) ) VICKI LYNN BROWN Appellant – v. –, 2017 ONSC 3191

CITATION : Brown v. Ontario (Health Insurance Plan, General Manager), 2017 ONSC 3191 DIVISIONAL COURT FILE NO.: 379/16 DATE: 20170523 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT NORDHEIMER, SMITH and WILTON-SIEGEL JJ. BETWEEN: ) ) VICKI LYNN BROWN Appellant – and – THE GENERAL MANAGER, THE ONTARIO HEALTH INSURANCE PLAN Respondent ) ) ) ) ) ) ) ) ) ) Jordan B.R.

Palmer , for the Appellant Farzin Yousefian and Sunil Mathai , for the Respondent ) HEARD at Toronto: May 23, 2017 NORDHEIMER J. (orally) [ 1 ] Vicki Lynn Brown, appeals the decision of the Health Services Appeal and Review Board (the “Board”), dated June 10, 2016, as well as the subsequent reconsideration decision of the Vice-Chair, dated July 11, 2016, both of which upheld the decision of the General Manager of the Ontario Health Insurance Plan to deny the appellant out-of-country payment for certain medical procedures she underwent in Atlanta, Georgia, on September 29, 2015. [ 2 ] An appeal lies to this court from a decision of the Board pursuant to s. 24 of the Health Insurance Act , R.S.O. 1990, c.

H.6. It is, in my view, clear that, on such an appeal, the standard of review is reasonableness: Flora v. Ontario (Health Insurance Plan, General Manager) (2008), 2008 ONCA 538 (CanLII) , 91 O.R. (3d) 412 (C.A.) ; C.C.W. (Litigation Guardian of) v. Ontario (Health Insurance Plan, General Manager) (2009), 2009 CanLII 712 (ON SCDC) , 95 O.R. (3d) 48 (Div. Ct.) . [ 3 ] In my view, it is not necessary to engage in a detailed review of the facts to address the issues raised in this appeal. The appellant has a history of pelvic and abdominal pain, including endometriosis.

In June 2015, the appellant was suffering from chronic abdominal pain. She was unhappy with the treatment and recommendations that she was getting from physicians in Ontario. Consequently, she went online and found a physician in Atlanta, Georgia with whom she then consulted.

She sent her medical records to the physician who ultimately scheduled the appellant for surgery in Atlanta for September 29, 2015. [ 4 ] Between June 2015 and September 29, 2015, the appellant declined treatment in Ontario, including diagnostic surgery offered by her community gynecologist and a referral to one of Ontario’s leading endometriosis surgeons, Dr. Sukhbir Singh. Indeed, the physician in Atlanta told the appellant that her best resource in Ontario was Dr. Singh. The appellant contacted Dr. Singh’s office directly and sent her medical records. However, she never pursued a consultation with Dr.

Singh at least, in

part it appears, because Dr. Singh was located in Ottawa. She was, however, told on August 18 that she could get an appointment with Dr. Singh within a month. [ 5 ] Prior to the surgery in Atlanta, the appellant requested out-of-country payment from OHIP and was denied. On appeal, the Board upheld OHIP’s decision and concluded that the appellant did not satisfy her onus of demonstrating that it was necessary to travel outside of Canada to avoid a delay in treatment that would have resulted in death or medically significant irreversible tissue damage.

The Board’s central conclusion is set out at para. 60: Nevertheless, the Appeal Board finds that the appellant has not provided sufficient evidence that it was necessary for her to travel outside of Ontario to obtain timely treatment. If the appellant had consulted Dr. Singh, and he had advised that his

schedule would not permit a surgery for many months into the future, then the Appeal Board would have been able to quantify the delay. However, with the

information before it, the Appeal Board cannot determine what, if any, delay the appellant might have experienced. [ 6 ] In my view, the Board’s decision was a reasonable one. The appellant failed to pursue the option of having Dr. Singh examine and treat her. The evidence before the Board was that Dr. Singh would have performed surgery on the appellant, if it was necessary, on an urgent basis, if the appellant’s symptoms warranted it. However, the appellant never gave Dr. Singh the opportunity to examine her, to determine what treatment was necessary, and to determine a time frame for that treatment.

In those circumstances, the appellant has failed to establish that it was necessary for her to travel outside of Canada to avoid a delay in treatment. On that point, I reject the appellant's submission that the evidence of Dr. Singh was too speculative to be relied upon. The nature of the question raised will often require the Board to consider speculative evidence about the timing of treatment in a particular case. [ 7 ] The appeal is dismissed. [ 8 ] I have endorsed the Appeal Book and Compendium of the Appellant as follows: “This appeal is dismissed for oral reasons given.

The appellant will pay to the respondent costs of the appeal fixed in the agreed amount of $5,000.00 all inclusive.” ___________________________ NORDHEIMER J. I agree ___________________________ SMITH J. I agree ___________________________ WILTON-SIEGEL J. Date of Reasons for Judgment: May 23, 2017 Date of Release: May 24, 2017 CITATION : Brown v. Ontario (Health Insurance Plan, General Manager), 2017 ONSC 3191 DIVISIONAL COURT FILE NO.: 379/16 DATE: 20170523 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT NORDHEIMER, SMITH and WILTON-SIEGEL JJ. BETWEEN:

VICKI LYNN BROWN Appellant – and – THE GENERAL MANAGER, THE ONTARIO HEALTH INSURANCE PLAN Respondent ORAL REASONS FOR JUDGMENT NORDHEIMER, J. Date of Reasons for Judgment: May 23, 2017 Date of Release: May 24, 2017