COURT FILE NO.: 308/05

DATE: 20060526

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

FERRIER, EPSTEIN AND SWINTON JJ.

B E T W E E N:

DR. YOEL ABELLS, DR. CHRISTINA FISHER, DR. RICHARD HANDFIELD-JONES, DR. ROBERT KINGSTONE, DR. SHELDON KINGSTONE and DR. DAVID SATOK

Applicants

• and -

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO as represented by THE MINISTRY OF HEALTH AND LONG-TERM CARE

Respondent

Elyse Sunshine, for the Applicants

Lise G. Favreau, for the Respondent

HEARD: May 26, 2006

ferrier J.: (Orally)

1The applicants seek an order quashing the decision of the General Manager of the Ontario Health Insurance Progam not to pay their accounts submitted for the payment of medical services rendered in 2002. There is no dispute between the parties that the accounts were submitted more than six months after the services were rendered and were therefore submitted beyond the time prescribed by the Health Insurance Act, R.S.O. 1990, c.H.6 and the regulations made thereunder.

2The only dispute between the parties is whether it is appropriate for this Court to interfere with the General Manager’s discretionary decision not to pay the applicants’ late accounts as she determined there were no extenuating circumstances warranting such a late payment.

3The Health Insurance Act explicitly precludes the General Manager from paying accounts for insured services that are not submitted within the prescribed time, that is, six months as specified in Ontario Regulation 22/02, s.2. However, the Act does give the General Manager the discretion to pay for claims that are not submitted within the time prescribed by the Regulation “if there are extenuating circumstances”.

4The General Manager found that there were no extenuating circumstances warranting late payment of the OHIP claims as there were not circumstances beyond the control of the physicians. She did not consider administrative or operational errors to be extenuating circumstances.

5The applicants submit that the accounts were not submitted within the required six month period due to the omission, negligence, incompetence or illness of a senior member of their staff. It is nevertheless agreed that the physicians remain ultimately responsible for submitting claims within the required time period.

6The applicants also submit that the circumstances were unusual or extraordinary events, a definition of extenuating circumstances taken from Black’s Law Dictionary, 6th ed. at p.584 and that in interpreting the statute the ordinary meaning must be given to the words of the statute.

7The first question is the standard of review. The four elements of the pragmatic and functional approach set out in Pushpanathan v. Canada (Minister of Citizenship and Immigration) (1998), 1998 778 (SCC), 160 D.L.R. (4th) 193 (S.C.C.), governs our determination of the standard of review. Given,

(i) the absence of a privative clause or right of appeal;

(ii) the relative expertise of the General Manager who, pursuant to s.18(1) of the Health Insurance Act is charged with determining all issues relating to accounts for insured services and making payments from the plan;

(iii) the purpose of the legislation, namely to balance the interests of various stakeholders within the health care system; and

(iv) the nature of the issue decided, being whether the General Manager should exercise her discretion to pay the applicant’s late accounts.

8We conclude that the standard of review is reasonableness.

9Thus, the central issue on this application for judicial review is the reasonableness of the decision of the General Manager’s Review Committee, dated August 24, 2004.

10In the letter of November 10, 2003, requesting payment, the applicants informed the Ministry that their office manager was terminated because of concerns regarding her performance and the delay was due to circumstances beyond their control. The Service Manager denied the request in a letter dated November 25, 2003, stating that “the burden of extenuating circumstances, such as catastrophic events, has not been meet (sic).”

11In a letter of December 5, 2003, requesting an appeal, reliance was placed again on the applicant’s November 10, 2003 letter. The Review Committee held that “administrative and operational errors in the provider’s office are not considered extenuating circumstances.”

12The decision of the Review Committee was not unreasonable given the information before it. The decision of the Service Manager had made a distinction between catastrophic circumstances and administrative or operational errors. The Review Committee appears to apply the same distinction. It is not an unreasonable interpretation of extenuating circumstances to draw a distinction between circumstances beyond a physician’s control and those within a physician’s control such as staff supervision.

13On the information provided to it, the Review Committee reasonably concluded that the officer manager’s errors or incompetence are, in effect, operational and administrative errors and are within the physician’s control.

14Therefore, the application for judicial review is dismissed.

15Costs are fixed at $5,000.

FERRIER J.

EPSTEIN J.

SWINTON J.

Date of Reasons for Judgment: May 26, 2006

Date of Release:

COURT FILE NO.: 308/05

DATE: 20060526

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT