2014 ONSC 6054
DIVISIONAL COURT FILE NO.: 556/13 DATE: 20141027
ONTARIO SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Horkins, Harvison Young, Grace JJ.
BETWEEN:
B.S.A. Diagnostics Limited
Appellant
– and –
Ministry of the Attorney General and Ministry of Health
Respondents
Bobby Sachdeva and Marc Whiteley, for the Appellant
Sandra Nishikawa, for the Respondents
HEARD at Toronto: September 24, 2104
C. hORKINS J.
[1] The appellant B.S.A. Diagnostics Limited (“BSA”) appeals the decision of the Health Services Appeal and Review Board (“the Board”) dated November 15, 2013 (“the Decision”). The Decision flows from a 1998 decision that eliminated vascular ultrasounds from the list of services that BSA was licensed to provide.
[2] This appeal is brought pursuant to the Independent Health Facilities Act, R.S.O., 1990, c-I.3 (“IHFA”). The respondents, Ministry of the Attorney General and Ministry of Health (“the respondents”) oppose this appeal.
Background
[3] BSA provides diagnostic radiology services and has licences to operate independent health facilities under the IHFA. An independent health facility is a health facility in which members of the public receive services for which fees are charged or paid.
[4] On June 3, 1998 and August 31, 1998, the Director of Independent Health Facilities (“the Director”) issued notices advising that pursuant to the IHFA, BSA’s licences for two facilities, licence No. 3577988 and licence No. 1277724 (the “licences”), would be amended to eliminate vascular ultrasounds from the list of services that BSA was licensed to provide at those facilities.
[5] The Director’s decision to amend the licences was based on her conclusion that the services were not being provided in accordance with sections 20.1(2)(a) and (b) of the IHFA. The Director relied on assessments conducted by Dr. Giuseppe Tarulli and Norma Wills, assessors with the College of Physicians and Surgeons of Ontario (“CPSO”) and the opinion of Dr. Walter Ewing, a medical consultant employed by the Ministry of Health and Long-Term Care (the “Ministry”).
[6] On May 30, 1999, BSA served two Requests for Hearing before the Board in relation to the Director’s decisions. After service of the Requests for Hearing, various steps were taken in the appeal process. These steps included the Director’s motion to strike a number of the grounds of appeal, BSA’s delivery of revised grounds of appeal, motions for disclosure and a contempt motion. A date for the hearings was never set. From February 2003 through December 2007, no steps were taken. The Director viewed the Requests for Hearing as abandoned.
[7] In January 2008, the Board tried to schedule a pre-hearing teleconference but it did not take place. In June 2009, the Board wrote to BSA’s counsel to inquire whether BSA intended to proceed with the Requests for Hearing. Approximately one month later, BSA’s counsel advised that it did intend to proceed. However BSA took no steps to pursue its Requests for Hearing before the Board.
THE SETTLEMENT
[8] During this timeframe, BSA, the Director and the Ministry were involved in a number of other administrative and legal proceedings. These included four other Requests for Hearing of decisions by the Director to revoke other licences, two applications for judicial review of the Director’s refusals to grant a relocation request and licence amendment, and a civil action.
[9] During the latter part of 2010, BSA and the Ministry began to explore the possibility of a global settlement to resolve these proceedings. In August 2011, the parties signed Minutes of Settlement that included resolution of the two vascular ultrasound amendment proceedings before the Board.
[10] Pursuant to the Minutes of Settlement, the Director agreed to amend the licences by adding the vascular ultrasound services back to each licence, subject to two conditions set out in paragraph 12:
- Subject to the following conditions, the Director agrees to amend [the licences] by adding vascular ultrasound services to each of these two licences:
(a) BSA shall provide, to the Director, verification of staff qualifications for all staff (physician and technologist) who will be providing the vascular ultrasound services, and specifics regarding the equipment to be used (make, model, serial number and year of manufacturing). The Director will submit this information to the [CPSO] for review in light of the published Clinical Practice Parameters and Facility Standards (“CPPs”) established by the CPSO, and request that the CPSO provide a report to the Director on the results of its review.
