CITATION: Dixie X-Ray Associates Ltd. v. Ontario (Minister of Health), 2025 ONSC 75
DIVISIONAL COURT FILE NO.: 336/24
DATE: 20250110
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Lococo, Matheson and MacNeil JJ.
BETWEEN:
Dixie X-Ray Associates Limited
Appellant
– and –
Ontario (Minister of Health)
Respondent
Neil M. Abramson and Lexie Cooper, for the Appellant
Laura Brazil and Tony Yin, for the Respondent
HEARD at Toronto: November 27, 2024
REASONS FOR JUDGMENT
R. A. LOCOCO J.
I. Introduction
[1] The appellant Dixie X-Ray Associates Limited (“Dixie”) appeals the decision of the Health Services Appeal and Review Board (the “Board”) dated April 29, 2023, reported at 2023 36441 (the “Decision”).
[2] Dixie operates five clinics that provide diagnostic imaging services in the Greater Toronto area. In the Decision, the Board upheld five decisions of the respondent Minister of Health (the “Minister”), requiring Dixie to reimburse the Minister for payments totalling over $1.1 million for facility fees that Dixie billed to the Minister for radiology services that it submitted were provided to patients at Dixie’s clinics.
[3] The Divisional Court has jurisdiction to hear an appeal from the Decision, but only on a question of law. Questions of law include issues of procedural fairness. Among other things, Dixie submits that the Board breached its duty of procedural fairness by finding that the Ministry’s sole witness was a “litigant’s employee with expertise” without providing Dixie the opportunity to make submissions or call reply evidence on that issue.
[4] For the reasons below, I would allow the appeal, set aside the Decision, and remit the matter to the Board for a new hearing.
II. Legislative scheme
[5] The Decision under appeal relates to facility fees that Dixie billed to the Minister in the years 2016 to 2019 under the Independent Health Facilities Act, R.S.O. 1990, c. I.3 (the “IHFA” or “Act”). During that period, Dixie’s diagnostic imaging clinics were licenced as independent health facilities (“IHFs”) under s. 3(1) of the IHFA.
[6] On September 25, 2023, the IHFA was repealed and replaced by the Integrated Community Health Services Centres Act, 2023, S.O. 2023, c. 4, Sched. 1 (the “ICHSA”). The IHFA as it read immediately prior to its repeal continues to apply to any proceeding not finally determined on that date, including the facility fees at issue here: see ICHSA, s. 62(1).
[7] The IHFA set out the legislative regime governing the licensing, funding and quality of services provided by IHFs. The IHFA provides for the payment of facility fees by the Minister directly to IHFs for overhead costs associated with the provision of an “insured service”, being a medical service insured under the Health Insurance Act, R.S.O. 1990, c. H.6: see IHFA, s. 1(1). The facility fees that are eligible for payments to IHFs are listed in the Schedule of Facility Fees for Independent Health Facilities (the “Schedule” or “SOFF”), published on the website of the Ministry of Health (the “Ministry”).[^1]
[8] The IHFA requires IHFs to promptly prepare and maintain records to support their facility fee claims, including whether a service provided is medically or therapeutically necessary: IHFA, ss. 24.1(1)-24.1(4). In the absence of such records, it is presumed that that amount payable for the service is nil: IHFA, s. 24.1(5).
[9] Under the IHFA and the Schedule, the IHFs bill facility fees to the Minister, which are paid on an honour system. Facility fees are paid after standard computerized checks are performed. The payment of facility fees is not an acknowledgment that the IHF met the requirements for the payment: see Schedule, General Preamble, s. 3. The Minister retains the authority under s. 24.3 of the IHFA to conduct post-payment reviews of claims that have been submitted. Under s. 24.3(4), the Minister may require the reimbursement of an amount paid to the IHF if the Minister is of the opinion that a circumstance described in s. 24.3(1) exists.
[10] Section 24.3 provides in part:
Refusal to pay, pay reduced amount or substitute amount: circumstances
24.3 (1) Under any of the following circumstances, the Minister may, with respect to a claim for payment for a service provided by a licensee or potential licensee, refuse to pay for the service, pay a reduced amount for the service, pay for the service the Minister considers to have been provided and not the service described in the claim that was submitted or require reimbursement of the amount paid for the service:
- If the Minister is of the opinion that any or all of the following apply:
i. all or part of the service was not in fact rendered,
ii. the service has not been rendered in accordance with a requirement under this Act, or
iii. there is an absence of a record described in section 24.1.
