) ) ARULDOSS AMALORPAVANATHAN, BASIL JOHN WILLIAM ARVANITIS, CENTRIC HEALTH REHABILITATION INC. COLIN HAYES, D&R THERAPY INC., EGLINTON-BAYVIEW & JOINTS IN MOTION INC., ELIE AZAR, ERIC NASH, EVELYN BRETT, FIONA THIRD, JUDY ANN MICHAELS, KEKRE PHYSIOTHERAPY PROFESSIONAL CORPORATION, LATA GOKHALE, LINDSAY PHYSIOTHERAPY SERVICES, CHRISTOPHER MATTHEWS, NORTH EAST PHYSIOTHERAPY INC., PEGGY SEAVER, PHYSIO-HEALTH & FITNESS INC., PHYSIOTHERAPY MANAGEMENT SERVICES LIMITED, PT HEALTHCARE SOLUTIONS C, 2013 ONSC 4993

CITATION : Amalorpavanathan v. Ontario (Health and Long-Term Care), 2013 ONSC 4993 DIVISIONAL COURT FILE NO.: 296/13 DATE: 20130729 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT BETWEEN: ) ) ARULDOSS AMALORPAVANATHAN, BASIL JOHN WILLIAM ARVANITIS, CENTRIC HEALTH REHABILITATION INC.

COLIN HAYES, D&R THERAPY INC., EGLINTON-BAYVIEW & JOINTS IN MOTION INC., ELIE AZAR, ERIC NASH, EVELYN BRETT, FIONA THIRD, JUDY ANN MICHAELS, KEKRE PHYSIOTHERAPY PROFESSIONAL CORPORATION, LATA GOKHALE, LINDSAY PHYSIOTHERAPY SERVICES, CHRISTOPHER MATTHEWS, NORTH EAST PHYSIOTHERAPY INC., PEGGY SEAVER, PHYSIO-HEALTH & FITNESS INC., PHYSIOTHERAPY MANAGEMENT SERVICES LIMITED, PT HEALTHCARE SOLUTIONS CORP., QUINTE PHYSIOTHERAPY CLINIC, SEMIN ALARAKHIA Applicants – and – HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTER OF HEALTH AND LONG- TERM CARE FOR THE PROVINCE OF ONTARIO Respondent )) )) )) )) )))))))))))))))))))))))) Michael E.

Barrack, John L. Finnigan & Emily Y. Fan , for the Applicants Lise Favreau, Kristin Smith & Judith Parker, for the Respondent ) ) ) HEARD: July 25, 2013 LEDERER J. : [ 1 ] This concerns an application for judicial review. The province of Ontario determined to adjust the methodology by which service is provided by those physiotherapy clinics designated as health facilities for the purposes of the Health Insurance Act (see: R.R.O. 1990 Regulation 552 ss. 21(1) and 35(10) ). There are approximately ninety such clinics in Ontario.

At present, the services they provide, that meet the requisite criteria, are funded pursuant to the Ontario Health Insurance Plan (O.H.I.P.). On April 18, 2013, the province promulgated Ontario Regulation 138/13. It amended the prior regulation by “delisting”, that is to say, removing the references to “physiotherapists” and “designated physiotherapy clinics” from the existing regulation. As a result, effective August 1, 2013, services offered by these clinics would no longer be funded by O.H.I.P.

Forty-three of the approximately ninety clinics have brought the application for judicial review to set aside the amending regulation. [ 2 ] In order to understand what I am deciding, it is important to review what has transpired since the new regulation was put in

place. As will be apparent, a regulation brought forward on April 18, 2013, effective as of August 1, 2013, gave those affected only three-and-a-half months to prepare and make whatever adjustments were available to allow the clinics to continue or for the physiotherapists to find alternative employment. In time, a decision was made to apply for judicial review. Unhappily, the Notice of Application for Judicial Review was not issued until July 9, 2013. Absent a reliance on the Charter of Rights and Freedoms , a judicial review seeking to set aside a regulation is problematic.

