CITATION: J.C. v. General Manager, Ontario Health Insurance Plan, 2019 ONSC 141
DIVISIONAL COURT FILE NO.: 232/17
DATE: 20190115
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, A. O’MARRA and McCARTHY JJ.
BETWEEN:
J.C.
Appellant
– and –
THE GENERAL MANAGER, THE ONTARIO HEALTH INSURANCE PLAN
Respondent
Kelley J. Bryan, for the Appellant
Judie Im, for the Respondent
HEARD at Toronto: December 12, 2018
Swinton J.
Overview
[1] The appellant J.C. appeals a decision of the Health Services Appeal and Review Board (the “Board”) dated March 28, 2017 that upheld a decision of the General Manager of the Ontario Health Insurance Plan dated April 30, 2014 refusing to compensate her for expenses incurred for out-of-province medical treatment.
[2] The appellant argues that the Board’s decision was unreasonable. For the reasons that follow, I would dismiss her appeal, as I find that the Board’s decision was reasonable, given the conditions set out in the governing legislation and the evidence before the Board.
Background
[3] The services for which the appellant seeks coverage were obtained at Discovery Ranch in Utah from June 2 to November 29, 2014, when the appellant was a teenager. To protect her privacy, I refer to her by her initials in these reasons, and I will keep the description of her medical and personal situation brief.
[4] Health services rendered outside Canada are not “insured services” under the Ontario Health Insurance Plan, within the meaning of the regulations under the Health Insurance Act, R.S.O. 1990, c. H.6, unless certain criteria and conditions are met. For purposes of this appeal, s. 28.4(2) is the operative provision of R.R.O. 1990, Reg. 552. The service must be generally accepted by the medical profession in Ontario as appropriate for a person in the same medical circumstances as the insured person. The service must also be medically necessary. Most importantly, paragraph (c) provides
either,
(i) the identical or equivalent service is not performed in Ontario, or
(ii) the identical or equivalent service is performed in Ontario but it is necessary that the insured person travel out of Canada to avoid a delay that would result in death or medically significant irreversible tissue damage …
[5] Pursuant to s. 28.4(4), written approval must be obtained from the respondent before the out-of-country services are rendered in circumstances that are not emergency circumstances.
[6] The appellant had been diagnosed with a number of concurrent mental health and substance abuse disorders for which she received inpatient and outpatient treatment in Ontario over a number of years. In October 2013 she enrolled in an inpatient program, Second Nature, in Utah, without obtaining prior approval for payment for the treatment. After completing that program in January 2014, she continued in a boarding school affiliated with Second Nature in Utah. She subsequently sought prior approval for payment for a further inpatient program at Discovery Ranch in Utah in April 2014. The request was denied. Nevertheless, she attended the program and appealed the respondent’s decision denying coverage to the Board, as well as the respondent’s refusal to pay for the Second Nature program.
[7] The Board held a three day hearing at which it heard viva voce testimony. It found that the Second Nature program was an insured service, because the appellant met the emergency circumstances criterion in the regulations. Therefore, she was entitled to reimbursement for expenses related to treatment at Second Nature.
[8] However, the Board denied the appellant’s appeal with respect to the claim for the Discovery Ranch treatment, because it found that an equivalent service was performed in Ontario at three institutions (Pine River, Dave Smith and Portage), and the appellant had not demonstrated that it was necessary to travel outside Canada to obtain treatment in order to avoid a delay that would result in death or medically significant irreversible tissue damage. In particular, it noted that there was evidence that a placement would have been available at Dave Smith in May 2014.
The Issues
[9] An appeal lies to this Court from a decision of the Board on a question of law or fact or both (Health Insurance Act, s. 24(1) and (4)).
[10] The appellant argues that the Board unreasonably concluded that equivalent services were available in Ontario, and that she was not at risk as a result of the delay in accessing Ontario treatment programs.
The Standard of Review
[11] Past decisions of this Court have held that the reasonableness standard of review applies to decisions of the Board concerning payment of out-of-country medical expenses (see, for example, C.-W.(C.) (Litigation Guardian of) v. Ontario Health Insurance Plan (General Manager) (2009), 2009 712 (ON SCDC), 95 O.R. (3d) 48 (Div. Ct.) at paras. 41-46).
Did the Board unreasonably find that equivalent services were available to the appellant in Ontario?
[12] The appellant argues that the Board unreasonably concluded that equivalent services were available in Ontario. In particular, she argues that she required a female-only treatment program. Second, the Utah program offered equine therapy, and no Ontario program did so. Third, the appellant argues that she required concurrent treatment. Finally, she submits that the Dave Smith program was not appropriate treatment for her, because she had already attended that program and relapsed.
[13] The Board applied a test for “equivalent services” that had been developed in past cases. This test requires the Board to determine if treatments available in Ontario are of “comparable value, function and/or effect” (Reasons at para. 106). The respondent did not dispute that a residential treatment program was necessary for the appellant.
[14] The Board then analyzed the evidence to determine the essential elements of a residential treatment program for the appellant in April 2014. It concluded that there were four essential elements (see para. 108):
• The program must be able to deal simultaneously with the appellant’s mental health disorders and addictions.
• It must provide for both group and individual therapy.
• It must be youth specific.
• It must provide for family therapy.
Equine Therapy
[15] The Board rejected the submission from the appellant and her family physician Dr. David Cadman that equine therapy was essential, because the therapy was not an evidence-based therapy. The Board stated that “in this case, at best, the evidence establishes that such ‘therapy’ provides pleasure and some motivation to the Appellant” (Reasons at para. 112).
[16] In my view, this was a reasonable conclusion on the part of the Board, given the evidence before it.
A female only program
[17] The Pine River and Portage programs are co-educational. Only Dave Smith offered a female only program.
