CITATION: Dr. Fialkov v. Health Services Appeal and Review Board, 2023 ONSC 4244
DIVISIONAL COURT FILE NO.: DC-23-040-00 and DC-23-042-00-JR
DATE: 20230814
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, Sutherland and Schabas JJ.
BETWEEN:
DR. JEFFREY FIALKOV
Appellant
– and –
HEALTH SERVICES APPEAL AND REVIEW BOARD and THE GENERAL MANAGER, THE ONTARIO HEALTH INSURNANCE PLAN
Respondents
AND BETWEEN:
DIVISIONAL COURT FILE NO.: DC-23-042-00 JR
DR. JEFFREY FIALKOV
Applicant
– and –
THE HEALTH SERVICES APPEAL AND REVIEWE BOARD and THE GENERAL MANAGER, THE ONTARTIO HEALTH INSURANCE PLAN
Respondents
Uko Abara, Counsel for Appellant
Nelson Wan, Counsel for Respondents
Valerie Crystal, for the Landlord and Tenant Board
Valerie Wise and Victoria Tremblett, Counsel for Appellant
Christopher Thompson, Counsel for Respondent, Ontario Health Insurance Plan
HEARD in Toronto: June 13, 2023 (by videoconference)
REASONS FOR DECISION
Sutherland J.
Overview
[1] The appellant/applicant, Dr. Fialkov (“the doctor”) appeals and brings a judicial review of the decision of the Health Services Appeal and Review Board (“the Board”) dated December 21, 2022. In that decision, the Board confirmed the decision of the Ministry of Health (“the Ministry”) that payments and fees, professional and facility, that the doctor charged and received in relation to a patient who received a septorhinoplasty procedure were unauthorized given that the procedure was an insured service. The statutory appeal concerns the professional fee received contrary to s. 10 of the Commitment to the Future of Medicare Act, 2004[^1] (“CFMA”), while the judicial review concerns the facility fee received contrary to s. 3 of the Independent Health Facilities Act[^2] (“IHFA”).
[2] The doctor contends that the Board’s interpretation of Appendix D to the Schedule of Benefits is both incorrect and unreasonable. Thus, the Board’s decision should be set aside.
[3] The Ministry disagrees and contends that the Board’s interpretation was correct and reasonable when reviewed as a whole. The procedure performed by the doctor was an insured service and as such, required preapproval. The doctor did not request or obtain preapproval and further was not able to charge the patient directly for the insured service.
[4] For the reasons below, I agree with the Ministry and dismiss the appeal and the judicial review.
Brief History
[5] On December 5, 2019, the doctor performed a septorhinoplasty[^3] on the patient at a private facility. The doctor completed an initial assessment of the patient in October 2019 finding she had broken her nose and nasal airflow was obstructed. The doctor determined a septoplasty was medically necessary and would be an insured service. This is not contested.
[6] The patient also wanted a rhinoplasty for the purpose of altering appearance. This procedure was not medically necessary. The quote was for $10,550.52 ($7,133.40 for the surgical fee; $3,417.12 for the facility fee; harmonized sales tax totaling $1,213.78). The doctor advised the Board this was just the standard fee that he charged when the patient would be receiving a septorhinoplasty. The doctor said he did not charge the patient for the septoplasty. The patient paid the amount quoted.
[7] After the surgery, the doctor did not claim the fees for the septoplasty from the Ontario Health Insurance Plan (“OHIP”), despite it being an insured service. The Ministry in January 2021 contacted the doctor regarding the $10,550.52 charged for the septorhinoplasty procedure. The doctor provided the Ministry with all information relating to the procedure and medical records. In October 2021, after reviewing the documentation, the Ministry informed the doctor that the surgery was medically necessary and thus insured. The patient, the Ministry stated, should not have paid for the surgery.
[8] In reply, the doctor informed the Ministry that the rhinoplasty was performed for the purpose of altering the patient’s appearance and was purely cosmetic. The septoplasty, which was medically necessary and insured, was not charged to the patient. Thus, the procedure was a partial septorhinoplasty.
[9] Ultimately, in February 2022, the Ministry confirmed that the rhinoplasty was medically necessary, making the septorhinoplasty an insured service. In making these findings, the Ministry was satisfied the doctor had received an unauthorized payment and facility fee from the patient. The doctor was required to reimburse the patient for the unauthorized payment and facility fee, failing which, the Ministry would reimburse the patient and the doctor would be indebted to OHIP. The doctor requested a review of the Ministry’s decision to the Health Services Appeal and Review Board.