The courts are reticent to be involved in responsibilities that belong to the Legislature. In this case, the applicants say that they were denied a process promised by the province which was, thus, in breach of the “legitimate expectation” created by that promise. [ 3 ] It should go without saying that, if such an assertion gives rise to a proper and substantive debate, it will not be a simple matter. It will take some time to properly place before a judge and present in court. For whatever reason, this case did not proceed on that understanding.

Rather than advising the court of the nature of the application that was coming or giving sufficient notice so that the necessary arrangements could be made, the parties accepted that the matter would be argued in two hours on July 25, 2013. The difficulty with this is underscored by the fact that, as a result of the regulation coming into force on August 1, 2013, a decision would have to be rendered by that day.

The facta filed on behalf of the applicants and the respondent were filed, respectively, on July 12, 2013 and July 22, 2013. [ 4 ] As a result of the delay in contacting the court and commencing the application, it was thought to be necessary to have the judicial review heard as an urgent matter, not by a panel of three judges of the Divisional Court, but by a single judge. The parties indicated a willingness to waive any argument concerning whether or not it was appropriate for the case to be heard in this way.

This ignores the responsibility of the Court to come to an independent determination of whether or not the application complies with the requirements of the Judicial Review Procedure Act , s. 6(2). No time was set aside for this consideration. The parties were advised that, in the circumstances, it was not possible for the court to do as they asked, which is to say, hear and decide the judicial review. They were told that a full panel of the Divisional Court would be made available to them on August 21, 2013. The only question that remained was what should happen in the interim.

Would the province agree to stay the implementation of the regulation or could the parties come to some other arrangement that would allow the judicial review to proceed without further involvement of the court? It would not and they could not. Accordingly, the submissions I have heard respect whether or not some form of interim relief should be granted or whether the regulation should be left to be implemented, as planned, on August 1, 2013. Whatever problems result from the regulation coming into force would be dealt with if and when the application for judicial review succeeds.

As perceived by counsel for the applicants, the parties would be left to “unscramble the egg” According to counsel for the respondent, in the circumstances, there would be no egg. [ 5 ] The court has the jurisdiction to make an interim order in the context of a judicial review (see: Judicial Review Procedure Act , s. 4).

The questions are: (1) whether this is appropriate in the circumstances and, if appropriate, (2) what the nature of the order should be? [ 6 ] As a general proposition, it does not seem out of place to observe that our citizens are requesting and the government is looking for ways to provide more transparency and openness in the decisions it makes. Consistent with this idea, the province has published a document entitled “Ontario Regulatory Policy” (see: transcript cross-examination of Susan Fitzpatrick, at questions 109 and 110). It is a public document.

It can be found on a government website (the “Regulatory Website”) and seeks to provide advice as to the process by which regulations are made. Its purpose is stated to be: Ontario is creating more open and responsive ways for government to work with business to deliver results, while protecting the public interest. This is an essential ingredient of Ontario’s economic prosperity and recognizes the need to use 21 st century tools and methods to regulate in a globalized business environment.

The purpose of this document is to set out the overall policy under which Ontario regulations will be developed and implemented. … The document says that: The public and businesses affected by regulations must be afforded timely and meaningful opportunity to provide input and comments on proposed regulations. and provides that: Proposed regulatory amendments or new regulations that are considered to affect business are required to be posted for consultation purposes on the government’s Regulatory Registry for a mandatory 45-day minimum time period.

The Regulatory Registry is a website…where businesses can find out about Ontario government regulatory proposals and approved regulations that affect business.

The Regulatory Registry is linked to the Twice Annual Effective Dates initiative where regulations affecting business come into effect on January 1 st and July 1 st of each year. [Emphasis added] [ 7 ] The central proposition of the applicants is that this document created a legitimate expectation: namely, that regulations which affected their business would be placed on the website for a minimum of forty-five days allowing for comment and consultation prior to their promulgation which would be expected to occur on either January 1 of July 1 of each year. The regulation at issue was not posted.

There was no ability for the clinics affected to comment or consult and it was made effective on a date other than the two which were prescribed. [ 8 ] Counsel for the respondent pointed out that, while the regulation was never posted, the applicants were aware that the ministry was reconsidering the funding model. There were meetings that involved some of the applicants and that, at least one of them, made representations with respect to the possible “delisting” of “designated physiotherapy clinics”. This may be so.

