) ) DR. ALBERT ROSS DEEP Applicant – v. –, 2010 ONSC 2102

CITATION : DEEP v. THE QUEEN, 2010 ONSC 2102 DIVISIONAL COURT FILE NO.: 15/10 DATE: 20100429 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT GREER, MOLLOY and J. MACKINNON JJ. BETWEEN: ) ) DR. ALBERT ROSS DEEP Applicant – and – HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO and THE MINISTRY OF HEALTH AND LONG-TERM CARE Respondents )) )) )) )) ))) Dr. Albert Ross Deep, in person Lise Favreau and Judith Parker, for the Respondents ) ) ) HEARD AT TORONTO: April 8, 2010 j. mackinnon j. : REASONS FOR DECISION A.

INTRODUCTION [ 1 ] This is an application for judicial review of a decision of the General Manager of the Ontario Health Insurance Plan (“OHIP” or “the Plan”) to suspend payments for medical fees to the Applicant, between August 15, 2000, and April 2003. The decision under review is set out in two letters dated August 1, 2000 and September 1, 2000 and was made pursuant to s. 40.2(2) of the Health Insurance Act [1] , (“ Act ”) in force at the time.

The General Manager suspended the Applicant’s payments because of his failure to co-operate with a statutorily mandated inspection of his records for the period between January 1, 1993 to December 31, 1997. [ 2 ] On February 15, 1999, the General Manager of OHIP requested that the Medical Review Committee (“MRC”) conduct a review of certain insured services by Dr. Deep during the period between January 1, 1993 to December 31, 1997. The insured services to be reviewed were those related to: phonocardiogram; apex cardiogram; phlebography and/or systolic time intervals; and psychotherapy.

[ 3 ] By letter dated August 23, 1999, the MRC advised Dr. Deep that inspectors had been appointed to carry out an onsite inspection of his medical files and records. Three dates were proposed for the inspection. Dr. Deep wrote back in August and October 1999 advising that, in his view, an inspection was unnecessary as he had been charged with fraud in relation to his OHIP billings and his records had been investigated for this purpose. [ 4 ] In February 2000, the MRC advised Dr. Deep that the fraud investigation was not related to the MRC review and that his cooperation was mandated by statute. [ 5 ] In subsequent months, the MRC made several attempts to

schedule the inspection. Dr. Deep was warned that failure to cooperate could result in suspension of his OHIP billings. Dr. Deep repeatedly did not allow the inspection to proceed. Based on his failure to cooperate with the inspection, the General Manager decided to suspend Dr. Deep’s billings. Notice of this decision was given in the General Manager’s letters dated August 1 and September 1, 2000 to the Applicant.

In both letters, the Applicant was also advised that the suspension of payments would continue until he cooperated with the inspection as required by the Act . [ 6 ] Eventually, an inspection date was scheduled for April 29, 2002.

The Applicant agreed to this inspection on a condition expressed in his letter to the MRC dated March 18, 2002: You are required to advise the General Manager of the Ontario Health Insurance Plan that I am now fully co-operating with the Medical Review Committee by providing these dates in order that the amounts owing to me will be credited to my bank account by direct transfer forthwith, as well as future payments for professional services rendered. [ 7 ] When the MRC did not accept that condition, Dr. Deep cancelled the inspection and it did not take place. [ 8 ] No further inspection dates were agreed to.

The Applicant’s OHIP billings remained suspended until, by September 2003, he had ceased billing OHIP for his services. B. NATURE OF THE ISSUES AND STANDARD OF REVIEW [ 9 ] The decision made by the General Manager was a discretionary one involving a factual determination that the Applicant had failed to comply with his statutory obligation to co-operate with an inspection of his records without just cause.

The standard of review is reasonableness. [ 10 ] The Respondent submits that the General Manager’s decision was reasonable, but that, in any event, the application for judicial review should be dismissed based on undue delay. [ 11 ] The Applicant submits that he had just cause to refuse the inspection, that he subsequently did co-operate in setting an inspection date and was justified in cancelling it, and that changes in legislation have undermined the validity of the General Manager’s ongoing withholding of the payments.

