2013 NBCA 55, 2013 NBCA 55

COURT OF APPEAL OF COUR D'APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 13-13-CA DR. D. ANTHONY WADE APPELLANT DR. D. ANTHONY WADE APPELANT- and - - et - HER MAJESTY THE QUEEN IN RIGHT OF THEPROVINCE OF NEW BRUNSWICK as representedby THE MINISTER OF HEALTH RESPONDENT SA MAJESTÉ LA REINE DU CHEF DE LAPROVINCE DU NOUVEAU-BRUNSWICK,représentée par LE MINISTRE DE LA SANTÉ INTIMÉE Dr. D. Anthony Wade v. Her Majesty the Queen inRight of the Province of New Brunswick, asrepresented by the Minister of Health, 2013 NBCA55 Dr D. Anthony Wade c.

Sa Majesté la Reine du chefde la Province du Nouveau-Brunswick, représentéepar le ministère du Santé, 2013 NBCA 55 CORAM: The Honourable Justice Larlee The Honourable Justice Richard The Honourable Justice Bell CORAM : L’honorable juge Larlee L’honorable juge Richard L’honorable juge Bell Appeal from a decision of the Court of Queen’sBench: January 7, 2013 Appel d’une décision de la Cour du Banc de laReine: Le 7 janvier 2013 History of Case: Historique de la cause : Decision under appeal: 2013 NBQB 11 Décision frappée d’appel : 2013 NBQB 11 , 2013 NBBR 11 Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : S.O.

Appeal heard: June 12, 2013 Appel entendu : Le 12 juin 2013 Judgment rendered: September 19, 2013 Jugement rendu : Le 19 septembre 2013

Reasons for judgment by: The Honourable Justice Bell Concurred in by: The Honourable Justice Larlee The Honourable Justice Richard Counsel at hearing: For the appellant: Matthew R. Letson For the respondent: Richard A. Williams Motifs de jugement : L'honorable juge Bell Souscrivent aux motifs : L'honorable juge Larlee L’honorable juge Richard Avocats à l'audience : Pour l’appelant : Matthew R. Letson Pour l’intimée : Richard A. Williams THE COURT The appeal is dismissed. LA COUR Rejette l’appel. The judgment of the Court was delivered by BELL, J.A. I. Introduction and Chronology of Events [ 1 ] Dr. D.

Anthony Wade (Dr. Wade) has been practicing medicine in Bathurst, New Brunswick since 1973. He is a past President of the New Brunswick Medical Society. Like most other physicians in the Province, he is paid from the public purse in accordance with the Medical Services Payment Act , R.S.N.B. 1973, c. M-7 (the Act ). [ 2 ] As part of its fiscal control, the Province of New Brunswick has established a Medicare Practitioner Audit Unit which conducts routine audits of physician accounts submitted to the public payor, Medicare. On January 3, 2006, Medicare advised Dr.

Wade that a routine review of his billings would be conducted. On February 13, 2006, Dr. Wade was advised the audit would cover the period January 1, 2004 to December 31, 2005. In the course of the audit, several phone calls and letters were exchanged between Dr. Wade and audit officials. In particular, on April 5 and August 9 and 10, 2006, Dr. Wade was advised that the documentation in support of some of his billings was inadequate.

Not having received the documentation requested, Medicare referred the matter to the Professional Review Committee, a committee which constitutes part of the audit process under the Act , and which is not related in any manner to professional conduct of doctors in the Province. On October 23, 2006, the Chairperson of the Professional Review Committee advised Dr. Wade that Medicare had some concerns regarding the sufficiency of documentation supporting some of his billings. The Chairperson invited Dr. Wade to attend a meeting of the Committee planned for December 7, 2006, in Fredericton.

At the close of the meeting on that date, the following exchange occurred between Dr. Wade and a committee member, Dr. Raju:

Dr. Raju: […] We reviewed the billings; we had no problem with the vast majority of the billings. It is the smaller minority of the billings for the reasons that we mentioned. And we don’t dictate to Medicare what they can or can’t do with the findings of this committee. We will, obviously, make some recommendation… Dr. Wade: Yeah. Dr. Raju: …. but it’s really the director of Medicare and the Deputy Health Minister that will review it and we have no

part in that process. If you feel that this is not enough time we’ll be happy to meet you again … Dr. Wade: Sure. Dr. Raju: … discuss other things, and revisit the whole thing. You know, the other options are do more forensic findings. [ 3 ] Pursuant to its mandate under s. 33 of the General Regulation - Medical Services Payment Act , N.B. Reg. 84-20 , the Committee made a recommendation to Medicare for reimbursement of a portion of Dr. Wade’s billings. [ 4 ] On May 8, 2007, counsel for Dr.

