Administrative law – Decisions of administrative tribunals – Health authorities – Out of jurisdiction treatment – Reimbursement – Insured services – Charter of Rights and Freedoms – Judicial review – Compliance with legislation
Flora v. Ontario (Health Insurance Plan, General Manager),  O.J. No. 91, Ontario Superior Court of Justice, January 15, 2007, E.I. MacDonald, G.J. Epstein and D.R. Cameron JJ.
In 1999, Flora was diagnosed with liver cancer. Flora was told he was not a suitable candidate for a liver transplant and was given six months to live. Flora was not prepared to accept that prognosis and explored options in other countries. In March of 2000, he underwent both chemoembolization and a living-related liver transplant. The cost of the treatment was approximately $450,000. With considerable difficulty, Flora was able to scrape the money together. Through his physician, Flora sought reimbursement of that amount from OHIP pursuant to s. 28.4(2) of Ontario Regulation 552 of the Health Insurance Act. OHIP denied the request. On review of the decision by the Board, the majority of the Board confirmed the decision on the basis that the treatment was not generally accepted in Ontario as appropriate for a person in the same medical circumstances as Flora and therefore not an insured service. Flora appealed this decision.
The Court found that the Board examined the medical evidence carefully and accepted the evidence of the Ontario specialists in the field of liver transplantations that the treatment for which reimbursement was being sought, namely living-related liver transplant, was not appropriate for a person in Flora’s medical circumstances. The treatment was simply too high risk, given the advanced stage of Flora’s cancer. That conclusion was supported by evidence and was consistent with the intent of the legislation. The Court found that it was reasonable for the Board to accept the position of Ontario doctors that the Milan Criteria, normally considered when determining suitability for cadaveric transplant, were also suitable to determine Flora’s eligibility for a living-related liver transplant. The Court held that it was reasonable to limit the funding of out-of-country medical care to those treatments “generally accepted in Ontario as appropriate for a person in the same medical circumstances as the insured person”.
Flora’s argument that the Board’s decision was unreasonable on the basis that its determination of the statutory provision violated his Charter rights failed. Section 28.4 was not ambiguous. As well, the decision not to fund a living-related liver transplant did not deprive Flora of a constitutionally protected right and did not contravene s. 7 of the Charter. Flora’s s. 7 rights were not engaged because the Regulation did not create an impediment to individuals in securing out-of-country treatment.
In the result, the appeal was dismissed.
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