But, in the absence of posting the regulation prior to its promulgation, the applicants cannot have known that a decision had been made, the manner in which that decision would be implemented or assess the impact it would have.

[9] It was pointed out that the failure to post the regulation occurred in circumstances where the government had decided a yearbefore the new regulation was promulgated that the “delisting” of the “designated physiotherapy clinics” was to take place. The courtwas referred to a document that was internal to the government (it is marked “confidential”) entitled “OHIP Physiotherapy FundingReform Project”. It was only revealed to the applicants as part of the process associated with the application for judicial review.

Itcontains the following statement: Cabinet Direction: ‘Has approval in principle to amend Regulation 552 under the Health Insurance Act to remove all non-hospital OHIPFee-For-Service physiotherapy as an insured service effective April 1, 2013 and re-allocate funds to physiotherapy and rehabilitationservices in the long term care and community sectors.’ [10] Even with the decision made so far in advance, the new regulation was not placed on the website and no opportunity providedto comment on it was provided prior to its promulgation. [11] Counsel for the respondent submitted that it was not possible for the Ontario Regulatory Policy to provide the basis for aclaim of legitimate expectation.

It is a policy. A policy is not law. As such, policy cannot stand as the foundation for a claim of a breachof a legitimate expectation. This misses the point. The fact that the document bears a title including the word “Policy” does not, in and ofitself, demonstrate its legal import. The document is posted on a government website. It offers the promise of a process to be acted onbefore any new regulation to which it applies is implemented.

The law that may have been breached is not the terms of the document,per se, but the legitimate expectation its promise is said to create. [12] There can be little doubt that the Ontario Regulatory Policy document applies, at least in a prima facie fashion, to the newregulation. The document provides for exceptions to the requirement that a regulation be posted for consultation purposes on theRegulatory Registry.

Among the regulations that may be exempted are those that “[i]nvolve situations where, as a consequence of alegislative requirement, publication would adversely affect the administration or operation of a government program”. In this case, anexemption relying on this provision was, apparently, obtained (see: Affidavit of Susan Fitzpatrick, at para. 52; and transcript cross-examination of Susan Fitzpatrick, at question 112). This would not have been necessary if the Ontario Regulatory Policy did not apply tothe regulation.

Susan Fitzpatrick is the General Manager of the Ontario Health Insurance Plan and Assistant Deputy Minister of theNegotiations and Accountability Management Division of the Ministry of Health and Long Term Care. She provided an affidavit insupport of the respondent. She was cross-examined. She advised that the rationale behind the exemption was a concern that providersmight stop providing the services or take other action if the regulation was posted. Counsel for the respondent objected to furtherquestions respecting the exemption.

In particular, she objected to the production of the “regulatory exemption template”, a document thatcontained the explanation for the exception. Counsel for the applicants submitted that there was no way of understanding the basis uponwhich the exemption request was granted. [13] Ultimately, the question remains whether or not it is possible and appropriate for interim relief to be granted: To say that a court has jurisdiction [to grant an interim declaration] is not to say that the court must exercise that jurisdiction.

Allbranches of government exercise self-restraint in the interests of comity with the others. In certain circumstances a citizen has a right toan interim declaratory order against the crown. That being so this court has undoubted jurisdiction to make such an order but the citizen’sright to such an order and exercise of this power by the court is extraordinary and wisdom dictates that such an order be granted onlywhere there is a deliberate flouting of established law by the government authority. (Aroland First Nation v.

Ontario, (ON SC), [1996] O.J. 557, 27 O.R. (3d) 732, at para. 28) [14] It is the view of counsel for the respondent that this observation should be determinative of the issue. There is nodemonstration of “a deliberate flouting of established law” and, accordingly, there should be no interim declaration made. It is not clearthat this is so. Counsel refused to produce the documentation that would indicate the basis on which the exemption was granted.