He maintains that he has provided a sufficient explanation for the delay and that there is no prejudice to the Respondent arising from it. C. UNDUE DELAY [ 12 ] The application before the Court was issued on January 11, 2010, nearly ten years after the decision under review was made. The law respecting delay is set out in Gigliotti v. Conseil d’Administration du Collège des Grand Lacs [2] . Undue delay in pursuing an application for judicial review can be grounds for refusing the remedy.

In Gigliotti , the Court identified three factors to consider in determining whether an application for judicial review should be dismissed on the grounds of undue delay. These are: (

a) The length of the delay; (

b) Whether there is a reasonable explanation for the delay; and, (

c) Whether any prejudice has been suffered by the respondent or a third party as a result of the delay. In this case the length of the delay is far beyond any acceptable period of time. An applicant ought to commence and perfect an application as expeditiously as possible. As noted in Gigliotti , the Divisional Court has on numerous occasions held that delays upwards of six months could warrant dismissal of an application. [ 13 ] In this case, the delay is inexplicable having regard to the fact that, during those years, the Applicant launched three separate civil suits seeking to recover the suspended payments.

In each case, the court expressed the view that he was essentially seeking to judicially review the decision of the General Manager and that such an application must be brought to Divisional Court. The first occasion was the decision of Rivard J., December 15, 2000; the second was the decision of Spence J. dated June 25, 2004; the third was the decision of the Ontario Court of Appeal dated February 14, 2008. The Applicant appealed each dismissal of his case and ignored the judicial advice with respect to the appropriate remedy to pursue. [ 14 ] The Applicant’s explanation for the delay is not reasonable.

He points to other litigation demands. He did face criminal charges in 1998 and 1999 alleging falsified billings to OHIP. These charges were stayed by the Crown in January 1999, before the General Manager’s decision was even made. He defended a suit by a former patient which was tried and dismissed in June 2001. Prior to this trial, in June 2000 Canada Revenue Agency had reassessed his income tax returns from 1993 to 1997 and Dr. Deep states that he challenged that reassessment. He was also subject to a Discipline Hearing by the College of Physicians and Surgeons of Ontario

conducted in 2007. Whatever difficulties Dr. Deep may have experienced with respect to other legal proceedings, they do not account for nor justify the exceptionally long delay in commencing this application for judicial review. [ 15 ] There is actual prejudice to the Respondent. In 2008, a pipe burst in the Applicant’s office. The ensuing flood is said to have damaged and destroyed the records pertaining to the years in question, such that they can no longer be produced.

The Applicant submits that copies of the pertinent records are in the possession of the Ministry of the Attorney General in connection with his malicious prosecution action against the Queen in Right of Ontario. The Attorney’s list of documents includes patient files and notes for many named patients, copies of electrocardiograms for some patients, a journal for 1997 and some nonspecific details of time spent on psychotherapy and estimates of time on cardiac services. The Applicant states, but has not proven, that these are in relation to the period between January 1993 to December 1997.

He has taken no steps to obtain these records and to deliver them to the Respondent. The Respondent denied having these photocopies as early on as in the proceedings before Spence J. In any event, without the original records, it would be impossible to know whether these contain the full and complete records required by the General Manager, namely records with respect to the specified insured services during the requisite period of time. [ 16 ] Based on these considerations, the Application for judicial review is dismissed for undue delay. D.

MERITS OF THE JUDICIAL REVIEW APPLICATION [ 17 ] In consideration of the fact that the application was fully argued before the Court, I have also considered the application on its merits. In 1999 when the records were first requested and in 2000 when the General Manager took the decision to suspend payments, provisions of the Health Insurance Act applicable to this case were as follows: 18.

(1) The General Manager shall determine all issues relating to accounts for insured services and shall make the payments from the Plan that are authorized under the Act . … 39.1

(1) The General Manager may request the Medical Review Committee to review the provision of insured services by a physician. The request may specify the types of insured services to be reviewed and the period during which the services were provided. … 40.

