VOCAN HEALTH ASSESSORS INC., Appellant, v. HER MAJESTY THE QUEEN,, 2021 TCC 49

Docket: 2015-2586(GST)G BETWEEN: VOCAN HEALTH ASSESSORS INC., Appellant, and HER MAJESTY THE QUEEN, Respondent . Appeal heard on February 10, 11, 12, 13, 2020 and continued on September 2, 2020, at Toronto, Ontario Before: The Honourable Justice K. Lyons Appearances : Counsel for the appellant: Naresh Misir Ken Singh Devendranauth Misir Counsel for the respondent: Christopher Bartlett JUDGMENT The appeal from the assessment under

Part IX of the Excise Tax Act for the reporting periods from March 1, 2009 to February 29, 2010, March 1, 2010 to February 28, 2011, and March 1, 2011 to February 29, 2012 is dismissed. Costs are awarded to the respondent. The respondent shall provide written submissions on costs within 30 days from the date of this Judgment. Vocan shall provide written submissions on costs within 30 days from the filing date of the respondent’s submissions. The respondent shall provide their reply within 15 days of the filing date of Vocan’s submissions.

All submissions and reply shall be restricted to no more than 15 pages in length. Signed at Nanaimo, British Columbia, this 6th day of August 2021. “K. Lyons” Lyons J. Citation: 2021 TCC 49 Date: 20210806 Docket: 2015-2586(GST)G BETWEEN: VOCAN HEALTH ASSESSORS INC., Appellant, and HER MAJESTY THE QUEEN, Respondent. REASONS FOR JUDGMENT

REASONS FOR JUDGMENT Lyons J. I. INTRODUCTION [ 1 ] Vocan Health Assessors Inc., the appellant, (“Vocan”), provided two services: treatment and supplied assessment reports to insurance companies or legal representatives (“referring source”) in respect of individuals injured in motor vehicle accidents (“individuals”). Vocan contracted with various types of assessors to prepare the assessment reports in respect of the individuals. Assessors billed Vocan and were compensated by Vocan for services rendered.

Vocan billed the referring source for the assessment reports, for a marked-up fee, and was compensated by the referring sources.

Assessment reports assist insurers in the determination of injured individuals’ entitlement to insurance benefits. [ 2 ] Vocan appeals the assessment by the Minister of National Revenue under the Excise Tax Act (“ETA”). [1] The assessment for the reporting periods ending between March 1, 2009 to February 28, 2011 (collectively “both Periods”) is in respect of Goods and Services Tax (“HST”) collectible but not charged pertaining to the supply of assessment reports Vocan made to referring sources, and gross negligence penalties levied for HST not charged for the supply of the assessment reports.

The assessment for the reporting period from March 1, 2011 to February 29, 2012 (“2012 Period”) is in respect of the input tax credit (“ITC”) amount disallowed. [ 3 ] Vocan asserts the service (the supply of assessment reports) it provided during both Periods is an exempt supply pursuant to

section 2 of

Part II of

Schedule V of the ETA, thus penalties were incorrectly levied, and the ITC it claimed for the 2012 Period should not be reduced. II. ISSUES [ 4 ] This appeal raises the following issues:

a) Whether the supply of assessment reports to referring sources during both Periods is taxable or exempt under

Part IX of the ETA?

b) If it is found the supply is taxable, whether the Minister properly imposed penalties for both Periods pursuant to

section 285 of the ETA ?

c) What, if any, additional amount of ITC is Vocan entitled to? [ 5 ] At the hearing, Vocan abandoned its alternative argument that the supply of assessment reports was zero-rated. III.

SUMMARY OF FACTS [ 6 ] Vocan called eight witnesses to testify on its behalf. Vocan [ 7 ] Kashmira Handy, Vocan’s owner, operator and sole director, testified it is in the health care business, conducts assessments and treats mostly individuals that sustained injuries in motor vehicle accidents. It was created because she perceived a cultural insensitivity to individuals’ needs. [ 8 ] Vincent Rabbaya, Vocan’s Manager of Operations responsible for its day-to-day operations, has a BSc in physiotherapy from the Philippines but is not a regulated health professional in Canada nor an assessor.

He testified Vocan had four employees in 2012 and provided services that consisted of assessments and physiotherapy to injured individuals suffering physically or psychologically. [ 9 ] Siva Vimalachandran, Vocan’s bookkeeper and a part-time employee from 2009 to 2012 (the “bookkeeper”), had previous training and experience in general accounting but did not have an accounting designation. [ 10 ] The following assessors provided some background as to their credentials and testified that during 2009 to 2012 they prepared assessment reports arising from their assessments of injured individuals.

Practitioners [ 11 ] Knolly Hill, a psychologist licensed in Ontario since 1987, confirmed during cross-examination he has a PhD in psychology. [ 12 ] David Kunashko, a chiropractor licensed in Ontario since 1992, conducted assessments for Vocan since 2007 and up to 2012 and is governed by the Chiropractic Act, 1991 , of Ontario, which sets out the scope of the work.

When he entered practice, there was funding from Ontario Health Insurance Plan (“OHIP”) for chiropractors but not in 2009 nor 2012. [ 13 ] Saeid Gholeizadeh, a physiotherapist licensed in Ontario since 2002 under the Ontario Health Act and Physiotherapy Act , is a member of the College of Physiotherapists of Ontario, is not restricted to physiotherapy and has certain specialties like acupuncture. He agreed that licensed physiotherapists can only bill OHIP if registered.

[ 14 ] These Practitioners agreed they are not medical doctors (Medical Practitioners) nor a member of the Ontario College of Physicians and Surgeons. Ms. Handy agreed and accepted that the remaining Practitioners, the Nurse and Other Assessors are not medical doctors. Medical Practitioners [ 15 ] Dr. Alex Pister, a dental surgeon licensed to practise in Ontario since 1983 and a member of the Royal College of Dental Surgeons of Ontario, did temporal mandibular joint (“TMJ”) assessments. [ 16 ] Dr. M. K.

Joseph Kwok, an orthopaedic surgeon licensed to practise in Ontario since 1976, became a specialist to do surgery in 1980 and did orthopaedic assessments. Credibility findings and observations [ 17 ] Ms. Handy’s evidence was self-serving, there were inconsistencies in her testimony compared with others and she obfuscated in parts. Parts of her evidence were not credible and other parts were not reliable. Mr. Rabbaya’s evidence was generally clear and credible. Aspects of Mr. Vimalachandran’s evidence tended to be confusing and therefore unreliable, and other aspects were internally inconsistent thus not credible.

Overall, the assessors’ evidence was credible and presented in a forthright manner. [ 18 ] Terms used by Vocan in its pleading and some used at trial were confusing at times. For instance, some Practitioners were referred to as “doctor” even though they are not Medical Practitioners as defined in

section 1 of

Part II of

Schedule V of the ETA. Its pleading uses terms “providers”, “health care providers”, “health care practitioners” and “health care professionals” interchangeably and to encompass all assessors that prepared assessment reports even though some assessors are not health professionals in the health professions specified on

Schedule 1 of the Regulated Health Professions Act, 1991 (“ RHPA ” and “Schedule 1”). [2] [ 19 ] Four types of assessors are defined below in paragraph 10 of the partial Statement of Agreed Facts (“agreed facts”). Twenty sample assessment reports, arising from the assessments, were tendered at the hearing. [3] It would be useful to mention that when testifying witnesses described an assessment in various ways.

Namely, independent medical examination (used by some Medical Practitioners), evaluation, functional capacity evaluation, follow-up in-home assessment, ergonomic intervention, work-site survey, document review rebuttal and other descriptors. [4] Agreed Facts [ 20 ] The agreed facts indicate: 1. Vocan Health Assessors Inc. (the “Appellant”) was incorporated in 2005. 2. The Appellant’s sole shareholder was Kashmira Handy. 3. The Appellant is a GST registrant. 4. The Appellant filed its return on an annual basis. 5. This appeal relates to the annual reporting periods from: (

a) March 1, 2009 to February 28, 2010 (the “2010 period”); (

b) March 1, 2010 to February 28, 2011 (the “2011 period”); and (

c) March 1, 2011 to the end of February 2012 (the “2012 period”). 6. On or around August 25, 2010, the Appellant filed a GST/HST return for the 2010 Period reporting nil GST/HST and total input tax credits (“ITCs”) of $6,260.17. On or around September 13, 2010, the Appellant filed an Amended GST/HST return for the 2010 Period reporting nil GST/HST and nil ITCs. 7.