Withoutthe documentation, it is not possible to know if the exemption complied with the provisions of the Ontario Regulatory Policy. [15] The internal document which reveals that the decision to “delist” had been made a year in advance of the promulgation of thenew regulation (the OHIP Physiotherapy Funding Reform Project) does make the following observation with respect to the Associationrepresenting “designated physiotherapy clinics”: Represents some DPC owners. Likely to resist changes that will negatively affect income or earning potential of members.

Adept atmedia coverage, history of directly contacting DMO/MO. Executive hasn’t changed in at least 10 years – all are clinic owners, includingthe ED; several have formed business partnerships. Ministry has historically recognized DPCA as representing DPC owners. Consultantis also a registered lobbyist for the OLTCA. [16] This suggests a concern, not with the continuity of service, but with the response that might be forthcoming as part of anyconsultation that would take place or comments that would be made.

This could be seen as a flouting of the law because it wouldcircumvent the promise of the ability to comment for fear of what those comments might be. This would be a deliberate attempt to avoidthe direction in the Ontario Regulatory Policy, a flouting of the promised procedure it contains, and stand as a deliberate breach of thelegitimate expectation it creates. The problem with the rationale provided by Susan Fitzpatrick, to the effect that there was a concern forthe continuity of service, is that, in the absence of the document that was not produced and the answers that were refused, it is notcomplete.

It cannot be right that the respondent can rely on the absence of any evidence of a flouting of the law when it has refused toanswer questions that may address that issue. I wish to be clear I am not in any sense being critical of the witness or counsel. Therelevance of a question is not always apparent when it is asked. A judgment must be made. The only observations I make are as to theevidence as it exists.

If government demonstrates a determination to be more transparent, it will have to be prepared to follow throughwith this intention. [17] In any case, I am not prepared to accept that there should be an exclusive reliance on the proposition that there must be adeliberate flouting of the law before an interim declaration will be granted against the Crown. The principles found in RJR-MacDonaldInc. v. Canada (Attorney General) (SCC), 1994, 1 S.C.R. 311 concerning a finding as to whether a stay or interlocutoryinjunction should be taken into account. The three-stage test that case confirms is well-known.

It includes the following considerations:

a) a serious question to be tried;

b) irreparable harm; and,

c) the balance of convenience. (RJR-MacDonald Inc. v. Canada (Attorney General), supra, at para. 49) [18] Counsel for the respondent says there can be no genuine issue for trial. Legislation is not susceptible to process protection.The rules governing procedural fairness do not apply to a body exercising legislative functions (Reference Re Canada Assistance Plan(B.C.) (SCC), [1991] S.C.J. No. 60, [1991] 2 S.C.R. 525 at paras. 58-60). It was submitted that this extends to delegatedlegislation such as the regulation of concern in this case. In Apotex Inc. v.

Ontario (Minister of Health and Long-Term Care), (ON SCDC), [2006] O.J. No. 4981, 219 O.A.C. 221, the province enacted regulations that lowered the price thegovernment paid for generic drugs. It was contended that the government publicly proposed one set of regulations and then enacted adifferent one. The initial proposal involved a smaller reduction. It was said that the government ignored its statutory obligations ofpublication and public consultation and that the regulations were, thus, ultra vires.

Among other things, it was determined that theapplicant had no legitimate expectation in respect of the initial proposal: Apotex further submits that it was denied procedural fairness on account of further legitimate expectations of notice, consultation andconsideration. I rejected this submission. … and The LGIC did not exceed its jurisdiction. The doctrine of legitimate expectation does not apply. (Apotex Inc. v. Ontario (Minister of Health and Long-Term Care), supra, at paras. 39 and 40) [19] Counsel for the respondent also relied on Gigliotti v.

Conseil d’ Administration du College des Grands Lacs, (ON SCDC), [2005] O.J. No. 2762: Our conclusion on this latter submission by the Applicants does not detract from our view that, in the first instance, the Minister had thepower, pursuant to the legislation in place, to close the College by regulations subsequently approved by the Lieutenant-Governor-in-Council. We reject the submission the Minister breached a duty of procedural fairness in her actions. The decision whether to open or close acollege is a public policy decision and the powers exercised are legislative or ministerial in nature.

