Ontario Superior Court of Justice
Divisional Court
Citation: 2012 ONSC 5172 Divisional Court File No.: 156/11 Date: 20120913
Before: Aston, Aitken and Lederer JJ.
Between:
Detlef Soth Applicant
– and –
Her Majesty the Queen as Represented by the Lieutenant Governor of Ontario and the Attorney General of Ontario in Council Respondent
Counsel: Detlef Soth, In Person Judie Im, for the Respondent
Heard at Toronto: September 13, 2012
Oral Reasons for Judgment
by the court (orally)
[1] This is an application for judicial review of the vires of Ontario Regulation 552, a regulation to the Health Insurance Act. Although the Applicant gave notice of a constitutional question, he has today abandoned any constitutional or Charter challenge. However, the Applicant’s position is that certain provisions of the Regulation having to do with coverage for out of country medical treatment are ultra vires and of no force because they contravene criteria set out in the Canada Health Act and are therefore contrary to s. 45(3.3) of the Health Insurance Act.
[2] That section reads as follows:
A regulation made under clause 1(e) or (g) [exclusions to insured services and governing payments for insured services] shall not include a provision that would disqualify the Province of Ontario under the Canada Health Act for contribution by the government of Canada because the plan would no longer satisfy the criteria under that Act.
[3] There is no significant difference between the wording of s. 45(3.3) of the Health Insurance Act and the limiting words in s. 45(1)(h) of the former Ontario Health Insurance Act which was the subject of judicial review by this court in Collett v. Ontario (Attorney General), [1995] O.J. 776.
[4] We agree with the analysis and conclusion of the majority in that case. Because the consequence of any failure to satisfy the criteria under the Canada Health Act becomes a matter of intergovernmental consultation and ultimately is a decision within the discretion of the Governor in Council, the issue is not now justiciable, and the Applicant’s challenge to the vires of the regulation is premature.
[5] The Application for Judicial Review is therefore dismissed.
ASTON J.
[6] I have endorsed the Record, “For oral reasons given and recorded, the application is dismissed. No costs.”
ASTON J.
AITKEN J.
LEDERER J.
Date of Reasons for Judgment: September 13, 2012
Date of Release: September 18, 2012
2012 ONSC 5172
DIVISIONAL COURT FILE NO.: 156/11
DATE: 20120913
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ASTON, AITKEN AND LEDERER JJ.
BETWEEN:
DETLEF SOTH
Applicant
– and –
HER MAJESTY THE QUEEN AS REPRESENTED BY THE LIEUTENANT GOVERNOR OF ONTARIO and THE ATTORNEY GENERAL OF ONTARIO IN COUNCIL
Respondent
ORAL REASONS FOR JUDGMENT
Date of Reasons for Judgment: September 13, 2012
Date of Release: September 18, 2012