The Ontario tribunal where claimants have almost no chance of winning
Toiling in semi-obscurity, the low-profile Health Services Appeal and Review Board (HSARB) seems to have one major mission: dismissing appeals from decisions of OHIP, the Ontario Health Insurance Plan.
HSARB is a tribunal with a small caseload but with a stunning uniformity of decisions. The precise current caseload is difficult to determine because HSARB and its sister tribunal, the Health Professions Appeal and Review Board, for unknown reasons haven’t issued an annual report since the fiscal year that ended in March 2023. Nor are there any current statistics on the tribunals’ websites.
Tribunal Watch Ontario has examined all 103 decisions issued by HSARB since April 2023, and the results reveal that OHIP, the respondent in almost all cases decided by the tribunal, is guaranteed to win almost every case. The success rate for applicants varies between 0 and 1%.
Part of the problem lies in HSARB’s limited jurisdiction. The Health Insurance Act, the source of nearly all its cases, says the tribunal decides “in accordance with this Act and the regulations.” HSARB consistently states this means it has no power to look at compassionate circumstances.
While HSARB has jurisdiction over 12 different statutes, almost all its decisions involve OHIP: of the 103 cases examined by Tribunal Watch Ontario. OHIP was a party in 95. And of those 95 cases, appeals against OHIP decisions were dismissed by HSARB in 90. Appellants scored partial – usually minor – victories in three cases and got what they wanted in only two. (In the eight non-OHIP cases, appellants won in only two related cases involving the same parties, and lost in the other six, although one of those decisions was overturned by the Divisional Court.)
Most of the OHIP cases involve claimants appealing refusals to reimburse them for out-of-country medical expenses, whether because of an emergency while they were outside Canada, or because they chose to get medical treatment in a foreign country, often due to long wait times in Ontario. Some of the other cases involve eligibility for OHIP insurance in Ontario or appeals by physicians who were denied payment for certain services.
But even though some of the out-of-country cases involve harrowing medical circumstances, HSARB’s answer is always the same: we don’t have any authority to vary OHIP’s decisions, as long as OHIP complies with the regulations under the Health Insurance Act.
A typical decision, even in situations where OHIP has already paid something – almost always a paltry portion of the bills incurred by someone who had a medical emergency abroad – ends with a variation of the following statement (this one from Beides 2024 CanLII 62276 (ON HSARB):
The Appeal Board acknowledges that the Appellant found himself in difficult circumstances, facing a situation in which he had to make important decisions on short notice. He followed the advice received from the emergency line at the Canadian Embassy in Amman and proceeded with the surgery. There is no question that the Appellant’s circumstances required immediate treatment while he was in Jordan. … The Appeal Board acknowledges that the Appellant is dissatisfied with the amount paid by the Respondent [OHIP] for the out-of-country medical services associated with his surgery in Jordan. There are no provisions in the Act or the Regulation under which the Appeal Board could find that these services should be reimbursed at a higher amount, and the Appeal Board has no discretion to waive the requirements in the legislation for publicly funded medical services on compassionate or other grounds.
The HSARB is structured as a fully functioning tribunal. It currently has 23 members, including lawyers and physicians. All cases are heard by three member panels. It has comprehensive rules and procedures and a well-organized website. This is a lot of process for a tribunal whose purpose seems to be to rubber-stamp decision OHIP’s application of the regulations? According to Perry Brodkin, a critic of HSARB who spent 18 years until 1991 as an in-house lawyer for OHIP and who still practices health law, this tribunal is simply a scheme to help OHIP and the government. People with hard cases will file an appeal at the tribunal rather than go to the media, the Ombudsman or their MPP, and most appellants, who are almost all self-represented, think HSARB will be sympathetic to a sad story, Brodkin told Tribunal Watch.
While the current legislative scheme does not explicitly give HSARB space to give a claimant a break on compassionate grounds, Tribunal Watch Ontario’s review of recent decisions found that even within the current OHIP regulations, HSARB took a rigid view favouring OHIP. This would seem to clash with the interpretive rule contained in Section 64(1) of the Legislation Act, 2006 that “An Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects.” (Section 64 (2) applies the same rule to regulations.)
For example, the recent case of Saadat 2024 CanLII 86363 (ON HSARB), involved an appeal of OHIP’s decision to deny health coverage eligibility for a temporary foreign worker and her dependents. These workers, if they are here for six months or more, are eligible for coverage if they “work full-time for an employer in Ontario.” In this case, the claimant lived and worked in Ontario for a Quebec-based company with no offices in Ontario. The ambiguous phrase “work full-time for an employer in Ontario” could be interpreted to mean that the work must be in Ontario – which would have given coverage to this family – or that the employer had to be in Ontario, which would deny coverage. The HSARB decision agreed with OHIP that because the company was not in Ontario, the family was ineligible for coverage. It said that the phrase “could only mean that the employer must be physically located in Ontario.”