The following table sets out the amounts that the Appellant reported in its Amended GST/HST return for the 2010 Period, its GST/HST return for the 2011 Period and its GST/HST return for the 2012 Period, as well as the amounts that were assessed in the assessments under appeal: Period 2010 2011 2012 Reported Assessed Reported Assessed Reported Assessed GST/HST Sales NIL $1,244,727 NIL $1,261,821 $431,703 $431,703 GST/HST Collectible NIL $62,236 NIL $127,224 $66,279 $66,279 ITCs NIL NIL NIL NIL $58,544.33 $24,648 Net Tax NIL $62,236 NIL $127,224 $13,181 $41,631 A copy of the Goods and Services Tax/Harmonized Sales Tax (Re)Assessment dated December 27, 2013 in respect of the 2010, 2011 and 2012 Periods is located at tab 1 of the Joint Book of Documents. 8.

At all relevant times, the Appellant provided two types of services: (

a) it supplied assessment reports (“Assessment Reports”); and

(

b) it provided treatment to individuals. 9. The Assessment Reports were in respect of individuals who had been injured in motor vehicle accidents for the purpose of determining whether the individuals were entitled to benefits pursuant to the Statutory Accident Benefits

Schedule , O. Reg. 34/10 , and the Insurance Act , R.S.O. 1990, c. 1.8. 10. The Appellant contracted with assessors, each of whom were either: (

a) a dentist, an orthopedic specialist, a physiatrist, or a psychiatrist (collectively, the “Medical Practitioners”); (

b) a nurse (the “Nurse”); (

c) a chiropractor, an occupational therapist, a physiotherapist, or a psychologist (collectively, the “Practitioners”); or (

d) a social worker or a vocational rehabilitation counselor (collectively, the “Other Assessors”) 11. The Medical Practitioners were members of the Ontario College of Surgeons and Physicians or the Royal College of Dental Surgeons of Ontario. 12. The Nurse was registered with the College of Nurses of Ontario. 13. The Practitioners were registered with the College of Chiropractors of Ontario, the College of Physiotherapists of Ontario, or the College of Psychologists of Ontario. 14.

The Other Assessors were not entitled under the laws of any province to practise the profession of medicine or dentistry, and did not practise the profession of optometry, chiropractic, physiotherapy, chiropody, podiatry, osteopathy, audiology, speech-language pathology, occupational therapy, psychology, midwifery, dietetics, acupuncture or naturopathy as a naturopathic doctor. 15.

When an individual was referred to the Appellant for an Assessment Report, a form OCF-22 (Application for Approval of an Assessment or Examination) was completed and submitted to the applicable insurance company to request prior approval for payment of an assessment or examination fee. A copy of a blank OCF-22 is located at tab 2 of the Joint Book of Documents. 16. If approved, an Assessment Report and, if applicable, a form OCF-18 (Treatment and Assessment Plan) were prepared. A copy of a blank OCF-18 is located at tab 3 of the Joint Book of Documents. 17.

Each OCF-22, OCF-18 and Assessment Report was completed by an Assessor. 18. The Assessors billed the Appellant for the services rendered and were compensated by the Appellant. 19. The Appellant supplied the Assessment Reports to the individuals’ insurers or legal representatives for a marked-up fee. 20.

By type of Assessor, the Appellant’s sales in respect of Assessment Reports in the 2010 and 2011 Periods were as follows: Type of Assessor 2010 Period 2011 Period Medical Practitioners $134,239 $161,140 Nurse NIL $82,838 Practitioners $1,030,934 $936,254 Other Assessors $22,564 $60,544 Total $1,187,737 $1,240,776 21.

The Appellant’s sales in respect of Assessment Reports prepared by the Medical Practitioners included the following services, all of which were provided in the Medical Practitioner's offices and not in a facility operated by the Appellant: Type of Service 2010 Period 2011 Period Completion of OCF22 $1,912 $2,750 Completion of OCF18 $127 $740 Orthopaedic Assessment Report $40,000 $4,600 Orthopaedic Re-Assessment Report $2,300 NIL Psychiatric Assessment Report $31,500 $48,500

Physiatry Assessment Report $16,600 $70,100 TMJ Assessment NIL $14,000 TMJ + OCF22 Preparation $41,800 $20,000 Transportation NIL $450 Total $134,239 $161,140 22. Redacted copies of the following invoices by the Appellant and the corresponding reports are located in the Joint Book of Documents: (

a) invoice no. 4000 in respect of, among other things, an Orthopaedic Assessment Report and the corresponding report dated November 13, 2009 by Joseph Kwok are located at tabs 4 and 5 of the Joint Book of Documents; (

b) invoice no. 3672 in respect of, among other things, a Psychiatric Assessment and the corresponding report dated September 8, 2009 by Jerry Cooper are located at tabs 6 and 7 of the Joint Book of Documents; (

c) invoice no. 41807 in respect of, among other things, a Physiatry Assessment and the corresponding report dated August 11, 2010 by Joseph Wong are located at tabs 8 and 9 of the Joint Book of Documents; and (

d) invoice no. 42250 in respect of, among other things, a T.M.J. Assessment and the corresponding report dated December 10, 2010 by Alex Pister are located at tabs 10 and 11 of the Joint Book of Documents. 23.

The Appellant’s sales in respect of Assessment Reports prepared by the Nurse included the following services that were provided in a facility operated by the Appellant: Type of Service 2011 Period Completion of OCF22 $70 Completion of OCF18 $70 Attendant Care Needs (form 1) $3,824 Attendant Care Needs Assessment $45,780 Attendant Care Needs Re-Assessment $11,360 Second Re-Attendant Care Needs Assessment $860 Re-assessment of Attendant Care Needs III $1,000 Total $62,964 24.

The Appellant’s sales in respect of Assessment Reports prepared by the Nurse included the following services that were not provided in a facility operated by the Appellant: Type of Service 2011 Period Ergonomic Intervention $1,000 Home Site Assessment Report $13,200 Follow-Up Home Site Assessment Report $1,000 Third Follow Up Home Site Assessment Report $1,000 Work Site Survey $1,000 Attendant Care Needs (Form 1) $127 Attendant Care Needs Assessment $2,000 Mileage $152 Travel Time $395

Total $19,874 25.

The Appellant’s sales in respect of Assessment Reports prepared by the Practitioners included the following services that [ sic ] provided in a facility operated by the Appellant: Type of Service 2010 Period 2011 Period Completion of OCF22 $33,198 $25,978 Completion of OCF18 $4,269 $44,629 Combined Functional Capacity Assessment $190,550 $149,350 Combined Functional Capacity Re-Assessment NIL $3,675 Attendant Care Needs (form 1) $5,990 $7,519 Attendant Care Needs Assessment $61,400 $67,300 Attendant Care Needs Re- Assessment $760 $20,620 Activity and Physical Mobility (A.P.M.) $20,000 $12,200 Testing/Scoring/Interpretation $70,511 $46,226 Consultation w/ Client $70,930 $47,309 Treatment Planning $105,555 $66,152 Report Preparation $116,332 $80,679 Disability Certificate Assessment $180 NIL Disability Certificate (OCF3) $64 NIL Treatment Plan (OCF18) $191 $757 Psychological Assessment Report $8,750 $2,188 Transportation $600 $780 T.M.J.

Assessment + OCF22 Preparation $2,000 $2,000 Vocational Assessment NIL $3,900 Rebuttal in paper $23,400 $25,200 Total $714,680 $606,462 26. Redacted copies of the following invoices by the Appellant and the corresponding reports are located in the Joint Book of Documents: (

a) invoice no. 42196 in respect of, among other things, a Combined Functional Capacity Assessment and the corresponding report dated August 23, 2010 by David Kunashko are located at tabs 12 and 13 of the Joint Book of Documents; (

b) invoice no. 41550 in respect of, among other things, “Testing/Scoring/Interpretation”, “Consultation w/ Client”, and “Treatment Planning”, and the corresponding report dated June 7, 2010 by Rakesh Ratti are located at tabs 14 and 15 of the Joint Book of Documents; (

c) invoice no. 3631 in respect of, among other things, “Psychological Assessment”, and the corresponding report dated September 14, 2009 by Knolly Hill are located at tabs 16 and 17 of the Joint Book of Documents; and (

d) invoice no. 3146 in respect of a Rebuttal in paper and the corresponding report dated May 4, 2009 by David Kunashko are located at tabs 18 and 19 of the Joint Book of Documents. 27. The Appellant’s sales in respect of Assessment Reports prepared by Practitioners included the following services that

were not provided in a facility operated by the Appellant: Type of Service 2010 Period 2011 Period Home Site Assessment Report $126,963 $88,147 Follow-up home site assessment $68,509 $88,529 Second Follow-Up Home Site Assessment $6,449 $26,000 Third Follow Up Home Site Assessment NIL $4,000 Exercise Regimen NIL $3,268 In-Home Exercise Regimen NIL $5,188 Second In-Home Exercise Regimen NIL $2,700 Work Site Assessment $15,500 $16,870 Graduated Return to Work Programme NIL $2,486 Ergonomic Assessment $1,278 $10,000 Attendant Care Needs (Form 1) $6,629 $1,848 Attendant Care Needs Assessment $7,640 NIL Mileage $1,399 $1,140 Travel Time $3,739 $3,630 Rebuttal in person $58,125 $24,025 Educational Session $20,025 $43,761 Second Educational Session NIL $4,950 Total Body Assessment NIL $612 Provide Pt w/ Recommendations NIL $1,319 File and Medical Doc.

