Premier Blaine Higgs publicly fired Dr. John Dornan in July after a patient died while waiting in the emergency room waiting room
In his unjust dismissal case against the province, the former head of Horizon Health Network was given more than $2 million. He was fired publicly by the premier last summer after a patient died in a Fredericton emergency room waiting room.
The lawyers for Dr. John Dornan say it’s the largest worker’s compensation award in the province’s history and that it’s a fair amount for what their client lost.
It includes about $385,000 a year for the rest of his five-year contract and $200,000 in damages, which his lawyers say has never been done before under the Public Service Labour Relations Act.
In the decision the judge made Wednesday, no punitive damages or costs were given.
Dornan had only been president and CEO of Horizon for four months when Premier Blaine Higgs fired him at a news conference on July 15. This was part of a major change in the way New Brunswick’s health care is run.
Higgs said at the time, “We won’t get better health care if we don’t improve how our hospitals are run.”
Grievance is not just about money
Howard Levitt, Dornan’s lawyer in Toronto, said that Dornan’s problem wasn’t just about money.
In an interview, Levitt said, “What he wanted was to protect his reputation and clear his name.”
Levitt said that Dornan, who had been acting president and CEO of Horizon for about seven months, agreed to keep the job permanently to serve the public and improve health care in New Brunswick. In exchange, he took a pay cut.
He quit his jobs as regional chief of staff and specialist in internal medicine at the Saint John Regional Hospital.
“Then the government basically attacked his reputation for something he had nothing to do with,” Levitt said.
During the news conference, Higgs also removed Dorothy Shephard as health minister and from the boards of both Horizon and Vitalité. He said this was because of a growing health-care crisis, including the “traumatizing” death of a patient on July 12 in the waiting room of the emergency department at Dr. Everett Chalmers Regional Hospital.
Witness John Staples told CBC News that the senior man had been sitting alone in a wheelchair for hours, looking like he was in pain, before he seemed to fall asleep. He said that a hospital worker didn’t notice the man wasn’t breathing until he was checking on people in the waiting room.
Levitt said that Higgs’s comments “made it look as if John Dornan, who had nothing to do with what happened in those few hours in that hospital ward four months after he got the job permanently, was somehow to blame.”
“That’s what it seemed like, in any case.”
I think we now know, in very clear and direct terms, that problems in our health care system and in our emergency rooms are not isolated.– Kelly VanBuskirk, lawyer
Levitt says that judge George Filliter found that Dornan “had nothing to do with it at all.”
Kelly VanBuskirk, another of Dornan’s lawyers who is based in Saint John, said, “I think what we know now, in very clear and direct terms, is that problems in our health care system and in our emergency rooms are not isolated.”
“Those happen a lot more often than anyone had hoped, and they have happened again and again since Dr. Dornan left,” VanBuskirk told Levitt in an interview.
In 40 minutes, a 35-year reputation was ruined
Still, his lawyers say that a 40-minute news conference ruined Dornan’s reputation as an endocrinologist and internal medicine specialist who has been a doctor in New Brunswick for 35 years.
Dornan was then interviewed twice for a similar job in another province, but negotiations ended suddenly “because they heard from New Brunswick some negative comments about how he was fired,” Levitt said.
He said that’s why the judge did something that had never been done before: he gave both aggravated damages and a very high amount.
He “looked at all the facts and said [the province] really ruined [Dornan’s] reputation when he’s a guy who’s worked with complete honesty, acted in good faith, and was treated unfairly,” Levitt said.
When asked for a comment, Dornan did not respond right away.
The province is looking over the choices
The Premier’s Office has also been asked to comment by CBC.
Adam Bowie, a spokesman for the Department of Health, said, “The province is aware of the decision.”
In an email, he said, “We are looking into it and have nothing else to say.”
The province could ask the courts to review the decision, but Levitt doesn’t think that will happen.
He said, “The test for judicial review is to show that no reasonable judge could have made this decision.” “It’s a very difficult test.”
Verbal agreement overrides later contrac
After Dornan had already taken the job and started working, the province made him sign a contract that said he could be fired with one year’s pay. The judge decided that this couldn’t be done.
Levitt says that Dornan agreed to sign it because he had already quit his previous jobs and found replacements for himself.
He thought, “Well, geez, what am I going to do now?” Now that I have this job, I can’t go back to the ones I had before. “If I don’t sign this agreement, I won’t get anything.”
The government had said that Dornan had to follow it because he had signed it.
But the adjudicator said Dornan wasn’t asked to get independent legal advice, and the contract didn’t replace the verbal five-year agreement he already had because he got nothing in exchange for the harsh one-year termination clause.
The arbitrator made his decision after a hearing on December 20 and 21 in Saint John and written arguments that went on until February.
Dornan filed his grievance within 25 days of being fired, as the law that governs the relationship between the government of New Brunswick and government employees requires.
He pushed for stricter COVID rules, which led to his being fired
CBC News got a copy of an internal email that showed Dornan had pushed to move the province’s hospitals back to the “red phase” of COVID-19 measures just days before he was fired.
“A seventh COVID wave is upon us,” he wrote on July 11. Hospitalizations and staff outbreaks were on the rise.
According to an email, a Horizon infectious disease and infection protection control committee “recommended moving to the hospital red phase next week if numbers continue to get worse.”
Dornan wrote that officials “could make a decision together on Monday or Tuesday of next week” (July 18 or 19).
He was fired on July 15, and even though the numbers kept getting worse, the move to the red phase never happened.
Horizon and Vitalité said in a COVID update on July 19 that between July 10 and July 16, the number of COVID hospital admissions, active hospitalizations, hospital outbreaks, and staff infections went up.
In an internal memo that CBC got a hold of three days after his email and one day before he was fired, Dornan told Horizon staff to “consider setting an example” by wearing masks in public indoor spaces because COVID-19 transmission was “escalating.”
Since March 14, when all COVID-19 restrictions were lifted, people in New Brunswick no longer have to wear masks.
A spokesperson for the Department of Health told CBC on July 18 that Dornan’s firing had “nothing to do” with the July 14 memo.
When Dornan was named president and CEO last March, the health minister at the time, Shephard, said that he had “held a number of leadership, educational, and front-line positions.”
She said in a statement at the time that “his skills, abilities, and knowledge will make sure that the Horizon Health Network keeps giving residents high-quality health care.”