OHIP doesn’t lose often at HSARB and isn’t happy when it does. In one of only two OHIP-involved decisions since April 2023 where appellants were completely vindicated, a case known as KS 2023 CanLII 82181 (ON HSARB), involving proposed transgender surgery in the US, OHIP appealed the HSARB decision to the Divisional Court, where it tried to introduce a new argument it hadn’t made at HSARB. The court would have none of it, upholding the HSARB decision. OHIP then took the case to the Court of Appeal for Ontario, which also dismissed OHIP’s appeal. (The other case where OHIP lost involved payments to a physician for surgical services; most of what the physician wanted had already been paid, and HSARB required OHIP to pay the rest. In three other cases, appellants scored partial wins, generally small. Curiously, in two of those three decisions, the tribunal stated that the appeal was “allowed,” rather than just “partially allowed.”)
As in nearly all courts and tribunals, most cases that are filed at HSARB do not end up in a hearing and written decision. The 2022-23 annual report, covering the year ending on March 31, 2023, says 196 appeals were filed that year, and 133 cases were resolved during those 12 months. “Resolved,” according to the annual report, includes not only resolution after a case conference, but also withdrawals, abandonments, lack of jurisdiction and other reasons for not proceeding to a full hearing. Actual settlements are rare, Brodkin says, as OHIP understands that it will win any case where it has adhered to the regulations. There is no incentive for OHIP to make an offer of partial payment of a claim.
Brodkin traces the problem back to 1991, when the NDP provincial government dramatically cut back payments for out-of-country medical services. At first, he says, there were loopholes, but they were gradually closed. “It’s now virtually impossible for anybody to succeed at the board,” he says.
The regulations now prescribe small payments for out-of-country emergencies – such as a maximum of $50 for expensive procedures such as a CAT scan or MRI. To be eligible for even these payments, the treatment must be medically necessary, must be performed at a licensed hospital or licensed health facility, and be rendered in relation to an illness, disease, condition, or injury that is acute and unexpected, arose outside of Canada, and requires immediate treatment. Tribunal Watch Ontario’s review of recent case law shows that each of these criteria is strictly applied by OHIP and then on appeal to HSARB.
For example, in Dimitrov 2024 CanLII 113751 (ON HSARB), a person who was awaiting a date for spinal stenosis surgery in Ontario went to visit his parents in Bulgaria, where his condition suddenly worsened. HSARB’s decision acknowledged “the difficult medical circumstances the Appellant faced and the fact that he required immediate surgery. The Appeal Board does not question the Appellant’s decision to undergo surgery in Bulgaria and acknowledges that it appears that he had to do so.” Nevertheless, it ordered no payment, as the condition was not one that “arose outside Canada.”
In Sharma, 2024 CanLII 46920 (ON HSARB), OHIP’s decision not to pay anything for treatment of cancer that was diagnosed while the appellant was in India was upheld by HSARB, which concluded he could have returned to Ontario for treatment. “The Appeal Board accepts that the Appellant was diagnosed with an aggressive form of cancer and needed timely treatment; however, it finds on the balance of probabilities that the Appellant’s condition did not require treatment ‘at once’.”
A similar strict view is applied to the criteria related to out-of-country non-emergency treatment, which requires prior approval for payment. For example, in the case of Pietrangelo 2024 CanLII 62402 (ON HSARB), involving a teenager with a rare lung condition whose paediatric respirologist said in the prior approval application that no one was available in Ontario at that time to perform the required WLL (whole lung lavage), the family sought to have the treatment in the US paid by OHIP. But the HSARB decision said, “the onus is on the Appellant to establish that the identical or equivalent service was not performed in Ontario without a delay that would result in death or medically significant irreversible tissue damage,” and upheld OHIP’s denial of payment.
Appellants don’t even get the chance to be in the same room as the HSARB members. Tribunal Watch was able to find only one in-person hearing among the 103 conducted since April 2023. Perhaps not surprisingly, that was not an appeal but rather a case initiated by OHIP, which wanted HSARB’s go-ahead to obtain reimbursement of more than $600,000 from a Kingston physician who organized Covid mass drive-through vaccination clinics. HSARB dutifully agreed with OHIP and ordered the doctor to pay up, because she delegated the work of administering vaccinations to people who were not her employees, including medical students. The physician won the 2021 award of excellence from the College of Family Physicians for her efforts, as well as praise from the head of the Ontario Medical Association, but ran into a brick wall at the HSARB. See OHIP v. Ma 2024 116320 (ON HSARB).
HSARB is currently reviewing its Rules of Practice and Procedure. One of those rules states, “Unless otherwise decided by the board, proceedings are open to the public.” Yet Tribunal Watch found that more than three-quarters of the 103 hearings since April 2023 have been in writing or by telephone. (The rest were by videoconference, except for the one in-person hearing noted above.) There is no indication on the tribunal’s website of upcoming hearings, the parties or issues, or how a member of the public can attend.
Aside from a legislative change that would give the HSARB discretion to consider compassionate circumstances, there seems to be little chance of change in the tribunal’s approach. Brodkin says his best advice is that people leaving the country make sure they have travel medical insurance, lest they find out the hard way that even if they fit into OHIP’s strict regulations, they will be reimbursed for only a small piece of their expenses. This, he says, violates the Canada Health Act’s section 11 on portability, which says in part that a provincial health insurance plan must pay out-of-Canada costs for insured services based on the amount that would have been paid by the province if performed there. However, the federal government has taken no action on this question.
In the meantime, HSARB appears to be a tribunal to nowhere.