C.C.-W. (by his Litigation Guardian, M.W.) v. The General Manager, Ontario Health Insurance Plan

J.F.-T. v. The General Manager, Ontario Health Insurance Plan

The Estate of Mailloux, Deceased v. The General Manager, Ontario Health Insurance Plan

[Indexed as: C.-W. (C.) v. Ontario Health Insurance Plan (General Manager)]

95 O.R. (3d) 48

Ontario Superior Court of Justice,

Divisional Court,

Lederman, Swinton and Baltman JJ.

January 12, 2009

Insurance -- Health insurance -- Treatment outside Canada -- Health Insurance Act and regulations not expressly conferring discretion on General Manager of Ontario Health Insurance Plan to give retroactive prior approval of out-of-country medical treatment -- Authority to give retroactive prior approval in urgent circumstances implied by common-law doctrine of necessary implication -- Requirement of prior approval not constituting denial of right to life or security of person under s. 7 of Charter -- Requirement for prior approval not violating s. 15 of Charter -- Canadian Charter of Rights and Freedoms, ss. 7, 15.

The three appellants were denied payment for medical treatment outside Canada on the basis that they did not receive prior written approval by the General Manager of the Ontario Health Insurance Plan before services were rendered. The Health Services Appeal and Review Board affirmed those decisions. The appellants appealed.

Held, two of the three appeals should be allowed.

The decisions of the Board interpreting and applying the Health Insurance Act, R.S.O. 1990, c. H.6 and regulations under that Act were subject to review on a standard of reasonableness. The Board reasonably -- indeed, correctly -- determined that neither the Act nor the regulations expressly confer discretion on the General Manager to give retroactive prior approval. However, the decision of the Board that the authority to give retroactive prior approval in urgent circumstances could not be implied by the common-law doctrine of necessary implication was not reasonable. There is a practical necessity that the Ministry be able to provide retroactive approval in urgent cases where prior approval cannot be obtained. The appellants were not entitled to reimbursement because of the doctrine of legitimate expectations. That doctrine forms part of procedural fairness. The requirement for prior approval is not procedural in nature. Moreover, the doctrine of legitimate expectations cannot abrogate a clear statutory or regulatory requirement. The doctrine of promissory estoppel also had no application as the appellants had not adduced evidence of a general practice by the General Manager to grant retroactive prior approval, nor shown that any promise was made to them, or that they relied on such practice. Moreover, there can be no estoppel in the face of an express statutory provision. The requirement of prior approval is not a limitation period, so the Board did not unlawfully apply a limitation period against a minor in the case of two of the appellants. The requirement of prior approval is not a denial of the right to life or to security of the person under s. 7 of the Canadian Charter of Rights and Freedoms. The appellants failed to show that there was any differential treatment based on the enumerated grounds of age and disability for the purposes of s. 15 of the Charter.

The circumstances of one of the appellant did not engage the implied power of the General Manager to grant retroactive prior approval as the evidence did not show that there were urgent circumstances that prevented her parents from obtaining prior approval. The other two cases should be referred back to the Board for reconsideration.

APPEALS from decisions of the Health Services Appeal and Review Board.

