A decision to dismiss Requests for Hearing that had been outstanding for 15 years before the Health Services Appeal and Review Board (the “Board”) to determine whether the licence for an independent health facility ought to be amended to add back the ability to perform vascular ultrasounds, was upheld on a statutory appeal

Administrative law – Decisions of administrative tribunals – Health Professions Appeal and Review Board – Administrative courts – Statutory powers – Permits and licences – Judicial review – Abuse of process – Mootness – Delay – Standard of review – Reasonableness simpliciter

B.S.A. Diagnostics Ltd. v. Ontario (Attorney General), [2014] O.J. No. 5035, 2014 ONSC 6054, Ontario Superior Court of Justice, October 27, 2014, C.J. Horkins, A.L. Harvison Young and A.D. Grace JJ.

In 1998, the Director of Independent Health Facilities (the “Director”) determined that B.S.A. Diagnostics Limited (“BSA”), an independent health facility providing diagnostics radiology services, would no longer be licensed to conduct vascular ultrasounds. The Director decided to amend the licences of BSA based on assessments conducted under the Independent Health Facilities Act, R.S.O., 1990, c-I.3 (the “Act”), by two College of Physicians and Surgeons of Ontario (“CPSO”) assessors, and one medical consultants for the Minister of Health and Long-Term Care (the “Ministry”).

In 1999, BSA served two Requests for Hearing before the Board regarding the decisions of the Director. Although preliminary motions were argued on issues including disclosure and contempt, a date for hearing was never set, and no steps were taken between 2003 and 2007.

In January 2008, the Board attempted to schedule a pre-hearing telephone conference. In about July 2008, BSA advised that it was going to proceed, but no further steps were taken to set the matter for hearing.

Settlement discussions took place and, in August 2011, the parties signed Minutes of Settlement whereby the Director would agree to amend BSA’s licences to add back vascular ultrasound services if BSA provided verification of staff qualifications for those staff members performing vascular ultrasound services that were satisfactory to the CPSO, and that BSA would provide any additional information reasonably requested by CPSO to assist in its review. The agreement was that the CPSO would then review the information and issue a report. If the report to the Director offered the opinion that BSA met the standards for vascular ultrasound services, the Director was required to restore those services back to BSA’s licences. BSA expressly preserved its requests for hearings if the Director did not amend the licences.

About one year after the settlement was reached, BSCA advised that it would not provide the information required by the Minutes of Settlement. Vascular ultrasound services were not added back to its licences.

In November 2013, the Board granted a motion brought by the Director to dismiss the outstanding Requests for Hearing, find that there had been an inordinate delay, that some prejudice had accrued to the Director as a result, and that there were no “live” issues between the parties due to the Minutes of the Settlement having resolved the disagreement. “The Applicant ought to have complied with the Minutes of Settlement instead of proceeding with what are now moot Requests for Hearing.” (para. 18)

BSA appealed the Board’s decision. The Act provides for appeals to the Divisional Court on questions of law only.

The Court applied a reasonableness standard of review, given that this was a statutory appeal from the decision of an administrative tribunal, with no question of law outside the adjudicator’s area of expertise.

BSA argued that the Board articulated the test of when an administrative law matter can be dismissed for delay correctly, but erred in applying the Blencoe test because a delay of 15 years was not “inordinate”, given the context. Further, BSA argued that a standard of “significant prejudice” ought to have been used, whereas the Board relied upon “some evidence of prejudice” in dismissing the Requests for Hearing.

The arguments regarding delay and prejudice were dismissed and the Board’s decision was upheld as reasonable. The totality of the reasons supported a conclusion that the Blencoe test had been applied appropriately.

On the question of mootness, the Court held that a tribunal has an inherent ability to control its own processes (see s.23(1) of the Statutory Powers Procedures Act). A tribunal can decide a moot issue, even where it is not asked to do so.

The concepts of mootness and abuse of process are related. “The Minutes of Settlement established a means by which BSA could once again obtain permission to perform vascular ultrasounds. The right to continue with the Requests for Hearing was preserved, but only if the Director made an unfavourable decision. The Director was not able to make any decision, because BSA unilaterally decided that it would not take the steps that it had agreed to take. In substance, the Board decided that it would be an abuse of process to conduct the hearing that BSA had requested in 1999.” (para. 42)

BSA’s appeal was dismissed, with costs to the respondent Ministry of Health.

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