CITATION: Wilkin v. Health Services Appeal and Review Board, 2023 ONSC 4286

DIVISIONAL COURT FILE NO.: 628/22

DATE: 20230724

ONTARIO

SUPERIOR COURT OF JUSTICE – DIVISIONAL COURT

D.L. Corbett, O’Brien & Leiper JJ.

BETWEEN:

Alexi N. Wood, Brooke MacKenzie and Saad Gaya, for the Applicant

David P. Jacobs and Steven Bosnick for the Respondent, Health Services Appeal and Review Board

Alexandra Clark and Matthew Chung for the Respondent, General Manager, Ontario Health Insurance Plan

HEARD by videoconference at Toronto:

July 11, 2023

DR. GEOFFREY WILKIN

Applicant

– and –

HEALTH SERVICES APPEAL AND

REVIEW BOARD and GENERAL

MANAGER, ONTARIO HEALTH

INSURANCE PLAN

Respondents

LEIPER J.

Introduction

REASONS FOR DECISION

1Dr. Wilkin is an orthopedic surgeon who treated a patient who had suffered multiple fractures after a serious fall. Dr. Wilkin submitted claims for his services to the General Manager of the Ontario Health Insurance Plan (“OHIP”). Some, but not all, were approved for payment.

2Dr. Wilkin appealed the decision that denied part of his claim to the Health Services Appeal Review Board (the “Board”) which held a hearing and upheld the OHIP decision. The Board’s decision was upheld after further reconsideration.

3Dr. Wilkin challenges these decisions. He argues that the Board erred or unreasonably received opinion evidence from Dr. Davidson, an OHIP witness.

Issues on Review

4The issues on review are:

1. Did the Board act reasonably in admitting the evidence of Dr. Davidson?

2. Did the Board fail to provide the Applicant with procedural fairness relative to the evidence of Dr. Davidson?

Standard of Review

5The presumptive standard of review is reasonableness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 16. The Applicant submits that the question of the admissibility of opinion evidence is of such significance that this issue falls within the exceptions to the presumptive reasonableness standard articulated in Vavilov at paras. 58-62 and attracts a standard of correctness. He submits that the issue here is sufficiently significant such that it affects the administration of justice more broadly. I disagree.

6In this case the question of the admissibility of the evidence from the General Manager was a fact- and context-specific decision by the Board. The question here– the admissibility of opinion evidence – may arise again before the Board, however the context and issues will vary. This is not the type of question that requires a “single determinate answer”: Vavilov at para. 60. A brief description of the nature of the evidence, and the ruling demonstrates this.

7The Applicant challenges the admissibility of evidence from Dr. Davidson, an orthopedic surgeon and medical advisor with experience assessing surgical claims for OHIP.

8Two witnesses testified at the hearing before the Board, the Applicant and Dr. Davidson. The Applicant testified about his rationale for the billing codes he submitted under the Schedule of Benefits for Physician Services, R.R.O. 1990, Reg. 552/92 (“Schedule of Benefits”).

9Dr. Davidson, on behalf of OHIP, testified as to how OHIP claims are assessed, the interpretation, application, and amendments to the Schedule of Benefits, and described the Ministry of Health’s rationale for disallowing the disputed fee codes in this case.

10The Applicant objected to Dr. Davidson giving opinion evidence on whether the claims in this case had been properly assessed. The Board ruled that it should hear the evidence because it would be relevant and helpful. The Board Chair noted that much of the evidence as described did not sound like opinion evidence, but that counsel could object to any opinion evidence. The Chair also observed that the Board was aware that Dr. Davidson was not a lawyer, and that questions of statutory interpretation would be for the Board to determine. Counsel for the Applicant chose not to object during the examination-in-chief of Dr. Davidson. Counsel cross-examined Dr. Davidson and raised a challenge to aspects of that evidence in her final submissions.

11This ruling was specific to the evidence and the context of the dispute before the Board. It is a common exercise of statutory decision-making that administrative tribunals will determine the purpose, weight, and admissibility of the evidence before them. There is nothing on this record that lifts the question of Dr. Davidson’s evidence into the broad and significant category that would require a single determinate answer.

12Accordingly, I conclude that the reasonableness standard is the applicable standard of review.

Analysis

Did the Board Unreasonably Admit the Evidence of Dr. Davidson?

13The Applicant acknowledges that Dr. Davidson gave fact evidence that was admissible as to context, the process of claims analysis and settlement, and the decision denying some of the Applicant’s claims for payment under the Schedule of Benefits.

14However, counsel for the Applicant submits that this fact evidence was interwoven with impermissible opinion evidence from an expert who, although qualified, was not an unbiased, neutral expert. The Applicant emphasized that Dr. Davidson was employed by the Ministry, was identified as the “client” during the hearing and was involved in an informal review of the fees claimed prior to the hearing before the Board.

15To summarize the findings on this question, I find that the Board reasonably received Dr. Davidson’s evidence, as an employee for one of the parties with expertise in the areas of orthopedic surgery and the application of OHIP billing codes to surgical procedures. Further, as the overview of Dr. Davidson’s evidence below shows, much of the evidence she gave was explanatory of OHIP’s process and decision. The Board accurately described this as fact evidence.

