Administrative law – Decisions of administrative tribunals – Health Insurance Plan – Physicians and surgeons – Billing matters – Judicial review – Delay
Deep v. Ontario,  O.J. No. 1938, 2010 ONSC 2102, Ontario Superior Court of Justice, April 29, 2010, S.E. Greer, A.M. Molloy, and J. Mackinnon JJ.
The applicant physician, Dr. Deep, brought the within application for judicial review of a decision of the respondent’s general manager of the Ontario Health Insurance Plan (“OHIP”). The OHIP’s general manager decided, in August and September 2000, to suspend payments for medical fees to Dr. Deep. The decision was prompted by Dr. Deep’s failure to co-operate with a statutorily mandated inspection of his records for the period January 1, 1993 to December 31, 1997.
In February, the general manager of OHIP requested the Medical Review Committee (“MRC”) conduct a review of certain insured services billed by Dr. Deep between January 1, 1993 and December 31, 1997. The MRC advised Dr. Deep that inspectors had been appointed to carry out an onsite inspection of his medical files and records. Dr. Deep wrote back advising that the inspection was unnecessary since he had been charged with fraud in relation to his OHIP billings and his records had been investigated already. The MRC responded advising Dr. Deep that the fraud investigation was unrelated and his cooperation was required under the statute (the Health Insurance Act).
In subsequent months, the MRC made several attempts to schedule the inspection and Dr. Deep was warned that a failure to cooperate could result in suspension of his OHIP billings. The general manager decided to suspend Dr. Deep’s billings after Dr. Deep repeatedly did not allow the inspection to proceed. The general manager advised Dr. Deep of this decision in August and September 2000.
Dr. Deep brings the within application alleging the general manager’s decision was unreasonable. The respondent Ministry argues the general manager’s decision was reasonable and, in any event, the application should be dismissed based on undue delay since the application to the Court was made on July 11, 2009. This is almost ten years after the decision was made by the general manager.
The Court found that, in this case, the length of the delay was well beyond any acceptable period of time. The delay is inexplicable especially having regard to the fact that, in the intervening years, Dr. Deep launched three separate civil suits to recover the suspended payments. In each case, the Court advised Dr. Deep that he was basically seeking a judicial review of the decision and that should be brought before the Divisional Court. These three decisions were in 2000, 2004 and 2008.
Dr. Deep’s explanation for the delay is not reasonable. He relies primarily on demands relating to other litigation matters. However, those difficulties do not account for the exceptionally long delay experienced before he commenced this judicial review proceeding.
The Court further found there was actual prejudice to the respondent Ministry. In 2008, a pipe burst in Dr. Deep’s office and the flood apparently damaged and/or destroyed the records relating to the years in question so they can no longer be produced.
The Court, for the reasons noted above, dismissed Dr. Deep’s application for judicial review on the basis of undue delay.
The Court proceeded to consider the application on its merits since it was fully argued before the Court in any event. The Court found that the applicant was stubborn in his refusal to cooperate with the inspection and did not have just cause to refuse to cooperate. He was asked several times to cooperate with the inspection and refused to do so. The general manager’s decision to suspend payments to him was reasonable in the circumstances. Therefore, if it was not dismissed for delay, the application would have been dismissed on the merits.
The respondent Ministry was awarded its costs for the application.
This case was digested by Scott J. Marcinkow of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at firstname.lastname@example.org or review his biography at http://www.harpergrey.com.
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