CITATION: Graham v. The General Manager, The Ontario Health Insurance Plan, 2014 ONSC 1623
DIVISIONAL COURT FILE NO.: 27/14
DATE: 20140314
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LEDERMAN, KITELEY JJ. AND GORDON R.S.J.
BETWEEN:
JODI GRAHAM Appellant
– and –
THE GENERAL MANAGER, THE ONTARIO HEALTH INSURANCE PLAN Respondent
William J. Sammon and Amanda Estabrooks, for the Appellant
Matthew Horner, for the Respondent, The General Manager, The Ontario Health Insurance Plan John Johnston, for the Respondent, The Ministry of Health and Long Term Services
HEARD at Toronto: March 10, 2014
GORDON R.S.J.
Overview
[1] Jodi Graham appeals a decision of the Health Services Appeal and Review Board (the “Board”) dated July 17, 2013. In its decision the Board dismissed her application for review of a decision made by the General Manager of the Ontario Health Insurance Plan (“OHIP”) which denied her request for pre-approved funding for in-patient rehabilitative services at the Halvar Jonson Center for Brain Injury (“HJC”) in Alberta.
Background Facts
[2] Jodi Graham is currently 32 years of age. At age 24 she sustained catastrophic physical injuries in a motor vehicle accident, including a severe traumatic brain injury. Since her accident, Ms. Graham has received insured medical services from hospital, health facilities, physicians, non-hospital health facilities and health practitioners in Ontario. Through much hard work and with the unwavering support of her mother, Ms. Graham has recovered many of her cognitive abilities; however, she remains significantly handicapped by her physical deficits, and may gain a greater degree of physical independence if those deficits can be addressed.
[3] HJC endeavours to provide those affected by brain injuries with the ability to reach their highest functional potential. It does so by providing a comprehensive multi-team environment that focuses on intensive physical rehabilitation. Of some importance to this appeal is the fact that HJC does not accept public funding.
[4] On May 30, 2012 Ms. Graham applied to OHIP for pre-approved funding for in-patient rehabilitation services at HJC. Her application was supported by her family physician and the Medical Director of the Neurospinal Rehabilitation Program at the Ottawa Hospital Rehabilitation Centre. The Respondent denied her application on the basis that the services she requested were not insured services within the meaning of s. 28(1)(a) and (b) of Regulation 552 made pursuant to the Health Insurance Act R.S.O. 1990, c. H.6. The Respondent took the position that HJC is not licensed or approved as a hospital by the licensing authority in Alberta, and Ontario has no preferred provider arrangement with HJC under section 28.0.1(1) of the Regulation.
[5] Ms. Graham appealed to the Board, taking the position that OHIP’s interpretation of the legislation and regulations prevented her from accessing otherwise beneficial treatment. She argued that OHIP had an obligation to interpret the relevant legislation in a way that conforms to the Canadian Charter of Rights and Freedoms and that its interpretation breached her equality rights under section 15 and her right to life, liberty and security of the person under section 7. The Board rejected her Charter argument on the basis that it was, in essence, a challenge to the validity of the Regulation, which was beyond its jurisdiction pursuant to section 6(3) of the Ministry of Health and Long-Term Care Appeal and Review Board Act, 1998, S.O. 1998, c. 18. The Board agreed with the decision of the General Manager of OHIP that in-patient services at HJC are not insured services of OHIP under sections 28 or 28.01 of Regulation 552 under the Health Insurance Act.
The Position of the Appellant
[6] Ms. Graham takes the position that the Board erred in law when it rejected her arguments that the General Manager’s interpretation and application of the Canada Health Act, R.S.C. 1985, c. C-6 and the Health Insurance Act and Regulations made thereunder breached her section 7 and 15 Charter rights. She seeks an order under section 24(1) of the Charter requiring the General Manager of OHIP to include the HJC as a “hospital” within the meaning of that word in section 28(1)(a) and (b) of Regulation 552. In the alternative she seeks an order under section 24(1) of the Charter requiring the General Manager on behalf of OHIP to enter into a preferred provider arrangement with the HJC pursuant to section 28.0.1(1) of Regulation 552 so that she may access the necessary services. As a further alternative, it is suggested that an order issue requiring the General Manager on behalf of OHIP to enter into a funding arrangement with HJC so that she may access the necessary services.
The Position of the Respondent
[7] The Respondent takes the position that Ms. Graham has failed to demonstrate that her Charter rights have been engaged. It submits that section 15 of the Charter is not engaged because the denial of funding in this case was based on the fact that the facility in question is not licensed as a hospital, not on the basis of the appellant’s disability. It submits that section 7 of the Charter is not engaged because the funding for treatment under the Health Insurance Act and its regulations does not engage the right to life, liberty or security of the person.
Standard of Review
[8] Decisions of the Board which interpret its own statute are reviewable on a reasonableness standard.
[9] The Board’s decisions concerning the scope of its constitutional jurisdiction are reviewable on a correctness standard.
Analysis
[10] The Canada Health Act establishes the criteria and conditions in respect of insured health services provided under provincial law that must be met before funding is provided by the federal government. In order to qualify for its full entitlement, the health care insurance plan of a province must satisfy certain criteria respecting universality, portability and accessibility.
