Amalorpavanathan v. Her Majesty the Queen in Right of Ontario, Ministry of Health, 2013 ONSC 5415
CITATION: Amalorpavanathan v. Her Majesty the Queen in Right of Ontario, Ministry of Health, 2013 ONSC 5415
DIVISIONAL COURT FILE NO.: 296/13
DATE: 20130821
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ASTON, NORDHEIMER, AND PERELL JJ.
BETWEEN:
ARULDOSS AMALORPAVANATHAN, BASIL JOHN WILLIAM ARVANITIS, CENTRIC HEALTH REHABILITATION INC., COLIN HALES, D&R THERAPY INC., EGLINTON-BAYVIEW & JOINTS IN MOTION INC., ELIE AZAR, ERIC NASH, EVELYN BRETT, FIONA THIRD, JUDY ANN MICHAELS, KEKRE PHYSIOTHERAPY PROFESSIONAL CORPORATION, LATA GOKHALE, LINDSAY PHYSIOTHERAPY SERVICES, CHRISTOPHER MATTHEWS, NORTH EAST PHYSIOTHERAPY INC., PEGGY SEAVER, PHYSIO-HEALTH & FITNESS INC., PHYSIOTHERAPY MANAGEMENT SERVICES LIMITED, PT HEALTHCARE SOLUTIONS CORP., QUINTE PHYSIOTHERAPY CLINIC, SEMIN ALARAKHIA
Applicants
– and –
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTER OF HEALTH AND LONG-TERM CARE FOR THE PROVINCE OF ONTARIO
Respondent
Michael E. Barrack, John L. Finnigan and Emily Y. Fan, for the Applicants
Lise Favreau, Kristin Smith and Judith Parker, for the Attorney General of Ontario
HEARD at Toronto: August 21, 2013
NORDHEIMER J. (orally)
[1] The applicants seek an order quashing Regulation 138/13 made under the Health Insurance Act, R.S.O. 1990, c. H.6. The Regulation was made on April 10, 2013, was published on April 18, 2013 and was scheduled to come into force on August 1, 2013.
[2] The applicants are the owners of forty-three of Ontario’s ninety-one Designated Physiotherapy Clinics which are authorized to bill the Ontario Health Insurance Plan for designated physiotherapy services provided to patients in Ontario. The effect of the regulation that the applicants seek to quash would be to delist the Designated Physiotherapy Clinics. The applicants claim that Regulation 138/13 was made in violation of the Government’s published policy for prior notice and consultation of regulations that affect business. Relying on the government’s published policy about posting and consultation, the applicants further claim that they had a legitimate expectation that reasonable notice would be given, and a process of consultation would occur, prior to any Regulation being made. Relying on the doctrine of legitimate expectations as being applicable to the enactment of regulations, the applicants, therefore, assert that they have been denied the minimal level of procedural fairness to which they are entitled in these circumstances.
[3] The Government denies that the doctrine of legitimate expectations applies to regulations but submits that, if the doctrine does exist for regulations, the doctrine would not be applicable to the particular circumstances of this case. The Government also says that Regulation 138/13 simply revokes the fee-for-service model that had been in existence and replaces it with an alternative funding model by which funding will be provided for physiotherapy services through agreements between the Government and service providers. The Government asserts that this change reflects a policy decision that does not require advance notice or public consultation.
[4] This application originally came on before Lederer J. as a single judge of the Divisional Court on July 25 as an urgent matter. Lederer J. declined to hear the application choosing instead to adjourn the application to be heard by a panel of the Divisional Court. Given the asserted urgency of the matter, an early date for the hearing was provided. In the interim period, Lederer J. granted an interim declaration suspending the operation of Regulation 138/13 pending the hearing of the judicial review application. The respondent has brought a separate application to set aside that interim declaration.
[5] Great emphasis is placed by the applicants on the Government’s adoption of an Ontario Regulatory Policy back in 2010. That policy applies to “regulations that affect business”. The policy states that regulations that are considered to affect business are required to be posted for consultation purposes for a mandatory period of forty-five days. The policy also anticipated that such regulations would come into effect on one of two fixed dates, either January 1st or July 1st of each year. The applicants say that Regulation 138/13 was not posted for the required forty-five day consultation period and, further, that the Regulation is not coming into effect on one of the two fixed dates.
