) ) BSA DIAGNOSTICS IMAGING INC. o/a EAST END BREAST IMAGING Appellant – v. –, 2017 ONSC 1950

CITATION : BSA Diagnostics Imaging Inc. v. The College of Physicians and Surgeons of Ontario, 2017 ONSC 1950 DIVISIONAL COURT FILE NO.: 532/16 DATE: 20170412 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT BETWEEN: ) ) BSA DIAGNOSTICS IMAGING INC. o/a EAST END BREAST IMAGING Appellant – and – THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO Respondent ) ) ) ) ) ) ) ) )))) Mark M. Persaud and M. Paik , for the Appellant Vicki White , for the Respondent ) )) HEARD at Toronto: March 27, 2017 Stewart J.

Nature of the Appeal [ 1 ] This is an appeal from the decision of Deputy Judge Kilian of the Small Claims Court dated May 19, 2016 w hich granted judgment for The College of Physicians and Surgeons of Ontario (the “College”) against BSA Diagnostic Imaging Inc. (“BSA”) in the amount of $2520.00 plus interest and costs. [ 2 ] The trial judge found that the statutory framework of the applicable legislation empowers the College to require payment from BSA of practice assessment s performed by the College at the request of the Director of Independent Health Facilities.

BSA takes the position that the trial judge erred in law in so concluding. Jurisdiction [ 3 ] Pursuant to s. 31 of the Courts of Justice Act, R.S.O. 1990, c. C.43, an appeal from a final order of a judge of the Small Claims Court lies to a single judge of the Divisional Court. Standard of Review [ 4 ] It is common ground between the parties that the issue raised on this appeal is one of statutory

interpretation and of such a nature that the standard of correctness applies. Background [ 5 ] The proceedings before the trial judge were based on agreed facts, as follows. [ 6 ] BSA is an independent health facility regulated pursuant to the Independent Health Facilities Act, R.S.O. 1990 c.I.3 (the “ IHFA ”). It carries on business under the name of East End Breast Imaging. [ 7 ] Under the IHFA , the College is required to conduct assessments of independent health facilities to ensure they are being operated in accordance with appropriate standards and do not present a risk to the health, safety and welfare of members of the public.

When requested to do so by the Director of Independent Health Facilities (the “Director”), the College is to conduct assessments of thequality and standard of services provided by an independent health facility as directed. [8] The Director, an employee of the Ministry of Health and Long Term-Care, is responsible for making decisions related to thelicensing and operation of independent health facilities in Ontario. The Director may issue or refuse to issue operating licenses toindependent health facilities.

The Director may also suspend, revoke or refuse to renew a license, or impose conditions on a license. [9] The assessments conducted by the College provide the Director with information necessary to ensure that independent healthfacilities are operated in accordance with appropriate standards and in a manner not prejudicial to the health, safety and welfare of anyperson.

This arrangement is in furtherance of the legislative mandate of both entities to regulate health services in the public interest. [10] In 2010, and again in 2015, the Director requested the College to conduct assessments as to quality and standards of service ofBSA. [11] The College conducted those assessments as requested. The College charged BSA a fee for doing so, as authorized by By-Law No.2, a Fees and Remuneration by-law passed by the College pursuant to its governing statute.

That by-law states that the Collegemay charge a fee for: Costs to the College of completing an inspection or assessment as authorized by the Independent Health Facilities Act, Including butnot limited to costs relating to inspectors and assessors, Facility Review Panels, preparation of assessments and written reports,monitoring compliance with conditions, and any administration fee charged by the College. [12] Between March 1, 2014, and June 1, 2015, the College sent BSA invoices for fees in relation to the Independent HealthFaculties program operated by the College.

These included invoices for the 2014 and 2015 annual fees as well as assessment fees andlate payment penalties. [13] Although BSA paid part of the amount said to be owing, a balance of $2520.00 of the outstanding amount invoiced to BSA bythe College remained owing. After several demands for payment were made, the College brought a claim in Small Claims Court. [14] At trial, BSA took the position that the College lacked statutory authority to charge fees for conducting these kinds ofassessments.

Decision of the Trial Judge [15] In arriving at his decision the trial judge stated: The question is whether or not the College had the authority to pass such a bylaw with respect to independent health facilities in generaland the defendant’s facility specifically. … Going then under the Independent Health Facilities Act,

section 1, the

definitions indicates the College referred to is the College ofPhysicians and Surgeons of Ontario. The Director is defined as appointed by the Minister under

section 4, and the Registrar is defined asthe Registrar of the College of Physicians and Surgeons. Section 27(2) indicates that the College may appoint an assessor upon noticeunder section 27(3). Under section 28(1), it says, “Upon such notice the Chief Administrative Officer”, which in this case would be theRegistrar for the College, “shall appoint an assessor, and after such appointment and such assessment report to the Director undersubsection (2).” It does not specifically mention anything about fees or billings for such assessment.