[11] Publicly-funded health insurance in Ontario is governed by the provisions of the Health Insurance Act and the regulations made pursuant to that Act. The purpose of the Act is to provide insurance coverage against the cost of insured services on uniform terms and conditions to all residents of Ontario. However, funding provided by the Act does not extend to all medical treatments and procedures, but only to those the legislature has determined should be included as “insured services” [see Flora v. Ontario(General Manager, Ontario Health Insurance Plan), 2008 ONCA 538 (C.A.)].
[12] For the most part, services insured under the Act are provided within Ontario. However, to comply with the “portability” requirements of the Canada Health Act, Regulation 552 provides for payment of services obtained outside of Ontario in certain circumstances. Section 28(1) of the Regulation defines the scope of insured hospital services provided on an in-patient or out-patient basis outside of Ontario but within Canada. Although all requirements of section 28(1) must be met in order for a service to be insured, subsections (a) and (b) are of particular pertinence in this appeal, and provide as follows:
- (1) In-patient or out-patient services rendered in a hospital outside Ontario but within Canada are prescribed as insured services if,
(a) the hospital that supplied the services is approved by the General Manager for the purposes of the Plan; and
(b) the hospital that supplied the service is licensed or approved as a hospital by the governmental hospital licensing authority in whose jurisdiction the hospital is situated.
[13] It is apparent that HJC meets neither of these two criteria. In the circumstances, the Board agreed with the General Manager’s decision that the in-patient services sought did not qualify as insured services. The Appellant has not challenged that conclusion, and we agree with it.
[14] The Board declined to consider the Appellant’s Charter arguments on the basis that to do so would require it to determine the constitutional validity of a regulation, something it is prohibited from doing under section 6(3) of the Ministry of Health and Long-Term Care Appeal and Review Board Act.
[15] All parties agree that the Charter issues are properly within our jurisdiction. In the circumstances, it is not necessary for us to determine whether or not the Board was correct in declining to entertain them.
Has there been a breach of the Appellant’s Section 7 Rights?
[16] Section 7 of the Charter provides that everyone has 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.
[17] In the case of Flora, supra the Ontario Court of Appeal made the following findings:
…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.
[18] The same principles apply in the case before us.
[19] The Appellant would distinguish Flora on the basis that the treatment in that case could be obtained by private payment, while in this case it cannot. The Appellant argued that the combined effect of the General Manager’s interpretation of section 28, along with HJC’s policy not to accept private funding results in a complete inability to access medical services, as was the case in Chaoulli v. Quebec, 2005 SCC 35. However, in Chaoulli it was the legislative scheme that created an effective prohibition to private funding and, hence, treatment. In the case before us it is not the legislation that prevents Ms. Graham from obtaining the desired treatment, but HJC’s refusal to accept private payment. Surely this independent determination by HJC cannot result in the Charter breach alleged.
[20] As found in Flora, section 7 of the Charter does not create a positive constitutional obligation on the government of Ontario to fund out of province medical treatments. Section 28 of the Regulation provides a financial benefit not otherwise provided by law and its limitations on the scope of those benefits do not contravene section 7.
Has there been a breach of the Appellant’s Section 15 Rights?
[21] Section 15 of the Charter provides that every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.
[22] The Appellant takes the position that the Respondent’s interpretation of the legislation creates a distinction between those who are physically injured and suffer a resulting brain injury and those who suffer from a mental disorder and a further distinction between people who suffer a physical disability generally and those who suffer a brain injury resulting in catastrophic physical disabilities.
[23] We agree with the position of the Respondent that the Appellant has provided no evidence to suggest that the alleged distinction has either the purpose or the effect of treating persons with brain injuries differently from others on the basis of their disability. Her only evidence is that one facility in one province is not defined as a hospital for the purposes of section 28(1)(b) of the Regulation. This is not sufficient to establish that the definition of hospital in section 28(1) of the Regulation treats persons differently on the basis of their disability. In brief, the nature of Ms. Graham’s disability is not a factor which impacts her entitlement.
Other Issues
[24] In light of the Board’s finding that the services in question are not “insured services” under section 28(1), and our findings that there has been no violation of the Appellant’s Charter rights, it is unnecessary to address whether there are substantially similar services available to the Appellant in Ontario, or whether there exists a remedial right under section 24(1) of the Charter to order the Minister to enter into a preferred provider arrangement with HJC.
Conclusion
[25] We are, of course, sympathetic to Ms. Graham’s circumstances. However, for the reasons given, we see no basis upon which to interfere with the decision of the Board and the appeal must be dismissed. As neither party has asked for costs, no order is made in that regard.
GORDON R.S.J.
LEDERMAN J.
KITELEY J.
Released: March 14, 2014
CITATION: Graham v. The General Manager, The Ontario Health Insurance Plan, 2014 ONSC 1623
DIVISIONAL COURT FILE NO.: 27/14
DATE: 20140314
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LEDERMAN, KITELEY JJ. AND GORDON R.S.J.
BETWEEN:
JODI GRAHAM Appellant
– and –
THE GENERAL MANAGER, THE ONTARIO HEALTH INSURANCE PLAN Respondent
REASONS FOR JUDGMENT
GORDON R.S.J.
Released: March 14, 2014