CITATION: Spirou v. College of Physiotherapists of Ontario, 2024 ONSC 964
DIVISIONAL COURT FILE NOs.:266/23, 267/23, 268/23, 269/23
DATE: 2024 02 13
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
McWatt, F., ACJ, Edwards, D., and Shore, S. JJ
BETWEEN:
JOHN SPIROU, PRAVEEN OOMMMEN, THEVENDRI SABDGA, and CHUNG YEUNG
G. Ragan, for the plaintiffs
Plaintiffs
- and -
THE COLLEGE OF PHYSIOTHERAPISTS OF ONTARIO
J. Birenbaum, for the defendants
Defendants
HEARD: January 23,2024
Shore, S., J.
APPLICATION for judicial review of the decision of the Inquiries, Complaints and Reports Committee of the College of Physiotherapists of Ontario to caution four physiotherapists.
Overview
[1] Four physiotherapists, John Spirou, Praveen Oommen, Thevendri Sabga, and Chun Yeung (collectively, the “Applicants”) seek judicial review of four respective decisions of the College of Physiotherapists of Ontario (the “College”) Inquiries, Complaints and Reports Committee (the “ICRC” or the “Committee”) released on April 3, 2023 (collectively, the “Decisions”).
[2] The Decisions required the Applicants to attend before a panel of the ICRC to receive a verbal caution related to the accuracy of the invoicing practice of the multidisciplinary health clinic co-owned by the Applicants.
[3] The Applicants submit that the Committee exceeded its statutory jurisdiction and that the Decisions were unreasonable. The College asks that the application be dismissed.
[4] For the reasons set out below, the application is dismissed.
The Court’s Jurisdiction and the Standard of Review:
[5] The court has jurisdiction under ss. 2 and 6 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.
[6] The parties agree that the Decisions are to be assessed on a reasonableness standard.
Legal Framework:
[7] Physiotherapy is a self-regulated profession in Ontario, pursuant to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (the “RHPA”). The College is the regulatory body established by statute to regulate and govern physiotherapists in Ontario. The statutory scheme governing the College is contained in the RHPA, the Health Professions Procedural Code (the “Code”), the Physiotherapy Act, 1991, S.O. 1991, c. 37, and the regulations established thereunder.
Brief Background:
[8] The Applicants are co-owners and directors of the Centres for Active Rehabilitation Excellence Institute (“C.A.R.E.” or the “Clinic”). The Clinic offers physiotherapy and other multidisciplinary health services through four clinics in the Windsor-Essex area.
[9] In November 2018, the College received a copy of a complaint that Green Shield Canada (“GSC”), an insurance company, submitted to the College of Physicians and Surgeons, regarding physicians at C.A.R.E.
[10] In November 2019, following a review of the documents from GSC, the College’s Registrar appointed investigators to inquire into the conduct of the Applicants, the Clinic’s co-owners, in order to ascertain whether they may have committed an act or acts of professional misconduct regarding conflicts of interest, billing practices, consent, record keeping, and patient assessment and treatment practices.
[11] As part of its investigation, the College sought and received further information from GSC. From this further disclosure, it was discovered that C.A.R.E. had failed to collect co-payment amounts for a number of products and services delivered to GSC plan members.
[12] GSC reported that it appeared that C.A.R.E. had waived the co-payment amounts for a number of plan members, yet it had submitted invoices to GSC for the full amount of the product or service. Independent of the College’s investigation, GSC asked C.A.R.E. to pay them $42,388.96 for the uncollected co-payment amounts. The Applicants paid the amount requested by GSC.
[13] There is no dispute that C.A.R.E. had a general and systemic practice of waiving insurance co-payments for its patients. The Clinic advertised this practice in bold and large letters on its website. Further, there is no dispute that it submitted invoices to GSC for the full amount of the service without noting the waived co-payments on the claim submissions, although the Applicants submit that, technically, there were no “invoices” submitted and/or there was no ability for the Clinic to advise GSC that they waived the co-payments.
