CITATION: Dykie Estate v. The General Manager, OHIP, 2016 ONSC 6273
DIVISIONAL COURT FILE NO.: 15-595 DATE: 20161006
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
R.S.J. GORDON, NORDHEIMER and C. HORKINS JJ.
BETWEEN:
THE ESTATE OF WILLIAM DYKIE Appellant
– and –
THE GENERAL MANAGER, THE ONTARIO HEALTH INSURANCE PLAN Respondent
Gary Srebrolow and Lisa Bruni, for the Appellant
Rina M. Li and Domenico Polla, for the Respondent
HEARD at Toronto: October 6, 2016
NORDHEIMER J. (orally)
[1] The Estate of William Dykie appeals from a decision of the Health Services Appeal and Review Board that upheld a decision of the General Manager of the Ontario Health Insurance Plan that declined to reimburse the appellant for the costs of medical treatment received by William Dykie in Houston, Texas prior to his death.
[2] William Dykie was diagnosed with pancreatic cancer in August 2010. With that diagnosis, Mr. Dykie was told that his matter would be reviewed and a course of treatment recommended. The first step in that review was for Mr. Dykie to see a surgeon. While waiting for the consultation with a surgeon, Mr. Dykie continued to experience severe effects of his cancer. At the urging of his family doctor, he attended at the emergency department of Toronto General Hospital on August 12. Mr. Dykie remained at the hospital overnight but was discharged the next morning. He was given medication for his symptoms. There is disputed evidence whether Mr. Dykie was also given an appointment for a consultation with a surgeon for August 19.
[3] On August 14, Mr. Dykie left Toronto for Houston. He went to a clinic in Houston where he was treated. He remained at this clinic until October 18 when he returned to Ontario. Mr. Dykie received further treatment in Ontario but, unfortunately, he passed away in March, 2012. The total cost of Mr. Dykie’s medical care in Texas was approximately $320,000. It is this amount that the appellant seeks from OHIP.
[4] The General Manager of OHIP rejected Mr. Dykie’s request for reimbursement of the Texas expenses because (1) Mr. Dykie had not asked for approval prior to incurring the expenses and (2) Mr. Dykie did not satisfy the requirement for post-approval for such expenses because the services were not provided in “emergency circumstances”.
[5] In order to satisfy the requirement of “emergency circumstances”, a person must face immediate risk of death or medically significant irreversible tissue damage. As the Board observed, whether a person is facing immediate risk will depend on the facts of each case. In reaching its conclusion in this case, the Board heard a variety of witnesses including an expert called by the appellant. The Board concluded that Mr. Dykie’s condition had been stabilized while he was at TGH. The very next day, Mr. Dykie left for Houston.
[6] The evidence before the Board established that it was reasonable for Mr. Dykie to have to be seen by a surgeon before any other treatment was prescribed. The Board found that Mr. Dykie had been set up for an appointment with a surgeon while he was at TGH. The appointment was for August 19, about five or six days later. While admittedly the evidence on this latter point is confused and conflicting, it was the role of the Board to sort through that evidence and reach a conclusion. That is what the Board did and there is no basis for finding that that conclusion regarding the August 19 appointment date is unreasonable.
[7] Central to the Board’s conclusion is its finding that there was time for Mr. Dykie to submit an application for coverage of the Texas medical expenses, and to get a decision on that application, prior to actually travelling to Texas. The Board also found that any risk to Mr. Dykie, as a consequence of that process, was not “so urgent” that it required him to travel to Houston when he did, and prior to submitting his application for expenses. The Board’s finding that the risk to Mr. Dykie was not so urgent, of course, also meant that he did not qualify for post-approval of those expenses.
[8] The parties agree that the standard of review governing the Board’s decision is reasonableness. Reasonableness is defined in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 47, as:
… whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.
[9] In my view, the appellant has failed to demonstrate that the decision in question is unreasonable. The Board’s decision was driven by the facts as it found them, based on the medical evidence that it heard. Those factual findings were open to the Board on the evidence. It is not the job of an appellate court to reweigh the evidence or to substitute our opinion for the conclusion that the Board made.
[10] The real problem for the appellant in this case is the same as was faced by the appellant in McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895 where Moldaver J. said, at para. 41:
Accordingly, the appellant's burden here is not only to show that her competing interpretation is reasonable, but also that the Commission's interpretation is unreasonable. And that she has not done. [emphasis in original]
[11] In my view, the appellant is essentially asking us to re-evaluate the medical evidence and come to a different conclusion – one that favours its position. That is not the role of this court on an appeal, as I have already pointed out.
[12] The appeal is dismissed.
COSTS
[13] I have endorsed the Appeal Book and Compendium as follows: “This appeal is dismissed for oral reasons given by me. Costs of $2,500.00 as agreed by the parties payable by the appellant to the respondent.”
___________________________ NORDHEIMER J.
R.S.J. GORDON
C. HORKINS J.
Date of Reasons for Judgment: October 6, 2016
Date of Release: October 7, 2016
CITATION: Dykie Estate v. The General Manager, OHIP, 2016 ONSC 6273
DIVISIONAL COURT FILE NO.: 15-595 DATE: 20161006
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
R.S.J. GORDON, NORDHEIMER and C. HORKINS JJ.
BETWEEN:
THE ESTATE OF WILLIAM DYKIE Appellant
– and –
THE GENERAL MANAGER, THE ONTARIO HEALTH INSURANCE PLAN Respondent
ORAL REASONS FOR JUDGMENT
NORDHEIMER J.
Date of Reasons for Judgment: October 6, 2016
Date of Release: October 7, 2016