A physician’s application for judicial review of the decision of the Ministry of Health and Long Term Care “and/or” the general manager of Ontario Health Insurance Plan (OHIP) denying him payment for approximately $250,000 for medical services billed in 2002, 2003, and 2004 was set aside on the basis of delay. The original denial occurred in 2004 and the last letter denying his request for reconsideration was dated February 2008. The judicial review application was served February 2011 and perfected April 2011. While the physician had distractions, there was no satisfactory explanation provided for the excessive delay in bringing the judicial review application and there was evidence of actual prejudice to the respondent.

Administrative law – Decisions of administrative tribunals – Ministerial – Judicial review application – Delay – Test

Rosenhek v. Ontario, [2011] O.J. No. 5186, 2011 ONSC 3785, Ontario Superior Court of Justice, June 17, 2011, D.R. Aston J.

Dr. Rosenhek initiated an application for judicial review of “the decision” of the Ministry of Health and Long Term Care “and/or” the general manager of OHIP for denying payment for approximately $250,000.00 for medical services he billed to OHIP in the years 2002, 2003 and early 2004. He claimed that his claims were submitted within six months of the dates of the rendered services as required by the Health Insurance Act (Ontario), R.S.O. 1990 c.H.6 (the “Act”) or alternatively, that the time should have been extended on the basis of “extenuating circumstances” as provided for in the Act. The original decision denying payment of the applicant’s claims was made on February 4, 2004 and, on a reconsideration request, the decision reaffirmed in correspondence on March 18 and May 26, 2004. The applicant continued to seek reconsideration through correspondence and discussion and the latest letter denying his requests for consideration is dated February 27, 2008.

In 2005, Dr. Rosenhek retained counsel to pursue his claims and in letters to his lawyer dated August 29, 2005, February 10, 2006 and February 27, 2008, the Ministry continually repeated its denial of Dr. Rosenhek’s requests for reconsideration. In January 2009, counsel for Dr. Rosenhek gave written notice that Dr. Rosenhek intended to commence a civil action in respect of the disputed OHIP billings. In response, the Ministry’s counsel advised in February 2009 that if Dr. Rosenhek chose to commence an action for judicial review, the Ministry would challenge it for delay. Dr. Rosenhek waited two more years to start the judicial review application which was served February 11, 2011 and perfected April 29, 2011. The Ministry applied to dismiss the judicial review application for delay.

The Court allowed the Ministry’s motion. Judicial review is a discretionary remedy and the Court can decline to exercise its powers to order a remedy in circumstances of undue delay. In considering such circumstances, the Court will examine: (a) the length of the delay; (b) the explanation for the delay; and (c) prejudice. Generally speaking, an application should be started no later than six months after the challenged decision and, on many occasions, the Court has held that applicants must commence applications for judicial review expeditiously. In this case, counsel for the applicant was unable to point to any Ontario case in which a delay of more than nineteen months in starting a judicial review application had been permitted and this case would have set a new benchmark. Dr. Rosenhek’s evidence fell far short of a cogent or satisfactory explanation for the lengthy delay. Excessive delay has been held to be presumptively prejudicial in the past. In this case, it was more than merely presumptive and there was evidence of actual prejudice to the respondent. In all the circumstances, it was appropriate to exercise the Court’s discretion to dismiss the judicial review application for delay.

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