Cases referred to Flora v. Ontario (Health Insurance Plan, General Manager), [2008] O.J. No. 2627, 2008 ONCA 538, 175 C.R.R. (2d) 19, 76 Admin. L.R. (4th) 132, 238 O.A.C. 319, 295 D.L.R. (4th) 309, 168 A.C.W.S. (3d) 227, consd Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791, [2005] S.C.J. No. 33, 2005 SCC 35, 254 D.L.R. (4th) 577, 335 N.R. 25, J.E. 2005-1144, 130 C.R.R. (2d) 99, 139 A.C.W.S. (3d) 1080; R. v. Morgentaler, 1988 90 (SCC), [1988] 1 S.C.R. 30, [1988] S.C.J. No. 1, 44 D.L.R. (4th) 385, 82 N.R. 1, J.E. 88-220, 26 O.A.C. 1, 37 C.C.C. (3d) 449, 62 C.R. (3d) 1, 31 C.R.R. 1, 3 W.C.B. (2d) 332, distd Other cases referred to ATCO Gas & Pipelines Ltd. v. Alberta (Energy & Utilities Board), [2006] 1 S.C.R. 140, [2006] S.C.J. No. 4, 2006 SCC 4, 263 D.L.R. (4th) 193, 344 N.R. 293, [2006] 5 W.W.R. 1, J.E. 2006-358, 54 Alta. L.R. (4th) 1, 380 A.R. 1, 39 Admin. L.R. (4th) 159, 145 A.C.W.S. (3d) 725, EYB 2006-100901; Baker v. Canada (Minister of Citizenship and Immigration) 1999 699 (SCC), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39, 174 D.L.R. (4th) 193, 243 N.R. 22, J.E. 99-1412, REJB 1999-13279, 14 Admin. L.R. (3d) 173, 1 Imm. L.R. (3d) 1, 89 A.C.W.S. (3d) 777; Canada (Attorney General) v. Hislop, [2007] 1 S.C.R. 429, [2007] S.C.J. No. 10, 2007 SCC 10, 278 D.L.R. (4th) 385, 358 N.R. 197, J.E. 2007-477, 222 O.A.C. 324, 153 C.R.R. (2d) 173, 37 R.F.L. (6th) 1, 154 A.C.W.S. (3d) 362, EYB 2007-115536; Canada (Minister of Employment and Immigration) v. Lidder, 1992 14712 (FCA), [1992] F.C.J. No. 212, [1992] 2 F.C. 621, 136 N.R. 254, 6 Admin. L.R. (2d) 62, 16 Imm. L.R. (2d) 241, 32 A.C.W.S. (3d) 458 (C.A.); dela Fuente v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. 774, 2006 FCA 186, [2007] 1 F.C.R. 387, 270 D.L.R. (4th) 681, 350 N.R. 362, 53 Imm. L.R. (3d) 171, 148 A.C.W.S. (3d) 785; Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9, 2008 SCC 9, 329 N.B.R. (2d) 1, 64 C.C.E.L. (3d) 1, 164 A.C.W.S. (3d) 727, EYB 2008-130674, J.E. 2008-547, [2008] CLLC Â220-020, 170 L.A.C. (4th) 1, 372 N.R. 1, 69 Imm. L.R. (3d) 1, 291 D.L.R. (4th) 577, 69 Admin. L.R. (4th) 1, 95 L.C.R. 65; Giacomelli v. Canada (Attorney General) (2008), 90 O.R. (3d) 669, [2008] O.J. No. 1687, 2008 ONCA 346, 292 D.L.R. (4th) 379, 171 C.R.R. (2d) 183, 165 A.C.W.S. (3d) 834, 236 O.A.C. 212; Mount Sinai Hospital Center v. Quebec (Minister of Health and Social Services), [2001] 2 S.C.R. 281, [2001] S.C.J. No. 43, 2001 SCC 41, 200 D.L.R. (4th) 193, 271 N.R. 104, J.E. 2001-1280, 36 Admin. L.R. (3d) 71, 106 A.C.W.S. (3d) 182; Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), [2001] 2 S.C.R. 781, [2001] S.C.J. No. 17, 2001 SCC 52, 204 D.L.R. (4th) 33, 274 N.R. 116, [2001] 10 W.W.R. 1, 155 B.C.A.C. 193, 93 B.C.L.R. (3d) 1, 34 Admin. L.R. (3d) 1, 108 A.C.W.S. (3d) 3; R. v. Kapp, [2008] S.C.J. No. 42, 2008 SCC 41, 175 C.R.R. (2d) 185, EYB 2008-135098, J.E. 2008-1323, [2008] 8 W.W.R. 1, 294 D.L.R. (4th) 1, 232 C.C.C. (3d) 349, [2008] 3 C.N.L.R. 347, 376 N.R. 1, 256 B.C.A.C. 75, 78 W.C.B. (2d) 343, 37 C.E.L.R. (3d) 1, 58 C.R. (6th) 1; R. v. Rodgers, [2006] 1 S.C.R. 554, [2006] S.C.J. No. 15, 2006 SCC 15, 266 D.L.R. (4th) 101, J.E. 2006-910, 210 O.A.C. 200, 207 C.C.C. (3d) 225, 37 C.R. (6th) 1, 140 C.R.R. (2d) 1; Reference re Canada Assistance Plan (B.C.), 1991 74 (SCC), [1991] 2 S.C.R. 525, [1991] S.C.J. No. 60, 83 D.L.R. (4th) 297, 127 N.R. 161, [1991] 6 W.W.R. 1, J.E. 91-1267, 1 B.C.A.C. 241, 58 B.C.L.R. (2d) 1, 1 Admin. L.R. (2d) 1, 28 A.C.W.S. (3d) 652; Reference Re Manitoba Language Rights, 1985 33 (SCC), [1985] 1 S.C.R. 721, [1985] S.C.J. No. 36, 19 D.L.R. (4th) 1, 59 N.R. 321, [1985] 4 W.W.R. 385, J.E. 85-603, 35 Man. R. (2d) 83, 31 A.C.W.S. (2d) 299; Ruggiero Estate v. Ontario (Health Insurance Plan, General Manager) (2005), 2005 36175 (ON SCDC), 78 O.R. (3d) 28, [2005] O.J. No. 4276, 142 A.C.W.S. (3d) 1038 (Div. Ct.); Wynberg v. Ontario (2006), 2006 22919 (ON CA), 82 O.R. (3d) 561, [2006] O.J. No. 2732, 269 D.L.R. (4th) 435, 213 O.A.C. 48, 40 C.C.L.T. (3d) 176, 142 C.R.R. (2d) 311, 149 A.C.W.S. (3d) 791 (C.A.) Statutes referred to Canadian Charter of Rights and Freedoms, ss. 7, 15, (1) Health Insurance Act, R.S.O. 1990, c. H.6, ss. 1, 10, 11.2, 12(1), 17(3), 17.1 [as am.], 17.2 [as am.], 18 [as am.], (1) [as am.], (2) [as am.], (4) [as am.], 24(1), (4) Interpretation Act, R.S.O. 1990, c. I.11, s. 28(h) [rep.] Legislation Act, 2006, S.O. 2006, c. 21, Sch. F, s. 89 Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, ss. 1, 4 Rules and regulations referred to R.R.O. 1990, Reg. 552, ss. 28.4 [as am.], (2) [as am.], (a) [as am.], (b)(ii) [as am.], (4) [as am.], (5) [as am.], 28.6, 38.4 [as am.] Submission of Accounts, O. Reg. 22/02, ss. 2, (2), 3 Authorities referred to Mew, Graeme, The Law of Limitations, 2nd ed. (Markham, Ont.: Butterworths, 2004) Sullivan, Ruth, and Elmer Driedger, Sullivan and Driedger on the Construction of Statutes, 4th ed. (Toronto: Butterworths, 2002)

David Baker and Nicole Chrolavicius, for appellant s C.C.-W. and J.F.-T. Lise G. Favreau and Matthew Horner, for respondent. Myron W. Shulgan, Q.C., for appellant Estates of Linda Mailloux.

The judgment of the court was delivered by

SWINTON J.: --

Overview

1These reasons deal with three appeals from decisions of the Health Services Appeal and Review Board (the "Board") denying each appellant's application for payment for the costs of medical treatment provided outside Canada. At issue is the interpretation of the provisions of the Health Insurance Act, R.S.O. 1990, c. H.6 (the "Act") and regulations under that Act, as well as the constitutionality of the regulatory provision requiring prior written approval for payment of medical expenses provided outside Canada when the services cannot be obtained in Ontario or where travel out of Canada for services is required on an urgent basis.

The Statutory Framework

2The Act and the regulations made under it constitute a comprehensive legislative and regulatory scheme setting out the circumstances in which health care is to be paid for out of the Ontario Health Insurance Plan (the "Plan"). The purpose of the Plan, as set out in s. 10 of the Act, is to provide "insurance against the costs of insured services on a non-profit basis on uniform terms and conditions available to all residents of Ontario".

3Subsection 12(1) of the Act sets out the entitlement to payment for health care services, stating:

12(1) Every insured person is entitled to payment to himself or herself or on his or her behalf for, or to be otherwise provided with, insured services in the amounts and subject to such conditions and co-payments, if any, as prescribed. "Prescribed" is defined in s. 1 as "prescribed by the regulations" -- that is, the regulations under the Act.

4"Insured services" are defined as services determined under s. 11.2 to be insured services. Subsection 11.2(1) states:

11.2(1) The following services are insured services for purposes of the Act:

1. Prescribed services of hospitals and health facilities rendered under such conditions and limitations as may be prescribed.
2. Prescribed medically necessary services rendered by physicians under such conditions and limitations as may be prescribed.
3. Prescribed health care services rendered by prescribed practitioners under such conditions and limitations as may be prescribed.

5Subsection 18(1) of the Act charges the General Manager with the responsibility of determining all issues relating to the payment of insured services and requires the General Manager to "make payments from the Plan that are authorized by the Act".

6For the most part, services insured under the Act are provided in Ontario. However, R.R.O. 1990, Reg. 552 provides for payment of services obtained outside Canada in specified circumstances and when certain conditions are met. This regulation provides for payment in two general circumstances: first, when insured services are needed on an urgent basis for a person at the time the person is outside the country and second, when insured services cannot be obtained in Ontario.