Wade, Rodney Gillis, Q.C., wrote to the Committee complaining about the process and suggesting judicial review of the Committee’s work might be appropriate. I would note that no issue is raised on this appeal regarding the right to seek judicial review of a recommendation. The Province responded to Mr. Gillis by stating that the Committee would be amenable to a further interview with Dr. Wade, but would first require “additional documentation”; presumably, the documentation, or documentation similar to, that sought by Medicare on April 5 and August 9 and 10, 2006. [ 5 ] In response to the Province’s offer, Mr.

Gillis sent Dr. Wade a letter in which he suggested that “we take this opportunity to assemble all of the documentation in relation to the files and a detailed explanation … to Medicare”. Mr. Gillis also suggested that “we move in a somewhat expedited fashion to address this matter”. On November 19, 2007, Mr.

Gillis wrote to counsel for the Province and advised: […] Hopefully I shall have some indication from him in the not too distant future of the time frame required to conclude the assembly of the necessary material and thereafter we could fix a date for the Hearing. [ 6 ] Having received no further documentation from Dr. Wade, the Province finalized the audit, and, on October 12, 2010, wrote to Dr. Wade requesting he reimburse the Province $149,049.54. The letter explained the methodology employed to arrive at that figure. On November 9, 2010, Dr. Wade replied.

He suggested the Committee, not he, was responsible for arranging a second meeting, and he requested a further meeting. Still, he did not provide any additional documentation. [ 7 ] On November 26, 2010, the Province responded to Dr. Wade. The entirety of that letter is reproduced below: Dr. D.A. Wade 515 Youghall Drive Bathurst, NB E2A 4X7 Dear Dr. Wade:

I acknowledge receipt of your letter dated November 9, 2010 and note that it was only received in my office on November 16, 2010. The PRC has made its finding in relation to this matter and the Department is legally mandated to follow up on that finding. Accordingly, we have begun deducting an amount from each of your Medicare payments, which will see the amount due to Medicare repaid over a period of 8 months. Pursuant to

section 33.001-33.005 of The Medical Services Payment Act , NB Regulation 2010-106, you are entitled to appeal the PRC finding. However, I would point out that an appeal does not act as a stay of the requirement that Medicare proceed with recovery. Accordingly, the deductions from your Medicare payments will continue until the amount due is fully recovered. Sincerely, Lyne St-Pierre-Ellis Associate Deputy Minister [ 8 ] Rather than proceed with an appeal, as suggested by counsel for the Province, or a judicial review application, in the event he thought that approach more appropriate, Mr.

Gillis did nothing until January 24, 2011, at which time he wrote to counsel for the Province. He stated in part: […] My client’s response to Ms. St. Pierre-Ellis of November 9, 2010 sets forth the further request to meet. It also sets forth a number of other issues in relation to the process. There was no response from Ms. St. Pierre-Ellis as to any further meeting but there has been a claw back from my client’s Medicare billings of fees .

I would ask whether you have received a copy of my client’s letter and if there is to be no further meeting to have a decision on this matter so that we can proceed by way of judicial review. [Underlining is mine.] [ 9 ] The Province responded to Mr. Gillis on February 3, 2011, stating in part as follows: My review of the file indicates that PRC gave Dr. Wade an opportunity to come forward with additional material and nothing was ever provided. Accordingly, PRC made its recommendations to the Minister, which then resulted in manual recovery of overpayment commencing this past Fall.

From my client’s perspective the matter is concluded. [ 10 ] In an apparent effort to reset the limitation period Mr. Gillis again wrote to counsel for the Province on March 24, 2011. He stated in part: Pursuant to the regulations of the Medical Services Payment Act , our client would appreciate receipt of a final Notice of Assessment, so that he may pursue any potential options upon appeal.

[ 11 ] Counsel did not identify the regulation which contemplates the issuance of a Notice of Assessment. [ 12 ] On March 25, 2011, the Province responded to Mr. Gillis with advice that the 60-day appeal period contemplated by the General Regulation had expired, as had the 3-month judicial review time limit. [ 13 ] Dr. Wade applied to the Court of Queen’s Bench under Rule 69.03 of the Rules of Court for an extension of time to apply for judicial review.

