Emtage v Queen Elizabeth Hospital Board

• Jurisdiction: Barbados
• Judge: Crane-Scott, J
• Judgment Date: 31 July 2014
• Neutral Citation: BB 2014 HC 36
• Docket Number: CV 1033 of 2010
• Court: High Court (Barbados)
• Date: 31 July 2014

High Court

Crane-Scott, J.

CV 1033 of 2010

Emtage

and

Queen Elizabeth Hospital Board

Appearances:

Mr. Ralph Thorne, Q.C. for the applicant/claimant.

Sir. Maurice A. King, Q. C. for the respondent/defendant.

Judicial Review - Application for judicial review of the Respondent's failure or omission to formalize a new contract for services — Whether the claim was amenable to judicial review — Whether the conduct of the Respondent gave rise to a legitimate expectation in favour of the applicant — Substantive legitimate expectation — Procedural legitimate expectation — Whether the Applicant is entitled to the relief sought.

Crane-Scott, J

1 On July 31, 2014, I held in favour of the applicant on this application. I had undertaken to provide written reasons for my decision which I now do.

2 INTRODUCTION: The claim involved an application for judicial review instituted by the applicant (hereinafter sometimes referred to as “the applicant” or “Dr. Emtage”) pursuant to the Administrative Justice Act, Cap. 109B of the Laws of Barbados against the Queen Elizabeth Hospital Board (hereinafter sometimes referred to as the “respondent Board” or the “Board”).

3 The application arose out of a decision, determination and/or administrative act of the respondent Board (ostensibly acting pursuant to its statutory powers under section 6(1) of the Queen Elizabeth Hospital Act, Cap. 54) by which it purported to terminate Dr. Emtage's contractual appointment and tenure as Consultant (Urology) within the Department of Surgery at the hospital — a post he had continuously held over a period of 19 years since August of 1990.

4 More specifically, the application sought a review by the Court of the respondent Board's failure or omission (following expiry on October 31st, 2009 of Dr. Emtage's last 3-year written contract) to formalize a new written contract for services with him on similar terms and conditions as had been contained in successive written contracts consistently issued to him from as far back as the year 1990.

5 THE RELIEF CLAIMED: The application was commenced by way of Fixed Date Claim Form supported by a Statement filed on the 30th day of July, 2010, claiming numerous relief and orders as follows:

• (a) A Declaration that there is a subsisting renewed contract between the applicant/claimant and the respondent/defendant upon the terms and conditions of the pre-existing contract dated the 1st day of November, 2006;

• (b) A Declaration that the applicant/claimant is entitled to all the rights and privileges granted by the said pre-existing contract dated the 1st day of November, 2006 and that the applicant/claimant and the respondent/defendant are bound to honor all obligations under the said pre-existing contract dated the 1st day of November, 2006;

• (c) A Declaration that the applicant/claimant has a legitimate expectation that the subsisting renewed contract would be formalized and completed upon terms and conditions as practicably similar to the said pre-existing contract dated the 1st day of November, 2006'

• (d) A Declaration that the respondent/defendant has by its conduct led the applicant/claimant to function in the belief and expectation that the said pre-existing contract dated the 1st day of November, 2006 was renewed subject only to the completion of mere formalities;

• (e) A Declaration that the applicant/claimant is the holder of the post of “Consultant, Surgery (Urology)” at the Queen Elizabeth Hospital;

• (f) An Order of Certiorari in quashing the decision of the respondent/defendant in declaring vacant the post of “Consultant, Surgery (Urology)”;

• (g) An Order of Certiorari in quashing the decision of the respondent/defendant in advertising the post of “Consultant, Surgery (Urology) lawfully held by the applicant/claimant.

• (h) An Order of Mandamus requiring the respondent/defendant to draw, prepare and present to the applicant/claimant a formal, written contract for signature and completion in accordance with terms and conditions as practicably similar to the said pre-existing written contract dated the 1st day of November, 2006;

• (i) An Order of Prohibition prohibiting the respondent/defendant from further advertising the post of “Consultant, Surgery (Urology)” at the Queen Elizabeth Hospital;

• (j) An Order of Prohibition prohibiting the respondent/defendant from receiving and considering new applications from anyone whosoever for the post of “Consultant, Surgery (Urology)” at the Queen Elizabeth Hospital;

• (k) An Order of Prohibition prohibiting the respondent/defendant from appointing any persons other than the applicant/claimant to the post of “Consultant, Surgery (Urology)” at the Queen Elizabeth Hospital;