Review NIL $1,319 Total $316,256 $329,792 [Number 28 is missing in the partial Agreed Statement of Facts.] 29. Redacted copies of the following invoices by the Appellant and the corresponding reports are located in the Joint Book of Documents: (

a) invoice no. 41791 in respect of, among other things, “Home Site Assessment”, and the corresponding report dated August 17, 2010 by Sandy Pister are located at tabs 20 and 21 of the Joint Book of Documents; (

b) invoice no. 3105 in respect of, among other things, “Follow-Up Home Site Assessment Report”, “Attendant Care Needs (Form 1)”, “Attendant Care Needs Assessment”, “Travel Time” and “Mileage”, and the corresponding report dated April 8, 2009 by Saeid Gholeizadeh are located at tabs 22 and 23 of the Joint Book of Documents; (

c) invoice no. 3733 in respect of, among other things, “Follow-Up Home Site Assessment Report”, and the corresponding report dated August 22, 2009 are located at tabs 24 and 25 of the Joint Book of Documents; (

d) invoice no. 41908 in respect of, among other things, “Work Site Survey Report”, and the corresponding report dated August 30, 2010 by Sandy Pister are located at tabs 26 and 27 of the Joint Book of Documents; (

e) invoice no. 4327 in respect of, among other things, “Ergonomic Assessment”, and the corresponding report dated February 24, 2010 by Sandy Pister are located at tabs 28 and 29 of the Joint Book of Documents; (

f) invoice no. 41686 in respect of, among other things, “Ergonomic Assessment”, and the corresponding report dated July 15, 2010 by Sandy Pister are located at tabs 30 and 31 of the Joint Book of Documents; (

g) invoice no. 42425 in respect of, among other things, “In-Home Exercise Regimen” and the corresponding report rated January 9, 2011 by Sandy Pister are located at tabs 32 and 33 of the Joint Book of Documents;

(

h) invoice no. 42354 in respect of, among other things, “Report Preparation”, “In-Home Exercise Regimen”, “File and Medical Doc. Review”, “Provide Pt w/ Recommendation”, and “Total Body Assessment” and the corresponding report dated December 2, 2010 by Saeid Gholeizadeh are located at tabs 34 and 35 of the Joint Book of Documents; (

i) invoice no. 41760 in respect of "In Person Rebuttal" and the corresponding report dated July 29, 2010 by Sandy Pister are located at tabs 36 and 37 of the Joint Book of Documents; and (

j) invoice no. 3649 in respect of, among other things, “Educational Session” and the corresponding report dated November 23, 2009 by Sandy Pister are located at tabs 38 and 39 of the Joint Book of Documents. 30. The Appellant’s sales in respect of Assessment Reports prepared by the Other Assessors included the following services that were provided in a facility operated by the Appellant: Type of Service 2010 Period 2011 Period Completion of OCF22 $64 $1,044 Vocational Assessment $22,500 $22,500 Total $22,564 $23,544 31.

Redacted copies of invoice no. 41605 in respect of, among other things, “Vocational Assessment”, and the corresponding report dated December 3, 2009 by Gurleen Minhas are located at tabs 40 and 41 of the Joint Book of Documents. 32. The Appellant’s sales in respect of Assessment Reports prepared by the Other Assessors included the following services that were not provided in a facility operated by the Appellant: Type of Service 2010 Period 2011 Period Driver Re-Integration Evaluation NIL $37,000 Total NIL $37,000 33.

Redacted copies of invoice no. 42229 in respect of, among other things, “Driver Re-Integration Evaluation”, and the corresponding report dated November 24, 2010 by A. Davis are located at tabs 42 and 43 of the Joint Book of Documents. 34. The Appellant’s sales included the following amounts invoiced by the Appellant to Physiotherapy Wellness Institute Inc. in respect of psychological, chiropractic and physiotherapy treatments: (a) $169,837 in the 2010 Period; (b) $142,473 in the 2011 Period; and (c) $295,615 in the 2012 Period. 35.

Before 2010, the Appellant charged GST/HST on the supply of Assessment Reports. 36. The Appellant charged and collected HST in respect of Assessment Reports: (

a) in the amount of $348.28 in the 2011 Period; and (

b) in the amount of $66,279 in the 2012 Period. [ 21 ] In these reasons, forms OCF-22 and OCF-18 will also be referred to as Form 22 and Form 18, respectively, and Assessment Reports will also be referred to as Report(s). Vocan’s facility [ 22 ] Vocan’s facility is located at Jane Street, Toronto. It consists of 1,200 square feet, with a front desk and three care rooms each containing a computer, a bed, a blood pressure instrument, reflex hammer, stethoscope, and a functional capacity room with the Arcon machine, treadmill and bicycle. Ms. Handy’s description of the facility was confirmed by Mr. Rabbaya.

In cross-examination she acknowledged it had another location on Yonge Street, Toronto, and adjacent to each Vocan location was the Physiotherapy Wellness Institute (“PWI”), owned by her. Under an agreement, Vocan shared and subleased premises from PWI. Paragraph 34 of the agreed facts indicates that Vocan invoiced PWI in respect of psychological, chiropractic and physiotherapy treatments. [ 23 ] Mr.

Rabbaya grouped assessments into those conducted by specialists outside Vocan’s facility and those conducted by the rest of the assessors that he characterized as functional capacity evaluations, which included visits off-site, follow-up visits or vocational assessments . Testing conducted in a care room consists of range of motion, sitting, standing and squatting. The functional room contains objective diagnostic equipment, the Arcon, which accurately measures the individual’s physical tasks such as pushing, pulling and bending, thereby testing limitations.

Most of the time, the case study room and designated offices are used to do the medical briefs,

which sometimes are “paper briefs.” [5] He claimed that he observed daily the intake process and meetings with individuals and assessors in the care or examination rooms. However, during cross-examination he acknowledged that tests are done by assessors in closed examination rooms, he is not present and privacy is required in accordance with Vocan’s procedures. [ 24 ] Combined, Mr. Gholeizadeh, Mr. Kunashko and Mr. Hill described the facility as having a large room with computers, assistants, case offices and functional and examination rooms equipped with equipment, as identified by Mr. Rabbaya. Mr.

Gholeizadeh initially claimed that one of the “professional rooms” was dedicated to him, but during cross-examination he recanted that. [ 25 ] Mr. Hill conducted psychological assessments at Vocan, including administering Beck testing and scoring same to ascertain the individual’s problems to make recommendations to assist the individual to return to normal functioning and rehabilitation, and discussed his Report and recommendations with the individual at Vocan.

Unless it is an emergency situation, he typically recommends 12 therapy sessions. [6] In cross-examination, he agreed that between 2009 to February 2012, he also had a private practice at his own office. [ 26 ] When Sukhvinder Gill, CRA auditor, attended Vocan’s facility for a meeting she briefly observed the care rooms containing equipment that included beds. [7] Screening Process [ 27 ] Upon receipt of a request from a referring source, Vocan makes the appointment with the individual and the assessor at Vocan’s facility for an activity and physical mobility screening (“screening”) unless it is done at the specialist’s facility.

Ms. Handy continued that the purpose of screening or a “short assessment” is to ascertain the individual’s ability to do certain things to facilitate a “full- fledged” assessment; Mr. Rabbaya agreed with that and added it provides a clinical impression with treatment goals set out in Form 22, which is sent to the referring source for approval of an assessment. Next, she said Vocan waits for approval for an assessment from the referring source and Form 22 is then completed. She agreed in cross-examination it was necessary to first complete and send Form 22 to the insurer to seek approval.

If approval is obtained, the insurer signs Form 22. Binderized medical information is obtained from doctors and lawyers, which Vocan had given to assessors at the outset. [ 28 ] Mr. Rabbaya’s description of the process was clearer. Upon receipt of referrals from referring sources, Vocan’s intake coordinator arranged the appointments for both baseline screening and assessments (if approved) with the individual and the assessor or with the assessor’s office.