16The Board applied its own judgment to the central question in dispute: the application of the fee codes to the surgical procedures undertaken by the Applicant. Ultimately, the Board preferred OHIP’s interpretations of the disputed fee codes to those of the Applicant. Although he does not challenge the fact that this was a reasonable and available interpretation that was open to the Board, the Applicant submits that the error in permitting Dr. Davidson to testify meant that the application should be allowed, and a new hearing ordered before the Board.

17Specifically, the Applicant submits that the Board erred or acted unreasonably in describing Dr. Davidson as a “participant expert” as that term has been applied under r. 53.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 in civil proceedings and as described in the decision of the Court of Appeal in Westerhof v. Gee Estate, 2015 ONCA 206, 124 O.R. (3d) 721. Although the “participant expert” classification is not apt in the case of Dr. Davidson, this does not make her evidence inadmissible. The Board has wide latitude to admit evidence it finds to be relevant and useful. Further, Dr. Davidson’s evidence was akin to a type of expert evidence which is recognized in the civil context that applies to employees of a party.

Participant Experts in Civil Proceedings

18Westerhof recognizes that a broader group of witnesses with expertise may testify in civil claims even though this group would not meet the usual criteria for independent experts retained by a party. This broader group includes “participant experts” who may have been involved in the events underlying the litigation and have relevant expertise and information relative to the issues in dispute: for example, physicians who treat injuries that are relevant to personal injury cases. It also includes “non-party experts” such as statutory accident benefits insurers who form opinions for reasons separate from the litigation.

19In both such examples, participant and non-party experts are “not engaged by a party to form their opinions, and they do not form their opinions for the purpose of the litigation”: Westerhof, at para. 82. They are not litigation experts. In civil trials, counsel is not required to follow the provisions of r. 53 prior to tendering evidence from these witnesses such as having the witness prepare an expert report and sign an acknowledgement of the expert’s duty to provide fair, neutral and non-partisan opinion evidence within the scope of their expertise.

The Admission of Expert Evidence before the Board

20Section 23(4) of the Health Insurance Act, R.S.O. 1990, c. H.6 grants the Board the powers found in section 15 of the Statutory Powers Procedure Act (“SPPA”). That provision provides that:

15 (1) …a tribunal may admit as evidence at a hearing, whether or not given or proven under oath or affirmation or admissible as evidence in a court,

(a) any oral testimony; and

(b) any document or other thing, relevant to the subject-matter of the proceeding and may act on such evidence…

The Divisional Court has recognized that this section gives tribunals “wide powers concerning the admission of evidence, including experts”: Connor Homes v. Director, 2021 ONSC 3195 (Div. Ct.), at para. 47; Ontario Racing Commission v. Hudon, 2008 68156 (Div. Ct.), at para. 23. In M.R. v D.E., 2016 ONSC 1542, the Divisional Court noted at paragraph 21 that in tribunal proceedings governed by the SPPA, while the principles in R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9 remain relevant to the admission of expert evidence, statutory tribunals are not bound by those principles.

Overview of the Evidence of Dr. Davidson

21Dr. Davidson testified first about her background and expertise, the nature of her role with OHIP, the claim and adjudication process within OHIP, and communications issued from OHIP to physicians to assist with billing. This can fairly be described as general fact and context evidence. It is not the subject of controversy.

22Dr. Davidson testified about the steps she took relative to Dr. Wilkin’s claims for treatment. She became involved after the OHIP assessment when Dr. Wilkin sought review by the Board. At that stage, she reviewed the material and provided a third level of review of the disputed codes OHIP payment decisions and denials. Counsel for the Applicant objected on the basis that Dr. Davidson’s opinion on the point was not admissible. Counsel’s objection was grounded in the submission that Dr. Davidson was not a “participant” expert. Counsel also raised fairness concerns because Dr. Davidson’s role in “adjudicating” the claim had not been disclosed until this stage.

23The Board permitted a further question from counsel for OHIP, concerning the steps that would have been taken had Dr. Davidson disagreed with OHIP’s decision.

24Counsel for OHIP then made submissions on the admissibility of Dr. Davidson’s evidence, arguing that it was relevant to explain the billing decision. She also argued that Dr. Davidson was a participant in the underlying events because of her involvement prior to the hearing and could provide an opinion on whether a new code sought by the Applicant (D059) applied. Finally, counsel submitted that Dr. Davidson would testify about the musculoskeletal procedures in issue and how the Ministry interpreted the two fee codes in dispute: D059 and E555.

25Counsel for Dr. Wilkin took no issue with the Board receiving Dr. Davidson’s opinion on applying code D059. Likewise, she did not object to evidence of context and claim processing. Counsel objected to Dr. Davidson being characterized as a participant expert and challenged the relevance of her opinion on applying the disputed femoral fee code (E555), which OHIP had already considered and rejected in writing. Counsel for the Applicant also objected to the Board hearing opinion evidence about the intention of the legislature that would go to the “heart of the interpretation issue.”

