Ontario Superior Court of Justice

Court File No.: CV-24-29549
Date: 2025-07-11

BETWEEN:
Michael Da Prat, Plaintiff
– and –
Sault Ste. Marie and District Group Health Association, Algoma District Medical Group, and Group Health Centre Sault Ste. Marie and District, Defendants

Appearances:
Louis Sokolov and Matthew Taylor, for the Plaintiff
Simon Clements and Leigh Clark, for the Defendants Sault Ste. Marie and District Group Health Association and Group Health Centre Sault Ste. Marie and District
Neil Searles, for the Defendant Algoma District Medical Group

Heard: October 30, 2024

Decision on Motion for Interlocutory Injunction and Representative Order
Justice K.E. Cullin

Overview

[1] The Sault Ste. Marie and District Group Health Association (“GHA”) was founded in 1962 to fill a pre-OHIP gap in non-acute healthcare services for the benefit of trade union members in Sault Ste. Marie. Local branches of the United Steelworkers of America provided start-up funding to establish the Group Health Centre Sault Ste. Marie and District (“GHC”), a not-for-profit community healthcare centre. Individuals, most of whom were union members (“subscribers”), paid premiums to receive healthcare services at the GHC. Some of those union members belonged to the United Steelworkers of America, Local 2251 (“Steelworkers”).

[2] In the early 1970s, this premium-based healthcare arrangement ended with the inception of OHIP. Today, healthcare services continue to be delivered at the GHC, but those services are funded by OHIP and are no longer exclusive to subscribers and their dependants. The healthcare services at the GHC are delivered by a combination of staff employed by the GHA and physicians who practice independently as members of the Algoma District Medical Group (“ADMG”).

[3] In January 2024, it was announced that approximately 20% of the patients receiving healthcare services at the GHC were going to be de-rostered by the ADMG effective May 31, 2024 due to the inability to find replacements for several departed physicians. Some of the patients who were de-rostered were subscribers or spouses of subscribers; one of those patients was the plaintiff, Michael Da Prat (the “plaintiff”). Some of the patients who were de-rostered were Steelworkers who began to receive healthcare services at the GHC after the inception of OHIP (“non-subscribers”).

[4] The plaintiff has commenced this action seeking: declarations that the de-rostering was improper and unenforceable; permanent injunctions requiring the GHA to continue to provide healthcare services to subscribers and non-subscribers; orders under the Corporations Act, RSO 1990, c C.38 (“OCA”) and the Not-for-Profit Corporations Act, 2010, SO 2010, c 15 (“ONCA”) to reconstitute the GHA board of directors and to appoint an inspector; and damages for breach of contract and violations of the Human Rights Code, RSO 1990, c H.19 (“HRC”).

[5] Presently before the Court are two motions, brought by the plaintiff. One seeks representative orders pursuant to r. 12.08 of the Rules of Civil Procedure, authorizing the plaintiff to commence proceedings on behalf of subscribers and non-subscribers, as well as an order granting leave to amend his statement of claim. The other seeks an interlocutory injunction preventing the defendants from de-rostering subscribers and non-subscribers or otherwise preventing their access to health services at GHC until their claim for a permanent injunction is determined on the merits.

[6] For the reasons that follow, the plaintiff’s request for an interlocutory injunction is denied and his request for a representative order is partially granted.

Summary of the Facts

[7] For the purpose of these reasons, I will not be providing a recitation of the entirety of the evidence, which is voluminous. In this summary, I will provide a narrative. Thereafter, I will discuss evidence and disputed positions as necessary to address the issues. I would note that I reviewed, considered, and grappled with all evidence submitted by the parties.

Organizational History and Current Structure

[8] The GHA was incorporated on June 15, 1962, with a stated purpose of arranging the provision of healthcare services on a non-profit prepayment basis. For the payment of a one-time fee of $135 plus monthly premiums, subscribers, who were primarily unionized steelworkers, were entitled to receive non-acute medical care organized by the GHA. The GHA built premises from which it operated a medical clinic, the GHC.

[9] Originally, there were several trade unions that participated in the formation of the GHA. Those unions amalgamated in 1995 and are all now represented by the Steelworkers.

[10] The arrangement between the GHA and its subscribers was the subject of a subscriber agreement. That arrangement changed with the inception of OHIP. On March 29, 1971, the GHA notified its subscribers that, effective April 1971, it would no longer be a Medicare agent for the government, and it would cease collecting premiums and paying claims. The GHA has not received subscriber premiums from any individual patients of the GHC since that time.

[11] Although it discontinued its delivery of premium-based healthcare services following the inception of OHIP, the GHA remained involved in the delivery of OHIP-funded non-acute healthcare through the GHC. Presently, it owns the premises from which the GHC operates, it employs the GHC’s administrative and support staff, it employs nurse practitioners who deliver healthcare services at the GHC, and it is the custodian of patient health information. Services at the GHC are provided to the public at large.