7The services at issue in these three appeals all fall into this second category. Subsection 28.4(2) of Regulation 552 prescribes services rendered outside Canada as "insured services" as follows:

28.4(2) Services that are part of a treatment and that are rendered outside Canada at a hospital or health facility are prescribed as insured services if, (a) the treatment is generally accepted in Ontario as appropriate for a person in the same medical circumstances as the insured person; and (b) either, (i) that kind of treatment is not performed in Ontario by an identical or equivalent procedure, or (ii) that kind of treatment is performed in Ontario but it is necessary that the insured person travel out of Canada to avoid a delay that would result in death or medically significant irreversible tissue damage.

8For out-of-country services that qualify as insured services pursuant to s. 28.4(2), s. 28.4(5) sets out conditions of payment as follows:

28.4(5) The following are conditions of payment of amounts for services prescribed in this section:

1. An application for approval of payment must be submitted to the General Manager by a physician who practices medicine in Ontario on behalf of the insured person and the application must contain a written confirmation from that physician that, in the opinion of the physician, one of the conditions set out in clause 28.4(2)(b) is satisfied.
2. The General Manager must have given written approval of the payment of the amount under this section before the services for which approval has been sought are rendered.
3. The services must be received within the time limit set out in the approval described in paragraph 2.
4. If the services are covered by a preferred provider arrangement, they must be received from a preferred provider. Section 28.6 contains further conditions of payment for in-patient services in the form of requirements for written documentation.

9Subsection 28.4(4) limits the amount payable for out-of-country payment to

. . . the usual and customary amount charged by similar facilities under similar circumstances to major insurers for services provided, to persons they insure, in facilities located in the jurisdiction where insured services are provided.

10Ontario Reg. 22/02 provides time limits for the submission of accounts in respect of insured services rendered on or after January 1, 2002. Paragraph 1 of s. 2 imposes a time limit for submitting accounts for insured services rendered in Ontario of six months after the services are rendered. With respect to insured services rendered outside Ontario, para. 2 of s. 2 specifies a 12-month period, running from the date of discharge for in-patient services and, in all other cases, running from the date of service. Section 3 contains an exception:

3. Paragraph 2 of section 2 does not apply to services rendered outside Ontario that are approved by the General Manager before the service is rendered.

11Section 18 of the Act deals with the General Manager's authority to pay accounts. Subsection 18(3) confers a discretion to pay accounts in extenuating circumstances, despite non-compliance with prescribed requirements. It states:

18(3) The General Manager shall refuse to pay for an insured service if the account for the service is not prepared in the required form, does not meet the prescribed requirements or is not submitted to him or her within the prescribed time. However, the General Manager may pay for the service if there are extenuating circumstances.

The Background Facts

F.-T. (J.)'s appeal

12F.-T. (J.) was born in 1987. By the age of 13, she had developed an eating disorder and had begun to abuse alcohol and drugs. By late 2001, she had attempted suicide on two occasions. Her medical professionals agreed that she required urgent residential treatment, and such treatment for an adolescent with mental health and addiction problems was not available in Ontario.

13On January 27, 2002, F.-T. (J.) began treatment at a residential treatment centre in Utah, the New Haven Residential Treatment Center. The facility had been recommended by her family physician, Dr. zon Gross. The physician did not raise the issue of Plan funding with the family.

14F.-T. (J.) returned to Toronto on August 12, 2002. Because her condition worsened, she went to Second Nature Wilderness Program in Utah on December 6, 2002, on the recommendation of her psychiatrist Dr. Weir. By the time she was admitted to this program, her mother had learned about the potential availability of Plan funding for out-of-country services.

15F.-T. (J.) finished Second Nature on February 13, 2003 and went on to a private boarding school in Montana. She returned to the program at Second Nature on April 9, 2003, after she had run away from the boarding school. On June 3, 2003, she was transferred to long-term residential treatment at the Legacy Residential Treatment Center, again in Utah. She remained there until July 23, 2004.

16On July 14, 2004, three applications were submitted to the Plan on F.-T. (J.)'s behalf, seeking reimbursement for the treatment she had received in Utah, including the ongoing treatment at Legacy. The applications were made on the standard form "Prior Approval Application for Full Payment to Insured Out-of-Country Health Services". The application with respect to New Haven was signed by Dr. zon Gross on March 29, 2004, while the applications for Second Nature and Legacy were signed by Dr. Weir on April 12, 2004. All three applications were signed by F.-T. (J.)'s mother on July 10, 2004.

17On August 9, 2004, the Ministry of Health and Long-Term Care (the "Ministry") denied payment. The applications for New Haven and Second Nature were denied on the basis that they were barred by the 12-month period for the submission of accounts in O. Reg. 22/02. The application in respect of Legacy was denied on the basis that Dr. Weir was not in a position to determine F.-T. (J.)'s treatment needs at the time she was admitted to Legacy.

18F.-T. (J.) appealed to the Board on January 10, 2005. In a decision dated April 7, 2006, the Board dismissed the appeal. It held that there were four courses of treatment at issue in the appeal. While the services were "insured services" within s. 28.4(2) of Regulation 552, F.-T. (J.) had failed to meet the conditions for payment in s. 28.4(5), as she had not received prior written approval before services were rendered in the United States and the services had not been obtained within the time set out in a prior written approval.

19The Board rejected the submission of F.-T. (J.)'s counsel that the General Manager has a discretion to grant retroactive prior approval for payment for out-of-country treatment. Counsel had relied on O. Reg. 22/02 and s. 18(4) of the Act. The Board held that the regulation did not apply, while s. 18(4) of the Act dealt with situations relating to the payment of accounts, and did not deal with the situation before it, namely, where an application for approval of payment had not been made according to prescribed conditions (reasons, p. 44).

20In the alternative, if the General Manager had discretion to pay accounts despite the lack of prior approval, the Board held that the accounts for New Haven and Second Nature were not submitted with the 12-month period after F.-T. (J.)'s discharge from the facilities. Therefore, they did not meet the time prescribed by O. Reg. 22/02, s. 2(2)1.

21Even if the General Manager had discretion under s. 18(4) of the Act to waive the time requirements, the Board considered that there were no extenuating circumstances that justified waiver. F.-T. (J.)'s mother knew of the possibility of applying for out-of-country coverage from the Plan by November 2002, and the Board found that there was inadequate evidence to explain the delay in submitting the accounts.

22The Board also rejected that argument that O. Reg. 22/02 imposed a limitation period, which ought not to apply to F.-T. (J.) because she was a minor. The Board held that O. Reg. 22/02 was not a limitation period barring a right of action. Rather, it was "part of the substantive framework under which a right to payment for insured services is determined pursuant to the HIA and regulations" (reasons, p. 63).

23On November 2, 2006, the Board Chair refused a request for reconsideration of the decision, stating that she was not satisfied there were any errors of law. She rejected an argument based on the doctrine of legitimate expectations as the requirement for prior approval is a substantive rather than a procedural requirement of the regulation.