If the Minister is of the opinion that the nature of the service is misrepresented, whether deliberately or inadvertently.
If the Minister is of the opinion that all or part of the service was not provided in accordance with prescribed quality and standards or, in the absence of regulations, not provided in accordance with generally accepted quality and standards for the facility and the service or services to be provided in the facility.
In such other circumstances as may be prescribed.
Statistical methods
(2) The Minister may, in determining amounts to be reimbursed under this section, use a random sample with a reasonable confidence interval of claims submitted by the licensee in respect of a service during a specified period of time and calculate the amount to be reimbursed for that service for that period or a portion of that period by assuming the results observed in the random sample are representative of all of the claims submitted by the licensee for that service during the period in question.
Post-payment notice that reimbursement is required
(4) Where the Minister has made a payment to a licensee or potential licensee and the Minister is of the opinion that a circumstance described in subsection (1) exists and that reimbursement to the Minister is required, the Minister shall notify the licensee or potential licensee of the decision to require reimbursement and the amount of reimbursement that is required.
[Emphasis added.]
III. Ministry’s audit of facility fee payments to Dixie
[11] Dixie provides diagnostic imaging services at several clinics that are licensed as IHFs (the “Dixie IHFs”). Each Dixie IHF has its own billing number that it uses to submit and receive payment from the Ministry for facility fees.
[12] Each facility fee that is eligible for payment is assigned a facility fee code set out in the Schedule. As noted in the Decision, at para. 20, the facility fee codes that are relevant for this matter are found in the Schedule under the heading “Diagnostic Ultrasound”:
a. Code J182: extremities [limb] ultrasound, “excluding vascular study”: see Schedule, under “Miscellaneous” subheading; and
b. Code J193: peripheral [blood] vessel assessment (a type of vascular study), using a “doppler scan or B scan, unilateral”: see Schedule, under “Vascular Systems” subheading.
[13] During a routine review of facility fee claims data in early 2019, a medical advisor in the Ministry noticed that five Dixie IHFs appeared to be provincial outliers regarding the frequency that facility fee code J193 was billed for the same patient on the same day as facility fee code J182: Decision, at paras. 23-25. The matter was referred to the Ministry’s Provider Audit and Adjudications Unit: Decision, at para. 26. The Ministry requested that each of those IHFs provide a statistically significant, random sample of medical records related to fees paid for facility fee codes J182 and J193 between April 1, 2016 and July 23, 2019 (the “Review Period”): see IHFA, s. 24.3(2). Dixie provided the requested records to the Ministry: Decision, at paras. 27-28.
[14] The Ministry conducted an audit pursuant to the IHFA by reviewing the records that Dixie provided. As part of the audit, the Ministry asked Dixie for a written explanation why those facility fee codes were billed together when, in the records examined, “there were no requests for peripheral vessel assessments from the referring physicians and there were no images or reports to support that peripheral vessel assessments were rendered”: Decision, at para. 29. Dixie responded that it used Doppler technology to examine blood flow while completing an extremities ultrasound “to enhance images and assist in the diagnosis and evaluation of a number of conditions”: Decision, at para. 30.
[15] Based on its review, including consideration of Dixie’s written explanation, the Ministry concluded that for the Review Period, none of the examined medical records showed that a peripheral vessel assessment had been performed in any case: Decision, at para. 31. The review also confirmed the Ministry’s view that Dixie was a provincial outlier in that it billed J193 (peripheral vessel assessment) over 95 percent of the time when it billed for J182 (extremities ultrasound). For the rest of the province, facility fee codes J193 and J182 were billed together by IHFs in less than ten percent of cases: Decision, at para. 32.
[16] Based on the audit review of the documents Dixie submitted, the Ministry concluded that there was no documentary support to justify performing a separate peripheral assessment nearly every time Dixie performed an extremities ultrasound. The Ministry considered such documentary support to be necessary to claim facility fees for both services for the same patient on the same day: Decision, at para. 33.