[18] The Board rejected the argument that the appellant required treatment in an all female program. The Board observed that it would be difficult to make such a finding in the absence of “strong” supporting evidence (Reasons at para. 113). The Board explained its conclusion (at para. 114):
The evidence before the Appeal Board indicates that Dr. Cadman’s April 2, 2014 letter in support of the Application for out-of-country funding stated that a female -only residential facility was “preferable.” Dr. Szatmari expressed the opinion that in the Appellant’s circumstances such a facility was unnecessary. Given this evidence, the Appeal Board finds that a female only treatment element does not, on balance, meet the requirements necessary to be considered essential.
[19] The appellant argues that the Board misapprehended the evidence. She concedes that Dr. Cadman’s letter in support of the funding application uses the word “preferable” in one place (p. 198 of the Appeal Book). However, she points out that he also stated in the application that Portage was not suitable, given her prior history and current level of insight, because it was co-ed (Appeal Book, p. 199). The transcript of his evidence also shows that he felt a suitable treatment program for the appellant would have only female participants (see, for example, Transcript p. 232).
[20] The appellant also takes issue with the treatment of Dr. Szatmari’s evidence. Dr. Szatmari was an expert witness who testified on behalf of the respondent. In his expert’s report, he states, “In addition, there is no evidence that psychosocial interventions be delivered by members of either gender according to the gender of the client.” This comment is addressed to the gender of the staff. He does not specifically comment on whether the appellant required a program with only female participants. Dr. Cadman was of the view that the other participants in the appellant’s program should be female.
[21] However, Dr. Szatmari’s opinion should be read in context. He was responding to a recommendation from Halton Health Services Committee, made in July 2014 after the appellant started at Discovery Ranch, that it was essential that the appellant receive equine therapy and that she receive treatment in an all female facility. Dr. Szatmari concluded that neither of the conditions was necessary.
[22] The Board considered all the evidence. Board members asked questions of counsel about the issue of an all female facility. I note that in his testimony, Dr. Cadman did not say that an all female program was “essential”. Indeed, the appellant’s parents had put her name on the waiting list for Pine River in late 2013, and that program was co-educational. Enrolment at Portage had been considered in the past, even though that was a co-ed facility. The Board, having heard all the evidence, was in the best position to determine whether a female only program was essential. In my view, its finding that it was not an essential element was reasonable.
Concurrent treatment
[23] The Board concluded, on the basis of the evidence of Dr. Cadman and Dr. Szatmari, that concurrent treatment was not an essential element. It concluded that the essential elements of a residential treatment program could be provided in a sequential manner in order to be “equivalent.” That was a conclusion that the Board was entitled to reach, given that both doctors agreed that sequential treatment is practised in Ontario for an individual in the appellant’s position.
Prior treatment at Dave Smith
[24] The Board concluded that three programs offered equivalent services in Ontario at the time that the appellant enrolled in Discovery Ranch: Pine River, Dave Smith and Portage.
[25] The appellant argues that the Board unreasonably concluded that the Dave Smith program was equivalent, given that she had participated in a program there in 2013 and relapsed shortly after leaving the program. However, the Board considered the evidence and rejected the argument that the Dave Smith program was not clinically suitable, in part because of the evidence that the appellant was more amenable to treatment in April 2014, and she had made considerable progress through the Second Nature program.
[26] The Board reasonably concluded that there was “no persuasive evidence” that the appellant would not have cooperated with and participated in the Dave Smith program.
Interruption of the Discovery Ranch program
[27] The appellant submits that the Board should have considered the detrimental impact on her if she had to interrupt the Discovery Ranch program.
[28] I disagree. The Board’s task was to consider the criteria in the regulations with respect to eligibility for compensation for out-of-country services. The regulations require that prior approval be obtained, absent emergency circumstances. Accordingly, the Board properly looked at the availability of programs in Ontario around the time of the application for approval and the circumstances prior to enrolment at Discovery Ranch. The impact of the interruption of the Discovery Ranch program was not a relevant consideration.
Was the Board’s finding with respect to delay reasonable?
[29] The Board concluded that delay in accessing equivalent services in Ontario would not result in a risk of death or medically irreversible tissue damage. The onus was on the appellant to prove delay.
[30] Most significantly, the Board found that there was evidence that an opening was available at Dave Smith on May 5, 2014, prior to the commencement of the appellant’s program at Discovery Ranch in June 2014. Had the appellant enrolled in the Dave Smith program, there would have been no delay in obtaining treatment, and she would have been in an all female program. According to the Board, “[t]his evidence is dispositive of this issue, since this option, if accepted, would have effectively eliminated any delay in treatment” (Reasons, at para. 129).
[31] The Board’s conclusion on delay was reasonable, given the evidence before it.
Conclusion
[32] The Board made findings with respect to the essential elements of a treatment program for the appellant and the availability of treatment in Ontario in a timely manner. Its findings are supported by the evidence and within the range of reasonable outcomes. Accordingly, there is no basis for judicial intervention, and the appeal is dismissed.
[33] In the circumstances of this case, we would award no costs.
Swinton J.
I agree _______________________________
A. O’Marra J.
I agree _______________________________
McCarthy J.
Released: January 15, 2019
CITATION: J.C. v. General Manager, Ontario Health Insurance Plan, 2019 ONSC 141
DIVISIONAL COURT FILE NO.: 232/17
DATE: 20190115
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, A. O’MARRA and McCARTHY JJ.
BETWEEN:
J.C.
Appellant
– and –
THE GENERAL MANAGER, THE ONTARIO HEALTH INSURANCE PLAN
Respondent
REASONS FOR JUDGMENT
Swinton J.
Released: January 15, 2019