26The Board ruled that it would hear Dr. Davidson’s evidence. The Board Chair observed:

And at the end of the day, it’s really, you know, it’s the Board that’s doing the statutory interpretation. We, we fully appreciate Dr. Davidson is not a lawyer, and so, we’re just, we’re just hearing from her about the ministry’s practice and view. But at the end of the day, it’s the Board that’ll make the final determination about what the Schedule of Benefits means. So, that’s how I propose to go forward.

The evidence continued. Dr. Davidson testified about physician claim processing, appeals, the Schedule of Benefits and the consultations with the Ontario Medical Association on behalf of its members.

27From there, Dr. Davidson described the preamble to the musculoskeletal surgical sections of the Schedule of Benefits. She described surgical terms related to the Applicant’s claims, including “fixation” “reduction” and “traction,” and how the Ministry interprets those terms in the context of the Schedule of Benefits.

28Dr. Davidson testified about the payment decision made in this case. She described OHIP’s decision to pay certain codes and not others. Dr. Davidson described her own review of the decision and her thinking. Much of this evidence described the anatomy in question and the various procedures used by clinicians for “damage control” orthopedics.

29The final question and answer put to Dr. Davidson was a request for an opinion:

Q: And testifying here today, do you agree that the fee codes that were paid were the correct fee codes for the services that [the Applicant] rendered to the patient?

A. I believe that they were the appropriate fee codes. After reviewing his operative note and correlating with the Schedule of Benefits.

The Board’s Treatment of Dr. Davidson’s Evidence

30In its reasons, the Board found that:

• Dr. Davidson’s evidence described OHIP’s position on the fee codes. This was not opinion evidence as to the legislature’s intent.

• Although not originally involved with the adjudication of the Applicant’s fees, Dr. Davidson later became involved when he substituted code D059 and sought consideration of payment under that code in the materials filed before the Board. The Board was satisfied that Dr. Davidson was a participating expert entitled to give her opinion on the assessment of the fee codes at issue.

• Dr. Davidson’s role as Medical Advisor assessing claims for surgical services meant that she had special expertise with respect to the billing of surgical fee codes.

Discussion

31Dr. Davidson’s evidence was relevant and admissible evidence that fell within the discretion of the Board to hear. This flows from s. 15 of the SPPA as well as prior decisions of this court, as discussed above, which recognize that statutory tribunals have discretion including in choosing to admit opinion evidence.

32Further, although Dr. Davidson may not have been properly analogous to a “participant expert” as that label has been applied to certain types of witnesses in civil proceedings, this does not mean that evidence from someone in her role, and with her knowledge, would not be admissible on other alternative bases had this been a civil proceeding.

33Dr. Davidson was clearly not an independent expert retained to give an opinion in litigation, and the type of expert in civil proceedings to whom r. 53 applies. Nor does her role fit the criteria of a “participant expert”. The defining characteristics of a “participant expert” from Westerhof is a witness with expertise who is involved prior to the litigation and for a purpose unrelated to the litigation but related to the factual events underlying the litigation.

34However, Dr. Davidson did meet the criteria for a third type of witness, that being as a litigant’s employee with expertise.

35This category of witness was recognized in Kon Construction v. Terranova Developments Ltd., 2015 ABCA 249, 602 A.R. 327 as a potential source of opinion evidence. At paragraph 35, the Court of Appeal for Alberta described three categories of “experts”:

(a) independent experts who are retained to provide opinions about issues in the litigation, but were not otherwise involved in the underlying events. This is the category of expert witness contemplated by White Burgess and Mohan.

(b) witnesses with expertise who were involved in the events underlying the litigation, but are not themselves litigants. An example is the

family physician in a personal injury case who is called upon to testify about his or her observations of the plaintiff, and the treatment provided; and

(c) litigants (including the officers and employees of corporate litigants) who have expertise, and who were actually involved in the events underlying the litigation.

36I conclude that the Board did not act unreasonably in admitting Dr. Davidson’s evidence. The reasons reveal that the Board came to its own conclusions, having heard the Applicant’s rationale, followed by OHIP’s decision as described by Dr. Davidson. Dr. Wilkin testified about his rationale for the applicable codes to the medical procedures he performed. Although the Board described Dr. Davidson as a participant expert, in ruling on the objection, the Board directed itself not to treat Dr. Davidson as a legal expert. It instead treated her as a witness with expertise as to the processing of claims and with knowledge of the orthopedic procedures and terms used in this case.

37I would also not give effect to the submission that opinion evidence was intertwined with the fact evidence because the summary of evidence shows that most of Dr. Davidson’s evidence was descriptive and factual. The final question was most clearly a question of opinion. The Board reasonably admitted it, having acknowledged the constraints on her evidence and the separation of its role from that of Dr. Davidson.

Conclusion

38The application for judicial review is dismissed. Costs are awarded in favour of OHIP to be paid by Dr. Wilkin in the amount of $10,000 on a partial indemnity basis. By agreement of all parties, no costs are awarded against or in favour of the Board.

Leiper J.

I agree

D.L. Corbett J.

I agree

O’Brien J.