(1) The Minister may appoint inspectors from among the persons nominated by the College of Physicians and Surgeons of Ontario. These inspectors shall act only under the direction of the Medical Review Committee. … 40.1

(1) An inspector has the following powers: 1. To interview a physician or practitioner and members of his or her staff on matters that relate to the provision of insured services. … 4. To enter and inspect premises where insured services are provided and to inspect the operations carried out on the premises. 5. To inspect and receive information from health records or from notes, charts and other material relating to patient care, regardless of the form or medium in which such records or material are kept, and to reproduce and retain copies of them. … 40.2

(2) Every physician who provides insured services shall co-operate fully with an inspector who is carrying out an inspection under the Act or with a member of the Medical Review Committee who is exercising powers or performing duties under the Act . …

(6) The General Manager may suspend payments under the Plan to a physician or practitioner during any period when he or she fails to comply with subsection (2) or (3) without just cause, whether or not the physician or practitioner is convicted of an offence. [ 18 ] These statutory provisions provide the authority for the inspections, the General Manager’s decision to suspend payments and the Applicant’s duty to cooperate. [ 19 ] The August 23, 1999 letter to the Applicant proposed three dates for the inspection in October and November 1999. Dr.

Deep responded by asking that the inspection not proceed because the criminal charges against him alleging fraud against OHIP had been stayed in January 1999. The College replied pointing out that the issue of fraud as alleged in criminal court was a separate and distinct matter.

By comparison, the MRC had the authority to determine whether insured services were rendered; whether they were medically necessary; whether the nature of the services was misrepresented; or whether the services were not provided in accordance with accepted professional standards and practice. [ 20 ] I reject the Applicant’s submission that the investigation of his records during the fraud investigation provided just cause to refuse the inspection. Dr. Deep also submitted that since the Crown had his records as part of the fraud investigation, he had just cause to not allow the same records to be inspected again.

He conceded that most of the records the Crown had were related to psychotherapy

rather than also to the other services described in the original request. I note that this was not a reason given by him in either of his letters to the MRC in August 31, 1999 or October 15, 1999, in which he set out the basis of his claim for just cause. Nor would I agree that simply telling the MRC to go and get the records itself would constitute compliance with the General Manager’s request.

It was up to the Applicant to do what was necessary to get all of the requested records and files into the hands of the inspectors. [ 21 ] Having given the explanation as to how the MRC inspection differed from the fraud investigation, Dr. Deep was requested to provide, by February 11, 2000, three dates in April upon which he would be available for the inspection to occur. Dr. Deep declined to do so. Three further dates were proposed to him, in April and May 2000. These were also declined by Dr. Deep. One of the dates had been Good Friday and so it was changed to May 19, 2000. Dr.

Deep replied that he would be out of town that day. In fact, the inspectors attended his office on May 19 and he was not there. The Medical College advised Dr. Deep that the inspectors would re-attend on June 28 and cautioned him that if he did not cooperate the General Manager would be notified and had the authority to suspend his OHIP payments. Dr. Deep’s response was that he would not be in the office on June 28. The inspectors did attend and the office was closed. Accordingly on July 6, 2000, the MRC wrote to the General Manager to advise that Dr.

Deep was not co-operating fully with inspectors, and asked the General Manager to consider whether it would be appropriate to suspend payments to Dr. Deep under the Plan until he complied with s. 40.2(2) of the Act . [ 22 ] The General Manager considered the matter and put Dr. Deep on notice by letter dated August 1, 2000 of his intention to exercise his powers under s. 40.2(6) to suspend payments commencing August 15, 2000 until he fully co-operated with the inspection as required by the Act . The General Manager noted that since August 23, 1999 and despite repeated requests and arrangements for inspections, Dr.

Deep had refused to co-operate fully and, “for example, at no time in almost a year have your refusals to permit an inspection on a specific date been accompanied by an alternate proposal from you for an imminent reasonable date more convenient to you.” [ 23 ] The Applicant’s stubborn refusal to co-operate with an inspection without just cause and despite repeated requests amply demonstrates that the General Manager’s decision to suspend payments to him was reasonable. [ 24 ] The Applicant submits that he was justified in cancelling the inspection that was ultimately scheduled for April 29, 2002.