The plaintiff, under the Regulated Health Professions Act, the College “ is entitled to administer the health profession” under section 3(1) (7), “this Code and the Regulated Health Professions Act as it relates to the profession and to perform other duties and exercise theother powers that are imposed or conferred on the College.” And in this case, the assessment is imposed on the College by the Director.Under

section 94, the College is entitled to make bylaws relating to the administrative and the internal affairs, and without restricting thegenerality, includes under

section (u) “requiring a person to pay a fee set by the Registrar or by bylaw, for anything the Registrar isrequired or authorized to do”. While it is fairly clear, as I indicated, that the Registrar was required to make the assessments at theinstructions of the Director, and therefore, under

section (u), the Registrar, which is the Registrar of the College, may require the personwho is being assessed to pay the fees under the bylaw, and therefore the

section does apply to the defendant. [16] The trial judge therefore determined that the College had the requisite power and authority to change BSA the fees claimed. [17] BSA does not pursue an argument on this appeal that it is not a “person” to which the by-law applies. That argument wasconsidered by the trial judge and correctly rejected. Law and Discussion [18] The sole question raised on this appeal is whether the College has the statutory authority to charge such fees to BSA and otherfacilities licensed under the IHFA. [19] To the extent this appeal raises issues of statutory

interpretation, the following principles apply. [20] Words of

an act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with thescheme of the act, the object of the act, and the intention of Parliament (see: Rizzo & Rizzo Shoes Ltd. (Re), (SCC),[1998] 1 S.C.R. 27). [21] Legislation which is part of an integrated legislative scheme cannot be read in isolation. Rather, the court interpretinglegislation should consider any statutes dealing with the same or similar subject matter as the statute being interpreted. The entire context

of a statute, in the light of which its words must be interpreted, includes other statutes dealing with the same subject matter. [ 22 ] Statutes that deal with the same subject matter are presumed to offer a coherent, consistent treatment of the subject (see: R. v.

Loxdale (1758), 1 Burr. 445 (Eng.K.B.) ) [ 23 ] As the trial judge observed, the Court must look not only to the IHFA , but also to the integrated scheme of legislation and regulation of which the IHFA forms a part. [ 24 ] The IHFA was adopted as part of a comprehensive, integrated legislative scheme governing the provision of health care services in Ontario. When the legislative and regulatory framework is read as a whole, the College’s authority to charge fees in relation to assessments is evident. [ 25 ] The scheme provides two possible means for the legislative authority to charge fees.

One is under the IHFA , the other authorizes the College to do so pursuant to its authority.

The mere absence of any explicit mention in the IHFA of the College’s authority to charge fees in relation to assessments does not signal any necessary intention of the legislature that the College should not charge such fees. [ 26 ] Similarly, the fact that the IHFA provides specifically for the making of regulations prescribing fees does not indicate a specific legislative intention to preclude the College from charging fees for any assessments it conducts. [ 27 ] Further, the Health Professions Procedural Code (the “Code”) under the Regulated Health Professions Act , 1991, S.O. 1991, c.18 provides that the Council of the College may make by-laws relating to the administrative and internal affairs of the College.

The College is also empowered pursuant to s.94(1) to make by-laws respecting fees, including by-laws: (

s) requiring members to pay annual fees, fees upon application for a certificate and upon registration and fees for examinations, appeals from examinations, election recounts and continuing education programs and for anything the Registrar or a committee of the College is required or authorized to do and requiring members to pay penalties for the late payment of any fee; … (

u) requiring persons to pay fees, set by the Registrar or by by-law, for anything the Registrar is required or authorized to do. [ 28 ] The College’s power to make such by-laws is not limited to imposing fees on its own members. Section 94(1)(

u) of the Code permits the College to charge fees to “persons” for anything the Registrar is required or authorized to do. The legislature therefore intended to grant the College the power to impose fees on persons who are not members of the College if the Registrar is required or authorized to do anything with respect to such persons. [ 29 ] In keeping with its statutory authority to enact by-laws, the College adopted By-Law No. 2: Fees and Remuneration By-Law.

The By-Law provides the College with the specific authority to charge fees related to assessments authorized by the IHFA . [ 30 ] The By-Law outlines that, in general, the College may charge a person fees in connection with decisions or activities the College is required or authorized to do or make if the College is required to make the decision or undertake the activity with respect to that person. It further provides that such fees may include an administrative component. [ 31 ] The By-Law also outlines the specific authority for charging fees in relation to assessments authorized by the IHFA .

It provides that the College may charge fees in relation to: Costs to the College of completing an inspection or assessment as authorized by the Independent Health Facilities Act , including but not limited to costs relating to inspectors and assessors, Facility Review Panels, preparations of assessments and written reports, monitoring compliance with conditions, and any administration fee charged by the College. [ 32 ] In addition, the Fees By-Law provides that a person who fails to pay a fee on or before the day on which it is due may be charged a penalty fee of 25% of the outstanding fee. [ 33 ] In

summary, BSA held a license under the IHFA to operate as an independent health facility during the 2010 and 2015 fiscal years. The College received notice from the Director of Independent Health Facilities in 2010 and 2015 requiring it to conduct assessments of BSA and did so.

Between March 2014 and June 2015, the College issued invoices to BSA for an amount totaling of $4200, comprising annual fees related to these assessments and late payment penalties, and BSA’s outstanding account with the College currently stands at $2520, excluding interest. [ 34 ] The College imposed these fees on BSA in keeping with its authority to charge fees in relation to assessments required under the IHFA . Given that the fees are legally authorized and validly imposed, BSA has no right to refuse payment.

The trial judge correctly awarded to the College judgment for the amount sought by it. [ 35 ] For these reasons, the appeal is dismissed. Costs [ 36 ] The parties have agreed that costs fixed at $3500.00 are to be awarded to the successful party. Accordingly, BSA shall pay that amount, inclusive of all disbursements and applicable taxes, to the College as costs of this appeal.

___________________________ Stewart J. Released: April 12, 2017 CITATION : BSA Diagnostics Imaging Inc. v. The College of Physicians and Surgeons of Ontario, 2017 ONSC 1950 DIVISIONAL COURT FILE NO.: 532/16 DATE: 20170412 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT BETWEEN: BSA DIAGNOSTICS IMAGING INC. o/a EAST END BREAST IMAGING Appellant -and- THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO Respondent REASONS FOR DECISION Stewart J. Released: April 12, 2017