He argued he did not technically need an extension of time because the three-month limitation began to run only on February 3, 2011, and, alternatively, argued an extension should be granted. In a decision reported at 2013 NBQB 11 , 397 N.B.R. (2d) 35, a judge of the Court of Queen’s Bench dismissed his motion. Dr. Wade appeals that decision. II. Issues on Appeal [ 14 ] The appellant advances several grounds of appeal.

I am of the view the appeal can be disposed of by considering two issues: (1) whether the limitation period for judicial review expired, and, (2) if so, whether the reviewing judge erred in failing to extend the time. Given the manner in which this appeal was argued, I need not address whether the 60 day appeal period applied in the circumstances. III. Analysis A. Did the limitation period start to run on March 25, 2011? [ 15 ] Although Dr.

Wade contended, before the reviewing judge, that the limitation period started to run on February 3, 2011, in this Court, he contends it did not start to run until March 25, 2011, the date he was certain the Province would not entertain any further entreaties on his behalf. Regardless, Dr. Wade says the trial judge erred in concluding that leave to extend the time for filing a judicial review was necessary. I disagree. In the event there was any uncertainty in Dr.

Wade’s mind about whether Medicare had made a decision regarding the audit of his accounts as of October 12, 2010, that uncertainty was removed by November 26, 2010, when Dr. Wade was advised the Committee had made its findings, that those findings had been implemented and that deductions were being made from amounts otherwise due to him from Medicare. The finality of the decision is clearly demonstrated when the author advises Dr. Wade about the appeal procedure available to him.

In the event the November 26, 2010 letter was insufficient notice that a decision had been made, the claw back by the Province should have signaled that the limitation period had started to run. While there is no direct evidence as to the exact date the claw back commenced, Mr. Gillis employed the past tense when he wrote on January 24, 2011, that “there has been a claw back from my client’s Medicare billings […]”. [ 16 ] While I am satisfied the limitation period commenced on the date Dr.

Wade had notice of the October 12, 2010 letter, it makes no difference for the purposes of the present appeal whether it commenced on November 26, 2010, or just one day prior to Mr. Gillis’ January 24, 2011 letter wherein he acknowledges Medicare had started to “claw back” the monies due from Dr. Wade. The Notice of Application was filed on April 26, 2011, more than three months beyond even the latest possible date (January 24) that Dr. Wade had knowledge of the results of the audit. [ 17 ] I find there is no merit to Dr.

Wade’s position that the limitation period started to run on March 25, 2011, or any other day after January 24, 2011. B. Did the reviewing Judge err in failing to extend the time for filing an Application for Judicial Review? [ 18 ] The circumstances in which a Court may extend the time for filing an Application for judicial review were recently canvassed in Province of New Brunswick v. LeBlanc, Jeffery, MacMullin and Agnew , 2013 NBCA 9 , 398 N.B.R. (2d) 83.

In addition to the requirements codified in Rule 69.03, an applicant for an extension of time must show there are exceptional circumstances to explain his or her failure to respect the three-month time limit. The nature of “exceptional circumstances” was canvassed in LeBlanc and the cases cited therein. In my view, the reviewing judge properly concluded she had no evidence before her of exceptional circumstances.

IV. Conclusion [19] The application before the reviewing judge was, in my view, bereft of any merit. Regardless,because judicial review remedies are discretionary, deference is owed to the reviewing judge in such circumstances: Pèse Pêche Inc. v.R., 2013 NBCA 37, [2013] N.B.J. No. 167 at para. 10; The Beaverbrook Art Gallery v. Beaverbrook Canadian Foundation, 2013 NBCA17, [2013] N.B.J. No. 51 at para. 8; Parker v. Minister of Social Development et al., 2010 NBCA 76, 364 N.B.R.(2d) 352 at para. 5; TheBeaverbrook Canadian Foundation v.

The Beaverbrook Art Gallery, 2006 NBCA 75, 302 N.B.R. (2d) 161 at para. 4; British Columbia(Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371, at para. 43; R. v. Carosella, (SCC), [1997] 1 S.C.R. 80, [1997] S.C.J. No. 12 (QL), at para. 48; Elsom v. Elsom, (SCC), [1989] 1 S.C.R. 1367,[1989] S.C.J. No. 48 (QL). [20] I would dismiss the appeal with costs of $2,500. _______________________________ B. RICHARD BELL, J.A. WE CONCUR: _______________________________ MARGARET E.L. LARLEE, J.A. _______________________________ J.C. MARC RICHARD, J.A.