Kritzinger v. Ministry of Health and Long Term Health Care
DIVISIONAL COURT FILE NO.: 45/09
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
FERRIER, SWINTON AND WILTON-SIEGEL JJ.
BETWEEN:
DR. PHILIP M. KRITZINGER
Applicant
– and –
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO as represented by THE MINISTRY OF HEALTH AND LONG-TERM CARE and the GENERAL MANAGER of the ONTARIO HEALTH INSURANCE PLAN
Respondent
C. Jeffrey Freedlander and Sarah Shody, for the Applicant
Lise Favreau and Judith Parker, for the Respondent
HEARD at Toronto: March 9, 2011
ORAL REASONS FOR JUDGMENT
swinton j. (ORALLY)
1This application for judicial review is dismissed for the following reasons.
2First, the General Manager of the Ontario Health Insurance Plan (“OHIP”) had no duty to refer the issue of the administrative charge to the Health Services Appeal and Review Board (the “Board”) pursuant to s.14(1) of the Commitment to the Future of Medicare Act, 2004, S.O. 2004, c.5. A physician can only seek review of the issue whether he or she received an unauthorized payment. This conclusion is reinforced by s.14(4) of the Act, which empowers the Board only to inquire whether there has been an unauthorized payment. The absence of a reference to the administrative charge in these subsections is telling in light of the inclusion of the administrative charge in s.13(4). Here the applicant conceded he received an unauthorized payment of $59,125.00 involving 543 transactions. He had no right to seek a review by the Board and a power in the Board to review the administrative charge should not be read in on the basis of the doctrine of necessary implication.
3Second, the General Manager had the authority to impose the administrative charge of $81,450.00. Subsection 13(4) of the Act provides that where a physician has made an unauthorized payment, he or she is indebted to OHIP for the amount of the unauthorized payment and the administrative charge prescribed by the regulations (emphasis added). Pursuant to O. Reg. 288/04, s.5, that administrative charge is $150.00. It is clear from the words of the Act and the Regulation that the administrative charge applies to each unauthorized payment.
4Insofar as excerpts from Hansard are useful as an indication of legislative purpose, we do not find the one reference upon which the applicant relied to be helpful. There are other passages that reinforce the conclusion that the administrative charge is a cost-recovery mechanism linked to each unauthorized payment.
5We do not see the result here to be punitive or to result in an absurdity, given the number of payments to be administered, the need for investigation and the dealings with the applicant and counsel over an extended period of time. Indeed, a single administrative charge of $150.00 in these circumstances would lead to an absurdity.
6Third, judicial review is a discretionary remedy. The applicant was on notice in January 2006 that an administrative charge of $150.00 per service would be applied, and he could have avoided the administrative charge by a timely repayment to patients at that time. The applicant has had notice of the levying of the administrative charge since November 2007. In December 2007, the General Manager refused to refer the issue of the administrative charge to the Board. The application for judicial review was not launched until February 2009. Even if there had been merit to this application, we would have declined to grant a remedy in these circumstances because of the delay and the applicant’s opportunity to avoid the administrative charge.
FERRIER J.
7I have endorsed the Application Record, “This application is dismissed for oral reasons delivered this day. Costs fixed at $12,000 all inclusive, unopposed by the Applicant.”
FERRIER J.
SWINTON J.
WILTON-SIEGEL J.
Date of Reasons for Judgment: March 9, 2011
Date of Release: March 25, 2011
CITATION: Kritzinger v. Ministry of Health and Long Term Health Care, 2011 ONSC 1547
DIVISIONAL COURT FILE NO.: 45/09
DATE: 20110309
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
FERRIER, SWINTON AND WILTON-SIEGEL JJ.
BETWEEN:
DR. PHILIP M. KRITZINGER
Applicant
– and –
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO as represented by THE MINISTRY OF HEALTH AND LONG-TERM CARE and the GENERAL MANAGER of the ONTARIO HEALTH INSURANCE PLAN
Respondent
ORAL REASONS FOR JUDGMENT
SWINTON J.
Date of Reasons for Judgment: March 9, 2011
Date of Release: March 25, 2011