[14] At the conclusion of its investigation, ICRC released the Decisions. In the Decisions, the Committee stated that “the College does not regulate physiotherapy clinics per se and in general, the College only regulates physiotherapists themselves. Nonetheless, the College may hold registered physiotherapists accountable, where appropriate, for systemic issues in the practices of clinics or businesses in which these physiotherapists participate in the ownership or management” (emphasis added). This is the crux of the judicial review. The Applicants submit that the College does not have jurisdiction to regulate practices or businesses.
[15] The Committee found that there was sufficient basis to caution the Applicants. The Committee decided not to refer the matter for a disciplinary hearing.
The Applicant’s Position:
[16] The Applicants ask that the decisions of the ICRC to issue cautions be quashed, or in the alternative, that the matters be remitted back to the ICRC for reconsideration. The Applicants have three primary grounds for review:
(a) The College did not have statutory jurisdiction to regulate the business practices of C.A.R.E.
(b) The Committee’s decisions regarding C.A.R.E.’s business practices were unreasonable.
(c) The decisions to caution the Applicants were unreasonable.
Analysis:
A. Jurisdiction
[17] The Applicants admit that the online claims and the manual claim submissions made by the Clinic to GSC did not indicate that the Clinic intended to or was waiving any co-payment. The Applicants submit that there was no place on the forms to indicate information regarding co-payments. The ICRC found that by submitting a claim to GSC for the full amount of the product or service without indicating that any co-payment would be waived, the Clinic had misrepresented the amount it billed to the insurer because GSC paid 100 percent of the cost, as opposed to only 80 percent.
[18] Whether the Clinic financially benefited or had an obligation to GSC to collect the co-payment from the patients was irrelevant to the fact that the Clinic submitted inaccurate claims or invoices.
[19] The Committee found that the Applicants, at all times, had a professional obligation to ensure that invoices and claims submitted by the Clinic under their direction were accurate.
[20] The Applicants submit that the Committee erred in investigating and reprimanding the Applicants for matters pertaining to the management and business practices of the multidisciplinary Clinic. The ICRC lacked jurisdiction to hold registered physiotherapists accountable for systemic issues in clinics or businesses.
[21] Did the Committee have jurisdiction to consider the actions taken by the Applicants pertaining to the management and business of the Clinic?
[22] Under the Code, the objects of the College are broad and include, among other things, “[t]o regulate the practice of the profession”, “[t]o develop, establish and maintain standards of professional ethics for the members”, and “[t]o promote and enhance relations between the College and its members, other health profession colleges, key stakeholders, and the public”: see s. 3(1), paragraphs 1, 5 and 8. In light of these objects, a number of regulations have evolved.
[23] Under s. 51(1)(c) of the Code, the ICRC may find that a member has committed an act of professional misconduct if the member has committed an act of professional misconduct as defined in the regulations. Regulated professions are given deference to define misconduct within their legislative mandate.
[24] Acts of professional misconduct for physiotherapists are set out in Professional Misconduct, O. Reg. 388/028, under the Physiotherapy Act, 1991.
[25] Both parties referred to caselaw in their submissions. Of the cases on which the Applicants rely to argue that the Committee does not have jurisdiction to regulate clinics, most involved complaints against individuals with no ownership interest in the business or clinic, rather than clinic owners (see for example, Feletig v. Williams, 2023 10518 (Ont. HPARB) and P.B. v. S.M.B., 2017 37546 (Ont. HPARB)). These situations are quite different from the matter before this court, where the business was owned and run by physiotherapists.
[26] Under the regulations, the College can find professional misconduct when a member has failed to take reasonable steps “to ensure that any accounts submitted in the member’s name or billing number are fair and accurate”: Professional Misconduct, O. Reg. 388/028, s. 1, paragraph 33 (also see paragraphs 28 and 32). The accounts submitted in the Applicants’ names were not accurate.
[27] It would be nonsensical for the College to have jurisdiction to regulate fees and billings of individual members, but no jurisdiction to regulate fees and billings over members that operate their practice through their own business. This would allow members to easily avoid oversight by the College by running their practice though a business. The Applicants do not deny that they were the operating minds of the Clinic and that they directed and were responsible for the Clinic’s practice of waiving co-payments. The Decisions were reasonable and consistent with past decisions made by the College: see for example, Ontario (College of Physiotherapists of Ontario) v. Yardley, 2023 ONCPO 61.