C.-W. (C.)'s appeal

24C.-W. (C.) was born in 1993. He has been diagnosed with a number of significant mental health problems, including attention deficit disorder, oppositional defiant disorder, intermittent explosive disorder and a learning disorder, as well as symptoms of other disorders including bipolar disorder, Tourette's syndrome and obsessive compulsive disorder. He also has significant attachment difficulties, including lack of empathy, manipulativeness, cruelty and aggression.

25In the fall of 2005, medical professionals agreed that he required urgent residential treatment, and there was no treatment available for him in Canada. On November 2, 2005, his psychiatrist, Dr. Connell, completed a prior approval form for treatment at San Marcos Treatment Center in Texas. On November 11, 2005, C.-W. (C.) was admitted to San Marcos on an urgent basis. On November 16, 2005, the Ministry approved his treatment there for 60 days for neuropsychiatric evaluation. Subsequently, by a letter dated February 13, 2006, the Ministry backdated the funding to November 11, 2005.

26When C.-W. (C.)'s evaluation had been completed at San Marcos, it was recommended that he be transferred to Sandhill Child Development Center, a highly specialized residential treatment centre in New Mexico. When C.-W. (C.)'s mother tried to reach Dr. Connell about a new application for Plan funding, she learned that he had gone to New Zealand for a holiday. She wrote a letter to the Ministry dated December 30, 2005 asking for further funding for treatment at Sandhill. She received no reply to this letter.

27C.-W. (C.)'s mother admitted him to Sandhill on January 5, 2006, when a bed became available. She testified that she took the bed in order to get C.-W. (C.) into treatment, rather than leave him in the diagnostic centre at San Marcos.

28Dr. Connell was not available until January 9. However, an application for prior approval was not submitted until January 26, 2006, along with an explanation from Dr. Connell as to why the form had not been submitted earlier. The General Manager denied payment for Sandhill on the basis that approval had not been sought before the services at Sandhill were rendered, and there was insufficient documentation to show that these services were generally accepted in Ontario as appropriate in the same medical circumstances.

29C.-W. (C.) appealed to the Board. In a decision dated May 26, 2006, the Board determined that the services at Sandhill were insured services under s. 28.4(2) of the regulation and ordered the General Manager to pay for treatment there after January 26, 2006.

30In separate reasons dated June 28, 2007, the Board dealt with the claim for payment for services in the period from January 5, 2006 to January 26, 2006. The Board denied the payment on the basis that C.-W. (C.) had not met the conditions for payment set out in s. 28.4(5) of Regulation 552, as the application for approval had not been submitted before treatment commenced. The Board also found that the General Manager had no discretion to waive the conditions of payment to allow retroactive prior approval.

31In reaching its decision, the Board followed the earlier decision in F.-T. (J.). It also rejected an argument that the Act and regulation should be interpreted in light of the principles in s. 7 of the Canadian Charter of Rights and Freedoms, as the Board concluded there was no ambiguity in s. 18(4) of the Act or in s. 28.4(5) of Regulation 552.

The appeal of the estate of Linda Mailloux (deceased)

32Beginning in early May 2005, Linda Mailloux, a resident of Windsor, suffered a rapid onset of serious neurological symptoms, the cause of which specialists in Windsor and London, Ontario were unable to determine.

33After she was hospitalized in mid-May, she was diagnosed with multiple sclerosis. As her condition worsened significantly and rapidly, she went to Henry Ford Hospital ("HFH") in Detroit, Michigan in early June to obtain a second opinion. Doctors there questioned the diagnosis of multiple sclerosis and recommended that she see a neurologist at London Health Sciences Centre.

34On June 7, 2005, a neurologist in London concluded that all test results were inconclusive. Ms. Mailloux likely had multiple sclerosis, but lymphoma was a possibility, and he suggested further testing.

35As Ms. Mailloux's condition worsened significantly, she met with a neurologist on call at London Health's emergency on June 15, 2005. He advised that she could not have a further biopsy for at least five days because the neurologists were away at a conference. He felt that she should be hospitalized, but there were no beds available at London Health. He recommended that she try Toronto, but did not know whether a bed would be available.

36Ms. Mailloux's family took her back to HFH in Detroit, where she was admitted on June 15. Over the following 24 hours, two MRIs and a biopsy were performed, resulting in a diagnosis of primary advanced cerebral lymphoma. Chemotherapy was begun on June 25, 2005 in Detroit. She was released from the hospital on June 28 and returned for two further rounds of chemotherapy in July. However, her condition worsened, and she died on July 15, 2005.

37Ms. Mailloux did not seek prior approval for the treatment in the United States. Her estate submitted an account for payment, which was rejected on July 27, 2005.

38The Board denied the appeal of this decision on November 16, 2007. It found that the repeat biopsy and confirmatory diagnosis were insured services, as it was necessary for Ms. Mailloux to travel outside Canada to obtain this treatment in order to avoid a delay that would result in death or medically significant irreversible tissue damage. However, it rejected the argument that the chemotherapy or the second consultation were insured services, as there was no evidence that Ms. Mailloux had attempted to obtain such treatment in Ontario, and the Board could not determine whether there would have been a delay in obtaining such treatment.

39In this case, there had been no request for prior approval. The Board followed the F.-T. (J.) decision, holding that the General Manager did not have authority to grant retroactive prior approval. Therefore, as the conditions for payment in s. 28.4(5) of Regulation 552 had not been met, the appellant was not entitled to be reimbursed for the insured services.

The Issues in these Appeals

[40] These appeals raise a number of issues: (1) What is the appropriate standard of review of the Board's decisions? (2) Does the General Manager have a discretion to grant retroactive prior approval for out-of-country medical treatment? (3) Are the appellants entitled to reimbursement because of the doctrine of legitimate expectations? (4) Are the appellants entitled to reimbursement because of the doctrine of promissory estoppel? (5) Did the Board unlawfully apply a limitation period against a minor? (6) Does the requirement for prior approval violate s. 7 or s. 15 of the Charter? (7) If the appeal is allowed, what is the appropriate remedy?

Issue no. 1: What is the appropriate standard of review of the Board's decisions?

41The appellants submit that the appropriate standard of review is correctness with respect to issues of statutory interpretation and the application of the Charter. The respondent submits that the standard is reasonableness.

42Where the standard of review with respect to the decisions of a tribunal has been established in the jurisprudence, a court need not engage in a detailed standard of review analysis (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9, at para. 62).

43The Ontario Court of Appeal has held that the standard of reasonableness applies to a decision of the Board determining whether a particular treatment is an "insured service" within s. 28.4(2) of Regulation 552 (Flora v. Ontario (Health Insurance Plan, General Manager), [2008] O.J. No. 2627, 2008 ONCA 538). The court noted that the question before the Board involved questions of mixed fact and law and required the Board to interpret a legislative scheme with which it had great familiarity (at paras. 39-43).