Whether screening is at or outside Vocan’s facility, the individual’s history is obtained from the referring source, including insurance and medical information, and provided to the assessor with the area of expertise. Subjective functional testing, such as standing, sitting, and bending, is where the details of accident and injuries are collected. Objective functional testing can be included for more serious injuries by engaging the Arcon apparatus. He commented that Vocan’s job is to arrange for and seek funding from the referring source for approval for an assessment. [ 29 ] During screening, Mr.

Gholeizadeh obtained a list of injuries and ascertained limitations from a physiotherapy perspective, which he used to complete Form 22. Similarly, Mr. Kunashko ascertained if there is pain while performing activities of daily living (“ADL”), if there are problems at work, if devices are needed, and if further intervention is required; he viewed it as the “initial step” to seek approval for a functional abilities evaluation (assessment). Mr.

Hill viewed screening as an “initial assessment”; he referred to information provided by Vocan (medical history, results of x-rays and family documentation), which assisted him with what he might propose in Form 22 and then signed and sent same to the referring source to seek approval for an assessment. Application for Approval of an Assessment or Examination – Form 22 [ 30 ] Ms. Handy briefly touched on Parts 1 and 2 of Form 22.

Part 4, the nature of assessment, and

Part 5 being completed by an assessor. When asked in cross-examination about

Part 5(a)(ii), she said she was unsure if this meant an individual had already been treated and was inclined to say the individual “could have”. If declined, even partially, by the insurer, she said the assessment might still proceed after discussions with the lawyer. Vocan would bill to the individual’s name and send it to the lawyer. She then stated that Mr. Rabbaya, responsible for billings, knows better than her. Mr. Rabbaya said Vocan goes back to individuals.

Typically, the individual proceeds with the assessment as there is likely an ongoing legal dispute and the insurance company might later revisit the situation and pay. [ 31 ] Contrary to Ms. Handy’s initial claim that Vocan had reviewed, completed and signed the Form 22s at its facility, Mr. Rabbaya presented a more accurate account. He said Vocan merely completed basic contact information (about the individual and insurer) in Parts 1 and 2.

It also had the individual complete the Authorization for Release of Information form (“Authorization Form”). [8] Assessors were required by insurers to complete Parts 4 up to

Part 8, consistent with their evidence and as reflected in paragraph 17 of the agreed facts. [ 32 ] Each assessor gave an overview, albeit in some detail, about the general process to obtain approval for an assessment; in large part, this corroborated Mr. Rabbaya’s evidence on this aspect. Summarized, each assessor stated Vocan’s intake coordinator arranges or coordinates appointments with individuals and assessors or the assessor’s office for screening (and assessment).

Parts 4 to 7 were completed by them during screening with information from individuals, who also signed Form 22 and any documents sent by Vocan which facilitated assessors’ recommendations for the proposed goods and services. Assessors said Vocan received the fee for completing Form 22, not them, and they submitted the Forms to insurance companies, on behalf of individuals, who may approve, wholly or partially, or decline the recommendations. The Assessors’ evidence conflicts with Ms. Handy’s evidence in that she had suggested in re- examination that

Part 7 of Form 22 was completed on Vocan’s behalf, but as she acknowledged in cross-examination, Form 22 pertains to the individual. [ 33 ] I observe that completion of the more substantive Parts, 3 to 7, pertain to assessor functions who are required to complete and sign same.

Part 5 requires Provisional Clinical Information, a description of the complaint, if treatment had previously been provided, details of the proposed assessment, a rationale and whether the assessor is aware of a prior assessment of the type being proposed in Form 22. Mr. Gholeizadeh said insurers required him to go through every Part, which he explained and discussed with the individual plus the benefits before he faxed the Form to the insurance company for approval. Also,

Part 8 requires the insurer to sign, whether approval is

granted or not for the assessment. If approved, the insurer is required to notify the assessor and the individual. If declined, it is to advise the individual that it is not agreeing to pay for same thus an examination is required. Invoices [ 34 ] Once signed by an assessor, the report is sent to Vocan. The assessor billed for the assessment report. Vocan then bills and supplies the report to the referring source setting out charges for services, completion of Form 22 and the assessor’s report. In re-examination, Ms. Handy said Vocan had referred individuals to Dr.

Kwok and pointed to an invoice that Vocan sent to the referring source reflecting charges for both services and confirmed that he had received a flat fee separately for the Report from Vocan for a lesser amount. Mr. Rabbaya agreed and said usually Vocan’s invoices itemize two services on two dates showing charges for both services paid to or receivable by Vocan from the referring source. He added that the assessor is not paid the $63.72 for completion of Form 22. Mr. Hill corroborated that and confirmed that Vocan paid him a fixed fee for a lesser amount for his Reports. [ 35 ] When Ms.

Handy was asked if screening would be charged and would be on the invoice, it was suggested it was part of the standard part of the intake process. She believed screening was done for everyone but does not know if Vocan charged for screening. Mr. Rabbaya indicated it is “not all the time” that screening is billed for any type of assessment. Although screening is administered to every individual at Vocan, it is not always billed. For example, after the first assessment, if Vocan needs to do another baseline screening it would not bill for it.

Both of them agreed that these cannot be charged to OHIP given the purpose was for insurance benefits. [ 36 ] Mr. Rabbaya discussed four other Vocan invoices subject to the same billing process, each of which itemizes charges for both services.

He highlighted all the details from the invoices which I have summarized as follows: [9] Completion of Forms $ Reports $ September 1, 2009 63.72 September 8, 2009 3,500 May 10, 2010 70 August 11, 2010 2,300 November 3, 2010 200 December 10, 2010 2,000 May 20, 2010 70 August 23, 2010 1,225 Treatment and Assessment Plan – Form 18 [ 37 ] Unlike Form 22, Form 18 was not completed for every individual.

If an assessor wanted to see the individual again for another type of treatment or an assisted device was needed, Vocan would follow up and seek approval for other services or goods recommended and completed Form 18, which Mr. Rabbaya said resulted in additional revenue for Vocan. [10]

Part 4 refers to the assessor’s “clinical impression” through examination and medical documentation and is signed by the health practitioner.

Part 5 lists regulated health care professionals for which he reviews credentials when hiring assessors; he thinks all professionals listed are regulated but is unsure about social workers.

Part 6 includes the assessor’s diagnosis of the injury with findings of physical and psychological symptoms.

Part 7 requires information about the individual’s prior and concurrent conditions.

Part 8 requires the assessor to describe the individual’s impairment and how these affect their employment.

Part 9 is rehabilitative and establishes goals for pain reduction and increase in strength and range of motion. [ 38 ] The respondent conceded the fees Vocan billed to and received from referring sources for completion of Forms 18 and 22 belong to Vocan and the amounts Vocan had paid to the assessors for the Reports were less than the amounts Vocan billed to referring sources. IV. PARTIES’ POSITIONS [ 39 ] As pled, Vocan’s position is it is a health care facility within the meaning of

section 1 of

Part II of

Schedule V of the ETA , and all assessors render medical care and supplies to its patients.

Hence, “the words medical care should not be limited only to physicians but to include other health care professionals/practitioners such as nurses, chiropractors, occupational therapists, physiotherapists and psychologists etc. who are all capable to render what is required to diagnose, treat and/or prevent disease, injuries or other illnesses as permitted in the Ontario Regulated Health Professionals Act .” [11] The “health care professionals who render the services to the patients of VOCAN at its facility are governed by their respective statutes in the Regulated Health Professional’s Act , to provide medical care.” [12] [ 40 ] Under

section 1,

Part II,

Schedule V, “practitioners” are defined and are not required to charge GST/HST in respect to supplies of health care services listed in sections 7 and 7.1 of

Part II of

Schedule V. [13] Services rendered by assessors are exempt from HST under those sections and sections 2, 5, 6, 9, 10. [14] Accordingly, “…medical services can be provided by other health care providers and not only medical doctors” . [15] [ 41 ] At the hearing, Vocan’s position is that the supply of Reports, during both Periods, is an exempt supply under

section 2 of

Part II of

Schedule V. It is a health care facility that provides medical care rendered by assessors who fall within the health professions specified in

Schedule 1 of the RHPA to individuals as patients of its facility; individuals seek benefits and treatment to deal with chronic pain. Other Assessors, not governed by the RHPA , are equally qualified professionals and provide medical care. Therefore , its supply of Reports to referring sources constitutes medical care. As such, no HST was charged on the value of consideration and penalties were improperly levied. [ 42 ] The respondent’s position is that every supply of Reports by Vocan—regardless of the type of assessor—fails one or more of the

section 2 tests of

Part II of

Schedule V. It did not provide an “institutional health care service”, it did not operate a “health care facility”, as defined in

Section 1 of

Part II of

Schedule V, and individuals were not patients of its facility. Therefore, such supply is taxable and Vocan is liable for unreported HST collectible for both Periods and associated penalties, as assessed. Contrary to Vocan’s submissions, the respondent argues there is no evidence that assessors were agents of Vocan, nor is it entitled to additional ITC’s.