[28] I find that the ICRC had jurisdiction to hold the Applicants accountable for systemic billing issues in their Clinic.
B. Were the Decisions Unreasonable?
[29] Given the finding that the ICRC had jurisdiction to make the orders, were the orders reasonable? A decision will be unreasonable if it contains one of two fundamental flaws:
(i) It contains failures of rationality internal to the reasoning process; and
(ii) It is untenable in light of the relevant factual and legal constraints that it bears: Canada (Minister of Immigration and Citizenship) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 101.
[30] The Applicants submit that the ICRC’s decisions lacked a proper factual foundation and reasoning.
[31] With respect to the submission that the Committee lacked a factual foundation, in its Decisions, the ICRC noted that “[t]here was also no dispute on the facts that C.A.R.E. submitted invoices to GSC for the full amount of the service or product and that the invoices did not reflect the fact that co-payment had been waived” (emphasis added). The Applicants submit that there were no “invoices” in evidence on which the Committee could make this finding. Specifically, they submit that most of the claims submitted by the Clinic were submitted electronically and that claims are not “invoices”. Therefore, there were no actual invoices on which the ICRC could base its decision.
[32] The Applicants’ position on this issue is one of semantics. The electronic and manual claim submissions are the statement of account, a form of “invoice”. Copies of these submissions were put into evidence before the Committee. These submissions must be accurate to comply with the College’s Fees and Billing Standard. They were not. I find that there was a proper factual foundation on which the College could make its decision.
[33] The Applicants further submit that the Decisions were unreasonable because the Committee did not consider the submissions of the Applicants when providing its reasons for making the order. If the Decisions were insufficient, then they are necessarily unreasonable.
[34] However, the ICRC is not required to address every argument raised by the Applicants, as this would compromise both efficiency and access to justice: see Vavilov, at paras. 127-128. In this case, the Decisions were detailed, fulsome and responsive to the Applicant’s submissions. It is clear from the Decisions that the ICRC understood, was alert to, and addressed the central issues and arguments raised by the Applicants in their submissions. This is also discussed below when addressing the issue of whether the caution was reasonable.
[35] I find that the Decisions were reasonable.
C. Were the Cautions Unreasonable?
[36] The Applicants submit that the imposition of a caution was unreasonable, in that the ICRC provided no analysis.
[37] The ICRC provided a rational for the caution, including its finding below:
[T]here is a reasonable evidentiary basis to caution the Registrant[s] in respect of the accuracy of invoicing in connection with C.A.R.E.’s demonstrated past practice of waiving insurance co-payments. In addition to the serious concern about accuracy of billings, the Committee decided that it would be reasonable to caution the Registrant[s] about the impact of inappropriate billings on patients and the profession. Insurers’ trust in the integrity of the profession is essential to ongoing access to benefits-covered care for patients. The de-listing of clinics (as happened temporarily with C.A.R.E.) and/or the de-listing of coverage for certain services or products, can negatively impact all physiotherapists as well as patients. In addition, insurers can punish patients for failing to notify the insurer that the co-payment was waived, potentially placing patients’ benefits at risk.
[38] The ICRC’s reasons were lengthy and reasonable and are entitled to deference. This is not a case where the court should intervene on judicial review.
Costs:
[39] The Applicants were not successful in their application for judicial review. The parties agreed that $10,000 inclusive of HST and disbursements was a reasonable award of costs to the successful party.
Order:
[40] The application is dismissed, with costs to the College payable by the Applicants in the agreed amount of $10,000 all inclusive.
Shore, J.
McWatt, ACJ
Edwards, J.
DATE RELEASED: February 13, 2024
CITATION: Spirou v. College of Physiotherapists of Ontario, 2024 ONSC 964
DIVISIONAL COURT FILE NOs.:266/23, 267/23, 268/23, 269/23
DATE: 2024 02 13
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
McWatt, ACJ, Shore, Edwards, JJ
BETWEEN:
JOHN SPIROU, PRAVEEN OOMMEN,
THEVENDRI SABGA, and CHUN YEUNG
Plaintiffs
-and-
THE COLLEGE OF PHYSIOTHERAPISTS OF ONTARIO
Defendant
REASONS FOR DECISION
Released: February 13, 2024