The Board’s Decision
[10] The Board was required to determine whether the rhinoplasty component of the septorhinoplasty was medically necessary to obtain an adequate airway. If it were, it would render the whole septorhinoplasty an insured service for which the doctor was not able to charge.
[11] The Board found that the rhinoplasty component was necessary to obtain an adequate airway. The doctor performed spreader grafts that were inserted to widen the narrow nasal valves observed by the doctor prior to surgery. The spreader grafts were used to address/correct a functional problem and the spreaders were an element of the rhinoplasty. The use of these spreaders during the rhinoplasty was thus necessary for obtaining an adequate airway, rendering it medically necessary, and the whole procedure, the septorhinoplasty, was found to be an insured service pursuant to paragraph 15 of Appendix D of the Schedule of Benefits.
[12] In effect, the Board interpreted that the necessity of the spreader grafts made the whole service, the functional and the cosmetic or non-functional service, an insured service. The doctor performed a rhinoplasty that was necessary without obtaining prior approval, as is mandated. Thus, the doctor should have claimed for the complete procedure as an insured service and could not charge the patient either fee.
Jurisdiction and Standard of Review
[13] This Court has jurisdiction to hear the appeal pursuant to s. 22(1) of the IHFA. The appeal is limited to questions of law.
[14] This Court has jurisdiction to hear the application for judicial review pursuant to ss. 2(1) and 6(1) of the Judicial Review Procedure Act[^4] (“JRPA”).
[15] The parties agree on the usual applicable standards of review. The standard of review for the appeal, limited to questions of law, is correctness. The standard of review for the application for judicial review is reasonableness.[^5] However, the doctor contends that it makes no sense to have two standards of review when both the appeal and the application for judicial review turn on interpreting the same provision. Therefore, he submits that the standard of review for the judicial review should also be correctness.
[16] The Ministry correctly points out that there is no authority for the doctor’s position. With respect to the Board’s interpretation of the statutory provision at issue, if the appeal is dismissed because the Board’s interpretation is found to be correct then the judicial review application cannot succeed on this basis. However, the Board also made a factual determination that the rhinoplasty was necessary to obtain an adequate airway. On the judicial review application, this factual determination must be reviewed on a standard of reasonableness.
Issues
[17] The issues in this appeal and judicial review are:
(a) The appeal: Did the Board err in law in determining that the professional fees charged were for an insured service and should be returned to the patient?
(b) The judicial review: Did the Board err in deciding that the facility fees involved an insured service?
Analysis
[18] The doctor contends that the issue is whether a partial septorhinoplasty performed by him is an insured service preventing him from charging the patient. The doctor argues that he could charge the patient given his determination that the rhinoplasty was not surgically necessary. To understand the doctor’s argument, paragraph 15 of Schedule D of the Schedule of Benefits must be reviewed.
[19] Paragraph 15 reads as follows:
- Septorhinoplasty
This is an insured service when the rhinoplasty component is necessary to obtain an adequate airway or for persons aged 16 years and under, at the time of trauma and for whom the rhinoplasty is completed, or is part of a preplanned staged repair, which is commenced, at any time following trauma and prior to the age of 19 years; or, for persons aged 17 years and older at the time of trauma and for whom the rhinoplasty is completed, or is part of a preplanned staged repair (See paragraph 6 of this Appendix).
In cases where a septoplasty is necessary to improve function and a rhinoplasty is done for cosmetic purposes, the Ministry of Health will pay the part of the operation that was medically necessary (e.g. if a septorhinoplasty is performed and a septoplasty was necessary to improve the airway, the Ministry of Health will pay M012 and the surgeon is entitled to claim the difference from the patient). However, if a septorhinoplasty is approved by the Ministry, no extra charge may be made to the patient.
Prior authorization from the Ministry of Health is required. A description of the external deformity should be provided.
[20] Based on the second half of this provision the doctor submits that if he had sought prior approval from the Ministry, he would have been approved to do a partial septorhinoplasty (ie. a septoplasty with spreader grafts) and while that would have been an insured service, he would have been entitled to recover the cost of the uninsured component of the full septorhinoplasty that he performed (ie. the cosmetic portion of the rhinoplasty) from the patient. He also would have been entitled to charge and/or accept a fee in respect of the cosmetic rhinoplasty portion of the procedure.