On March 26, 2002, Respondent’s counsel wrote and told Dr. Deep that merely agreeing to

schedule an inspection was not sufficient cooperation in order for the suspension to be lifted. Rather, whether he was found to be co-operating fully with the inspection would depend on his behavior during the inspection and in all matters necessarily incidental to the inspection. He was advised again by letter dated April 15, 2002, that his payments will remain suspended “until your co-operation has been sufficient to enable the MRC to complete its process.” In response, Dr. Deep cancelled the inspection.

His stated reason was the General Manager had unlawfully added the requirement that the MRC process must be completed before the suspension would be lifted. This is not what the General Manager’s letter says. [ 25 ] The decision of the General Manager not to release the suspended payments to Dr. Deep in advance of and as a condition of the proposed inspection on April 29, 2002 was reasonable. Continuing the suspension until Dr.

Deep had done all that was necessary for him to do in order to enable the MRC to fulfill its mandate was also reasonable. [ 26 ] Subsequently, amendments were made to the Health Insurance Act . On August 27, 2004, the General Manager wrote to Dr. Deep advising him of this and that a transitional provision was in force.

Section 18.02(11) provided: Where, on June 21, 2004, payments to a physician are suspended under subsection 40.2(6), the suspension shall remain in effect until the physician has complied with subsections 37(1) and (3) to the satisfaction of the General Manager. Despite the Applicant’s submission to the contrary, this transitional provision is clear authority for the General Manger’s decision to maintain the ongoing suspension. Further when the Act was again amended in 2007, another transitional provision was included: 18.0.7

(1) Where, by virtue of subsection 18.0.2 (11) as it existed during the time it was in force, payments to a physician continued to be suspended, the suspension shall remain in effect until the physician has complied with subsections 37(1) and (3) to the satisfaction of the General Manager. [ 27 ] Accordingly, the General Manager’s authority to continue to suspend the payments to the Applicant is authorized by statute to the present date. None of the legislative changes affect the legality of the General Manager’s decision. [ 28 ] Dr.

Deep had previously argued before Pattillo J. in 2007 that the dissolution of the MRC rendered invalid the reason for withholding payment to him. I agree with the following conclusion of Pattillo J.: 21 … Further, in my view, the dissolution of the MRC is of no assistance to Dr. Deep's claim in any event. Dr. Deep's argument is that because the MRC has been disbanded, the General Manager of OHIP no longer has any jurisdiction to withhold payment to him.

However, s. 18.0.2(11) of the Act specifically provides that notwithstanding the disbanding of the MRC, suspension of payment under s. 40.2(6) still remains. … [3] [ 29 ] For these reasons, had the application for judicial review not been dismissed for undue delay, it would be dismissed on its merits. [ 30 ] The Respondent also submitted that res judicata should apply to prevent the application from proceeding. Given that the application would have been dismissed on the merits, it is not necessary to address this issue. E. COSTS [ 31 ] The Respondent seeks costs of $7,300.

The Applicant, who is not represented by counsel, also submitted a bill of costs which

came to $10,375.00 for his preparation and attendance time, and to $11,257.63 including his disbursements. The amount sought by the Respondent is clearly, then, well within the reasonable contemplation of the unsuccessful Applicant. Further, the amount sought by the Respondent is a reasonable award given the issues involved and the time required to deal with them. [ 32 ] In the result, the application is dismissed and costs are awarded to the Respondent fixed in the sum of $7,300.00. J. MACKINNON J. I agree _______________________________ GREER J. I agree _______________________________ MOLLOY J.

Released: April 29, 2010 CITATION : DEEP v. THE QUEEN, 2010 ONSC 2102 DIVISIONAL COURT FILE NO.: 15/10 DATE: 20100429 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT GREER, MOLLOY and J. MACKINNON JJ. BETWEEN: DR. ALBERT ROSS DEEP Applicant - and – HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO and THE MINISTRY OF HEALTH AND LONG-TERM CARE Respondents REASONS FOR DECISION The Court

Released: April 29, 2010 [1] R.S.O. 1990 , c. H. 6 as am. [2] Gigliotti v. Conseil d’Administration du Collège des Grand Lacs, 2005 CanLII 23326 (ON SCDC) , [2005] O.J. No. 2762, (Div. Ct.) [3] Deep v. Ontario , [2007] O.J. No. 3081 (Sup. Ct.)