[ 43 ] Unless otherwise specified, all references to provisions that follow are to the ETA. V. LAW [ 44 ] Goods and Services Tax is imposed on every recipient of a taxable supply made in Canada, in respect of the supply, calculated at the applicable rate on the value of the consideration for the supply. [16] Ontario harmonized its sales tax with the Goods and Services Tax (collectively “HST”). [ 45 ] By virtue of subsection 123(1), a “taxable supply” means a supply made in the course of a commercial activity. A “supply” is broadly defined to mean the provision of “property” or “services” in any manner.

Therefore anything provided in the course of a commercial activity will conceivably be subject to HST. [ 46 ] The term “ exempt supply” means a supply included in

Schedule V. [ 47 ] Before turning to the first issue as to whether the supply of Reports is taxable or exempt, I will address Vocan’s submission that assessors are its agents. Agency [ 48 ] When asked in cross-examination about his testimony describing Dr. Cooper as Vocan’s agent, Mr. Rabbaya responded he lacks legal training, it is not a legal conclusion and he was unaware of any agency agreement. [17] Ms. Handy commented in re-examination that all assessors were Vocan’s agents because assessors billed Vocan, and Vocan then billed the insurance company.

No written agency agreement was produced at the hearing. [ 49 ] It is only where there is no written agreement that the conduct of the parties must be examined for the purpose of determining whether there was an implied agency. [18] [ 50 ] Some general principles governing key features of an agency relationship would be useful at this point.

In Kinguk Trawl Inc. v The Queen (“ Kinguk ”) [19] , the Federal Court of Appeal adopted the definition of the term “agency” as “…a fiduciary relationship which exists between two persons, one of whom expressly or impliedly consents that the other should act on his behalf so as to affect his relations with third parties, and the other of whom similarly consents so to act or so acts.” [20] [ 51 ] The Court also adopted the “essential ingredients” of an agency relationship consisting of:

a) consent of principal and agent;

b) authority of the agent (given by principal) to affect the principal’s legal position; and

c) the principal’s control of the agent’s actions. [ 52 ] The Court noted that in reality, authority and control often overlap “…as the principal’s control over the actions of his agent is manifested in the authority given to the agent.” [21] [ 53 ] In Merchant Law Group v The Queen (“ Merchant ”), [22] the Federal Court of Appeal identified authority of the agent as one of three “essential qualities” and highlighted that, “It is settled at common law that for an agency relationship to exist the agent must be able to affect the principal’s legal position with third parties by entering into contracts on the principal’s behalf or by disposing of the principal’s property.” [23] [ 54 ] In Fourney v The Queen , Justice Hogan held where there is no written agreement, the test for finding an agency relationship is restrictive necessitating evidence of the necessary conduct. [24] In his analysis he identified a number of principles.

The following are relevant to the present case: [25]

a) Absent a written agency agreement, the court must closely examine the conduct of the parties to determine whether there was an implied intention to create an agency relationship.

b) In reviewing the conduct of alleged principal and agent, it is key to determine the level of control which the former exerted over the latter.

c) The alleged principal’s control over the actions of the alleged agent may be manifested in the authority given by the former to the latter. Thus, the concepts of authority and control sometimes overlap. [ 55 ] Vocan argues it exerted a level of control over the assessors when it referred individuals to the assessors, dictated the scope and purpose of what assessors did, scheduled appointments for assessors and individuals, organized and collated medical information for assessors, who thus acted “on behalf of” Vocan (per the Reports) and reported to it.

Assessors themselves agreed they were consultants, assessed individuals, prepared Reports, which were sent back to it for fact-checking, and some assessors had both their own and Vocan’s letterhead. [ 56 ] For the reasons that follow, I find that the conduct of Vocan and the assessors leads me to conclude that there was no implied agreement to create an agency relationship between them. [ 57 ] Vocan failed to establish the essential quality for an agency relationship that assessors were able to affect Vocan’s legal position with third parties by entering into contracts on Vocan’s behalf or disposing of Vocan’s property.

There was no evidence that assessors

had any such authority. [ 58 ] Scheduling appointments and the provision of such information, if available, to assessors merely assists assessors in facilitating meetings with individuals. In my view, these factors do not show a level of control in an implied agency context. Setting scope and purpose for assessors could equally apply to entering into a basic contractual arrangement. [ 59 ] Dr. Pister explained that Vocan contacted his office manager for scheduling. Individuals attended at his dental office for TMJ assessments.

Before he met them, documentation was prepared and placed by his office manager on his desk; he speculated it must have been sent by Vocan. His approach was to not review same before seeing individuals. Instead, he had developed a skeleton and did his own intake assessment based on it. Vocan could not tell Dr. Pister, nor any of the assessors, how to conduct the tests nor change the substance of their Reports as corroborated by Ms.

Handy. [ 60 ] The Authorization Form signed by the individual authorizes Vocan to allow its “clinician, physician, chiropractor, psychologist or any other specialist/consultant to release all information, opinions and reports regarding my physical and/or psychological condition(

s) to the agents, requesting this independent functional/medical evaluation”. Yet, Dr. Kwok, Dr. Pister and Mr. Hill prepared notes and retained those in their own files, not Vocan’s. Even forwarding the Reports to Vocan was conditional on securing authorization from individuals.

The fact of such authorization and retention of notes is not indicative of assessors acting as Vocan’s agents and being under its control nor reporting to it. [ 61 ] I am not persuaded by Vocan’s submission that individuals might have formed the impression there was an agency arrangement merely because the Authorization Form referred to the assessment being conducted “under” Vocan by the consultant. Although Ms. Handy suggested in re-examination that

Part 7 of Form 22 was completed on behalf of Vocan, she had acknowledged in cross- examination that Form 22 pertains to the individual. Practitioners testified they submitted Form 22 on behalf of individuals and were obliged to complete Parts 3 to 7. Mr. Gholeizadeh confirmed insurers required him to go through every Part; he discussed Form 22 plus benefits with the individuals before faxing the Form to the insurance company for approval. If approval was declined, he would ask the individual if he or she wanted to self-fund, discussed risks and provided advice. According to

Part 8, if approved, the insurer is required to notify only the individual and the assessor, not Vocan. If declined, only the individual is notified. [ 62 ] I find little, if any, control was exerted by Vocan over the assessors. [ 63 ] While some assessors used “Vocan Health Assessors” on the cover page of their Reports, this was not a uniform practice and others used their own letterhead. This could support an argument in either direction. [26] [ 64 ] Mr. Rabbaya initially claimed that Vocan was required to abide by the colleges’ rules and regulations through the assessors.

In cross-examination, he agreed that Vocan is not a member of any of the colleges, and assessors are required to abide by the rules and regulations. [ 65 ] The evidence does not establish that Vocan contracted with assessors to prepare the Reports as Vocan’s agents; it contracted assessors to prepare the Reports. Assessors assessing individuals and preparing Reports for Vocan and forwarding same to Vocan were merely fulfilling their contractual obligation to prepare and provide a Report to Vocan in exchange for a fee. As acknowledged by Mr.

Rabbaya, there was an agreement of how assessors were paid for the Reports but he was unaware of any agency agreement. Rather, Vocan referred individuals to assessors for the purpose of preparing the Reports; assessors provided those to Vocan for a flat fee and it then supplied the Reports to the referring sources for an increased fee paid or payable to Vocan. I find that there is no implied agency. VI.

ISSUE I: Is the supply of Reports taxable or exempt? [ 66 ] Vocan asserted it is a health care facility that provides medical care, through all assessors, to its patients (individuals) and therefore the supply of Reports is exempt. However, the question is whether Vocan’s supply of Reports satisfies

section 2 of

Part II of

Schedule V to constitute an exempt supply of an “institutional health care service” made by the operator of a health care facility rendered to a patient or resident of the facility. Nature of Supply [ 67 ] First, the nature of the supply must be determined. [27] Vocan submits it made a single compound supply of Reports. T he underlying rationale for the entire transaction was medical care.

Everything inputted was necessary; the entire process (scheduling, collection and review of information, intake, and the assessment including testing) is integral to the overall supply of the Report which culminates in the diagnosis, the end result. The Report is the manifestation of all of that. The purpose is the assessment of the level of disability which started with Vocan providing medical care in its facility. The purpose of the Report was to determine the individual’s level of disability to engage in the question of eligibility for benefits, all of which goes to rehabilitative care.

