CITATION: G.-L. v. OHIP (General Manager), 2014 ONSC 5392
DIVISIONAL COURT FILE NO.: 438/13
DATE: 20141006
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, Nordheimer and Mackinnon JJ.
BETWEEN:
C.G.-L.
Appellant
– and –
The General Manager, Ontario Health Insurance Plan
Respondent
David Baker and Rebeka Lauks, for the Appellant
Sunil S. Mathai and Domenic Polla, for the Respondent
HEARD at Toronto: September 10, 2014
BY THE COURT:
Overview
[1] The appellant suffers from a condition known as “vaginal prolapse”. In the appellant’s case, this condition caused her vagina to fall partially out of her body. This, in turn, caused her considerable emotional and physical discomfort.
[2] The condition can be repaired surgically, but the appellant was told that she would have to wait as long as 18 months for surgery in Ontario. As a result, the appellant’s family doctor applied to the respondent seeking out-of-country funding so that the appellant could have the necessary surgery at the Mayo Clinic in Jacksonville, Florida. The respondent denied the request and the appellant appealed that denial to the Health Services Appeal and Review Board (the “Board”). The Board upheld the denial and dismissed the appellant’s appeal.
[3] The appellant has appealed to this court asking that we quash the Board’s decision and remit the matter to the Board for a redetermination. As of the date of the appeal to the Board, the appellant had been successfully operated on at the Mayo Clinic at a cost of approximately (U.S.)$50,000.00.
[4] Before hearing the appellant’s case, the Board made a restricted access order allowing the appellant to identify herself by her initials. The order also provided that if a member of the public or the media requested access to any document made an exhibit in the proceeding, the name and address of the appellant were to be redacted from that document and only her initials were to appear. In making that order, the Board struck a balance between the appellant’s need for privacy and anonymity (given the personal nature of the matter at issue) and the very important principle that Board hearings are to be open to the public.
[5] The appellant also filed her Notice of Appeal in this court using her initials, following what we were advised by counsel is the usual practice in such matters. The panel inquired as to the authority for such a practice; none was provided.
[6] Assuming that such a practice exists, it is our view that it should stop. The Rules of Civil Procedure, R.R.O. 1990, Reg. 194, expressly require that the title of a proceeding used in court documents will contain the “name” of all parties: r. 14.06(1). It is open to a party to use initials or a pseudonym rather than his/her name, but only if a court order permitting that procedure has been obtained. The Board’s order can only apply to its own proceeding. It could not, and did not, purport to apply to proceedings before this court.
[7] This is an important issue because an order permitting a party to use initials or a pseudonym is a form of publication ban. It is an exception to the general principle that all proceedings before the court will be open and public. That general principle was set out by the Supreme Court of Canada in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835 and has been reiterated on many occasions since. It is a general principle that is not to be easily or lightly interfered with. The Supreme Court has also made it abundantly clear that exceptions to the general rule ought not to be granted without giving notice of such a request to representatives of the media and allowing them an opportunity to be heard.
[8] Given that the appeal in this matter was ready for argument, coupled with the fact that we could see good and valid reasons to allow the appellant to use her initials in the particular circumstances of this case, we decided to hear the appeal. However, it should be clear that, in future cases, a party who wishes to proceed in this court under his/her initials must obtain an order of this court authorizing that procedure before employing it.
[9] On the appeal before us, the appellant challenged both the jurisdiction of the panel that heard her appeal and the reasonableness of their decision. She also raised an issue as to costs. For the reasons that follow, we are dismissing the appeal. However, in doing so, we in no way seek to diminish the real suffering that the appellant experienced prior to her surgery, or our concern about the limited availability in Ontario of the surgery the appellant needed (sacrocolpopexy). Too many women with this condition suffer real physical and psychological distress for far too long.
The Board’s Decision
[10] In order to obtain payment for medical services rendered outside Canada, a patient must demonstrate that the treatment is generally accepted as an appropriate one in Ontario for the condition in question. If the treatment is available in Ontario, the patient must show that “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”. (Regulation 552, R.R.O. 1990, s.28.4, made under the Health Insurance Act, R.S.O. 1990, c.H.6, s. 28.4(2)).