44Similarly, this court in Ruggiero Estate v. Ontario (Health Insurance Plan, General Manager) (2005), 2005 36175 (ON SCDC), 78 O.R. (3d) 28, [2005] O.J. No. 4276 (Div. Ct.) held that the standard of reasonableness applied to a decision of the Board with respect to payment of out-of-country medical expenses (at paras. 9-13).

45The appellants submit that the standard of reasonableness is not appropriate in this case. There is a broad right of appeal from the Board to the Divisional Court pursuant to s. 24(1) of the Act. Moreover, the appeals raise a question of statutory interpretation only respecting the discretion of the General Manager to give retroactive prior approval, and no deference is owed to the Board.

46The Act does provide a right of appeal from the Board's decisions on questions of fact and law, and s. 24(4) provides this court with broad powers on appeal. This would suggest less deference is owed to the Board. However, each of the appeals before us turns on the interpretation of a statute and a regulation with which the Board has significant familiarity and expertise. According to the Supreme Court of Canada in Dunsmuir, supra (at para. 54):

Deference will usually result where a tribunal is interpreting its own statutes closely connected to its function, with which it will have particular familiarity... While a correctness standard will apply to a question of law that is of central importance to the legal system and outside the specialized expertise of the tribunal (at para. 55), the issues of statutory interpretation in the present appeals do not raise issues of importance to the legal system as a whole. Therefore, in my view, the decisions of the Board interpreting and applying the Act and regulation are subject to review on a standard of reasonableness.

47The appellants have also raised Charter issues in these appeals. These issues were not dealt with by the Board, as it has no jurisdiction to deal with constitutional issues. Therefore, this court must make its own determination with respect to these issues.

48To the extent that the appeals raise issues of procedural fairness, there is no need to engage in a standard of review analysis. This court must determine whether the appropriate level of procedural fairness has been accorded.

Issue no. 2: Does the General Manager have a discretion to grant retroactive prior approval for out-of-country medical treatment?

49The appellants submit that the Board was incorrect in concluding that the Act and regulations do not confer a discretion on the General Manager to grant retroactive prior approval for out-of-country medical treatment. The respondent argues that the Board's interpretation was a reasonable one.

50An administrative body obtains its jurisdiction in one of two ways: by an express grant of power under statute, or through the common law by application of the doctrine of necessary implication (ATCO Gas & Pipelines Ltd. v. Alberta (Energy & Utilities Board), 2006 SCC 4, [2006] 1 S.C.R. 140, [2006] S.C.J. No. 4, at para. 38).

51Section 12(1) of the Act sets out the entitlement to insured services. An insured person is entitled to payment for insured services in the amount and subject to such conditions and co-payments, if any, as are prescribed.

52Section 28.4 of Regulation 552 sets out a number of conditions that apply when an insured person is going outside the country to obtain medical services. Subsection 28.4(2) sets out specific criteria for a finding that out-of-country medical services are "insured services". Subsection 28.4(5) then sets out conditions for payment for those services. Among those conditions is the requirement in s. 28.4(5)2 that the General Manager "must" give written approval for payment of the amount authorized under the section before the services are rendered.

53Neither the Act nor the regulations expressly confer a discretion on the General Manager to give retroactive prior approval for out-of-country medical treatment or to waive the requirement for prior approval.

54Counsel for the Mailloux estate submitted that the word "must" in s. 28.4(5) of Regulation 552 is directory, not mandatory. He relied on Reference Re Manitoba Language Rights, 1985 33 (SCC), [1985] 1 S.C.R. 721, [1985] S.C.J. No. 36, where the Supreme Court of Canada held that "shall" is mandatory or imperative unless such a reading would be inconsistent when read in context and would render the provision irrational or meaningless (at p. 737 S.C.R.). In the circumstances of Linda Mailloux, he argued, to insist on prior approval would have exposed her to serious risk to her health and, therefore, the requirement for prior approval must not be mandatory.

55In my view, the word "must" in s. 28.4(5) of Regulation 552 is meant to be imperative. As noted by Ruth Sullivan in Sullivan and Driedger on the Construction of Statutes, 4th ed. (Toronto: Butterworths, 2002), at p. 60:

When "shall" and "must" are used in legislation to impose an obligation or create a prohibition or requirement, they are always imperative. A person who "shall" or "must" do something has no discretion to decide whether or not to do it.

56Indeed, when s. 28.4(5) of the regulation is read as a whole, it is clear that the regulation contemplates approval will be obtained before the medical treatment begins, since the approval is to be given for an amount determined by the General Manager and services are to be provided within the time period set out in the approval. In this context, "must" in s. 28.4(5)2 is mandatory, not directory.

57Such a reading is also consistent with the purpose of the Act and regulations. According to the affidavit of Beverly Lyman, senior consultant with the Out-of-Country Unit, Provider Services Branch of the Ministry, dated September 23, 2008, the prior approval process has a number of advantages. It ensures that the Plan is able, through negotiations, to obtain the usual and customary amount charged to major insurers. Further, when prior approval is sought, the Ministry may be able to advise the applicant's physician of a facility in Ontario that can provide the needed treatment. If not, and the individual must go outside Ontario, applicants will have advance notice of the scope of their coverage under the Plan, alerting them to the services covered and the duration of coverage.

58In the alternative, the appellants submitted that the Act allows the General Manager to waive the requirement for prior approval. Subsection 18(3) allows the General Manager to pay accounts in extenuating circumstances even if they are not in the required form, do not meet the prescribed requirements or were not submitted within the prescribed time. Counsel for the estate also pointed out that s. 18(2) sets out circumstances in which the General Manager "may" refuse to make payments to physicians or practitioners.

59The Board correctly held that s. 18(4) of the Act does not confer a discretion to grant retroactive prior approval for out-of-country medical services. Section 18 of the Act deals with the payment of accounts. Subsection 18(1) provides that the General Manager "shall determine all issues relating to accounts for insured services . . . and shall make the payments from the Plan that are authorized under the Act" (emphasis added). The discretion in s. 18(4) allows the General Manager to pay accounts that do not meet prescribed requirements with respect to accounts, including those governing form and timing. This is evident from the wording of the subsection, which states that he or she shall refuse to pay for an insured service if the account is not prepared as required. It does not permit waiver of conditions that must be satisfied before an individual is eligible for Plan funding.

60Section 18 should also be read in context with other provisions of the Act. Section 17, for example, deals with accounts for insured services, requiring that accounts be in such form as the General Manager requires and meet certain prescribed requirements. Subsection 17(3) deals with the time for submitting accounts. Sections 17.1 and 17.2 also deal with fees payable.