[6] In my view, whatever merit there may be to the concerns and complaints made by the applicants about the Government’s policy decision to delist the Designated Physiotherapy Clinics and about the consultative process employed before the enactment of the regulation, they do not rise to the level of establishing any legal requirement that has been breached by the Government or that would provide any foundation for the relief that they seek.
[7] The applicants rely on the doctrine of legitimate expectations as the foundation for the relief that they seek. The respondent disputes that the doctrine of legitimate expectations can apply to the promulgation of a regulation. In my view, it is not necessary to resolve that issue since, even if the doctrine applies to this situation, no legitimate expectation arose in this case.
[8] The doctrine of legitimate expectations is an extension of the rules of natural justice and procedural fairness – see Canadian Union of Public Employees (C.U.P.E.) v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539 at para. 131. Its scope is set out in Canada (Attorney General) v. Mavi, 2011 SCC 30, [2011] 2 S.C.R. 504 where Binnie J. said, at para. 68:
Where a government official makes representations within the scope of his or her authority to an individual about an administrative process that the government will follow, and the representations said to give rise to the legitimate expectations are clear, unambiguous and unqualified, the government may be held to its word, provided the representations are procedural in nature and do not conflict with the decision maker’s statutory duty.
[9] The doctrine of legitimate expectations gives rise to procedural rights. The doctrine itself does not give rise to substantive or contractual rights. At most, it requires the Government to follow a proper process before making a decision.
[10] The applicants’ reliance on the Ontario Regulatory Policy as basis for establishing a legitimate expectation fails to meet either of the two requirements of that doctrine. For one, the policy is not a representation that was made directly to the applicants individually or as a specific group. The policy is one of general application made to all of the citizens of the Province.
[11] For another, the policy does not constitute a “clear, unambiguous and unqualified” representation. The policy expressly provides for exceptions. Indeed, it contains a non-exhaustive list of possible exceptions. In this case, the Ministry of Health and Long-term Care obtained an exemption from the policy for Regulation 138/13. The exception relied upon was the exception for “situations where, as a consequence of a legislative requirement, the publication would adversely affect the administration or operation of a government program”.
[12] On this point, the applicants complain that they attempted to inquire of the Ministry in the process leading up to this application what the basis was for the exception being granted but that the Ministry refused to provide that information. The applicants assert that the Ministry ought not to be permitted to rely on the exception to the policy when it has refused to provide information on how the exception was obtained. I do not agree with that assertion for three reasons. First, the applicants have not directly challenged the granting of the exception within this application and, in any event, it is not clear to me that the applicants had any right to inquire into the basis for the exception. Second, there is enough on the evidentiary record to establish that this regulation did qualify for the exception that was obtained. Third, and in any event, the relevance of the exception is not the reason why it was given but the fact that the policy allows for exceptions. That fact demonstrates why the policy is not the type of “clear, unambiguous and unqualified” representation to which the legitimate expectations doctrine applies.
[13] In any case, even if the applicants could establish a procedural unfairness, such a finding does not automatically mean that a remedy must be granted. This court’s exercise of its judicial review authority is a discretionary one. As noted in D. J. M. Brown and J. M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf ed.), at p. 3-1:
The exercise of the court’s supervisory jurisdiction is discretionary. That is, even where a litigant has established a ground on which the courts may intervene in the administrative process, relief will not necessarily be granted: the court may decline to provide a remedy for reasons other than the merits of the application for judicial review.
[14] If this court was to grant a remedy, it would be to quash the Regulation with the full realization that the Ministry could re-enact the same Regulation after the stipulated consultation period. The record establishes that the applicants have been aware for some time that the Government was considering changing the funding model. During that time, the applicants, both through their Association and in some cases directly, made their views known to the Government regarding any change to the funding model through meetings and through written submissions. The applicants have also quite clearly made their feelings known on the subject since the Regulation was made. Where there has been pre-enactment consultation and post-enactment protest before the regulation was to come into force, there is no reason to believe that the Government would have a different view of the matter merely as a consequence of this court imposing on it the need to conduct a formal consultation period for forty-five days.