[17] In letters to each of the Dixie IHFs dated August 11, 2022 (the “Ministry’s Decisions”), the Ministry notified Dixie that the Minister had determined pursuant to s. 24.3(4) of the IHFA that reimbursement was required for payment of facility fees in the Review Period for facility fee code J193 when billed with facility fee code J182 for the same patient on the same service date. The Ministry determined that each of the Dixie IHFs had been overpaid and the total amount required to be reimbursed by all five Dixie IHFs combined was $1,107,692.96.
IV. Board’s review of Ministry’s Decisions
[18] On August 24, 2022, Dixie’s counsel requested a hearing before the Board to review the Ministry’s Decisions requiring the reimbursement of facility fees: see IHFA, s. 24.9(1)2. The Board’s review of the Ministry’s Decisions proceeded to a four-day hearing by videoconference in March 2023.
[19] Before the Board, there was no dispute that during the Review Period, Dixie appropriately billed facility code J182 for extremities ultrasounds: Decision, at para. 70. The Board identified the issue as whether, for the Review Period, Dixie appropriately billed facility fee codes J182 and J193 together, which depended on whether Dixie performed a peripheral vessel assessment (J193) each time it claimed a facility fee for an extremities ultrasound (J182): Decision, at paras. 71-72. According to the Board, at para. 73, that determination depended in turn on whether “adding Doppler to an extremities ultrasound to assess blood flow … is a peripheral vessel assessment as contemplated by J193”. At para. 74, the Board stated that if so, it must then consider “whether the records support that Doppler was otherwise requested and performed in accordance with the Act and SOFF.”
[20] At the Board hearing, the Board heard testimony from three radiologists called by Dixie, one of whom was one of Dixie’s owners. The other two radiologists were qualified as independent expert witnesses: Decision, at para. 11. The only witness the Ministry called was a Medical Advisor, Provider Audit and Adjudications, Ministry of Health, a former family physician who is not a radiologist: Decision, paras. 12, 127.
[21] Before the Board, Dixie submitted, among other things, that the use of Doppler technology when performing an extremities ultrasound allowed Dixie to also claim a facility fee for a peripheral vessel assessment because Doppler provided enhanced diagnostic interpretive results of the resulting image. In support of that position, Dixie relied on its radiology witnesses, who testified that Dixie had a “standing order from its radiologists … to add Doppler to each extremities ultrasound because [Dixie’s] radiologists believe this to be medically necessary in every case as it provides valuable clinical information about the patient’s condition beyond what a non-Doppler ultrasound provides” (emphasis added): Decision, at para. 37.
[22] Relying on its witnesses, Dixie also submitted that adding Doppler to an extremities ultrasound qualifies as an “additional service” that may be separately billed, as contemplated by s. 6 of the General Preamble of the Schedule, which states:
- Where a referring physician requests a single site imaging study, any additional imaging study is not an insured service and shall not be charged to the ministry unless the additional study is medically necessary as requested by the radiologist or referring physician and documented in the patient’s record. [Emphasis added.]
[23] Dixie submitted that the requirements of s. 6 of the General Preamble were met since (i) the standing order “constitutes a request by a radiologist”, and (ii) the “images showing Doppler was used [based on certain markings on the images such as boxes and colour bars] are stored in the patient’s record”: Decision, at para. 83.
[24] The Board did not accept Dixie’s submission that the use of Doppler when conducting an extremities ultrasound constituted a peripheral vessel assessment that is billable using facility fee code J193. At paras. 123-124, the Board, found as follows:
For the reasons that follow, the Appeal Board finds that peripheral vessel assessments as described in facility fee code J193 were not performed in each instance where the Appellant claimed a facility fee for an ultrasound of an extremity under J182.
Specifically, the Appeal Board finds that adding Doppler to an extremities ultrasound under J182 to assess the blood flow or vascularity of tissue within the smaller vessels (including arteries), is not a peripheral vessel assessment as contemplated by J193. [Emphasis added.]
[25] To support its conclusions, the Board relied on the testimony of the Medical Advisor, the Ministry’s sole witness. The Board found that the Medical Advisor was permitted to provide opinion evidence as a “litigant’s employee with expertise”, relying on the 2015 decision of the Alberta Court of Appeal that had been applied in Ontario by the Divisional Court in a decision released four months after the Board hearing. The Board did not first notify the parties that it would be considering the concept of a “litigant’s employee with expertise” or the related case law.
