Court File and Parties

Citation: E.H. v. General Manager Ontario Health Insurance Plan, 2012 ONSC 5106 Divisional Court File No.: 497/11 Date: 2012-09-14 Superior Court of Justice – Ontario Divisional Court

Re: E.H., Appellant And: General Manager of the Ontario Health Insurance Plan, Respondent

Before: Aston, Aitken, Lederer, JJ.

Counsel: Joseph J. Colangelo, for the Appellant Matthew Horner, for the Respondent

Heard: September 10, 2012

Endorsement

ASTON J.

[1] E.H. has appealed to the Health Services Appeal and Review Board (“HSARB” or “the Board”) from a decision of the General Manager of the Ontario Health Insurance Plan dated September 29, 2009 which denied funding for her out-of-country medical treatment. As part of her appeal, she requests in paragraph 20D of her Appeal Submission a declaration that “the Board find that the provisions of section 16 of Schedule 1 of the Government Efficiency Act, 2002 now section 6(3) of the Ministry of Health and Long-Term Care Appeal and Review Boards Act, (“MHARBA”) are contrary to the Charter and are invalid and of no effect”.

[2] Section 6(3) of MHARBA reads in part: “the Board shall not inquire into or make a decision concerning the constitutional validity of a provision of an Act or a regulation”. In a preliminary decision October 6, 2011, HSARB held that it has no jurisdiction in the pending HSARB appeal to grant the particular relief claimed in paragraph 20D.

[3] E.H. now appeals that decision to this Court. We accept the joint submission of the parties that the standard of review is correctness because the issue on appeal relates to the Board’s constitutional jurisdiction.

[4] In our view, the Board correctly concluded that s. 6(3) forecloses the relief claimed by E.H. in paragraph 20D of her HSARB appeal submission.

[5] On the other hand, the applicant’s HSARB appeal includes in paragraph 20C the claim that “the Board find that the policies of the respondent in withdrawing its funding are contrary to the Charter and are invalid and of no effect”. Section 6(3) does not impede that claim. There is a distinction between challenging the validity of a statutory or regulatory provision and the application of such a provision.

[6] In the seminal case of R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765, para. 81, the Supreme Court of Canada recognized a limiting exception to the general jurisdiction or power of tribunals to fashion Charter remedies where “it is clearly demonstrated that the legislature intended to exclude the Charter from the tribunal’s jurisdiction”. Section 6(3) of MHARBA does just that, at least to the limited extent of inquiring into or making a decision concerning the “constitutional validity of a provision of an Act or a regulation”.

[7] Paragraph 22 of Conway also recognizes that a tribunal may have the ability to grant Charter remedies generally while excluding a particular Charter remedy from its statutory mandate. In this case a declaration of invalidity is excluded as a remedy.

[8] We recognize and anticipate that it will be challenging for the Board to decide the boundaries of admissible evidence in the hearing to follow. To be clear about our interpretation of the order we are reviewing, we say this: Section 6(3) does not foreclose E.H.’s ability to tender evidence or seek a remedy on the basis that (1) her individual Charter rights have been infringed by the application of the statutory and regulatory regime; or (2) the policies of the respondent in withdrawing its funding are contrary to the Charter and invalid and of no effect. Section 6(3) only forecloses inquiry into, or making a decision concerning, the constitutional validity of an Act or a regulation.

[9] The application for judicial review is therefore dismissed. By prior agreement of counsel, there shall be no order as to costs.

Aston J.

Aitken J.

Lederer J.

Date: September 14, 2012