[12] The physicians who practice at the GHC are members of the ADMG. They are independent contractors of the GHA. Since their early days, the GHA and the ADMG (or its predecessors) have entered into agreements with one another and with OHIP to govern their relationship and the operation of the GHC. In those early agreements, patients were rostered to the GHA, which received monthly capitation and other payments from OHIP to fund healthcare services to its rostered patients.

[13] The relationship between the GHA, the GHC, and the ADMG is presently governed by the terms of an agreement completed in 2012 and renewed from time to time since then (the “2012 agreement”). The 2012 agreement was the culmination of a lengthy negotiation between the GHA, the ADMG, the Ministry of Health (Ontario) (“MHO”) and the Ontario Medical Association (“OMA”), and significantly altered the funding and governance framework of the healthcare services delivered at the GHC.

[14] Following the 2012 agreement, the patients of the GHC were no longer rostered to the GHA but instead became rostered to specific ADMG physicians, known as primary care physicians (“PCP”). Each patient was required to sign an enrollment letter confirming their intention to be rostered to a PCP and acknowledging that their PCP would deliver their healthcare services at the GHC. The GHA did employ nurse practitioners (“NPs”) to provide primary care to some patients, however those patients were still required to be rostered to a PCP who would delegate care to the NPs and support the services that they would provide.

[15] The 2012 agreement provided that the MHO would fund the ADMG which in turn would allocate 35% of that funding to the GHA for the operations of the GHC.

[16] The 2012 agreement provided for the option of “group enrollment” of patients receiving services at the GHC. That option required: (1) the agreement of all ADMG physicians to participate in group enrollment; and (2) that each patient participating in group enrollment have a designated most responsible physician (“MRP”). “The Group” was not defined in the 2012 agreement, and as such it is not clear whether the patients would be rostered to the GHA, the GHC, the ADMG, or all or some of them collectively.

[17] The group enrollment option was not pursued. The record does not explicitly state why, although it is reasonable to infer that the decision was related to the fact that, regardless of the arrangement, every patient was required to be attached to a designated physician. There is no evidence that the group enrollment option offered any additional benefits to patients, or that it would have protected them from de-rostering.

The De-Rostering

[18] Under the 2012 agreement, rostering decisions are solely within the purview of the physicians of the ADMG.

[19] Historically, the ADMG has been able to respond to physician resignations and retirements by transferring rostered patients to new or existing physicians. Over time, this has become more challenging as physician replacements have not kept pace with resignations and retirements. This challenge is not exclusive to the ADMG, but rather is a systemic issue which plagues the healthcare sector across Canada.

[20] On January 25, 2024, the ADMG issued correspondence to numerous patients, including the plaintiff, advising as follows:

We regret to inform you that we have been unable to find a permanent primary care provider to assume your care. Therefore, as of May 31, 2024, we will no longer be able to provide care for you at the Group Health Centre.

You will continue to have access to the Same Day Clinic until May 31, 2024. Please ensure you have all medication refills completed and any required referrals have been requested.

[21] Initially, it was expected that 10,176 patients would be de-rostered by ADMG. Through alternative measures, that number was significantly reduced to 6,798 as of the date of the argument of this motion. Of the de-rostered patients, the GHA and GHC identify 184 as either subscribers or spouses of subscribers. The plaintiff identifies 149 as subscribers or spouses of subscribers and 97 as non-subscribers.

[22] On May 29, 2024, the GHA received confirmation that the MOH would provide a two-year funding commitment to establish an interim care clinic to offer episodic care to patients who would be de-rostered after May 31, 2024. On June 4, 2024, the GHC commenced operation of the Access Care Clinic ("ACC") to provide continued healthcare services to de-rostered patients. The ACC is led by NPs and offers same-day appointments for services including urgent care, episodic care, chronic disease care, symptom management, prescription maintenance, referrals to specialists, and other healthcare services. The GHA acknowledges that this is an imperfect solution and that not every patient seeking a same-day appointment is able to access services.

The Subscriber Agreement

[23] As noted, in its early days, the arrangement between the GHA and its subscribers was the subject of a subscriber agreement. Parties to the subscriber agreement were required to pay the initial one-time fee, and thereafter were required to pay ongoing monthly premiums.

[24] While subscriptions were offered first to unionized steelworkers, it was contemplated that in the event the GHC was able to accommodate additional patients, subscriptions would be offered next to Labour Council affiliates and then to the public at large.