[26] At paras. 125-127, the Board stated:
The Appeal Board has wide latitude to admit opinion evidence. This flows from section 15 of the Statutory Powers Procedure Act (SPPA) and the case law. While [the Medical Advisor] was not qualified as an independent expert or participant expert, the Appeal Board finds that she did meet the criteria for a third type of witness, that being a litigant’s employee with expertise.
This category of witness was recognized in Kon Construction v. Terranova Developments Ltd., 2015 ABCA 249, 602 A. R. 327 as a potential source of opinion evidence, as referred to by the Ontario Divisional Court in the recent case of Wilkin v. Heath Services Appeal and Review Board, [2023 ONSC 4286,] 2023 4286 (Div. Ct.) at paras. 35-36. The Court in Wilkin determined that the Appeal Board appropriately treated a similar Ministry employee who provided her opinion on the interpretation and application of the Schedule of Benefits (the equivalent Schedule to SOFF pertaining to physician fees for insured services) as “a witness with expertise as to the processing of claims”.
[The Medical Advisor] has been a Medical Advisor in the Provider Audit and Adjudication Unit at the Ministry since 2007. Based on this experience, the Appeal Board finds that [the Medical Advisor] is an employee with expertise in the interpretation and application of fee codes in the SOFF and the Appeal Board has considered her opinion in this capacity. In addition, the Appeal Board notes that she has knowledge having practised as a family physician.
[Emphasis added; footnote omitted.]
[27] As outlined further below, the Board, at paras. 128-145, went on to consider the issues in the review application, including the extent to which medical records supported Dixie’s claim for facility fee J193 for a peripheral vessel assessment when an extremities ultrasound was performed. In its analysis, the Board considered the Medical Advisor’s evidence as well as the evidence of Dixie’s radiology witnesses.
[28] At paras. 147-149, the Board concluded:
The Appeal Board finds, based on a plain reading of the SOFF provisions and the above evidence, that J193 does not include the addition of Doppler to an extremities ultrasound to assess blood flow or vascularity of tissue within the small vessels including arteries.
The Appeal Board finds that the Appellant has failed to establish that the Minister’s decision is not in accordance with the Act. The Appellant has not established that a peripheral vessel assessment as contemplated by J193 was performed every time an extremities ultrasound was performed under J182 and thus the Appellant was improperly paid for peripheral vessel assessments that were not performed.
The Appeal Board finds that the Respondent has properly required reimbursement from the Appellant pursuant to the provisions of section 24.3 of the Act.
[29] On that basis, the Board affirmed the Ministry’s Decisions to require reimbursement of facility fees from Dixie: Decision, at para. 150.
V. Jurisdiction and standard of review
[30] The Divisional Court has jurisdiction to hear an appeal from a Board decision under the IHFA, but only on a question of law: IHFA, s. 22(1). The appellate standards of review apply, as set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235: see also Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 37.
[31] The standard of review is correctness for questions of law: Housen, at para. 8. There is no appeal with respect to questions of fact or questions of mixed fact and law except where there is a readily extricable legal principle, which is reviewable on a correctness standard: Housen, at paras. 26-37.
[32] Whether there has been a breach of the duty of procedural fairness is a question of law, subject to correctness review on appeal: Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, 470 D.L.R. (4th) 328, at paras. 26-30, 129, 169, 179. The degree of procedural fairness required is determined by reference to all the circumstances of the case, including: (i) the nature of the decision being made, and the process followed in making it; (ii) the nature of the statutory scheme; (iii) the importance of the decision to the individual or individuals affected; (iv) the legitimate expectations of the person challenging the decision; and (v) the choices of procedure made by the administrative decision maker itself: Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, at paras. 21-28; Vavilov, at para. 77.
[33] While an appellate court is empowered to replace a tribunal’s findings on questions of law with its own, the correctness standard does not detract from the need to respect the tribunal’s specialized function. The tribunal’s subject matter experience and expertise relating to the requirements of its home statute are to be taken into account: Reisher v. Westdale Properties, 2023 ONSC 1817 (Div. Ct.), at paras. 9-10, citing Planet Energy (Ontario) Corp. v. Ontario Energy Board, 2020 ONSC 598 (Div. Ct.), at para. 31; Vavilov, at para. 36.