• (l) An Injunction compelling the respondent/defendant to immediately formally and officially appoint the applicant/claimant to the post of “Consultant, Surgery (Urology)” with effect from the 1st day of November, 2009 and to draw prepare and present to the applicant/claimant a formal, written contract for signature and completion in accordance with the terms and conditions as practicably similar to the said pre-existing written contract dated the 1st day of November, 2006 which said renewed contract shall be for a period of no less than three years from the date of its commencement or for such longer period as the Court may determine;

• (m) A Declaration that the decision of the respondent/defendant not to formalize the renewal of the applicant/claimant's contract with effect from the 1st day of November, 2009 is invalidated by the acts and omissions of the respondent/defendant on the following grounds:–

  • (i) in carrying out an administrative act or omission in a manner that was unauthorized or contrary to law;

  • (ii) in exceeding jurisdiction;

  • (iii) in failing to satisfy or observe conditions or procedures required by law;

  • (iv) in breaching the principles of natural justice;

  • (v) in acting unreasonably or in the improper exercise of discretion;

  • (vi) in abusing power;

  • (vii) in acting in bad faith and upon irrelevant considerations;

  • (viii) in acting on instructions from an unauthorized person;

  • (ix) in acting in conflict with the policy of an Act of Parliament;

  • (x) in acting in error of law, whether or not apparent on the face of the record;

  • (xi) in acting in the absence of evidence on which a finding or assumption of fact could reasonably be based; and

  • (xii) in acting in breach of or omission to perform a duty.

• (n) DAMAGES;

• (o) COSTS.

6 THE EVIDENCE: The evidence in this case consisted of affidavits and exhibits and a bundle of documents produced at the Court's request as follows.

7 For the applicant: An affidavit-in-support of the applicant's Claim was filed by Dr. Jerry Bruce Emtage on the 30th day of July, 2010 together with the following 7 exhibits:

• (“JE 1”) — Agreement dated the 1st day of November, 2006 and made between the respondent Board and the applicant whereby the respondent Board appointed the applicant as a Consultant within the Department of Surgery. The Agreement was expressly stated to be subject to the terms and conditions set forth in the First and Second Schedule thereto together with the Letter of Acceptance and Letter of Appointment both dated the 1st November, 2006 which was expressly declared to have been incorporated into the Agreement. In accordance with the First Schedule to the Agreement, the applicant's term of engagement was expressed to be for a period of 3 years from the 1st day of November, 2006 until the 31st day of October, 2009;

• (“JE 2”) — Copy of a letter dated the 13th day of April, 2010 on behalf of the Director of Human Resources, Queen Elizabeth Hospital and addressed to the applicant giving notice of a new policy instituted by the respondent Board to ensure that Consultants were professionally registered and possessed adequate insurance coverage.

• (“JE 3”) — Copy of a letter dated the 13th day of May, 2010 from Attorney-at-Law, Mr. Alair Shepherd, QC, and addressed to the Chief Executive Officer of the Queen Elizabeth Hospital, outlining the concerns of the applicant regarding the renewal of his written contract with the respondent Board.

• (“JE 4”) — Copy of a letter dated 16th day of June, 2010 signed by the Director of Human Resources, Queen Elizabeth Hospital and addressed to the applicant informing Dr. Emtage that the Board of Management had recommended that the post of Consultant, General Surgery be advertised externally from Sunday June 20th, 2010.

• (“JE 5”) — An advertisement in the ‘Sunday Sun’ newspaper dated June 20, 2010, inviting applications for the positions of “Consultant, Surgery (Urology)” and “Consultant, Pathologist” at the Queen Elizabeth Hospital.

• (“JE 6”) — Copy of a letter dated June 24, 2010 from Ralph Thorne, QC, Attorney-at-Law for the applicant, addressed to the Chief Executive Officer of the Queen Elizabeth Hospital, referring to the letter dated the 16th of June, 2010 from the Director of Human Resources at the Queen Elizabeth Hospital. The letter requested the immediate withdrawal of the advertisement of the post of Consultant Urologist and “the long promised written contract” to Dr. Emtage failing which proceedings would be filed in the High Court for appropriate relief.

• (“JE 7”) — An article by Wade Gibbons in the ‘Daily Nation’ newspaper dated June 28, 2010, captioned “Time for Change, Not business as usual at QEH, says Senior Official” which had quoted “a very senior QEH official” who spoke to the newspaper on condition of anonymity about “the public advertising for a consultant urologist and pathologist”. The article quoted the official as having said that the hospital “had the right to renew or not renew those contracts” of persons who were “hired on three-year contracts.”

8 For the respondent Board: The Human Resources Director of the respondent Board, Mrs. Charmaine Napoleon-Ramsay, filed an...