[15] I appreciate that Evans J.A. in his concurring reasons in Apotex Inc. v. Canada (2000), 188 D.L.R. (4th) 144 (F.C.A.) said that the court should not pre-judge the outcome of the consultative process but that cannot be a categorical principal because, assuming the doctrine of legitimate expectations applies to regulations, the court still retains its discretion about what remedies are appropriate in the circumstances. In the case at bar, the only practical accomplishment of judicial review would be to briefly delay the Government from proceeding as it clearly intends to do. The futility of that result is obvious. As Brown and Evans also note, at p. 3-61:
While akin to the doctrine of mootness, the notion that “no useful purpose would be served” or that an adjudication would be “futile” relates to the efficacy of any relief that a court might grant, rather than to the loss of the substratum of the application or appeal. Generally, where the remedy sought would serve “no useful purpose” or involves something impossible to implement in law or fact, judicial review proceedings have been dismissed.
[16] It would elevate form over substance to quash the Regulation in the present situation where the position of the applicants is well-known to the Ministry and the Ministry has decided to move in a direction than is different from that which the applicants prefer. This is especially so where the issue in question is clearly a matter of government policy including the manner in which public funds are expended.
[17] The application for judicial review is dismissed.
[18] Notwithstanding our decision on the judicial review application, the respondent asked that we hear and determine their motion to set aside the interim declaration by Lederer J. even though the respondent acknowledged that the issue was moot. We first heard argument as to whether we should consider the motion in those circumstances. Having heard submissions, we decline to exercise our discretion to hear the motion. In so declining, we wish to make it clear that we are not to be taken as endorsing the test applied by Lederer J. in reaching his decision.
ASTON J.
COSTS
I have endorsed the back of the Motion Record, “The application is dismissed with oral reasons delivered by Nordheimer J., recorded. We declined to exercise our discretion to hear the respondent’s motion, again with oral reasons. The applicants are to pay costs of the application
including the $5,000 fixed by Lederer J. of $25,000 all inclusive. No costs of the motion.”
NORDHEIMER J.
ASTON J.
PERELL J.
Date of Reasons for Judgment: August 21, 2013
Date of Release: August 26, 2013
CITATION: Amalorpavanathan v. Her Majesty the Queen in Right of Ontario, Ministry of Health, 2013 ONSC 5415
DIVISIONAL COURT FILE NO.: 296/13
DATE: 20130821
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ASTON, NORDHEIMER, AND PERELL JJ.
BETWEEN:
ARULDOSS AMALORPAVANATHAN, BASIL JOHN WILLIAM ARVANITIS, CENTRIC HEALTH REHABILITATION INC., COLIN HALES, D&R THERAPY INC., EGLINTON-BAYVIEW & JOINTS IN MOTION INC., ELIE AZAR, ERIC NASH, EVELYN BRETT, FIONA THIRD, JUDY ANN MICHAELS, KEKRE PHYSIOTHERAPY PROFESSIONAL CORPORATION, LATA GOKHALE, LINDSAY PHYSIOTHERAPY SERVICES, CHRISTOPHER MATTHEWS, NORTH EAST PHYSIOTHERAPY INC., PEGGY SEAVER, PHYSIO-HEALTH & FITNESS INC., PHYSIOTHERAPY MANAGEMENT SERVICES LIMITED, PT HEALTHCARE SOLUTIONS CORP., QUINTE PHYSIOTHERAPY CLINIC, SEMIN ALARAKHIA
Applicants
– and –
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTER OF HEALTH AND LONG-TERM CARE FOR THE PROVINCE OF ONTARIO
Respondent
ORAL REASONS FOR JUDGMENT
NORDHEIMER J.
Date of Reasons for Judgment: August 21, 2013
Date of Release: August 26, 2013