[21] The problem with this submission is that the doctor did not request approval for a partial septorhinoplasty; he was not granted approval for a partial septorhinoplasty, and he did not perform a partial septorhinoplasty. Rather he performed a septorhinoplasty and the issue the Board had to determine was whether this procedure was an insured service.
[22] In doing so the Board focused on the language at the beginning of paragraph 15 of Schedule D, which states that a septorhinoplasty is an insured service when the rhinoplasty component of the procedure is necessary to obtain an adequate airway.
[23] It is agreed that in reviewing the paragraph 15 and interpreting its meaning, the Court should focus on the ordinary and grammatical meaning of the words used. The modern principle is that the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.[^6]
[24] With respect to the intention of Parliament, the legislature has made clear in the preamble of the CFMA that insured services are to be billed and paid through the publicly funded health care system and that there be continued support for the prohibition of a two-tier medicine, extra billing, and user fees in accordance with the Canada Health Act.[^7]
[25] The scheme adopted by the legislature for the public health insurance system is enforced through the prohibition of charging persons privately for insured services. Section 10(1) of the CFMA states:
Persons not to charge more than OHIP
10 (1) A physician or designated practitioner shall not charge more or accept payment or other benefit for more than the amount payable under the Plan for rendering an insured service to an insured person.
[26] In addition, s. 3(3) of the IHFA states:
3(3) No person shall charge a facility fee, or accept payment of a facility fee, for or in respect of a service provided to an insured person in an independent health facility operated by a person licensed under this Act, unless the fee is charged to, or the payment is received from, the Minister or a prescribed person.
[27] Against this backdrop of policy and purpose, in reading paragraph 15 of Schedule D of the Schedule of Benefits, the Board correctly determined that if it concluded that the rhinoplasty was medically necessary to provide an adequate airway, then the procedure at issue was an insured service. This interpretation is consistent with the ordinary and grammatical meaning of the paragraph read in context and consistent with the intention of Parliament and the scheme of the Act.
[28] The Board also made a factual determination that the use of grafts by the doctor in the circumstances showed that the rhinoplasty was medically necessary to provide an adequate airway. We have no jurisdiction to review this factual determination on appeal. With respect to the judicial review application, this Court has not been provided with a basis to conclude that the Board’s finding that the rhinoplasty was required for airflow was unreasonable. The Board determined that the service was medically necessary and insured. The Board’s conclusion that the facility fee was charged in violation of s. 3(3) of the IHFA was therefore reasonable.
[29] Consequently, I conclude that the Board did not err in deciding that the professional fee and facility fee charged by the doctor were for an insured service, and the patient should not have been charged by the doctor.
Disposition
[30] The appeal and judicial review are dismissed.
[31] The parties have agreed on costs. The appellant/applicant shall pay to the General Manager, The Ontario Health Insurance Plan the all-inclusive sum of $8,000.
Sutherland J.
I agree _______________________________
Sachs J.
I agree _______________________________
Schabas J.
Release Date: August 14, 2023
CITATION: Dr. Fialkov v. Health Services Appeal and Review Board, 2023 ONSC 4244
DIVISIONAL COURT FILE NO.: DC-23-040-00 and DC-23-042-00-JR
DATE: 20230814
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
DR. JEFFREY FIALKOV
Appellant/Applicant
– and –
HEALTH SERVICES APPEAL AND REVIEW BOARD and THE GENERAL MANAGER, THE ONARIO HEALTH INSURANCE PLAN
Respondents
REASONS FOR DECISION
Sutherland J.
Released: August 14, 2023
[^1]: S.O. 2004, c. 5. [^2]: R.S.O. 1990, c. I.3. [^3]: A septorhinoplasty is a procedure that combines a rhinoplasty (change the shape of the nose) and a septoplasty (to straighten the bone and cartilage dividing the space between the two nostrils). [^4]: R.S.O !990, c. J. 1. [^5]: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, at paras. 16-17, 37, 115-124. [^6]: Bell ExpressVu Ltd. Partnership v. Rex., 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26. [^7]: R.S.C. 1985, c. C-6.