[11] In this case, the Board accepted that the surgery in question was generally regarded as appropriate in Ontario, but found that the appellant had failed to establish that the delay in receiving the surgery in Ontario would result in death or “medically significant irreversible tissue damage”.
Issues Raised on this Appeal
[12] The appellant raises three issues on this appeal.
[13] First, she argues that the Board exceeded its jurisdiction and violated the principles of fundamental fairness by reconstituting the panel after the first hearing was adjourned.
[14] Second, she submits that the Board ignored key evidence on the question of whether delaying the surgery she required would cause her to suffer irreversible tissue damage.
[15] Third, the appellant argues that she was denied natural justice when the panel hearing the appeal failed to deal with her request for costs thrown away in relation to the initial hearing date in this matter.
Standard of Review
[16] Both parties agree that the Board’s decision on the question of whether delaying the surgery would result in medically significant irreversible tissue damage or death is to be reviewed on a standard of reasonableness. On the jurisdictional/procedural fairness/natural justice issue, no standard of review analysis is required. A tribunal either has jurisdiction or it does not. Similarly, a decision is either procedurally fair or it is not.
Did the Board lose jurisdiction or deny the appellant procedural fairness when it reconstituted the panel that heard the appeal?
[17] The Board first convened on December 15, 2011 to hear the appellant’s appeal. At that hearing, various procedural matters were dealt with and certain exhibits were filed. During that hearing, the Board indicated that it was its practice to “admit as exhibits to the proceeding all documents received”. After admitting all documents, the Board asked counsel if there were “any other procedural matters.” In response, the appellant objected to the respondent calling its main expert witness, Dr. Kung, because of alleged inadequacies in her report. The respondent requested an adjournment to consider the appellant’s submissions. The Board agreed that the matter should be adjourned and made further procedural orders to expedite the resumption of a hearing. When the panel adjourned the matter, they stated that they were seized.
[18] After several interlocutory motions (one of which, in March 2012, was decided by a completely different panel), new hearing dates were set for July 2012. On the first day of the July hearing, counsel for the appellant raised a concern about the fact that he was appearing before a panel other than the one that presided over the December 2011 hearing. The Chair explained that one of the December 2011 panel members was no longer with the Board and the other two were unavailable on the dates that had been set for the hearing. Counsel for the appellant indicated that he was not consenting to the reconstituted panel, but he felt that he had no other option but to proceed.
[19] Before us, the appellant submits that both the legislation and the Board’s own rules require that if a hearing has started before one panel and a member of that panel becomes unavailable to continue, then the matter should proceed before the two remaining panel members. In this case, the Board set up hearing dates for a time when the two remaining panel members were unavailable and then had the matter proceed before a completely different panel. According to the appellant, in doing so, the Board exceeded its jurisdiction. This requires that its decision be quashed and remitted to the remaining members of the December 15, 2011 panel. The appellant’s counsel submitted that it was his understanding that two members of that panel are still with the Board.
[20] The Ministry of Health and Long Term Care Appeal and Review Boards Act, 1998, S.O. 1998. C. 18, Sched, H. (the “Act”) contains three provisions that are relevant to the appellant’s submission on this point.
14.(1) In a proceeding before a panel of three or more members of a Board, a procedural or interlocutory matter may, if the chair so decides, be heard and determined by one of the members of the panel and the member shall be selected by the chair.
If a member of a Board which has begun proceedings with respect to a particular matter dies, has their appointment to the Board revoked or becomes unable or unwilling to continue as a member before the matter is concluded, the remaining members of the panel may deal with the matter.
Only the members of a panel who were present throughout a proceeding shall participate in the panel’s decision.
[21] At the time of the July 2012 hearing, the Board’s Rules of Practice and Procedure contained two provisions that pertain to this issue.
14.11 If a member of the Board who has participated in a hearing becomes unable, for any reason, to complete the hearing or to participate in the decision, the remaining member or members may complete the hearing and give a decision.
20.08 No member of the Board shall participate in a decision of the Board pursuant to a hearing unless he or she was present throughout the hearing and heard the evidence and argument of the parties and, except with the consent of the parties, no decision of the Board shall be given unless all members so present participate in the decision.
