COURT FILE NO.: 75/06
DATE: 2006-10-30
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LANE, CHAPNIK and G. P. SMITH JJ.
B E T W E E N:
T.F.
Appellant
Joseph J. Colangelo for the Appellant
- and -
Jeffrey S. Leon for the Chiropractic Review Committee of the College
GENERAL MANAGER OF THE ONTARIO HEALTH INSURANCE PLAN AND THE CHIROPRACTIC REVIEW COMMITTEE OF THE COLLEGE OF CHIROPRACTORS OF ONTARIO
Lise G. Favreau for the General Manager of O.H.I.P.
Respondents
HEARD: October 23, 2006
Reasons For Judgment
[1] This is an appeal of the decision of the Health Services Appeal and Review Board (“HSARB”) dated January 26, 2006 in which the HSARB decided that it did not have jurisdiction to deal with some of the grounds of appeal raised by the Appellant in his appeal to the HSARB from the decision of the Chiropractic Review Committee (“the CRC”). In its decision, on the preliminary issue, HSARB struck out certain paragraphs of T.F.’s Grounds of Appeal and of the submissions filed by T.F. A hearing on the merits before HSARB has not yet been held.
[2] The respondents take the position that this appeal is premature. Argument was restricted to this sole issue and our reasons for judgment address the issue of prematurity only.
Legislative Framework
[3] The Respondent, the General Manager of the Ontario Health Insurance Plan (“OHIP”) is responsible for the administration of the public health care plan of the province of Ontario. Part of its function includes the audit of the billings of health care practitioners, including chiropractors. At the time of the facts giving rise to this matter, certain chiropractic services rendered by T.F. were paid for by OHIP.
[4] The major chiropractic services billable to OHIP are defined in the Regulations made pursuant to the Health Insurance Act (“HIA” or “the Act”) as “initial service” and “subsequent service”. The nature of the treatment or service is a matter of professional judgment.
[5] The Respondent CRC is the administrative delegate of the Respondent OHIP. The Respondent, OHIP, refers to the Respondent, CRC, the billings of practitioners which OHIP questions.
[6] The Respondent CRC makes a decision as to the correctness of the billings. This decision is enforced by OHIP who insists upon immediate repayment of any incorrect billings notwithstanding any appeal taken by the practitioner to the HSARB.
Factual Background
[7] The Appellant, T.F. is a chiropractor. During October 1, 1998 to September, 30, 2000, T.F. submitted claims to OHIP and was paid for chiropractic services that he claims to have properly rendered.
[8] The General Manager of OHIP subsequently referred T.F.’s billings to the CRC for review.
[9] After completing its investigation and deliberations, the CRC determined that there were reasonable grounds to believe that certain services billed by T.F. were not rendered, were not therapeutically necessary, were misrepresented, or were not provided in accordance with the accepted professional standards and practices.
[10] In accordance with the provisions of the Health Insurance Act, the CRC issued a Direction to the General Manager of OHIP directing the General Manager to seek repayment in respect of certain services performed by T.F. between October 1, 1998 and September 30, 2000 (the “Final Direction”).
[11] Pursuant to the terms of the Final Direction, the CRC directed the General Manager of O.H.I.P. to require T.F. to repay particular amounts to the Plan encompassing the time period October 1, 1998 to September 30, 2000.
[12] T.F. appealed the Final Direction of the CRC. In his appeal documents T.F. sought to impugn the Final Direction of the CRC by alleging that the CRC acted improperly in the manner in which it investigated and arrived at its decision about his billings. In particular, T.F.’s Grounds of Appeal included numerous allegations that relate to, inter alia: the alleged absence of natural justice and procedural fairness during the CRC review process.
[13] The CRC moved to strike the paragraphs of T.F.’s Grounds of Appeal and Addendum to Form 1 concerning the procedure followed by the CRC.
[14] HSARB released its decision on January 26, 2006, allowing the CRC’s motion and striking certain paragraphs of T.F.’s Grounds of Appeal.
The Court’s Jurisdiction
[15] This Court’s powers on appeal are broad.
[16] Section 24(1) of the Health Insurance Act states that “[a]ny party to the proceedings before the Appeal Board under this Act may appeal from its decision or order to the Divisional Court in accordance with the rules of court.”