VI. Issues for determination
[34] Dixie submits that the Board erred in law as follows:
a. Litigant’s employee with expertise: The Board breached its duty of procedural fairness by finding that the Medical Advisor was a “litigant’s employee with expertise” without providing Dixie the opportunity to make submissions on that issue or call reply evidence.
b. Opinion evidence on ultimate issue: The Board made an extricable error of law by failing to exercise special scrutiny when considering the Medical Advisor’s opinion evidence with respect to (or approaching) the ultimate issue.
[35] Those submissions are considered in turn below.
VII. Litigant’s employee witness with expertise
A. Dixie’s submissions
[36] Dixie submits that the Board breached its duty of procedural fairness by finding that the Medical Advisor was a “litigant’s employee with expertise” without providing Dixie the opportunity to make submissions on that issue or call reply evidence.
[37] Dixie submits that at a minimum, persons affected by an administrative decision should have the opportunity to present their case fully and fairly: see Baker, at para. 28. Dixie argues that procedural fairness in this case includes entitlement to notice of the issues being considered by the adjudicator and an opportunity to make legal or factual submissions on those issues: see Shahin v. Intact Insurance Co., 2024 ONSC 2059 (Div. Ct.), at para. 23. Dixie submits that the factors set out in Baker weigh in favour of that entitlement in this case, including the importance to Dixie of the Decision requiring it to reimburse over $1.1 million in facility fees and its implications for further facility fee audits for Dixie and other service providers.
[38] Dixie submits that in the Decision, at para. 125, the Board, without prior warning or notice to the parties, unilaterally qualified the Medical Advisor as a “litigant’s employee with expertise”, despite acknowledging that she “was not qualified as an independent expert or participant expert”. At para. 127, the Board found that based on the Medical Advisor’s experience with the Ministry since 2007, she had “expertise in the interpretation and application of [facility] fee codes” and the Board “has considered her opinion in this capacity.”
[39] Dixie submits that given the Medical Advisor’s background and role with the Ministry, it was appropriate for her to explain the legislative scheme and to provide fact evidence as to what Dixie claimed as facility fees and why those claims were not accepted. However, Dixie says that the Medical Advisor’s testimony inappropriately went far beyond that level.
[40] Dixie’s counsel notes that at the Board hearing, counsel objected to questions being put to the Medical Advisor about whether it was permissible for facility code J193 for a peripheral vessel assessment to be billed when Doppler was added to an extremities ultrasound. The basis for the objection was that the questions were beyond the expertise of a person without radiology expertise and inappropriately spoke to the ultimate issue before the Board. The Board overruled counsel’s objection and permitted such questions to be asked, without giving any indication prior to Decision’s release that the Board would consider relying on the Medical Advisor’s opinion evidence as a litigant’s employee with expertise based on a decision that had not even been released at the time of the hearing and final submissions.
[41] Dixie submits that if such notice had been given, Dixie would have had the opportunity to challenge the Medical Advisor’s status and to seek to call reply evidence as to the required expertise to offer such opinion evidence. Dixie says that by unfairly finding that the Medical Advisor was a litigant’s employee with expertise without prior notice, the Board elevated the Medical Advisor’s evidence to that of an expert and relied on her opinion evidence that she was not qualified to give in preference to the opinion evidence of the witnesses with radiology expertise called by Dixie.
B. The Minister’s submissions
[42] The Minister disagrees. The Minister submits that the Board’s decision to classify the Medical Advisor as a litigant’s employee with expertise did not breach procedural fairness.
[43] Under s. 21(6) of the IFSA and s. 15 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the “SPPA”), the Board has “wide powers concerning the admission of evidence, including experts”: M.R. v D.E., 2016 ONSC 1542 (Div. Ct.), at para. 21; 392644 Ontario Inc. (c.o.b. Connor Homes) v. Ontario (Child, Youth and Family Services Act, Director), 2021 ONSC 3195 (Div. Ct), at para. 47. While the factors for the admission of expert evidence set out in cases such as R. v Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9 are relevant to the exercise of such powers, SPPA tribunals are not bound by them and their application in tribunal hearings is highly fact dependent: M.R., at para. 21; Connor Homes, at para. 47.