61Regulation 552 also contains provisions prescribing requirements for accounts: see, for example, s. 38.4. In addition, O. Reg. 22/02 sets out time limits for the submission of accounts, other than those for which prior approval was obtained for out-of-country services. These are the types of requirements which the General Manager has the discretion to waive, in extenuating circumstances, pursuant to s. 18(4) of the Act.

62Counsel for the estate also relied on s. 18(2) of the Act, which allows the General Manager to pay a reduced amount or to refuse to pay an account in specified circumstances. In my view, that provision does not indicate that there is a power to pay accounts when prescribed conditions for entitlement have not been met.

63The fact that the Act confers specific discretionary powers on the General Manager in s. 18(2) and (4) does not indicate that the Act contemplates a general discretion. The inclusion of the discretion to pay in the context of problems with accounts implicitly excludes a discretion in other circumstances, such as the failure to obtain prior approval for out-of-country medical services.

64In summary, the Board reasonably -- indeed, correctly -- determined that neither the Act nor the regulations expressly confer discretion on the General Manager to give retroactive prior approval.

65C.-W. (C.) and F.-T. (J.) argued that the statutory provisions are ambiguous and should be interpreted in light of Charter values, specifically the right to life, liberty and security of the person in s. 7 and the right to equality in s. 15.

66Courts have consistently held that the Charter can only assist in statutory interpretation where the legislation is ambiguous, in the sense that it supports two equally plausible constructions consistent with the purpose of the legislation (R. v. Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554, [2006] S.C.J. No. 15, at para. 18). In my view, there is no ambiguity in the wording of s. 28.4(5)2. The provision requires prior approval as a condition of payment for out-of-country services that are insured services within s. 28.4(2). Moreover, there is no ambiguity in s. 18(4) of the Act. Therefore, it is inappropriate to consider Charter values in interpreting the Act and the regulation.

67I now turn to the remaining issue: whether authority to give retroactive prior approval can be implied by the common-law doctrine of necessary implication. In applying that doctrine, a court must keep in mind the caution expressed by Bastarache J. in ACTO, supra, when he explained that the role of a court in statutory interpretation is to "determine and apply the intention of the legislature . . . without crossing the line between judicial interpretation and legislative drafting" (at para. 51).

68However, Bastarache J. went on to observe that the doctrine of jurisdiction by necessary implication requires a court to construe the powers of an enabling statute to include "by implication, all powers which are practically necessary for the accomplishment of the object intended to be secured by the statutory regime created by the legislature" (at para. 51).

69The Board held, in F.-T. (J.), supra, that the doctrine of necessary implication did not confer a discretion to waive conditions of payment, as there was no evidence that such a discretion was a practical necessity (reasons, p. 55). In their view, a discretion to waive conditions would be inconsistent with the goal of the legislature to provide uniformity in conditions for access to health care (reasons, p. 51).

70From the Board's reasons, it appears that arguments were made about the necessity to give retroactive approval in circumstances of urgency -- for example, where the offices of the Ministry were closed at the time approval was sought. A patient might be in need of critical care in accordance with s. 28.4(2)(b)(ii) of Regulation 552 in the middle of the night when no one at the Ministry is available to give approval. Therefore, a doctor may need to send the patient for treatment out of the country without first obtaining approval.

71Indeed, the evidence in the C.-W. (C.) hearing given by Dr. Langley, medical consultant co-ordinator for Primary Out-of-Country Matters at the Plan, demonstrates that the Plan does give retroactive approval to applications for urgent care submitted while the Ministry offices are closed.

72The response of the Board to the hypothetical respecting urgent care was to suggest that reliance might possibly be placed on the Interpretation Act, R.S.O. 1990, c. I.11, s. 28(h). That provision dealt with the rules for calculating time, so that where the time limit for doing something would expire on a "holiday", as defined in that Act, the time limit is extended to include the next day that is not a holiday. The current provision is s. 89 of the Legislation Act, 2006, S.O. 2006, c. 21, Sch. F.

73With respect, the time limit provisions of the Interpretation Act and Legislation Act do not assist in the interpretation of s. 28.4(5) of Regulation 552, as the subsection deals not with a time limit, but a condition of prior approval.

74According to the Board's interpretation, there can be no retroactive approval -- a result that the Board acknowledged in both F.-T. (J.) and C.-W. (C.) could lead to "harsh and unfair" results. In F.-T. (J.), the Board stated (reasons, p. 64):

There are no doubt myriad situations in which one could argue that this is a harsh and unfair result deserving of some legal remedy, whether it is because time does not allow the approval process to occur before treatment is necessary, because the process of prior approval requires an insured person to secure the timely cooperation of a busy third party to complete the prior approval form, because an insured or her physician may be unfamiliar with the requirements of the prior approval process, or some other reason.

However, the ability of this Appeal Board to redress any actual or perceived unfairness in these or other situations is limited by the authority granted us under the HIA. This Appeal Board does not have a policy development role....

75With all due deference to the Board, I believe it approached the doctrine of necessary implication too broadly and, as a result, reached an unreasonable interpretation. The Board focused on whether there was a necessity for the General Manager to have a general discretion to waive conditions. With respect, a further question should have been asked -- namely, whether the power to grant retroactive prior approval is necessarily implied within the context of s. 28.4(5) of Regulation 552 in certain urgent circumstances in order to give effect to the overall purpose of s. 28.4, and especially s. 28.4(2).

76Subsection 28.4(2) includes within "insured services" those which meet the requirements of clause (a) of that subsection (the treatment is generally accepted in Ontario as appropriate for a person in the same medical circumstances as the insured person) and within clause (b)(ii) (that kind of treatment is performed in Ontario, but it is necessary that the insured person travel outside of Canada to avoid a delay that would result in death or medically significant irreversible tissue damage).

77To require prior approval even in circumstances where the Ministry cannot provide approval in a timely manner would undermine the purpose of s. 28.4 of the regulation, which aims to compensate those whose health will be at serious risk because of a delay in obtaining needed medical treatment. In my view, there is a practical necessity that the Ministry be able to provide retroactive approval in urgent cases where prior approval cannot be obtained. This may be due to the fact that the Ministry offices are not open. In some cases, it may be because the circumstances are so urgent that the patient must be sent for treatment before approval has come through or can be sought. The doctrine of necessary implication is appropriately applied in this context to confer the power on the General Manager to grant retroactive prior approval.

78In my view, the Board reached an unreasonable decision in failing to consider the necessity of implying this particular power in s. 28.4(5) of Regulation 552 in order to carry out the overall purpose of s. 28.4. Such a power is necessarily implied in urgent circumstances.

Issue no. 3: Are the appellants entitled to reimbursement because of the doctrine of legitimate expectations?

79The appellants all submitted that the Board erred in failing to apply the doctrine of legitimate expectations. There was evidence before the Board that the General Manager had, in the past, granted retroactive prior approval for the payment of insured services. Therefore, they submitted, there was a legitimate expectation that applications for retroactive approval would be considered by the General Manager.