Absent a statutory requirement, thereis no obligation on a Minister is hold public hearings or direct consultations with the teachers or students prior to accepting the board’srecommendation to close the college. Such a decision is not rendered judicial or quasi-judicial because it is openly opposed. Noadjudication took place. (Gigliotti v.

Conseil d’ Administration du College des Grands Lacs, supra, at paras. 61 and 62) [20] Finally, it was suggested that legislative authorities are not required to provide procedural protections even where mandatoryconsultation directives exist: The applicant submits that the Federal Regulatory Plan and the CARAC’s Management Charter and procedures, which includemandatory consultation directives, create a legitimate expectation.

The respondents argue firstly that the industry was consulted asindicated in the RIAS of September 1995 and October 1996, however, even if the industry had not been consulted, the theory does notapply to directives. Martineau et al v. Matsqui Institution Inmate Disciplinary Board, (SCC), [1978] 1 S.C.R. 118, has established that policydirectives, whether made pursuant to regulatory authority or general administrative capacity, are no more than directions and areunenforceable by members of the public. (Assoc. des pilotes de ligne internationales v.

Urbino, [2004] FC 1387, 268 F.T.R. 41, at paras. 19 and 20) [21] These cases consistently suggest that those with legislative responsibilities are not required to provide procedural protection.If these were the only cases, it would be arguable that there is no serious question to be tried. As it stands, they are not. There are otherswhich counsel for the applicants referred to. In Canadian Society of Immigration Consultants v.

Canada 2011 CarswellNat 5242, JusticeMartineau ruled on the validity of regulations amending the Immigration and Refugee Protection Regulation, which designated a newregulator of immigration consultants. In dismissing the application for judicial review, Justice Martineau determined that, to the extentany duty to consult existed, it had been satisfied on the facts of the case. The question of whether subordinate legislation can lawfully bemade in breach of categorical and specific assurances of prior consultations remained an open question.

The judge said: That said, while the duty of fairness and the doctrine of legitimate expectations have no application to the exercise of legislative powers,it is debatable whether subordinate legislation can lawfully be made in breach of categorical and specific assurances of priorconsultation. (Canadian Society of Immigration Consultants v. Canada, supra, at paras. 113-114) [22] In Apotex Inc. v.

Canada 2000 CarswellNat 889 (FCA), 188 D.L.R. (4th) 144, (FCA), a generic drugmanufacturer challenged the authority of the federal cabinet to make a regulation under which an order had been made prohibiting itfrom proceeding with the approval of a generic drug. One of the grounds for attack was that the regulation had been promulgated withoutprior consultation in breach of an alleged undertaking made in a letter by the Minister of Consumer and Corporate Affairs. All three

judges of the Federal Court of Appeal dismissed the appeal and held that the alleged assurance was not sufficient to create a legitimate expectation that the company would be consulted on the regulation.

In a minority, but concurring judgment, Justice Evans, after noting that the duty of fairness does not apply to the exercise of powers of a legislative nature, observed: However, it does not necessarily follow that subordinate legislation can lawfully be made in breach of a categorical and specific assurance of prior consultation given to an individual by a responsible minister of the Crown in the course of discharging departmental business. Nor, on closer examination, does the case law so provide. ( Apotex Inc. v.

Canada , supra , at para. 79 (CanLII at para. 105)) [ 23 ] Justice Evans went on to reason that the constitutional considerations for the prohibition on the review of legislative actions do not apply to the exercise of delegated legislative powers which are not subject to the same level of scrutiny as a primary legislation which must pass through the full legislative process (see: Apotex Inc. v.

Canada , supra , at para. 84 , (CanLII at para. 110)). [ 24 ] Justice Evans noted that the Supreme Court of Canada had recognized the general proposition that the doctrine of legitimate expectation is based on the premise that it is generally unfair for decision-makers to go back on a procedural undertaking. He also noted that other common law jurisdictions had been prepared to apply the legitimate expectation doctrine to the exercise of rulemaking powers, especially when the delegated legislation applies most immediately to a defined group (see: Apotex Inc. v.

