Anslip was relieved of his post a day after the newspaper revealed that close to $2 million had been allowed to sit idle in an account for the St Ann's Bay hospital for two decades.

The report listed the hospital as being among dormant accountholders at the Bank of Nova Scotia and Citibank.

In a release then, the Ministry of Health said Anslip's dismissal came in the wake of the report of dormant accounts as well as other performance-related matters.

In relation to the claim, Justice David Fraser, at a case management conference on October 9, 2014 made orders for the standard disclosure of documents by each party on or before October 31, 2014, and inspection of documents by November 3, 2014.

The date for a pretrial review was set for December 4, 2014 and a trial date for January 7, 2015.

However, NERHA failed to comply with the orders for disclosure. On December 4 Master in Chambers Sonia Bertram-Linton made an order that unless the health authority complies with the case management conference orders on or before December 19, 2014 its statement of case would be struck out.

Again, NERHA failed to act in a timely fashion, Justice Brooks noted.

It was not until Friday, December 19, about two hours before the close of the business day, that NERHA served a number of documents on the offices of Anslip's attorney Andrew Irving. However, Irving's attempts to inspect NERHA's list of documents proved futile.

On January 6, 2015, as a result of NERHA's unresponsiveness, Justice Georgiana Fraser struck out the statement of case, entered judgment for Anslip and ordered that a date be fixed for assessment of damages.

However, in June 2015, NERHA filed an application seeking an order for assessment of damages to be stayed pending an appeal.

Justice Brooks said it must be observed that the orders made by Justice David Fraser obliged NERHA to allow Anslip to inspect those documents that he indicated he wished to inspect.

He noted that Master Bertram-Linton made an order that NERHA should have complied with the court management orders by December 19, 2014.

"Unfortunately, the learned Master did not stipulate that the inspection of documents should be allowed by a date subsequent to the date stated for their disclosure. As the order stood, both disclosure and inspection should have been completed by 19 December 2014. That unfortunate situation allowed for NERHA to adopt the unreasonable stance that it has taken," Justice Brooks said.

He said that at the end of the business day on December 19 NERHA had done all that it was obliged to do up to that point. However, it had not received the requisite request in writing on December 19 for it to provide inspection of the documents that it had disclosed that day.

"It must be pointed out, however, that NERHA's submission that the time allowed was sufficient time for Mr Anslip's attorney to assess and determine the documents he would need to have inspected and then indicate this in writing, is untenable," he added.

"In the light of all the orders previously made, in particular the order for inspection and disclosure, the time allowed by NERHA, that is two hours before the end of the business day, to inspect the list of documents and to decide what inspection was necessary, was unreasonable," Justice Brooks said.

mcpherse.thompson@gleanerjm.com