N.B. seeks to quash record-breaking $2M awarded to fired Horizon CEO

The New Brunswick government wants a court to quash a labour adjudicator's decision awarding $2 million to the former head of Horizon Health Network after he was publicly fired by Premier Blaine Higgs.

The province, represented by the Department of Health and Horizon, has filed a notice of application with the Court of King's Bench in Saint John, requesting a judicial review of Dr. John Dornan's unjust dismissal decision.

It was the largest employment compensation award in the province's history, according to Dornan's lawyers.

In its application for a review, the province says the adjudicator didn't even have jurisdiction to hear the grievance. He wasn't appointed by the New Brunswick Labour and Employment Board, as required by the Public Service Labour Relations Act, the province says.

Both parties agreed to have George Filliter hear the case, according to the court documents.

But "To my knowledge, adjudicator Filliter was never appointed by the New Brunswick Labour and Employment Board," the province's lawyer Keith Mullin wrote in a sworn affidavit.

Labour and Employment Board CEO Lise Landry confirmed to CBC News on Friday that no form asking the board to appoint an adjudicator was filed in the case.

Dismissal done in 'disingenuous and callous manner'

Dornan served as president and CEO of Horizon for only four months of his five-year contract when Higgs announced his firing during a news conference July 15 in a major shakeup of New Brunswick's health-care leadership.

Higgs, who also replaced the health minister and removed the boards of both Horizon and Vitalité, cited a growing health-care crisis that included the "traumatizing" death of a patient July 12 in the waiting room of the Dr. Everett Chalmers Regional Hospital's emergency department.

"If we don't get better management results in our hospitals, we won't get better health care," Higgs said at the time.

The adjudicator awarded Dornan special damages of about $1.8 million, representing the value of lost salary, pension contributions and health benefits, plus $200,000 in aggravated damages for "breach of the employer's implied obligation to act in good faith when dismissing him."

Filliter accepted Dornan's position that his dismissal "was done in a 'public, disingenuous and callous manner.'"

No punitive damages or costs were awarded.

'Erred in fact and law'

In addition to challenging Filliter's jurisdiction to hear the case, the province argues he "erred in fact and law and made an unreasonable decision" in finding that Dornan's written employment contract was unenforceable, according to the court documents.

The province also argues Filliter failed to meet the "standard of natural justice and procedural fairness" by considering Dornan's claim to aggravated damages. The application says Dornan's lawyers didn't notify the province of their intention to claim aggravated damages until closing arguments.

Filliter further erred in assessing the amount, the province alleges.

It wants Filliter's decision quashed, or, in the alternative, Dornan's grievance "remitted to a different arbitrator."

The province is also seeking costs and any other relief the court deems just.

'Extraordinarily hard test'

Dornan has not yet filed a response, according to the court records.

He declined to comment Friday, directing inquiries to his Saint John-based lawyer. Kelly VanBuskirk did not respond to a request for comment.

In February,  Dornan's other lawyer, Toronto-based Howard Levitt, told CBC it was unlikely the province would seek a judicial review.

"The test for judicial review [is] you have to show no reasonable adjudicator could have come to this decision," Levitt had said. "It's an extraordinarily hard test."

Department of Health spokesperson Sean Hatchard declined to comment Friday, citing the case being before the courts.

The Premier's Office and Horizon did not respond to a request for comment.

Higgs has previously said he stands by decisions he made at the time, pointing to what he described as improvements in the health-care system.

Parties agreed on Filliter via email, but no form filed

According to the court documents, Dornan filed his grievance on Aug. 8 and VanBuskirk emailed the province's lawyer on Oct. 24, asking if the province would agree to Filliter hearing the case.

"That same day, I advised Mr. VanBuskirk that the province did not object to the matter being heard before adjudicator Filliter," Mullin states in the sworn affidavit.

In a Nov. 3 email, copied to Mullin, VanBuskirk advised Filliter the parties had agreed to his appointment, and Filliter later replied, accepting.

Mullin says the labour board's CEO was copied on that email, but he never received any correspondence from her, or anyone else at the board.

"Normally, when a non-bargaining employee … wants to file a grievance following an alleged discharge, suspension or financial penalty, they file a grievance with their employer and if they are not satisfied with the response, they can file a form with the board asking the board to appoint an adjudicator," CEO Landry said in an email to CBC.

"The board will typically ask the parties to consult to try to agree on the name of an adjudicator, and if they do, the board will appoint that person to hear the matter (if they agree to be appointed)," she said. "Or, if the parties do not agree, the board will choose a person to act as adjudicator, appoint them, and advise the parties.

"I cannot speak to exactly what occurred in this matter, as no form was filed with the board per the usual process."