[25] For the purpose of these motions, the significant provisions of the subscriber agreement are the following:

1. Pursuant to Article I, a subscriber was defined as, “a sponsor the payment of whose monthly premiums is not in arrears or a person who or whose widow or widower is entitled to medical and surgical services in accordance with Article VIII hereunder.” A “sponsor” was defined as “a person who has paid all or part of the sponsor’s fee”. Pursuant to Article VII, the sponsor’s fee was the $135 one-time fee.
2. Pursuant to Article II, a subscriber and their dependants were entitled under the agreement to, “all necessary physicians' care including family physicians' and specialist physicians' services provided by any medical practitioner retained by the Association whether in the home, at the Health Centre of the Association or in the Hospital, and by any other medical practitioner as provided for…at no charge beyond the premium paid by the subscriber.”
3. Pursuant to Article IV, subscribers were not “entitled” to the services of any physician not retained by the GHA, except with a referral from a physician retained by the GHA.
4. Pursuant to Article V, available services to a subscriber did not include: “any service the payment of which is provided for by any policy of insurance whether of the subscriber, his dependent or any other person.”
5. Pursuant to Article XIV, in the event of a dispute about whether healthcare services required by or rendered to a subscriber were within the scope of the agreement, the dispute was submitted to and determined by the GHA board of directors for a decision which would be final and binding upon the subscriber.
6. Pursuant to Article XV, the GHA retained the ability to adopt reasonably necessary rules and regulations to facilitate the medical and other services contemplated by the subscriber agreement.
7. Pursuant to Article XVI, the subscriber agreement and its rules and regulations constituted the entire agreement between the parties and were not subject to addition or variation.

Positions of the Parties

The Plaintiff

[26] The plaintiff brings this action both as a subscriber and as the President of the Steelworkers, who have authorized him to commence this action and to seek relief on their behalf. He submits that this is an appropriate action for the issuance of a representative order.

[27] The plaintiff’s claim is grounded in the history of the GHA and the GHC. He argues that the GHA and the GHC have contractual and legal obligations to provide healthcare services to subscribers and non-subscribers, and in particular the Steelworkers who spearheaded their development. He submits that the Steelworkers were integral to the creation of the GHC and that they have always occupied a distinct role in its governance in recognition of their status as one of its founders. He argues that it has always been understood that the GHC was created to provide healthcare first and foremost to its founders.

[28] The plaintiff argues that de-rostering has occurred due to financial mismanagement of the GHA and the GHC and not due to physician shortages or the decision-making of the ADMG.

[29] The plaintiff submits that his claim raises four causes of action:

1. Breach of Contract: whether the de-rostering of the Steelworkers breached their contractual entitlement to receive care from the GHC;
2. Violation of the HRC: whether the methodology used to de-roster the Steelworkers contravened the HRC by failing to consider the complex needs of elderly patients;
3. “Oppression” pursuant to s.174 of the ONCA: whether the de-rostering decision was oppressive and unfairly prejudicial to the interests of the affected Steelworkers justifying an order appointing and empowering an inspector pursuant to s. 174(2)(b) of the ONCA; and,
4. “Oppression” pursuant to s.332 of the OCA: whether the de-rostering decision was ultra vires and/or made by an improperly constituted board of directors justifying an order discharging the existing board, reconstituting a new board, and reversing the de-rostering decision pursuant to s.332 of the OCA.

[30] I will use the term “oppression” and “oppression remedy” in quotations in this decision when referring to the plaintiff’s claim for relief, in recognition of the fact that there is some debate in the case law about whether the ONCA and OCA offer a “true” oppression remedy. It is not necessary that I resolve that issue in this decision, and I do not propose to address it.

The Defendants

[31] The defendants deny that the plaintiff and the subscribers and non-subscribers that he seeks to represent have any entitlement to receive care from the GHC. They argue that the subscriber agreement was rendered redundant, first by the inception of OHIP, and subsequently by the implementation of the 2012 agreement, and that the GHC now serves the public at large.

[32] The defendants submit that many of the arguments underlying the plaintiff’s claim are effectively challenges to the present governing structure of the GHC. They argue that the plaintiff has been aware of changes to the governing structure since they were implemented in 2012, and that the limitation period to advance such a claim has expired.

[33] With respect to the de-rostering process, the defendants argue that the plaintiff was de-rostered because he did not have a PCP and for no other reason. They argue that there is no evidence of age-based discrimination in the de-rostering process. They submit that the plaintiff is effectively asking the Court to conjure healthcare services for him, which is not legally possible.

Summary of the Issues

[34] The issues to be resolved in this motion are as follows:

1. Should a representative order be granted permitting the plaintiff to commence the within proceedings on behalf of all de-rostered subscribers and their spouses?
2. Should a representative order be granted permitting the plaintiff to commence the within proceedings on behalf of all de-rostered non-subscribers?
3. Should an interlocutory injunction be granted to the plaintiff preventing the defendants from de-rostering subscribers, subscribers’ spouses, and non-subscribers or otherwise preventing their access to health services at GHC? This issue gives rise to a preliminary issue about whether the injunction requested is a prohibitory or mandatory injunction.

[35] If a representative order is granted, an issue of leave to amend the statement of claim to reflect the representative order will have to be addressed.

[The remainder of the decision continues with detailed analysis, findings, and orders as set out in the original text, including the court’s reasoning on the representative order, the interlocutory injunction, and the final disposition.]

Released: July 11, 2025

The Honourable Madam Justice K.E. Cullin