The small fraction of time spent on the Reports versus the true purpose of being assessed and associated steps are necessary, which is what they were commissioned to do. Regardless of whether approval is given, consumers still have the option to go ahead. [ 68 ] In support of its submission that the predominant element is to be found objectively from the individual’s (consumer’

s) perspective looking at the supply received, it relied on the decision of Applewood Holdings Inc. v The Queen (“ Applewood ”) [28] I t argues looking at the totality of its role as a whole (its process during intake and explanation to individuals), Vocan’s activities, similar to Applewood , were not administrative in nature but amounted to medical care in its true essence.

It referenced the principle from the decision in Canadian Imperial Bank of Commerce v The Queen (“ CIBC ”). [29] Namely, “Often times, a supply is nothing if not a culmination of its various inputs, where from the perspective of the purchaser, it is the culmination or end result, and not the constituent elements which make up the end result, that is the true value added service which is being transacted for.” [30] Vocan asserts that the predominant element is to diagnose injured individuals (to ascertain the level of disability and treat them is e ssential ).

[ 69 ] The respondent agrees it is a single supply, submits it is a taxable supply and asserts the predominant element is the assessment. [ 70 ] I agree there is a single supply.

I disagree with Vocan’s approach, and that the underlying rationale is medical care for the reasons explained below. [ 71 ] In determining whether a supply satisfies the statutory definition in issue to render a supply to be exempt, the approach endorsed by the Federal Court of Appeal in Great-West Life Assurance Co. v The Queen (“ Great-West ”) requires two questions to be answered. [31] First, identify all services provided for the consideration received, not just the predominant element(s). Second, determine whether the supply is included in such definition, and in doing so, only the predominant element(

s) of the supply, if it is a single compound supply, is to be taken into account. [ 72 ] In determining whether the supply of Reports satisfies the definition of “institutional health care service”, I find that the answer to the first question is that Vocan provided the supply of Reports (arising from the assessments carried out by assessors) for the consideration it received. The answer to the second question is that the predominant element is the assessments prepared by the assessors. [ 73 ] In the agreed facts, it is acknowledged that Vocan has two distinct services: treatment and supply of assessment reports.

The dispute in these appeals centres on Vocan’s sales in respect of the supply of Reports totalling $1,187,739 and $1,240,776 for both Periods, respectively. [32] Reports can be grouped in respect of assessments conducted by assessors off-site, and those conducted on-site in Vocan’s facility as follows: [BLANK] Assessments [BLANK] Off-site 2010|2011 Periods Vocan’s Facility 2010|2011 Periods Practitioners 316,256 329,792 714,680 606,462 Other Assessors [BLANK] 37,000 22,564 23,544 Nurse [BLANK] 19,874 [BLANK] 62,964 Medical Practitioners 134,239 161,140 [BLANK] [BLANK] [ 74 ] Reports were requested by insurance companies to determine individuals’ eligibility for insurance benefits stemming from the insurance regime and statutory accident benefits schedule.

Mr. Rabbaya explained there is a pre-approved minor injury guideline for goods and services and assessments up to a maximum of $3,500. Ms. Handy, and others, confirmed that the assessment enables insurance companies to determine if accident benefits, housekeeping or income replacement, would be available. [ 75 ] Regarding assessments conducted by Practitioners, Other Assessors and the Nurse outside Vocan’s facility (at an individual’s home, work-site, car) (“off-site”), these are elements conducted off-site. Assessors that conducted off-site assessments include Mr. Gholeizadeh, Sandy Pister, Mr.

Kunashko, other Practitioners, A. Davis (the social worker), and the Nurse. [33] [ 76 ] But for an off-site assessment, there would be no corresponding off-site assessment report including a driver re-integration evaluation report. Mr. Gholeizadeh (in-home assessments being the bulk of his work) and Mr. Rabbaya agreed there could be no in- home assessment report (or follow-up, or work-site assessment report or follow-up) where the assessor does not attend the home (or work-site) of the individual. Mr.

Kunashko said that the only time he would meet the individual as part of an in-home assessment is at the person’s home. [ 77 ] In his Report, Mr. Gholeizadeh states he “spent 12 hours to complete this assessment including the completion of his written report; of which approximately 1.5 hours was spent at the patient’s home.” He elaborated that the 1.5 hours inclusion was “for the assessment” , and was included to ensure the insurance adjuster understood he was at the individual’s home.

However, the adjuster “wouldn’t care” where the rest of the time was spent in respect of the Report, and “you can’t really say” where it was spent; there was no account of it in his Report. [34] He confirmed time was spent on document review, report preparation and writing, editing, proofreading, invoicing, travel time and mileage to complete his exercise regiment overview. In cross-examination, it was put to him that as part of an in-home assessment he met the individual and since 1.5 hours is shown, he met her at her home only.

He could not agree because he did not know nor could he recall but knows he met her at home. [35] The format and the wording regarding the 1.5-hour time allocation were common features in Reports for off-site assessments. [ 78 ] Assessors typed their own Reports which could be completed anywhere, even Starbucks, according to Ms. Handy. Mr. Gholeizadeh prepared his at Vocan because it afforded him privacy as he worked at other companies. Mr.

Kunashko prepared his at home. [ 79 ] An in-home assessment necessarily entails an assessment of the home environment and its features to determine if it meets the individuals’ needs for ADL and could include housekeeping, home maintenance, personal care and caretaking tasks, et cetera. The significance to the insurer of the time spent at the individual’s home, the indifference to and lack of accounting where the rest of the time was spent, and the nature of the Report illustrates that the off-site assessment (whether in-home, work-site, car or elsewhere) is the predominant element.

I find all other elements are inputs that go into creating the Report. Law [ 80 ]

Part II of

Schedule V deems certain supplies in various sections under “Health Care Services” to be exempt where such supplies are made or rendered by health professionals or an entity. Some sections have general application; others pertain to supplies made by specific health care professionals. In some instances, a health professional may be exempted under more than one section. [36]

Section 2 of

Part

II of

Schedule V exempts a supply of an “institutional health care service” made by the operator of a health care facility if the service is rendered to a patient or resident of the facility. [ 81 ]

Section 2 was amended in the midst of both Periods that are in issue. [37] Both iterations are reproduced below: Before March 4, 2010 it read: 2 A supply of an institutional health care service made by the operator of a health care facility if the institutional health care service is rendered to a patient or resident of the facility, but not including a supply of a service related to the provision of a surgical or dental service that is performed for cosmetic purposes and not for medical or reconstructive purposes.

On or after March 4, 2010 and currently reads: [A] supply of an institutional health care service made by the operator of a health care facility if the institutional health care service is rendered to a patient or resident of the facility.” [ 82 ] Both iterations of

section 2 engage the following tests:

a) whether the supply is a supply of an “institutional health care service” ;

b) whether the supply was made by the operator of a “health care facility” ; and

c) whether the supply was made to a patient of the facility. [ 83 ]

Section 1 of

Part II of

Schedule V defines the terms “institutional health care service” , “health care facility” , “medical practitioner” and “practitioner” .

Definitions for the last two terms are in Appendix A to these reasons. [ 84 ] An “institutional health care service” , and the parallel definition “services de santé établissement” of the French version, is defined as follows:

[…] institutional health care service means any of the following when provided in a health care facility: (

a) laboratory, radiological or other diagnostic services, (

b) drugs, biologicals or related preparations when administered, or a medical or surgical prosthesis when installed, in the facility in conjunction with the supply of a service included in any of paragraphs (

a) and (

c) to (g), (

c) the use of operating rooms, case rooms or anaesthetic facilities, including necessary equipment or supplies, (

d) medical or surgical equipment or supplies (

i) used by the operator of the facility in providing a service included in any of paragraphs (

a) to (

c) and (

e) to (g), or (ii) supplied to a patient or resident of the facility otherwise than by way of sale, (

e) the use of radiotherapy, physiotherapy or occupational therapy facilities, (

f) accommodation, (

g) meals (other than meals served in a restaurant, cafeteria or similar eating establishment), and (

h) services rendered by persons who receive remuneration therefor from the operator of the facility; […] Les services et produits suivants offerts dans un établissement de santé:

a) les services de laboratoire, de radiologie et autres services de diagnostic;

b) lorsqu’elles sont accompagnées de la fourniture d’un service ou d’un bien figurant à l’un des alinéas

a) et

c) à g), les drogues, substances biologiques ou préparations connexes administrées dans l’établissement et les prothèses médicales ou chirurgicales installées dans l’établissement;

c) l’usage des salles d’opération, des salles d’accouchement et des installations d’anesthésie, ainsi que l’équipement et le matériel nécessaires;