Canada , supra , at paras. 88 and 91 , (CanLII, at paras. 114 and 117)). [ 25 ] Justice Evans analyzed the principle supporting the application of the legitimate expectation doctrine to subordinate legislation. In the circumstances, it may be as well that I quote him at length: When a legitimate expectation arises from an agency's past practice, or non-statutory procedural guidelines, it serves to preclude procedural arbitrariness, not the actual expectation of the individual who may have been unaware of its existence.

However, where the legitimate expectation arises from a promise or undertaking, categorically and specifically given to an individual or a defined group, the rationale for holding the government to it derives from the individual's reliance interest or, in the absence of a detrimental reliance, from the individual's right to expect that, in the absence of a compelling reason for not so doing, the government will act with basic decency by keeping promises that it makes to individuals.

The interests underlying the legitimate expectations doctrine are the non-discriminatory application in public administration of the procedural norms established by past practice or published guidelines, and the protection of the individual from an abuse of power through the breach of an undertaking. These are among the traditional core concerns of public law. They are also essential elements of good public administration. In these circumstances, consultation ceases to be a matter only of political process, and hence beyond the purview of the law, but enters the domain of judicial review.

Accordingly, in my view the legitimate expectations doctrine is not simply a branch of the duty of fairness, in the sense that it serves the same purposes as the participatory rights conferred by the duty of fairness. Hence, there is no reason to limit its reach to the exercise of statutory powers to which the duty applies. On the other hand, as with the duty of fairness, a breach will lead to the imposition of procedural duties, generally of a participatory nature, on the person or body empowered to take some administrative action, rather than requiring a particular substantive outcome to the exercise of power.

Indeed, when in Baker v. Canada (Minister of Citizenship and Immigration), supra , at page 839, paragraph 26, the Supreme Court of Canada recently located the legitimate expectations doctrine within the duty of fairness it was in response to an argument that a person may have a legitimate expectation of receiving a substantive, and not merely a procedural benefit. And, in the Canada Assistance Plan case, supra , the Court's concern was to preserve the sovereignty of Parliament from the imposition of novel manner and form requirements on the enactment of legislation. However, in Old St. Boniface Residents Assn.

Inc. v. Winnipeg (City) , supra , where no contrast was made with substantive rights, it was said only that, as developed in the English cases, the legitimate expectations doctrine was an extension of the duty of fairness.

Therefore, in the absence of binding authority to the contrary, I conclude that the doctrine of legitimate expectations applies in principle to delegated legislative powers so as to create participatory rights when none would otherwise arise, provided that honouring the expectation would not breach some other legal duty, or unduly delay the enactment of regulations for which there was a demonstrably urgent need (see R. v. Lord Chancellor's Department, ex parte Law Society (Q.B.D. Crown Office List; June 22, 1993; CO/991/93)). [Emphasis by italics added] ( Ap otex Inc. v.

Canada , supra , at paras. 96 to 100 , (CanLII, at paras. 122 to 126)) [ 26 ] Counsel for the respondent submitted that these comments should be disregarded, as they are obiter and inconsistent with the reasons of the majority. Counsel for the applicant does not agree with this characterization of the relationship of the two sets of reasons. It does not matter. What is clear is that there is a question with respect to whether it is possible for the doctrine of legitimate expectation to apply to the promulgation of delegated legislation.

To go back to where I began, this is significant in a time when the province is attempting to provide and citizens are asking for more transparency in what government does. The document entitled “Ontario Regulatory Policy” is consistent with this philosophy. I find there is a serious issue to be tried. [ 27 ] I turn now to the second consideration referred to in RJR-MacDonald. Is there irreparable harm? “Irreparable” refers to the nature of the harm suffered and not its magnitude.

It is harm that cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other (see: RJR-MacDonald Inc. v. Canada, supra , at para. 59). It is difficult to see where there will be irreparable harm to the Province of Ontario if, for a brief period, there is a declaration staying the effect of the new regulation. Counsel for the respondent submitted there will be chaos. There is a new funding regime made up of contractual arrangements between the government and providers of physiotherapy services.