[22] The appellant submits that the proceeding commenced on December 15, 2011. Because the members of the panel who decided the case were not present on December 15, 2011, they should not have participated in the decision. In other words, by proceeding as it did, the Board violated s. 17 of the Act. The appellant also argues that because she received no notice of the fact that her hearing would be held before a completely new panel, she was denied procedural fairness.
[23] In Piller v. Assn. of Ontario Land Surveyors, [2002] O.J. No. 2343, the Ontario Court of Appeal struggled with the issue of when a proceeding commences in an administrative law context. In doing so, Gillese J. A., who wrote the decision for the court, made the following comment at para. 34:
As a matter of law … it is unclear as to when a quasi-judicial proceeding ‘commences’. The answer to the question of when a civil trial begins appears to vary depending upon the context in which it is asked.
[24] In Piller, after five days of hearings where preliminary rulings were made and no evidence heard, the term of one panel member expired. That member continued to preside at the hearing and participated in the decision. The question before the Court of Appeal was whether he was entitled to do so. The governing legislative provision in that case provided that if the term of a panel member expired before a hearing was over but after it had commenced, and if evidence had been heard, then the member was entitled to complete the hearing. The court took a wide and purposive approach to the legislative provision, concluding that the proceeding had clearly commenced. There had been five days of preliminary motions and the fact that evidence would have been referred to during those preliminary motions meant that evidence had been heard.
[25] In the case at bar, the first appearance on December 15, 2011 was a short one and the presiding panel believed itself to be dealing solely with procedural matters. As part of their usual procedure, they marked all of the documents that the Board had received as exhibits. Those exhibits were then refiled before the panel that ultimately heard the case. That second panel, which decided the appeal, heard all of the evidence and arguments. Thus, there was no denial of natural justice and no violation of the administrative law principle that “those who hear must decide”.
[26] Taking a broad and purposive approach to the provisions of the Act and its Rules, there was also no violation of s. 17 of the Act because the members who gave the decision were present throughout the “proceeding”, as that term is understood in the Act. In this regard, it is important to note that s. 14(1) of the Act permits procedural or interlocutory matters to be dealt with in the absence of one or more members of the panel. Thus, s. 17 cannot mean that being “present throughout a proceeding” means being present for all procedural matters.
[27] Section 16 of the Act and the former Rule 20 are/were permissive in their wording. In other words, they provide that if a member becomes unable to complete a hearing, the remaining members may continue their work and give a decision. In this case, that was one alternative the Board could have adopted to deal with the fact that the term of one of the members who presided in December of 2011 had expired. However, given that nothing of substance had occurred on December 15, 2011, the Board chose what was, in our view, a just and fair alternative that in no way prejudiced the parties. They set up a new three-member panel which then received all the evidence and heard all of the arguments, including the arguments on the procedural motion on which the December panel had not yet ruled. Nothing in the Act or the Rules precluded the adoption of this alternative. Further, considerable deference is owed to an administrative tribunal’s decisions on procedural issues (Corner v. Ontario, 2011 ONSC 5979, 270 OAC 179 (Div. Ct.), at para. 50).
[28] In support of the appellant’s submission that she was denied procedural fairness, the appellant relies on the decision of the Federal Court in Brinks Canada Ltd. v. Canadian Human Rights Commission, [1996] F.C.J. No. 27. In that case, the Commission had appointed one person to inquire into certain discrimination complaints that had been made against Brinks. After that person had dealt with a number of preliminary issues, the Commission then assigned the matter to a three-person panel that included the original appointee. The Federal Court found that this procedure caused Brinks real unfairness and prejudice because it was not given notice when the original tribunal member was appointed that he would only be dealing with preliminary matters and that he might subsequently become part of a larger panel to deal with the merits.
[29] The appellant argues that she was never given notice until the day of the hearing that another panel might deal with her matter. Even accepting that this is the case, if the appellant felt in any way prejudiced by the fact that her matter was now being dealt with by a new panel, she could have requested an adjournment to deal with any prejudice she was experiencing. She could have asked that the matter proceed before the two remaining members of the December 2011 panel. She did not do either. Instead, when her counsel was asked by the presiding Chair whether the appellant was ready to proceed with the hearing despite the new panel, counsel stated that she was. Further, on the appeal before us, the appellant could not point to any unfairness or prejudice that she experienced as a result of her matter proceeding before a reconstituted panel.