d) l’équipement et le matériel médicaux et chirurgicaux : (

i) utilisés par l’administrateur de l’établissement en vue d’offrir un service figurant aux alinéas

a) à

c) et

e) à g), (ii) fournis à un patient ou à un résident de l’établissement autrement que par vente;

e) l’usage des installations de radiothérapie, de physiothérapie ou d’ergothérapie;

f) l’hébergement;

g) les repas (sauf ceux servis dans un restaurant, une cafétéria ou un autre établissement semblable où l’on sert des repas);

h) les services rendus par des personnes rémunérées à cette fin par l’administrateur de l’établissement. […] Analysis (

a) whether the supply is a supply of an “institutional health care service”? [ 85 ] It is Vocan’s position that the components in paragraphs 1(a), (c), (d)(

i) and (

e) of the definition of institutional health care service were satisfied. Specifically, it provided diagnostic services under paragraph 1(a), and Practitioners utilized rooms (case and functional) with equipment under paragraphs 1(c), (d)(

i) and (

e) for testing and examining individuals that led them to the process by which Form 22 was completed, and assisted them in their determinations such as the functional ability of individuals and the diagnosis. Assessors were remunerated by Vocan pursuant to paragraph 1(h). [ 86 ] The respondent disagrees it met the first

section 2 test. Off-site assessments – Practitioners, Other Assessor and Nurse [ 87 ] Vocan has demonstrated, at paragraphs 22 to 26 of these reasons, it has case rooms and a functional room with equipment. Ms. Handy said that assessors carry out functional ability testing on individual’s at Vocan’s facility, then they go to the individual’s home or work-site for no more than one hour. O thers’ testimony and Reports indicate that of the total time spent (ranging from 7 to 12 hours),

approximately 1.5 hours was spent off-site, at a person’s home or work-site. Mr. Gholeizadeh stated he would spend a maximum of two hours at the individual’s home to perform an in-home assessment. For the driver re-integration evaluation , comprised of “an in-depth clinical interview and an in-vivo assessment” , she claims equal time was spent at Vocan’s facility and the individual’s home.

Yet, that evaluation Report reflects he “spent approximately 12 hours to complete this assessment including the completion of this written report; of which approximately 1.5 hours was spent with the patient driving on the road in the car and in the patient’s home” but no mention is made of any time spent at Vocan’s facility. [38] [ 88 ] Vocan submits that Mr. Rabbaya and Mr.

Gholeizadeh indicated that some physiotherapists that conducted off-site assessments already have testing completed (using the Arcon to test the individual’s functional abilities and limitations with respect to ADL) before going off-site to conduct the in-home assessment.

The difficulty with that is even if assessors spent time in Vocan’s facility on preparatory activities in connection with preparing Reports, it is only the predominant part of the service - the assessment conducted off- site - that is to be considered in making the determination as to whether the supply constituted an institutional health service.

Testing, therefore, would be in an input. [ 89 ] Vocan argues that regardless of whether the Nurse (and Medical Practitioners) operate outside Vocan’s facility they meet the definition of providing medical care, based on Jema International Travel Clinic Inc. v The Queen (“ Jema ”), because it is inherent in the nature of Vocan’s supply that it all started at Vocan. “Started at” does not satisfy the legislative requirement “when provided in” a health care facility.

There was recognition in Jema of the fact that a physician on staff supervised nurses and was available for consultation. [39] There is no evidence of either in Vocan’s situation, and the Nurse contracted by Vocan was working off-site. [ 90 ] Vocan relies on the decision of this Court in Riverfront Medical Evaluations Ltd. v The Queen (“ Riverfront ”), [40] affirmed by the Federal Court of Appeal, as being comparable to its position.

The only difference, it says, is that Riverfront contracted only physicians, but in all other respects, Vocan’s business, facilities, intake, process and daily activities pertaining to rehabilitative and chronic care are very similar. [ 91 ] Riverfront provided independent medical examinations (“IMEs”) of patients, conducted by “speciality” “contract physicians” it retained, to insurance companies in the form of reports.

Because of the physician-patient relationship, it mattered not that the physician was paid by the insurance company. [41] The Court found the diagnostic component (diagnostic procedures in examining the patient), and use of case rooms, including necessary equipment or supplies, that were “provided in” Riverfront’s facility pursuant to paragraphs 1(

a) and 1(

c) of

Part II of

Schedule V, respectively, was clearly satisfied in addition to the requirement in paragraph 1(h). All of which led the Court to conclude it was a health care facility such that the supply of reports to insurance companies constitutes an institutional health care service thus amounted to medical care. Hence, such supply falls within the exemption in

section 2 of

Part II of

Schedule V. [ 92 ] I agree there were some similarities between Vocan and Riverfront (parts of its process, steps and rooms with equipment). [42] However, retaining only physicians that not only conducted IMEs of patients in Riverfront ’s premises, but took all other steps in its premises, was significant to the Court in its findings. Conversely, Medical Practitioners were neither present nor practising in Vocan’s facility. Even the Nurse (and Practitioners) services were provided off-site. Riverfront is not comparable to nor assists Vocan.

The off- site assessments conducted by Practitioners, Other Assessors and the Nurse in the individual’s home, work-site, car or elsewhere, were not provided in any facility, let alone a “health care facility” operated by Vocan. (

b) whether the supply was made by the operator of a “health care facility” ? [ 93 ] Assessments conducted on-site, in Vocan’s facility, in respect of the supply of Reports during both Periods are captured in the amounts identified in paragraph 73 of these reasons. The question is whether the supply of these on-site Reports constitute a supply made by Vocan as the operator of a “health care facility.” [ 94 ] Vocan’s primary position is that in view of what " “medical” " means, all healthcare professionals who are members of the health professions specified in

Schedule 1 of the RHPA are qualified professionals who have medical qualifications. Effectively, it suggests it met the test in

section 2 of

Part II of

Schedule V because the Practitioners and the Nurse are on an equal footing with Medical Practitioners and provide medical care based on the RHPA regime and what each of them do. In Ontario, health care practitioners (that is, Medical Practitioners, Practitioners, and the Nurse) are regulated by the RHPA .

Section 1 provides that a “ ‘ health profession’ means a health profession set out in

Schedule 1.” [43] This includes medicine, dentistry, nursing, chiropractic, physiotherapy and psychology. Further, since t he last three professions listed in paragraphs 7(b), (

c) and (

j) of

Part II of

Schedule V of the ETA provide that “if the service is rendered to an individual by a practitioner of the service” it is a supply, therefore, the term “services” could include the supply of independent medical assessment reports which Vocan provided. [ 95 ] Vocan submits it was operating for the purpose of providing medical care to injured patients, including acute, rehabilitative and chronic care, per the Reports. Therefore, it supplies medical care including medical assessments.

The purpose of the Reports, it says, shows the assessments require an understanding of individuals’ disabilities who are seeking benefits and rehabilitative treatment with some suffering from chronic pain. [44] All assessors testified about their purpose: obtaining medical history and reviewing records, diagnosing and assessing the nature of patients’ injuries and problems, providing a prognosis and appropriate treatment to return to ADL or to cope with chronic pain or psychological injury, and completing the Reports. [ 96 ] The respondent’s position is that the services rendered on-site by Vocan through Practitioners, Other Assessors and the Nurse to individuals were not provided in a health care facility as Vocan’s facility did not qualify because it was not operated for the purpose of providing medical care (or hospital care). [ 97 ] The question of whether Vocan is a health care facility involves a determination of the meaning of “medical care” as found in paragraph 1(

a) of

Part II of

Schedule V of the definition of health care facility. [ 98 ] The term “medical care” is not defined in the ETA . [ 99 ] Health care facility is defined in

section 1 of

Part II of

Schedule V. It and the parallel definition of “établissement de santé” of the

French-version read as follows: health care facility means (

a) a facility, or a part thereof, operated for the purpose of providing medical or hospital care , including acute, rehabilitative or chronic care, (

b) a hospital or institution primarily for individuals with a mental health disability, or (

c) a facility, or a part thereof, operated for the purpose of providing residents of the facility who have limited physical or mental capacity for self-supervision and self-care with (

i) nursing and personal care under the direction or supervision of qualified medical and nursing care staff or other personal and supervisory care (other than domestic services of an ordinary household nature) according to the individual requirements of the residents, (ii) assistance with the activities of daily living and social, recreational and other related services to meet the psycho-social needs of the residents, and (iii) meals and accommodation; établissement de santé

a) Tout ou

partie d’un établissement où sont donnés des soins hospitaliers, notamment aux personnes souffrant de maladie aiguë ou chronique, ainsi qu’en matière de réadaptation;

b) hôpital ou établissement pour personnes ayant des problèmes de santé mentale;

c) tout ou

partie d’un établissement où sont offerts aux résidents dont l’aptitude physique ou mentale sur le plan de l’autonomie ou de l’autocontrôle est limitée : (

i) des soins infirmiers et personnels sous la direction ou la surveillance d’un personnel de soins infirmiers et médicaux compétent ou d’autres soins personnels et de surveillance (sauf les services ménagers propres à la tenue de l’intérieur domestique) selon les besoins des résidents, (ii) de l’aide pour permettre aux résidents d’accomplir des activités courantes et des activités récréatives et sociales, et d’autres services connexes pour satisfaire à leurs besoins psycho-sociaux, (iii) les repas et le logement. [Emphasis added] [ 100 ] The relevant provision, paragraph 1(a), requires a " “health care facility” " operate for the purpose of providing " “medical or hospital care” " . [ 101 ] The term " “medical or hospital care” " translates into French as " “soins médicaux ou hospitaliers” " .