[17] Section 24(4) provides:
24 (4) An appeal under this section may be made on questions of law or fact or both and the court may affirm or may rescind the decision of the Appeal Board and may exercise all powers of the Appeal Board to direct the General Manager to take any action which for such purposes.
Discussion
[18] CRC submits that the HSARB’s decision of January 26, 2006 does not constitute a “decision” or “order” within the meaning of s. 24(1) of the HIA and that the language of s. 24 suggests that the legislature contemplated an appeal from a final decision of HSARB finally disposing of the matter and does not allow appeals from interlocutory or procedural decisions.
[19] In Howe v. Institute of Chartered Accountants of Ontario[^1], the Ontario Court of Appeal held that prematurity was a basis for the Divisional Court to decline an application for judicial review. In that case the court stated:
In short, I agree with the Divisional Court that this application is premature. I think it is trite law that the court will only interfere with a preliminary ruling made by an administrative tribunal where the tribunal never had jurisdiction or has irretrievably lost it: see Gage v. Ontario (Attorney General) (1992), 1992 8517 (ON SCDC), 90 D.L.R. (4th) 537 (Ont. Div. Ct.), and Roosma v. Ford Motor Co. of Canada Ltd. (1988), 1988 5633 (ON SCDC), 66 O.R. (2d) 18, 53 D.L.R. (4th) 90 (Div. Ct.).
[20] In Sears Canada Inc. v. Davis Inquest (Coroner of) (1997),[^2] the Coroner had ordered certain restrictions against the applicant prior to the commencement of the proceedings, in order to maintain public confidence. The Divisional Court dismissed the application for judicial review as premature stating per Adams J. that: “…this court has repeatedly said that it will not intervene during the course of proceedings of an inferior tribunal except in exceptional circumstances…” The rationale for this approach is based on the premise that the work of these important bodies would otherwise become irreparably fragmented and delayed with both single and multiple trips “up the judicial ladder.”…. The exception to this procedural deference appears to be where an application for judicial review raises serious concerns, which, if they materialized, would likely result in a fundamental failing of justice.
[21] There has long been a policy that administrative proceedings should not be fragmented. In Ontario College of Art et al v. Ontario Human Rights Commission[^3] Callaghan C.J.O.C. stated:
For some time now the Divisional Court has, as I have indicated, taken the position that it should not fragment proceedings before administrative tribunals. Fragmentation causes both delay and distracting interruptions in administrative proceeding. It is preferable, therefore, to allow such matters to run their full course before the tribunal and then consider all legal issues arising from the proceedings at their conclusion.
[22] The Appellant has argued that this matter should be decided now by this Court; otherwise, there will not be a complete record in the event that there is judicial review of the HSARB appeal decisions.
[23] The issue on this appeal relates to a prehearing motion on a procedural matter. The hearing before the Board will be a de novo hearing in which the Appellant may well be successful, even without the impugned materials which have been struck. If not, it will be open to him to appeal/seek judicial review of the disposition before the Board, including its rulings.
Disposition
[24] We agree with the position of the Respondents that this matter is premature.
[25] For the reasons set out above this appeal is dismissed without prejudice to the appellant bringing further proceedings with respect to this issue after the matter has been dealt with on the merits.
Lane J.
Chapnik J.
G. P. Smith J.
Released: October 30, 2006
COURT FILE NO.: 75/06
DATE: 2006-10-30
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LANE, CHAPNIK and G. P. SMITH JJ.
B E T W E E N:
T.F.
Appellant
- and -
GENERAL MANAGER OF THE ONTARIO HEALTH INSURANCE PLAN AND THE CHIROPRACTIC REVIEW COMMITTEE OF THE COLLEGE OF CHIROPRACTORS OF ONTARIO
Respondents
REASONS FOR JUDGMENT
BY THE COURT
Released: October 30, 2006
[^1]: Howe v. Institute of Chartered Accountants of Ontario, (1994), 1994 3360 (ON CA), 19 O.R. (3d) 483. [^2]: Davis Inquest (Coroner of) (1997), 102 O.A.C. 60. [^3]: Ontario College of Art et al v. Ontario Human Rights Commission, 1993 3430 (ON SCDC), 11 O.R. (3d) 798.