The Applicant physiotherapy clinics successfully applied for interim relief in respect of the Regulation that would have delisted them from funding through the Ontario Health Insurance Plan. The Court ordered that the new Regulation would not take effect until the hearing of the Applicants’ judicial review application was decided on the merits.

Administrative law – Government – Funding of programs – Health insurance – Physiotherapy – Government’s duty to consult – Policies – Legislation – Powers under legislation – Judicial review – Compliance with legislation – Natural justice – Legitimate expectations – Remedies – Interlocutory injunctions

Amalorpavanathan v. Ontario (Minister of Health and Long-term Care), [2013] O.J. 3513, 2013 ONSC 4993, Ontario Superior Court of Justice, July 29, 2013, T.R. Lederer J.

The Applicants are 43 physiotherapy clinics who receive funding from the Ontario Health Insurance Plan (OHIP) for some of their services. The Respondent (Minister of Health and Long-Term Care) promulgated Regulation 138/13 which “delisted” the physiotherapy services from OHIP funding.

The Regulation was promulgated by the Respondent on April 18, 2013 with an effective date of August 1, 2013. As of the effective date, physiotherapy services would no longer be funded by OHIP.

The Applicants filed an application for judicial review. The case could not be heard and decided on the merits before the August 1, 2013 effective date of the Regulation. The Court therefore heard submissions from the parties about the possibility of interim relief pending the hearing of the case on its merits.

The Court considered the positions of the parties in considering whether to grant interim relief to the Applicants.

The Applicant’s position on the merits was based on the doctrine of legitimate expectations. The Applicants relied on a public document created by the Respondent, relating to the process for legislation. The document (titled, Ontario Regulatory Policy”) said that regulations affecting business would be posted on a website at least 45 days to give the interested parties an opportunity to provide input. The Applicants said this did not happen in this case and they had a reasonable expectation that they would have an opportunity to provide input into amendments of this nature.

The Respondent’s position on the merits was that the doctrine of legitimate expectations does not apply to the legislative process. The Respondent also asserted that the Policy could not provide the basis for a claim of legitimate expectations. The Respondent said that some physiotherapy clinics were consulted about the proposed Regulation.

The Respondent argued that interim relief was not appropriate because there was no “deliberate flouting of established law”. In this regard, the Respondent argued that the Regulation did not need to be posted pursuant to the Policy because an exemption applied. The specific rationale for the exemption was not explained in the context of the hearing. The Court noted that there was a document that seemed to suggest the Respondent assessed the potential response and media attention that may be forthcoming if the Applicants were consulted.

The Court was not prepared to accept that the only issue for consideration was whether there was a deliberate flouting of established law. The Court then turned to consider the test from RJR-MacDonald Inc. v. Canada (Attorney General) 1994, 1S.C.R. 311.

The Court first considered whether there was a genuine issue for trial. The Court held there was a genuine issue for trial. In this regard, the Court noted that the minority reasons in Apotex Inc. v. Ontario (Minister of Health and Long-Term Care), [2006] O.J. No. 4981, indicated that the doctrine of legitimate expectations may apply to delegated legislative powers.

The Court next considered whether there would be irreparable harm. The Court could not see there would be irreparable harm to the Respondent if the effective date of the legislation was postponed for a brief period until the hearing on the merits took place.

The Court finally considered the balance of convenience. The Court held that the balance of convenience favored the Applicants.

The Court declared that the Regulation was suspended insofar as it “delists” designated physiotherapy clinics. The declaration was effective until the hearing of the judicial review application took place.

The Court ordered that the costs be in the cause.

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 smarcinkow@harpergrey.com or review his biography at http://www.harpergrey.com.

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