(b) BSA shall also provide any additional information and materials as may reasonably be requested by the CPSO and which information and materials the CPSO is legally entitled to request to assist with its review.
[Emphasis added]
[11] Upon receipt of this information from BSA, the Director was required to submit the information to the CPSO for a review “in light of published facility standards established by the CPSO.” The Director agreed to request the CPSO to provide a report on the result of its review. BSA agreed to provide any additional information and materials reasonably requested by the CPSO. If the CPSO reported to the Director that it was satisfied that BSA met the standards for vascular ultrasound services, the Director was required to restore those services back to the licences.
[12] Paragraph 22 of the Minutes of Settlement dealt with the outstanding Requests for Hearings. The wording of this paragraph is important. It states as follows:
BSA will notify the [the Board] that it withdraws its requests for hearings in File Nos. HF6402 and HF6403, with the consent of the Director and without costs, forthwith following the Director’s amendment of [the licences] to include vascular ultrasound services, as described in paragraphs 12-15 above. For greater clarity, BSA shall not be obligated to withdraw its requests for hearings in HASRB File Nos. HF6402 and HF6403 in the event the Director does not amend [the licences] to include vascular ultrasound services.
[Emphasis added]
[13] After the Minutes of Settlement were signed, BSA did not provide the Director with any of the information set out in para. 12 (a) and (b) of the Minutes of Settlement. In fact, this verification information has never been provided. Approximately one year after the Minutes of Settlement were signed, BSA advised that it would not be providing this information. As a result, vascular ultrasound services were not added back to the licences and BSA’s right to not withdraw the Requests for Hearing was never triggered.
The Decision
[14] In October 2012, the Director brought a motion before the Board for an order dismissing the Requests for Hearing.
[15] The Director argued that the Requests for Hearing should be dismissed because the delay resulted in prejudice to the respondents and because the Requests for Hearing were an abuse of process.
[16] The Board heard the motion on March 6, 2013 and released the Decision on November 15, 2013. In its reasons, the Board found that there was “ample evidence of delay.” The Board also noted that “[BSA] does not contest that the delay of almost fifteen years in the prosecution of the Requests for Hearing has been inordinate. Indeed, it would be difficult to imagine a delay of that duration that would not be inordinate.”
[17] The Board further found that there was some evidence of prejudice to the Director resulting from the delay. For example, one of the authors of the assessment reports, Dr. Giuseppe Tarulli, stated that he had no recollection of the events of the assessments and no notes or other documentation about them. Two of the Director’s other witnesses, Norma Wills and Dr. Ewing, had retired in 1999 and 2003 respectively. The Board noted that the passage of time “would exacerbate the difficulty in locating the witnesses.”
[18] The Board also found that there was no “live” issue between the parties and that the Requests for Hearing were moot because of the Minutes of Settlement, which provided a process to determine the question of whether the licences could be amended to restore vascular ultrasound services. Even if the Requests for Hearing proceeded on the merits, the Board noted that “[i]t would be inconceivable that the Board would set aside the Director's orders without conditions similar to those set out in the Minutes of Settlement. The Applicant ought to have complied with the Minutes of Settlement instead of proceeding with what are now moot Requests for Hearing.”
The right of appeal and standard of review
[19] Section 22(1) of the IHFA provides that “[a]ny party to proceedings before the Board may appeal from its decision or order to the Divisional Court on a question of law alone.”
[20] Section 22(3) states that the “Divisional Court may affirm or may rescind the decision of the Board or the court may refer the matter back to the Board for rehearing, in whole or in part, in accordance such directions as the court considers proper.”