80The doctrine of legitimate expectations forms part of procedural fairness. It cannot create substantive rights. Where applicable, the doctrine of procedural fairness creates participatory rights, such as the right to make representations or to be consulted (Reference re Canada Assistance Plan (B.C.), 1991 74 (SCC), [1991] 2 S.C.R. 525, [1991] S.C.J. No. 60, at p. 557 S.C.R.; Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39, at para. 26).

81The appellants submitted that the requirement for prior approval is procedural in nature. I disagree. The requirement for prior approval is prescribed as a condition for payment for insured services to be obtained out of the country (unless an individual requires emergency treatment while outside Canada). Subsection 12(1) of the Act confers an entitlement to payment for insured services subject to the conditions prescribed. Therefore, what the appellants seek is not participatory rights with respect to a decision to be made, but a change to the substantive requirements for payment of out-of-country insured services covered by s. 28.4(2). The doctrine of legitimate expectations does not apply in these circumstances.

82Moreover, the doctrine of legitimate expectations cannot abrogate a clear statutory or regulatory requirement (Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52, [2001] 2 S.C.R. 781, [2001] S.C.J. No. 17, at paras. 21-27; Canada (Minister of Employment and Immigration) v. Lidder, 1992 14712 (FCA), [1992] F.C.J. No. 212, [1992] 2 F.C. 621 (C.A.), at para. 4; dela Fuente v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 774, 2006 FCA 186 at para. 19). Here, the regulation clearly requires approval be given prior to treatment. The doctrine of legitimate expectations cannot defeat the legislative requirements.

Issue no. 4: Are the appellants entitled to reimbursement because of the doctrine of promissory estoppel?

83In the alternative, F.-T. (J.) and C.-W. (C.) submitted that the doctrine of promissory estoppel operates to prevent the General Manager from departing from the past practice of granting retroactive prior approval.

84In concurring reasons in Mount Sinai Hospital Center v. Quebec (Minister of Health and Social Services), 2001 SCC 41, [2001] 2 S.C.R. 281, [2001] S.C.J. No. 43, Binnie J. described the doctrine of promissory estoppel as it operates in public law (at para. 45):

The party relying on the doctrine must establish that the other party has, by words or conduct, made a promise or assurance which was intended to affect their legal relationship and to be acted on. Furthermore, the representee must establish that, in reliance on the representation, he acted on it or in some way changed his position . . .

85The appellants have not adduced evidence of a general practice by the General Manager to grant retroactive prior approval, nor shown that any promise was made to them, or that they relied on such practice. Indeed, the evidence of C.-W. (C.)'s psychiatrist is telling. He was aware that the application to approve C.-W. (C.) for funding was late when filed on January 26, 2006. He wrote a letter explaining the reasons for the delay in filing, hoping that the Ministry might backdate the approval. However, he spoke of a "worst case scenario" whereby the Plan would fund only from the date of the application (transcript, p. 55).

86Moreover, as with the doctrine of legitimate expectations, "there can be no estoppel in the face of an express provision of a statute" (Mount Sinai, supra, at para. 47). The regulation requires approval be obtained before the applicant undergoes medical treatment. Therefore, the doctrine of promissory estoppel cannot apply.

Issue no. 5: Did the Board unlawfully apply a limitation period against a minor?

87C.-W. (C.) and F.-T. (J.) submitted that the Board erred by unlawfully applying a limitation period against them at a time they were minors.

88A limitation period has been defined as a "stated period of time, the expiry of which extinguishes a party's legal remedy and also, in some cases, a party's legal rights" (Graeme Mew, The Law of Limitations, 2nd ed. (Markham, Ont.: Butterworths, 2004), at p. 3). The Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, stipulates that a "proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered" (s. 4). "Claim" is defined as a "claim to remedy an injury, loss or damage that occurred as a result of an act or omission" (s. 1).

89The requirement of prior approval for persons needing out-of-country medical treatment covered by s. 28.4(2) is not a limitation period because no legal rights have accrued just because the individual is in need of "insured services". Pre-approval is a condition precedent for eligibility for coverage, as expressed in the opening words of s. 28.4(5) of Regulation 552. Therefore, the Board did not err in concluding that the regulation was not a limitation period.

Issue no. 6: Does the requirement for prior approval violate s. 7 or s. 15 of the Charter?

90C.-W. (C.), F.-T. (J.) and the Mailloux estate argued that the provision requiring prior approval violates s. 7 of the Charter, the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. C.-W. (C.) and F.-T. (J.) also relied on the equality right in s. 15 of the Charter.

The standing of the estate of Linda Mailloux

91The General Manager took issue with the standing of the Estate to raise a Charter claim.

92In Canada (Attorney General) v. Hislop, 2007 SCC 10, [2007] 1 S.C.R. 429, [2007] S.C.J. No. 10, the Supreme Court of Canada held that an estate did not have standing to invoke the rights of a natural person under s. 15 of the Charter because "an estate is just a collection of assets and liabilities of a person who has died" (at para. 73). Subsequently, the Court of Appeal of Ontario held that the reasoning in Hislop applies equally to a claim under s. 7 of the Charter (Giacomelli v. Canada (Attorney General) (2008), 2008 ONCA 346, 90 O.R. (3d) 669, [2008] O.J. No. 1687 (C.A.), at paras. 16-20).

93Given the holdings in these two cases, the Estate of Linda Mailloux does not have standing to invoke s. 7 of the Charter.

The s. 7 arguments of C.-W. (C.) and F.-T. (J.)

94Section 7 of the Charter creates a two-part test. An individual must show that there has been a deprivation of his or her right to life, liberty or security of the person, and then must show that the deprivation took place in a manner contrary to principles of fundamental justice.

95The appellants submitted that there is a denial of the right to life and security of the person because they were denied reimbursement for medical treatment. They relied on the decision of the Supreme Court of Canada in Chaoulli v. Quebec (Attorney General), 2005 SCC 35, [2005] 1 S.C.R. 791, [2005] S.C.J. No. 33, where the majority held that an individual's s. 7 right was violated by a law that prohibited the provision of private health insurance because the prohibition forced people onto waiting lists in the public system. The consequent delays in obtaining treatment in the publicly-funded system threatened the health of patients.

96In the case of C.-W. (C.), it is argued that he risked serious injury or death if he did not leave the country for treatment, and it was not possible to obtain prior approval because his physician was not available to submit the necessary form. Counsel submitted that the requirement of prior approval violates the right to life and security of the person for patients who need urgent, medically necessary medical treatment out of the country and who cannot submit a prior approval application for funding in time.

