The decision of the Respondent, Health Canada, to impose a moratorium on the provision of service provider numbers was a managerial decision which was subject only to a limited degree of fairness. There was no requirement in this case for the Respondent to review the Applicant’s application for a service number on its merits and the application for judicial review was therefore dismissed.

26. October 2004 0

Administrative law – Judicial review – Decisions reviewed – Ministerial orders – Licence to provide health services – Procedural requirements and fairness

1018025 Alberta Ltd. v. Canada (Minister of Health), [2004] F.C.J. No. 1333, Federal Court, August 11, 2004, Gauthier J.

The Applicant had been denied a service provider number which would have allowed it to become a service provider registered under the Non-Insured Health Benefits Program. Holders of service provider numbers were authorised to provide medically necessary health-related goods and services not covered by other health insurance plans. The basis of the refusal was that there was a moratorium on the issuance of new service provider numbers in Alberta as a result of financial audits that revealed several problems in that region. The Applicant sought judicial review of the Respondent’s refusal to consider its application. The Applicant submitted that the decision was made in breach of the Respondent’s duty of fairness which required that its application be considered on its own merits.

The court concluded that by the time the application was filed, the program had effectively been amended insofar as new billing privileges were concerned, such that registration was simply not available to a supplier such as the Applicant. The decision to impose a moratorium on the provision of service provider numbers had been made by the director of non-insured benefits, Alberta region (the “Director”). There was no privative clause applicable to this decision. Both parties were in agreement that the decision to impose a moratorium involved a consideration of the various policy goals of Health Canada and the need to protect the public interest by ensuring proper spending of public funds. The court had no expertise on such issues. Thus, the decision deserved the highest degree of deference. The content of the duty of fairness on the Director was quite limited and the court was satisfied that it was not breached in this case. The concept of fairness could not force the decision-maker to review the Applicant’s application on its merits. The application for judicial review was therefore dismissed.

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