) ) THE GENERAL MANAGER, ONTARIO HEALTH INSURANCE PLAN ) ) Darrell Kloeze v. Heather Burnett, 2017 ONSC 5548

CITATION : Ontario (Health Insurance Plan, General Manager) v. Rao, 2017 ONSC 5548 DIVISIONAL COURT FILE NO.: 618/15 DATE: 20170918 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT SACHS, SPIES and D. FITZPATRICK JJ. BETWEEN: ) ) THE GENERAL MANAGER, ONTARIO HEALTH INSURANCE PLAN ) ) Darrell Kloeze and Heather Burnett , for the Applicant ) Applicant ) ) – and – ) ) DR. VIVEK RAO ) Lonny J.

Rosen , for the Respondent ) Respondent ) ) ) HEARD at Toronto: September 18, 2017 SACHS J. (Orally) [ 1 ] The applicant, The General Manager, of the Ontario Health Insurance Plan, seeks a judicial review of the Physician Payment Review Board’s (the “Board”) decision to hear a dispute between the applicant and the respondent, Dr. Rao. [ 2 ] Dr. Rao submitted claims to the General Manager of the Ontario Health Insurance Plan for insured services provided to five patients between March 22, 2013 and May 15, 2013.

All of these claims were rejected by the General Manager on the basis that they did not meet the requirements of s. 18(3) of the Health Insurance Act , R.S.O. 1990 c.H 6 (the “Act”). [ 3 ] Section 18(3) of the Act provides that: The General Manager shall refuse to pay for an insured service if the account for the service is not prepared in the required form, does not meet the prescribed requirements or is not submitted to him or her within the prescribed time. [ 4 ] The requirements set out in the regulations made under the Act (General Regulation under the Health Insurance Act R.R.O. 1990, Reg. 552 s.38.4 ) are that a physician’s account for the service include the following information: (

a) The patient’s name; (

b) The patient’s date of birth; (

c) The patient’s OHIP No.; (

d) The date the service was rendered; (

e) The OHIP service fee code; and (

f) The amount claimed. [ 5 ] There is no dispute that Dr. Rao’s claims provided the information set out above and that this information was provided within the prescribed time period. However, the General Manager rejected the claims as stale dated because Dr. Rao failed to provide further information that the General Manager requested, including operating notes, within the prescribed time period. [ 6 ] Dr. Rao appealed the General Manager’s denial to the Board. The General Manager took the position before the Board that the Board had no jurisdiction to hear Dr.

Rao’s appeal as the General Manager’s decision to deny payment was made under s. 18(3) of the Act and s. 18(3) decisions (unlike s. 18(2) decisions) cannot be reviewed by the Board. [ 7 ] Dr.

Rao’s position before the Board was that since he had satisfied all of the requirements of s. 18(3) of the Act , the real basis for the denial of his claim was s. 18(2) . [ 8 ] The Board found that the parties had raised a legitimate issue as to the true basis for the denial, a dispute that involved an issue that required examining the evidence in the case before it and interpreting the provisions of the Act and the legislation. It therefore

decided to proceed with a hearing to, amongst other things, determine this issue. [9] The General Manager applied for a reconsideration of the Board’s decision, which was denied. [10] On this application for judicial review, the General Manager argues that the Board incorrectly assumed jurisdiction to hold ahearing into whether the claims for payment were properly refused for being stale dated where the statue gives it no authority to holdsuch a hearing. [11] At the commencement of this application, the Court asked the parties to address the issue of prematurity.

The GeneralManager submitted that it would be appropriate for the Court to hear its application prior to the Board conducting a hearing as it wouldbe an inefficient use of the Board’s resources for it to conduct a hearing to review issues that it has no jurisdiction to decide and it wouldbe unfair to require the parties to participate in such a hearing. [12] In making this submission, the General Manager appropriately summarized the law surrounding prematurity at para. 56 of itsfactum: 56.

Courts are generally reluctant to interfere with ongoing administrative proceedings, and often insist that a tribunal or board’sinternal procedure be completed before recourse is sought from a court.

This reluctance stems from respect for legislative intent whichreposed decision-making power in the administrative body, and from a desire to minimize delay, waste, and costs for all concerned.Nevertheless, a court will intervene in exceptional circumstances, where there has been a serious error in legal principle which will resultin an unfair hearing, or where there has been a fundamental failure of justice. [13] The General Manager argues that intervention by this Court is justified on the basis of “exceptional circumstances”.

Theexceptional circumstance relied upon is that because the Board lacks jurisdiction to review the General Manager’s denial under s. 18(3),any decision made by the Board will be of no legal effect. [14] The law is well settled that even if something can be characterized as a true question of jurisdiction, that by itself will notnecessarily constitute an exceptional circumstance that justifies early judicial intervention (Volochay v.

College of Massage Therapists ofOntario, 2012 ONCA 541 at para. 61). [15] In this case, the Board has not made a determination that it has jurisdiction to review a decision under s. 18(3) of the Act. What it has decided is to hold a hearing to determine the true basis of the denials at issue i.e. whether they were under s. 18(3) or s.18(2). This question arises because of a possible

interpretation of s. 18(3) that would indicate that Dr. Rao met all of the requirements ofthat

section when he filed his claims. [16] Before a court intervenes on the questions posed by this application, it is in the interests of justice that it be given the benefitof the Board’s full consideration of this issue. As put by the Federal Court of Appeal in C.B. Powell Ltd. v.

Canada (Border ServicesAgency), 2010 FCA 61 , 2010 FCJ No. 274, at para. 32: …only at the end of the administrative process will a reviewing court have all of the administrative decision-maker’s findings; thesefindings may be suffused with expertise, legitimate policy judgments and valuable regulatory experience (cites omitted) [17] Further, it maybe that once the Board has fully considered the issue, there will be no need for this Court’s intervention. [18] For these reasons, the General Manager’s application is dismissed as premature. [19] I have endorsed the Application Record as follows: “This Application is dismissed as premature for reasons given orally bySachs J.

The respondent is entitled to his costs of this application. This is not an appropriate case for no costs. Taking into account thenature of the issues before the Court (important, but not based on a complicated record or unsettled law), we find that the request forpartial indemnity costs in the amount of $27,000 is excessive and find that, considering all of the relevant factors that govern costawards, a more reasonable amount is $15,000 all inclusive. It is so ordered.” ___________________________ SACHS J. I agree ___________________________ SPIES J. I agree ___________________________ D. FITZPATRICK J.

Date of Reasons for Judgment: September 18, 2017 Date of Release: September 22, 2017 CITATION : Ontario (Health Insurance Plan, General Manager) v. Rao, 2017 ONSC 5548 DIVISIONAL COURT FILE NO.: 618/15 DATE: 20170918 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT SACHS, SPIES and D. FITZPATRICK JJ. BETWEEN: THE GENERAL MANAGER, ONTARIO HEALTH INSURANCE PLAN Applicant – and – DR. VIVEK RAO Respondent ORAL REASONS FOR JUDGMENT SACHS J. Date of Reasons for Judgment: September 18, 2017 Date of Release: September 22, 2017