[44] Recognizing its broad powers concerning evidence (including expert evidence), the Board, at para. 125 of the Decision, went on to find that the Medical Advisor, while not an independent expert or participant expert, met the criteria of a litigant’s employee with expertise, as set out in the Alberta Court of Appeal’s decision in Kon. The Minister does not dispute that this aspect of Kon had not been adopted by Ontario courts in the administrative law context prior to the Divisional Court’s 2023 decision in Wilkins. However, the Minister submits that Dixie should have known that it was open to the Board to classify the Medical Advisor as a litigant’s employee with expertise, given that Kon was released in 2015, well prior to the Board hearing.
[45] The Minister also submits that given s. 15 of the SPPA and s. 21(6) of the IFSA, it was open to the Board to rely on the Medical Advisor’s opinion evidence even if the Board had not found her to be a litigant’s employee with expertise, given her experience with respect to the interpretation and applicability of facility fee codes in her role as a Ministry representative. The Minister argues that although the Medical Advisor was not an expert radiologist, the central issue before the Board concerned the interpretation and applicability of facility fee codes. The Minister says that the issue was not whether the medical records demonstrated the use of Doppler in an extremities ultrasound. Rather, the issue was whether separate peripheral vessel assessments were performed and recorded in the medical records each time that an extremities ultrasound was performed and a facility fee code J193 claimed, in order to properly bill the Minister and receive payment.
[46] The Minister also notes that well in advance of the Board hearing, Dixie received a will-say statement from the Minister, setting out the Medical Advisor’s anticipated evidence at the hearing. The Minister submits that in these circumstances, it was not procedurally unfair for the Board to hear and rely on that evidence in the absence of advance notice of intention to classify the Medical Advisor as a litigant’s employee with expertise. The Minister says that Dixie did not suffer any prejudice since there was no element of surprise concerning the contents of her evidence, including any positions or opinions she expressed: see Canadian Pacific Railway Co. v. Vancouver (City), 2006 SCC 5, [2006] 1 S.C.R. 227, at para. 46.
C. Analysis and conclusion
[47] As set out below, I have concluded that it was procedurally unfair for the Board to find that the Medical Advisor was a litigant’s employee with expertise, without providing Dixie with advance notice and the opportunity to make submissions on that issue and to seek leave to call reply evidence.
[48] In reaching that conclusion, I recognize that there is merit in the Minister’s position that given the Medical Advisor’s experience with interpretation and application of facility fee codes as a Ministry representative, it was open to the Board to rely on her evidence to make the necessary findings to determine whether the Minister erred in ordering reimbursement of the facility fees, whether or not the Board determined the Medical Advisor to be a litigant’s employee with expertise. In fact, apart from the procedural fairness issue, I have no substantive issue with parts of the Decision that Dixie may find problematic.
[49] For example, in para. 117, the Board set out the Medical Advisor’s position as to what the Ministry “would expect the medical report to include” to support a claim for a peripheral vessel assessment pursuant to facility fee J193. Given her background with the Ministry as outlined in paras. 118 and 127, I consider it appropriate for the Board to rely on her evidence to that effect, whether or not she was classified as a litigant’s employee with expertise.
[50] After finding that the Medical Advisor met the criteria for a litigant’s employee with expertise, the Board, at paras. 128-145, went on to consider, among other things, the extent to which medical records supported Dixie’s claim for facility fee J193 for a peripheral vessel assessment when an extremities ultrasound was performed. In the analysis, the Board considered the Medical Advisor’s evidence together with the evidence of Dixie’s radiology witnesses, ultimately reaching the conclusion, at para. 148, that Dixie had failed to establish that the Ministry’s Decisions were not in accordance with the IFSA.
[51] To the extent that the Board’s analysis was focused on the interpretation and applicability of the facility fee codes and the medical records required to support use of those codes (for example, at paras. 137-138, 142-143), I have no particular issue with the Board’s analysis, apart from the question of procedural fairness. However, elsewhere in the Decision, the Board appears to have relied on the Medical Advisor’s evidence on matters that stray beyond her expertise in legislative interpretation and application, addressing for example the circumstances in which a particular procedure may be medically necessary: see Decision, at paras. 128.
