) ) THE DIRECTOR, INDEPENDENT HEALTH FACILITIES PROGRAM, MINISTRY OF HEALTH v. LONG-TERM CARE, 2017 ONSC 3980

CITATION : Ontario (Ministry of Health and Long-Term Care) v. Don Mills Diagnostic Imaging Inc., 2017 ONSC 3980 DIVISIONAL COURT FILE NO.: 229/16 DATE: 20170627 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT SWINTON, NORDHEIMER and SPROAT JJ.

BETWEEN: ) ) THE DIRECTOR, INDEPENDENT HEALTH FACILITIES PROGRAM, MINISTRY OF HEALTH AND LONG-TERM CARE ) ) ) ) Heather MacKay and Baaba Forson for the Appellant ) Appellant ) ) – and – ) ) DON MILLS DIAGNOSTIC IMAGING INC., LICENCE #3432501 (ALPHA DIAGNOSTIC IMAGING INC.) ) ) ) Jennifer Teskey and Dana Carson , for the Respondent ) Respondent ) ) ) HEARD at Toronto: June 27, 2017 NORDHEIMER J. (orally) [ 1 ] The Director, Independent Health Facilities Program, Ministry of Health and Long-Term Care, appeals from the decision made by the Health Services Appeal and Review Board dated April 12, 2016 in which the Board found that the Director did not have jurisdiction under s. 20.1(2) (

c) of the Independent Health Facilities Act , R.S.O. 1990, c. I.3 to amend the respondent, Don Mills Diagnostic’s licence to eliminate mammography and fluoroscopy services (the “services”) from that licence. [ 2 ] The parties are agreed that the standard of review with respect to the Board’s decision is reasonableness. [ 3 ] The issue raised is a narrow one. It turns on the

interpretation of s. 20.1(2)(

c) that reads: Despite subsection (1), the Director shall not amend the limitations of a licence so as to eliminate services from the list of services and types of services in respect of which an independent health facility is licensed unless … (

c) the licensee has ceased to provide the services for a period of at least six months and is not taking reasonable steps to begin providing the services again. [ 4 ] The respondent is the operator of an independent health facility licensed to provide a number of different services including the services. The Director consented to the transfer and relocation of the licence from a previous operator in 2002. The respondent acquired the licence in 2004.

Since it commenced operating in 2006, the respondent has never provided the services. [ 5 ] Between 2007 and 2015, the Director granted fifteen requests from the respondent for extensions of time to commence providing the services and repeatedly gave notice to the respondent that the services would be removed from the licence if the respondent failed to make them available to the public.

Since the respondent continued to fail to commence providing the services, by decision dated May 19, 2015, the Director amended the respondent’s licence to remove the services. [ 6 ] The respondent appealed this decision to the Board. The Board overturned the Director’s decision. In doing so, the Board found that the Director had ample grounds to find that the respondent had not provided the services. However, the Board concluded that because the respondent had never started to provide the services, and thus could not have ceased to provide the services, s. 20.1(2) (

c) did not apply and the Director did not have jurisdiction to make the order that she did. [ 7 ] In my view, the decision of the Board is an unreasonable one. It fixes on the word “ceased” in the section, giving it a literal

interpretation without regard to the context in which the word is used within the statute. The proper approach to statutory

interpretationis well-established. The words of

an Act are to be read “in their entire context and in their grammatical and ordinary sense harmoniouslywith the scheme of the Act, the object of the Act, and the intention of Parliament”: Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27 at para. 21. [8] As the modern approach to statutory

interpretation makes clear, the words in a

section are to be read within the context ofthe statute as a whole. That context may or may not support a literal reading of the words used. As Bastarache J. said, in ATCO Gas andPipelines Ltd. v. Alberta (Energy and Utilities Board), 2006 SCC 4 , [2006] 1 S.C.R. 140 at para. 48: This Court has stated on numerous occasions that the grammatical and ordinary sense of a

section is not determinative and does notconstitute the end of the inquiry. The Court is obliged to consider the total context of the provisions to be interpreted, no matter howplain the disposition may seem upon initial reading [citation omitted]. See also McLean v. British Columbia (Securities Commission), 2013 SCC 67 , [2013] 3 S.C.R. 895 at paras. 43-44. [9] The purpose of these provisions in the statute is to permit the Director to ensure that proper levels of services are providedthroughout the Province.

The Director cannot make a proper determination of whether additional services should be authorizedelsewhere if persons holding licences to provide services, but who are not, can suddenly decide on their own to start doing so after theDirector may have taken other steps to ensure that those services are available.

It is clear that the statute intends to let the Directorcontrol those decisions, not individual licensees. [10] The argument of the respondent that in this factual situation, that is the failure to provide services rather than the cessation ofservices, should require the decision to be made by the Minister under s. 19, and its related factors, rather than the Director makes nological sense.

The structure of the Act makes it clear that it is the Director who has the responsibility to supervise the day-to-dayprovision of services by licensees. [11] The Board erred in overturning the Director’s decision and it did so based on an unreasonable

interpretation of the

section andone that leads to an absurd result. [12] Consequently, the Board’s decision is set aside and the Director’s decision is reinstated. Swinton J. [13] I have endorsed the Appeal Book and Compendium as follows: “This appeal is allowed. The Board’s decision is set asideand the Director’s decision is reinstated. Costs to the appellant fixed at $12,0000.00, an amount agreed upon by the parties.” ___________________________ Nordheimer J. I agree ___________________________ Swinton J. I agree ___________________________ Sproat J.

Date of Reasons for Judgment: June 27, 2017 Date of Release: June 29, 2017 CITATION: Ontario (Ministry of Health and Long-Term Care) v. Don Mills Diagnostic Imaging Inc., 2017 ONSC 3980 DIVISIONAL COURT FILE NO.: 229/16 DATE: 20170627

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT SWINTON, NORDHEIMER and SPROAT JJ . BETWEEN: THE DIRECTOR, INDEPENDENT HEALTH FACILITIES PROGRAM, MINISTRY OF HEALTH AND LONG-TERM CARE Appellant – and – DON MILLS DIAGNOSTIC IMAGING INC., LICENCE #3432501 (ALPHA DIAGNOSTIC IMAGING INC.) Respondent ORAL REASONS FOR JUDGMENT NORDHEIMER J. Date of Reasons for Judgment: June 27, 2017 Date of Release: June 29, 2017