[21] The standard of review in this case is reasonableness. This is a statutory appeal of the decision of an administrative tribunal. In previous appeals from this Board, although under different statutes, the courts have consistently applied a standard of review of reasonableness: see Flora v. Ontario (Health Insurance Plan, General Manager), 2008 ONCA 538 at paras. 32-40; Graham v. Ontario Health Insurance Plan (General Manager), 2014 ONSC 1623 at para. 8 (Div. Ct.).
[22] The issues before the Board lay at the core of its function and its decision therefore attracts a presumption of deference. The Decision does not trigger a genuine question of vires or a question of law outside the adjudicator’s specialized area of expertise and thus does not attract a correctness review: Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 55; Alberta (Information and Privacy Commissioner) v. Alberta Teachers Federation, 2011 SCC 61 at paras. 34 and 39.
[23] As stated in Dunsmuir, at para. 47, “[r]easonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.”
The Grounds of Appeal
[24] BSA is pursuing two grounds of appeal:
(1) The Board erred in its application of the law for determining when “delay” in the administrative law context justifies a stay of proceeding (“the delay issue”).
(2) The Board erred in law its determination that the Requests for Hearing were moot (“the moot issue”).
Analysis
[25] It is agreed that BSA can only appeal a question of law. The respondents submit that the grounds of appeal raise questions of mixed fact and law. During the hearing, BSA restated the two grounds of appeal to support its position that these grounds raise questions of law. The restatement of these grounds of appeal is set out below.
[26] For the reasons that follow, the Board’s Decision is reasonable.
The Delay Issue
[27] BSA agrees that the Board correctly stated the law in Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307. Blencoe sets out when a matter in the administrative law context can be dismissed for delay. There must be “proof of significant prejudice which results from an unacceptable delay” (Blencoe at para. 101). The concept of unacceptable delay is also referred to in Blencoe as “inordinate” or “unreasonable.”
[28] The determination of when delay is inordinate “depends on the nature of the case and its complexity, the facts and issues, the purpose and nature of the proceedings, whether the respondent contributed to the delay or waived the delay, and other circumstances of the case.” It is “not based on the length of the delay alone, but on contextual factors, including the nature of the various rights at stake in the proceedings, in the attempt to determine whether the community’s sense of fairness would be offended by the delay” (Blencoe at para. 122).
[29] While the Board correctly articulated the test in Blencoe, BSA states that it was not applied for two reasons. First, while BSA agreed that the delay was 15 years, it did not agree that this delay was inordinate. The Board assumed that the delay was inordinate and failed to analyze the evidence and decide if the delay was inordinate. Second, BSA states that the Board changed the requirement that there be “significant prejudice” to “some evidence of prejudice.” As a result, BSA submits that the Board applied the wrong law.
[30] In the Decision, the Board deals with the delay at para. 26 as follows:
The Applicant does not contest that the delay of almost fifteen years in the prosecution of the Requests for Hearing has been inordinate. Indeed, it would be difficult to imagine a delay of that duration that would not be inordinate.
[31] BSA filed a factum with the Board that clearly stated there was no issue about whether the delay was inordinate. BSA described the Board’s task in the factum at para. 77:
What this Board is therefore tasked with doing is not to analyze the delay – obviously considerable time has elapsed since these appeals were instituted – but to address the prejudice to the Ministry which flows from the passage of time.
[32] It was reasonable, given BSA’s position, for the Board to conclude that the delay was inordinate and to move on to consider the issue of prejudice.
[33] BSA argues that the Board changed the Blencoe test by accepting “some evidence of prejudice” instead of the “significant prejudice” that the Blencoe test requires. In para. 32 of the Decision, the Board states:
In these Requests for Hearing, the Respondent has demonstrated ample evidence of delay and has put forward some evidence of prejudice.
[34] The reasonableness of the Board’s Decision cannot be assessed solely on this reference to “some evidence of prejudice.” The totality of the reasons must be considered. The Board correctly identified the test in Blencoe and went on to review (at paras. 33-42) the prejudice that the delay had caused the respondents. In summary, it found that two witnesses could not be located and their evidence had not been preserved. Dr. Tarulli had no recollection of the assessments that he had conducted. The Board found that the “inordinate delay has impaired [the respondents’] ability to respond the Requests for Hearing.” When the reasons are viewed as a whole, it is apparent that the Board applied the test in Blencoe.