Evidently, some of the clinics that are party to this application have entered into these arrangements. Which regime will apply to which provider? Based on the evidence and the submissions that have been made, there will be two operational regimes available. The clinics that have not made new arrangements will

be permitted to continue while these issues are resolved. It will have to be determined which regime will apply to those that are party to the new agreements. Whether it is left to the clinics to choose or whether, through negotiations or otherwise, some other accommodation can be made, is for the parties to resolve. There will be administrative difficulties.

It would be far more complicated to allow the new regime to be implemented on August 1, 2013 and, then, expect the change to be unravelled if the applicants are successful on the judicial review and a new process engaged in to develop the future funding model. There would be an egg. It would have to be unscrambled. Some of this might have been avoided simply by allowing for more time between the promulgation of the regulation and its implementation. After all, it would seem that ministerial direction was received a year before the regulation was promulgated.

More clinics would have had time to resolve their future in a different way. [ 28 ] Finally, there is the balance of convenience. This consideration, by its nature, is associated with the concept of irreparable harm. Again, there is guidance in RJR-MacDonald : In our view, the concept of inconvenience should be widely construed in Charter cases. In the case of a public authority, the onus of demonstrating irreparable harm to the public interest is less than that of a private applicant. This is partly a function of the nature of the public authority and partly a function of the action sought to be enjoined.

The test will nearly always be satisfied simply upon proof that the authority is charged with the duty of promoting or protecting the public interest and upon some indication that the impugned legislation, regulation, or activity was undertaken pursuant to that responsibility. Once these minimal requirements have been met, the court should in most cases assume that irreparable harm to the public interest would result from the restraint of that action. ( RJR-MacDonald Inc. v.

Canada, supra , at para. 71) [ 29 ] Counsel for the respondent says the requirements of this paragraph have been met and that the balance of convenience lies with the public interest represented by the actions taken in promulgating the new regulation and, presumably, undertaking the new funding formula. The issue is more complicated. The public interest is also served by the process adopted in the preparation and promulgation of regulations. In these circumstances, that process is the root issue that is raised.

Given that I have found that the issue of irreparable harm lies to the benefit of the applicants, this consideration does not serve to set aside or overbalance that consideration or the determination that there is a serious issue to be tried. [ 30 ] There will be a declaration suspending the operation of Ontario Regulation 138/13 insofar as it removes or “delists” designated physiotherapy clinics from Ontario Regulation 552.

The declaration will be effective until the hearing of the judicial review on August 21, 2013. [ 31 ] Costs, as agreed to by the parties, in the amount of $5,000 to the applicants in the cause. LEDERER J. Released: 20130729 CITATION : Amalorpavanathan v. Ontario (Health and Long-Term Care), 2013 ONSC 4993 DIVISIONAL COURT FILE NO.: 296/13 DATE: 20130729 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT LEDERER J. BETWEEN:

ARULDOSS AMALORPAVANATHAN, BASIL JOHN WILLIAM ARVANITIS, CENTRIC HEALTH REHABILITATION INC.

COLIN HAYES, D&R THERAPY INC., EGLINTON-BAYVIEW & JOINTS IN MOTION INC., ELIE AZAR, ERIC NASH, EVELYN BRETT, FIONA THIRD, JUDY ANN MICHAELS, KEKRE PHYSIOTHERAPY PROFESSIONAL CORPORATION, LATA GOKHALE, LINDSAY PHYSIOTHERAPY SERVICES, CHRISTOPHER MATTHEWS, NORTH EAST PHYSIOTHERAPY INC., PEGGY SEAVER, PHYSIO-HEALTH & FITNESS INC., PHYSIOTHERAPY MANAGEMENT SERVICES LIMITED, PT HEALTHCARE SOLUTIONS CORP., QUINTE PHYSIOTHERAPY CLINIC, SEMIN ALARAKHIA Applicants – and – HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTER OF HEALTH AND LONG-TERM CARE FOR THE PROVINCE OF ONTARIO Respondent REASONS FOR JUDGMENT LEDERER J.

Released: 20130729