[30] Accordingly, we find that the reconstituted panel in this case did not result in a loss of jurisdiction or a denial of procedural fairness.
Was the Board’s decision that delaying the surgery would not result in medically significant irreversible tissue damage or death reasonable?
[31] The appellant submits that in reaching its decision, the Board ignored key evidence. In particular:
(a) It ignored the evidence that as the appellant’s vaginal prolapse progressed, the muscles and ligaments that hold the pelvic floor in place were being damaged and that that damage was not reversible. As the prolapse progressed, so did the damage to the tissue.
(b) It overlooked the evidence of Dr. Easton concerning the risk of organ damage and other complications to the appellant from a delay in receiving treatment.
[32] It is true that all of the expert evidence confirmed that the appellant had suffered irreversible tissue damage. However, the Board concluded that this damage was the cause of the appellant’s condition rather than the symptom. In other words, the appellant’s tissues, including her ligaments, could not hold the appellant’s vagina in place because they were already irreversibly damaged. Surgery would not repair or lessen this damage. It only offered an alternate means of holding the vagina in place. Delaying surgery would prolong the appellant’s suffering from the symptoms of the tissue damage she had suffered. It would not cause additional medically significant irreversible tissue damage. As counsel for the respondent submitted, her tissue damage was already irreversible; it could not somehow become more irreversible. As Dr. Easton, the appellant’s expert, confirmed in cross-examination, the appellant’s prolapse was already as bad as it could get.
[33] The appellant also argued that the Board ignored testimony from Dr. Easton that once the support structures of the pelvic floor begin to lose their integrity for whatever reason, the organs they are designed to support begin to drop and this shift will relentlessly progress. First, the Board accepted that if the appellant started to experience any such symptoms they could be treated on an emergency basis and, if necessary, the date for her surgery could be moved up. As appellant’s counsel acknowledged, if damage can be treated, it cannot be properly characterized as irreversible. Second, having heard the evidence, the Board decided that it preferred the evidence of Dr. Kung over that of Dr. Easton and Dr. Lalik (the appellant’s family doctor) as to the likelihood of such damage occurring. In Dr. Kung’s opinion, such damage was a “rare event” (occurring in less than 1% of cases). This was a conclusion that they were entitled to reach on the evidence, and one that reasonably arises from the record before the Board. In this regard, it is important to note that Dr. Easton wrote to the respondent on October 25, 2010 that it was his opinion that the appellant “would not have suffered irreversible tissue damage or death as a result of a delay in surgical treatment of 12 to 18 months”.
The Costs Issue
[34] The respondent concedes that the Board should have addressed the issue of the costs thrown away by virtue of the adjournment on December 15, 2011. The appellant acknowledges that the amount at issue is a very small one. We agree with the respondent that, given the very minor nature of the issue in the context of the proceeding, nothing would be served by remitting it back to the Board for a redetermination. Rule 19.01 of the Board’s Rules provides that costs may be awarded when the Board finds that “a party has acted unreasonably, frivolously, vexatiously, or in bad faith”. In this case, there is no evidence that the respondent’s request for an adjournment on December 15, 2011 was unreasonable, frivolous, vexatious or made in bad faith. Thus, no costs could or should have been awarded.
Conclusion
[35] For these reasons, the appeal is dismissed. The respondent is entitled to costs of this appeal fixed at $7,500 inclusive of disbursements and HST, the amount having been agreed to between the parties.
SACHS J.
NORDHEIMER J.
MACKINNON J.
Released: 20141006
CITATION: G.-L. v. OHIP (General Manager), 2014 ONSC 5392
DIVISIONAL COURT FILE NO.: 438/13
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, Nordheimer and Mackinnon JJ.
BETWEEN:
C.G.-L.
Appellant
– and –
The General Manager, Ontario Health Insurance Plan
Respondent
REASONS FOR JUDGMENT
Released: October 6, 2014