[35] The Board’s decision “falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir at para.47).
The Moot Issue
[36] BSA states two reasons why the Board erred in law when it determined that the Requests for Hearing were moot:
Since the Board had already determined on the basis of Blencoe that the delay had impaired the fairness of the hearing, it was not necessary to consider if the Requests for Hearing were moot. It was no longer a “live” issue.
The Board was not asked to determine the issue of “mootness.” It elected to do so, without notice to the parties and without hearing from the parties. This was a denial of natural justice.
[37] There is no basis for concluding that the Board’s decision on the moot issue was unreasonable.
[38] The Board’s decision on the issue of delay, standing alone, was reason to dismiss the Requests for Hearing. However, it was not an error of law or a denial of natural justice for the Board to consider and decide the moot issue. The Decision was reasonable as explained below.
[39] The ability to dismiss proceedings as moot is inherent to a tribunal’s ability to control its own process. Subsection 23(1) of the Statutory Powers Procedures Act, R.S.O. 1990, c. S.22 states that “a tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.”
[40] The respondents argued that the continuation of the Requests for Hearing was an abuse of process and this was acknowledged in the Decision. BSA had an opportunity to respond to this position. While the Board used the word “moot” to address the abuse of process issue, both concepts are related and concern the Board’s jurisdiction to control its own process.
[41] Whether the issue is framed as an abuse of process or mootness, it flows directly from the Minutes of Settlement that the parties signed. BSA signed the Minutes of Settlement and acknowledged this agreement before the Board. In its reasons, the Board reviewed and considered the Minutes of Settlement and stated at paras. 47 and 59 as follows:
Should the Applicant wish to reinstate vascular ultrasound services to its licence, it must satisfy the Director that it can do so responsibly. This would require a fresh inspection process as envisioned in the Minutes of Settlement. The Applicant concedes that it cannot reinstate vascular ultrasound services to its licences without demonstrating to the Director’s satisfaction, its present suitability to provide these services.
Just over fifteen years have elapsed since the disputed orders were issues and these Requests for Hearing launched. It would be inconceivable that the Board would set aside the Director’s orders without conditions similar to those set out in the Minutes of Settlement. The Applicant ought to have complied with the Minutes of Settlement instead of proceeding with what are now moot Requests for Hearing.
[42] I agree with the above reasons. The Minutes of Settlement established a means by which BSA could once again obtain permission to perform vascular ultrasounds. The right to continue with the Requests for Hearing was preserved, but only if the Director made an unfavorable decision. The Director was not able to make any decision, because BSA unilaterally decided that it would not take the steps that it had agreed to take. In substance, the Board decided that it would be an abuse of process to conduct the hearing that BSA had requested in 1999.
[43] In summary, it was reasonable for the Board to decide that the Requests for Hearing were moot. Given the Minutes of Settlement, BSA’s failure to comply with the conditions in the Minutes of Settlement and the passage of time, the Board’s Decision fell within the range of possible and acceptable outcomes.
Conclusion
[44] BSA’s appeal from the decision of the Board dated November 15, 2013 is dismissed.
[45] The parties have agreed on the quantum of costs. BSA is ordered to pay the respondents costs in the amount of $9,000 all inclusive.
___________________________ C. Horkins J.
Harvison Young J.
Grace J.
Released:
2014 ONSC 6054
DIVISIONAL COURT FILE NO.: 556/13 DATE: 20141027
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Horkins, Harvison Young, Grace JJ.
BETWEEN:
B.S.A. Diagnostics Limited
Appellant
– and –
Ministry of the Attorney General and Ministry of Health
Respondents
REASONS FOR JUDGMENT
C. Horkins J.
Released: October 27, 2014