[52] As well, at para. 133, the Board referred to the Medical Advisor’s testimony as to the circumstances in which an ultrasound “does not make sense medically”. In doing so, the Board noted the Medical Advisor’s prior experience as “a family doctor for many years”. I am concerned about the extent to which the finding that the Medical Advisor was a “litigant’s employee with expertise” was a significant factor in the Board’s assessment of her evidence on issues that are more remotely connected to her role with the Ministry with respect to interpretation and application of the IFSA and the Schedule. Contrary to the Minister’s submission, I do not see how prior access to the Medical Advisor’s will-say statement addresses the alleged unfairness to Dixie.
[53] In these circumstances, I agree with Dixie that it was procedurally unfair for the Board to find that the Medical Advisor was a litigant’s employee with expertise without providing Dixie with the opportunity to address the issue and its implications for the Board’s review of the Ministry Decisions. Among other things, the importance to Dixie of the Decision and its implications for future facility fee audits weigh in favour of that finding.
VIII. Opinion evidence on the ultimate issue
[54] In Raponi v. Olympia Trust Co., 2022 ONSC 4480, at para. 11, Perell J. cautioned against a decision-maker abdicating its adjudicative function in favour of an expert’s testimony:
Although experts are [not] prohibited from providing opinion evidence on the ultimate issues, they should not usurp the functions of the trier of fact… When an expert's opinion approaches an ultimate issue, the trier of fact should exercise special scrutiny and neither a lay or an expert witness may provide an opinion on a pure question of law. [Emphasis added; footnotes omitted.]
[55] Relying on Raponi, Dixie submits that the Board made an extricable error of law by failing to exercise special scrutiny when considering the Medical Advisor’s evidence with respect to (or approaching) the ultimate issue.
[56] Dixie argues that in the Decision, the Board allowed the Medical Advisor to opine on the ultimate issues before the tribunal, that is, whether Dixie had performed a peripheral vessel assessment in each instance where it claimed a facility fee for the service, and, if so, whether Dixie had complied with the Schedule and the IFSA in submitting those claims. Dixie says that the Board ultimately deferred to and blindly adopted the Medical Advisor’s testimony, thereby failing to exercise the special level of scrutiny referred to in Raponi. Dixie also argues that the level of caution required is more significant where, as in this case, the decision-maker was a lay tribunal.
[57] I see no merit in those submissions.
[58] Under s. 22(1) of the IFSA, an appeal from a Board decision is on a question of law only. The error that Dixie alleges relates to the application of a legal principle to the facts, which is a question of mixed fact and law. I see no extricable legal error in the Board’s analysis. As well, I am not persuaded that an even higher level of scrutiny should apply to a lay tribunal’s consideration of the evidence, which is not consistent with s. 15 of the SPPA and s. 21(6) of the IHFA.
[59] In any case, there is nothing in the Decision to suggest that the Board blindly adopted the Medical Advisor’s testimony. As previously noted, the Board carefully considered the evidence of all the witnesses in reaching its conclusions. Except for the procedural fairness concerns identified above, I do not agree that Dixie has demonstrated any reversible error.
IX. Disposition
[60] For the above reasons, I would allow the appeal, set aside the Decision, and remit the matter to the Board for a new hearing. I would also award costs in the agreed amount of $15,000, payable by the Minister to Dixie.
___________________________ Lococo J.
I agree: ___________________________ Matheson J.
I agree: ___________________________ MacNeil J.
Date: January 10, 2025
CITATION: Dixie X-Ray Associates Ltd. v. Ontario (Minister of Health), 2024 ONSC 75
DIVISIONAL COURT FILE NO.: 336/24
DATE: 20250110
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Lococo, Matheson and MacNeil JJ.
BETWEEN:
Dixie X-Ray Associates Limited
Appellant
– and –
Ontario (Minister of Health)
Respondent
REASONS FOR JUDGMENT
R. A. LOCOCO J.
Date: January 10, 2025
[^1]: The provisions of the Schedule of Facility Fees for Independent Health Facilities under the IHFA have been incorporated into the Schedule of Facility Costs for Integrated Community Health Services Centre under the ICHSA.