Fired Horizon CEO awarded record-breaking $2M in unjust dismissal case against province

The former head of Horizon Health Network has been awarded more than $2 million in his unjust dismissal case against the province after he was publicly fired by the premier last summer following the death of a patient in a Fredericton emergency department waiting room.

Dr. John Dornan's lawyers say it's the largest employment compensation award in the province's history and accurately reflects the losses suffered by their client.

It includes about $385,000 a year for the balance of his five-year contract, plus $200,000 in aggravated damages, which is unprecedented under the Public Service Labour Relations Act, according to his lawyers.

No punitive damages or costs were awarded in the decision the adjudicator issued Wednesday.

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

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

Grievance not just about money

Dornan's grievance wasn't just about the money, said his Toronto-based lawyer Howard Levitt.

"What he was interested in … was reputation protection and vindication," Levitt said in an interview.

Dornan, who had served as interim Horizon president and CEO for about seven months, agreed to take on the role permanently to serve the public and to advance health care in New Brunswick — and took a pay cut to do so, Levitt said.

He gave up his previous position as regional chief of staff for Horizon in Saint John and his endocrinology practice.

"And then he had his reputation essentially assailed by the government for something he had nothing to do with," Levitt  said.

During the news conference, when Higgs also dropped Dorothy Shephard as health minister and removed the boards of both Horizon and Vitalité, he 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.

Witness John Staples told CBC News the man, a senior, had been waiting alone in a wheelchair, in visible discomfort, for hours when he appeared to fall asleep. It was only during a routine check of people in the waiting room that a hospital employee realized the man had stopped breathing, he said.

Levitt alleged that Higgs's comments made "it look as if somehow, John Dornan, who of course had nothing to do with what happened in those few hours in that hospital ward, four months after taking the job permanently, was somehow responsible.

"That was the impression given, in any event."

I think what we now know, in very explicit, clear terms, is that problems in our health-care system, and problems in our emergency rooms, are not isolated.- Kelly VanBuskirk, lawyer

Adjudicator George Filliter found Dornan "had nothing to do with it at all," according to Levitt.

"I think what we now know, in very explicit, clear terms, is that problems in our health-care system, and problems in our emergency rooms, are not isolated," said Dornan's other lawyer, Saint John-based Kelly VanBuskirk.

"Those are unfortunately much more frequent than anyone had hoped, and certainly have been repeated since Dr. Dornan's departure," VanBuskirk said when interviewed with Levitt.

35-year reputation ruined within 40 minutes

Still, in the span of a 40-minute news conference, the reputation of Dornan, an endocrinologist and internal medicine specialist, who has practised medicine in New Brunswick for 35 years, was ruined, his lawyers argue.

In the aftermath, Dornan was interviewed twice for a similar job in another province, but negotiations suddenly ended "because they heard from New Brunswick some negative commentary about the circumstances of his termination," Levitt said.

That's why the adjudicator took the unprecedented step of not only awarding aggravated damages, but such a high amount, he said.

He "looked at all the facts and said [the province] really muddied [Dornan's] reputation when he's a guy who's operated with pure integrity, and was untouched in cross-examination of the case, acted in good faith, and was badly treated," Levitt said.

Dornan did not immediately respond to a request for comment.

Province is reviewing the decision

Premier Blaine Higgs told reporters Thursday he is awaiting legal advice on the ruling, but stands by decisions he made at the time, pointing to what he described as improvements in the health-care system.

The province is "aware of the decision," said Department of Health spokesperson Adam Bowie.

"We are reviewing it and have no other comment," he said in an emailed statement.

The province could seek a judicial review of the decision, but Levitt contends it's unlikely.

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

Verbal agreement overrides later contract

The province had Dornan sign a contract after he had already accepted the job and started working that stipulated he could be terminated with one year's pay. The adjudicator found this was unenforceable.

Dornan agreed to sign it, according to Levitt, because he had already given up his previous positions and arranged replacements for himself.

"And he thought, 'Well, geez, what am I going to do now? I've taken this job, I can't go back to my old jobs. If I don't sign this contract, I'll have nothing.'"

The government had argued if Dornan signed it, he was bound by it.

But the adjudicator found Dornan wasn't asked to get independent legal advice, and the contract didn't override the verbal five-year agreement he already had since he received nothing in return for the punitive one-year termination provision.

The arbitrator reached his decision following a Saint John hearing held Dec. 20-21 and written arguments that extended into February.

Dornan filed his grievance within 25 days of termination, as required under the act that governs relationships between the New Brunswick government and government employees.

Pushed for tighter COVID rules leading up to firing

Just days before his ouster, Dornan had pushed to move the province's hospitals back to the "red phase" of COVID-19 measures, an internal email obtained by CBC News revealed.

"A seventh COVID wave is amongst us," with hospitalizations and staff outbreaks increasing, he wrote on July 11.

A Horizon infectious disease and infection protection control committee was "recommending moving to Hospital Red phase next week if numbers continue to deteriorate," according to the email.

Dornan wrote that officials "could make that call collectively on Monday or Tuesday next week," referring to July 18 and 19.

He was fired on July 15, and the move to the red phase never happened, even though the numbers did continue to deteriorate.

In a COVID update July 19, Horizon and Vitalité reported an increase in COVID hospital admissions, active hospitalizations, hospital outbreaks and staff infections between July 10 and July 16.

Three days after his email, and one day before his firing, Dornan encouraged Horizon staff to "consider showing an example" by masking in indoor public spaces because of "escalating" COVID-19 transmission, an internal memo obtained by CBC said.

Masking has not been required in New Brunswick since March 14, when all COVID-19 restrictions were lifted.

Dornan's firing was "not related" to the July 14 memo, a Department of Health spokesperson told CBC on July 18.

When Dornan was appointed president and CEO last March, then-health minister Shephard noted he had held "several positions in leadership, educational and front-line activities."

"His skills, abilities and competencies will ensure the Horizon Health Network will continue to deliver high-quality health-care services to residents," she said in a statement at the time.