97The Court of Appeal dealt with the constitutionality of provisions limiting payment for out-of-country medical expenses in Flora, supra. Flora dealt with a s. 7 challenge to the requirement in s. 28.4(2)(a) of Regulation 552, the requirement that the out-of-country treatment is generally accepted in Ontario as appropriate for a person in the same medical circumstances as the insured person. The Court of Appeal held that there was no deprivation of the right to life or security of the person because of the province's decision to limit funding for services in this way. At para. 101, the court said:

Section 28.4(2) neither prescribes nor limits the types of medical services available to Ontarians. Nor does it represent governmental interference with an existing right or other coercive state action. Quite the opposite. Section 28.4(2) provides a defined benefit for out-of-country medical treatment that is not otherwise available to Ontarians -- the right to obtain public funding for certain specific out-of-country medical treatments. By not providing treatment for all out-of-country medical treatments, it does not deprive an individual of the rights protected by s. 7 of the Charter. [Emphasis in original]

98The court characterized the right sought in Flora as an economic right, holding that s. 7 did not extend to protect economic rights (at para. 106). In the words of Cronk J.A. (at para. 108):

In my view, on the current state of s. 7 constitutional jurisprudence, where -- as here -- the government elects to provide a financial benefit that is not otherwise required by law, legislative limitations on the scope of the financial benefit provided do not violate s. 7. On the law at present, the reach of s. 7 does not extend to the imposition of a positive constitutional obligation on the Ontario government to fund out-of-country medical treatments even where the treatment in question proves to be life-saving in nature.

99In my view, the requirement of prior approval is not a denial of the right to life or to security of the person. Like the provision of the regulation in issue in Flora, s. 28.4(5)2 does not prohibit a person from seeking out-of-country medical treatment. Indeed, a person who fails to comply with the provision and seeks retroactive prior approval has, in fact, already obtained the out-of-country treatment.

100As in Flora, the province has imposed certain requirements that an individual must satisfy in order to obtain financial coverage for treatment obtained out of the country. The failure of the province to reimburse for all treatment obtained out of the country does not result in a violation of s. 7 of the Charter (see, also, Wynberg v. Ontario (2006), 2006 22919 (ON CA), 82 O. R. (3d) 561, [2006] O.J. No. 2732 (C.A.), at para. 220).

101This is not a situation, as in Chaoulli, supra, or R. v. Morgentaler, 1988 90 (SCC), [1988] 1 S.C.R. 30, [1988] S.C.J. No. 1, where the legislative regime prevented an individual from obtaining necessary medical treatment without dangerous delays. There is no evidence that the appellants suffered a delay in obtaining necessary medical services because of the legislation.

102Given my conclusion that there is no violation of the right to life or security of the person, it is not necessary to determine whether the legislative scheme is consistent with the principles of fundamental justice. The s. 7 argument fails.

The s. 15 arguments of C.-W. (C.) and F.-T. (J.)

103C.-W. (C.) and F.-T. (J.) also argued in the alternative that their right to equality on the basis of age and mental disability was infringed by the requirement of prior approval.

104In order to establish a violation of s. 15(1), the claimant must show that he or she is deprived of a benefit of the law as a result of a distinction based on an enumerated or analogous ground, and that the law is substantively discriminatory, such that it creates a disadvantage by perpetuating prejudice or a stereotype (R. v. Kapp, [2008] S.C.J. No. 42, 2008 SCC 41, at para. 17).

105In my view, the appellants have failed to show that there is differential treatment based on the enumerated grounds of age and disability. All insured persons are required to obtain prior approval under s. 28.4(5)2 of Regulation 552 in order to obtain public funding. The nature of the individual's disability or their age is irrelevant with respect to their entitlement to obtain the statutory benefit.

106The appellants have argued that children are a particularly vulnerable and disadvantaged group as compared to adults. However, they have failed to show how s. 28.4(5)2 is particularly detrimental to or has an adverse impact on children as compared to adults seeking out-of-country medical treatment. Similarly, there is no evidence that those with mental disabilities are more adversely affected than those with other disabilities when they seek out-of-country benefits.

107As the appellants have failed to show that there is discrimination on the basis of age or disability, the s. 15 argument fails. Thus, there is no need to address s. 1 of the Charter.

Issue no. 7: What is the appropriate remedy?

108The Board reached an unreasonable decision in failing to find that the General Manager has the implied power to give retroactive approval in urgent situations in order to meet the objectives of s. 28.4 of Regulation 552. That raises the issue of the appropriate remedy in each appeal.

109In my view, the case of F.-T. (J.) does not engage this implied power. The evidence does not show that there were urgent circumstances that prevented her parents from obtaining prior approval. Indeed, the Board held that even if the General Manager had the discretion to give prior approval or to waive conditions in extenuating circumstances, it was not satisfied that there were extenuating circumstances in this case. On the record before it, that was a reasonable conclusion. Therefore, I would dismiss the appeal of F.-T. (J.)

110The respondent also submits that the appeal of the Mailloux estate should be dismissed, as there is no evidence to show that prior approval could not have been obtained. However, the Board was satisfied that Ms. Mailloux was in need of medical treatment, and it was necessary for her to travel to the United States to obtain the repeat biopsy and confirmatory diagnosis to avoid a delay in Ontario that would result in death or medically significant irreversible tissue damage. The neurologist in the emergency at London Health Sciences on June 15, 2005 had told her family that a biopsy could not be performed for five days, and he could not admit her nor assure her of a bed in Toronto.

111The Board did not consider whether the General Manager should have given retroactive approval because of the urgency of this case. Therefore, I would allow the appeal and refer this matter back to the Board to determine whether the General Manager should have given retroactive approval because of the urgent circumstances.

112The case of C.-W. (C.) is a difficult one. His mother and his psychiatrist were both aware of the need for prior approval for payment of out-of-country services before he went to Sandhill. Indeed, his mother wrote to the Ministry in late December to seek funding when she was unable to contact Dr. Connell because he was on vacation. There was no equivalent medical treatment available for C.-W. (C.) in Ontario, and the beds at Sandhill were limited in number and subject to a waiting list. On the other hand, C.-W. (C.) still had funding to remain at San Marcos. However, San Marcos was a diagnostic facility, not a treatment facility, and he was in need of treatment not available in Ontario.

113In my view, the implied power to grant retroactive prior approval is a narrow one, confined to urgent circumstances where prior approval cannot be obtained. On the facts, C.-W. (C.)'s case may fall within this class of cases. The Board is in a better position than this court to determine that question. Therefore, I would allow C.W.(C.)'s appeal as well and refer it back to the Board for reconsideration.

Conclusion

114I would dismiss the appeal of F.-T. (J.), and I would allow the appeals of C.-W. (C.) and the Estate of Linda Mailloux and refer these two matters back to the Board for reconsideration in light of these reasons.

115If the parties cannot agree on costs, they may make brief written submissions within 30 days of the release of these reasons through the Divisional Court office.

Two appeals allowed; third appeal dismissed.