CITATION: 1308215 Ontario Inc. v. Director Independent Health Facilities, 2011 ONSC 2029
DIVISIONAL COURT FILE NO.: 374/10
DATE: 20110330
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ASTON, LINHARES DE SOUSA AND LEDERER J.
BETWEEN:
1308215 ONTARIO INC.
Appellant
– and –
DIRECTOR, INDEPENDENT HEALTH FACILITIES
Respondent
Eric R. Hoaken and Stephen N. Libin, for the Appellant
Lise G. Favreau and Kristin Smith, for the Respondent
HEARD at Toronto: March 30, 2011
ORAL REASONS FOR JUDGMENT
ASTON J. (orally)
[1] This is an appeal by the licensee under s.22 of the Independent Health Facilities Act. An appeal lies only on a question of law. The Board erred in law. It asked itself the wrong question by limiting its consideration to whether the Director had the authority to revoke the appellant’s licence. It was necessary for the Board to also consider whether the Director’s proposal to revoke the licence was a reasonable exercise of her discretion reflecting the evidence and the Board’s own view of the purpose, policy and objectives of the Act.
[2] The Board found that it was “not necessary” to determine:
(a) Whether the appellant’s billing errors were deliberate or inadvertent;
(b) Whether the appellant deliberately attempted to circumvent the relocation policy;
(c) Whether factual errors and omissions in the appellant’s communications to the Director were deliberately misleading; or
(d) Whether the circumstances listed in ss.18(e) and (g) of the Act were satisfied and if so, whether the appellant had a reasonable explanation for non-compliance.
[3] The Board also failed to consider the consequences of a licence revocation for the appellant.
[4] By framing the issue only as a question of the authority of the Director, the Board applied the wrong legal test and disregarded or gave insufficient weight to relevant evidence. It did not make findings on matters that it needed to decide.
[5] The decision of the Health Services Appeal and Review Board of June 30, 2010, is therefore rescinded.
[6] Consideration of whether the Director’s proposal to revoke the appellant’s licence was a reasonable exercise of her discretionary power falls within the expertise of the Board. The matter is therefore remitted back to the Board for a re-hearing.
[7] Both sides on this appeal are content that if there is to be a re-hearing, it be with the same panel. However, we leave it to the Board to decide whether it should be the same panel or a new panel.
[8] We are concerned that in the original decision the Board seems to characterize the process before it as an appeal. Clearly, it is not. Under s.20(4) of the Independent Health Facilities Act, the Board is conducting a hearing. The hearing does not start with any notion of deference to the Director. The Board is free to substitute its own opinion for that of the Director.
[9] We will endorse the Record: “The appeal is granted for oral reasons given and the matter is remitted back to the Board in accordance with those reasons. The appellant is entitled to costs fixed by agreement at $12,500.00 all inclusive.”
ASTON J.
LINHARES DE SOUSA J.
LEDERER J.
Date of Reasons for Judgment: March 30, 2011
Date of Release: April 1, 2011
CITATION: 1308215 Ontario Inc. v. Director Independent Health Facilities, 2011 ONSC 2029
DIVISIONAL COURT FILE NO.: 374/10
DATE: 20110330
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ASTON, LINHARES DE SOUSA AND
LEDERER J.
BETWEEN:
1308215 ONTARIO INC.
Appellant
– and –
DIRECTOR, INDEPENDENT HEALTH FACILITIES
Respondent
ORAL REASONS FOR JUDGMENT
ASTON J.
Date of Reasons for Judgment: March 30, 2011
Date of Release: April 1, 2011