The French term “ " soins hospitaliers” " translates into English as " “hospital care” " , revealing a discrepancy. [ 102 ] In view of that, when interpreting bilingual statutes and there is a discrepancy in the English and French texts of the same legislation, the approach endorsed by the Supreme Court of Canada involves two steps. First, determine if there is a common meaning. If so, determine if that meaning is consistent with Parliament’s intent.

If there is no common meaning, alternatively, a search for the more restrictive of the two meanings is to be undertaken. [ 103 ] The words " “medical” " and " “hospital” " are defined in the Canadian Oxford Dictionary as follows: Medical adjective 1 of or relating to the science or practice of medicine in general. 2 of or relating to conditions requiring medical and not surgical treatment ( medical ward ). 3 of or relating to the condition of one’s health ( medical leave ).

Hospital noun 1 an institution providing medical and surgical treatment and nursing care for sick or injured people…. [ 104 ] Collins English Dictionary defines " “medical” " as follows: Medical adjective 1 of or relating to the science of medicine or to the treatment of patients by drugs, etc., as opposed to surgery. [ 105 ] Le Petit Robert provides the following for " “hospitalier” " : Hospitalier. Médecins, chirurgien des hôpitaux. Dr X, ancien interne des hôpitaux de Paris. Les salles, les chambres d’un hôpital. Lit hôpital.

Envoyer, admettre un malade dans un hôpital, à hôpital. [ 106 ] The term " “Médecins, chirurgien des hôpitaux,” " translates into English as “doctors and surgeons from hospital”. [ 107 ] Looking at the

definitions of " “medical” " , " “hospital” " and " “hospitalier” " in the preceding paragraphs, the common meaning gleaned from the English and French versions is care provided in a hospital that provides medical treatment by a doctor, if necessary with medication, and surgical treatment by a surgeon to sick or injured people. In other words, medical and surgical treatment in a

hospital setting is key as used in the definition of “health care facility” in

section 1 of

Part II of

Schedule V of the ETA. [ 108 ] Turning to the second step as to whether the common meaning is congruent with Parliament’s intent. The English version could have said the legislative intent was to only “operate for the purpose of hospital care.” It did not. Parliament’s intention was to look at both medical and hospital care. [ 109 ] The May 1990 Department of Finance Technical Notes provide a window into the term " “institutional health care service.” " The Notes reference ancillary services when provided to patients in a hospital or residents in a facility.

Examples comprise " “provision of accommodation” " (in a standard, semi-private or private ward), " “meals provided with accommodation” " , and " “rentals of medical equipment, such as a dialysis machine, to patients or residents of the facility” " . The Notes state: This term is relevant to

section 2 below. It defines the range of health care services that are exempt when provided in a health care facility. The definition includes basic health care services provided by health care facilities to their patients or residents. Of particular note, it includes the provision of accommodation (including standard ward, semi-private or private), as well as meals provided with accommodation, and rentals of medical equipment, such as a dialysis machine, to patients or residents of the facility.

Other services provided by these institutions, such as parking and meals served in a cafeteria to visitors, or haircuts for which a separate fee is charged, do not fall under the definition of institutional health care services. [ 110 ] I agree with the respondent’s submissions that this emphasizes that the key aspect in an " “institutional health care service” " is the institutional focus. For example, when someone is admitted to hospital, they will receive meals as they are in a hospital bed, and medical equipment will be rented to them to use during their stay in the hospital or facility.

These examples accord with an " “institutional health care service” " , therefore, Parliament’s intent is consistent with the common meaning of the French and English versions that care is provided in a hospital setting. [ 111 ] Even if that was not the common meaning, the more restrictive version in this instance would be the French text given t he absence of the word " “médicaux” " (medical). [ 112 ] Vocan is not a hospital that provides medical and surgical treatment.

It was not an approved public hospital under the Public Hospital Act, nor is it licensed as a private hospital under the Private Hospitals Act in Ontario. It did not have births in any of its rooms. Medical doctors did not provide treatment at its facility. Individuals who were treated or examined did not stay overnight at its facility. Ms. Handy agreed Vocan did not provide hospital care. [ 113 ] Effectively, Vocan suggests " “medical” " is synonymous with health care thereby expanding the definition of “medical care” to mean " “health care” " . Respectfully, Vocan’s proposed

interpretation is inconsistent with the text, context and purpose of the provision. I disagree that " “medical care” " , within the confines of

section 1 of

Part II, is as expansive as Vocan suggests. Its proposed

interpretation would mean that Practitioners and the Nurse provide medical care simply because they are all are health professionals under

Schedule 1 of the RHPA . If Vocan’s

interpretation is correct, why would each health profession need to have specific legislation, scope of practice and regulatory colleges. The scope of practice for a Medical Practitioner is broader than a Practitioner. [ 114 ] I n Ontario, the RHPA and the Code in

Schedule 2, as modified by each health Act specific to a health profession (“legislation”), sets out, in part, the governing framework for the self-governing health professions specified in

Schedule 1. The RHPA operates in conjunction with the specific legislation. The specific legislation defines the scope of practice and controlled acts that health professionals are authorized to perform in their practice area. Each health profession is a separate group (including nurses, chiropractors, physiotherapists, psychologists and dentists) with its own re gulatory colleges that regulate the practise of their health profession and its membership.

The Medical Practitioners, Practitioners and the Nurse are members of, and subject to, the rules and regulations in their respective colleges, as set out in paragraphs 11, 12 and 13 of the agreed facts. [ 115 ] Physicians and surgeons, engaged in the practise of medicine, have their own separate group. They are subject to the Medicine Act, 1991 , of Ontario.

The scope of practice for them states: The practice of medicine is the assessment of the physical or mental condition of an individual and the diagnosis, treatment and prevention of any disease, disorder or dysfunction. [ 116 ] Returning to the definition " “medical” " , as relating to the science and practice of medicine, a textual

interpretation supports the

interpretation " “medical care” " comprise services provided by physicians and surgeons practising medicine and providing treatment in hospital. [ 117 ] A contextual analysis supports that " “medical care” " is to be interpreted as being connected to the practice of medicine.

Part II of

Schedule V draws distinctions between " “medical practitioner as those restricted to practise the profession of medicine or dentistry, and “practitioner” " as others practising in one of the 12 other health care related professions, including chiropractic, physiotherapy, and psychology.

However, “nurse” is not included in either definition. [ 118 ] The use of the term " “medical care” " , versus " “health care” " , in the definition of " “health care facility” " itself supports that " “medical care” " does not mean " “health care” " . [ 119 ] No treatment was performed by a Medical Practitioner (physician, medical doctor or surgeon or dentist) at Vocan’s facility. No evidence was presented that medication was prescribed at Vocan’s facility. Vocan did not operate for the purpose of providing medical care. [ 120 ] I agree that the respondent’s

interpretation is consistent with the text and provides a result that achieves the statutory objectives and gives effect to the statutory scheme. [ 121 ] Relying on the definition of medical care in Riverfront and Jema and comparing itself to those cases, Vocan further argues its daily activities, pertaining to rehabilitative and chronic care, are similar since its assessors diagnose, evaluate and treat individuals (being the

purpose of the supply). [45] For example, Mr. Kunashko and Mr. Gholeizadeh gave evidence they diagnose and provide recommendations for treatment. It was within Mr. Kunashko’s scope of practice as a chiropractor to test for pain, identify irritation, read x-rays and do neurological testing. Vocan also referred to the wording in the e xemption for Medical Practitioners under

section 5 of

Part II of

Schedule V involving a supply of consultative diagnostic treatment to an individual. It suggests its assessors have provided all services described in that exemption. Consequently, it says Vocan operated for the purpose of

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