Wanted: A Tribunal That Can Overturn OHIP Denials Of Critical Medical Treatment
A spate of recent publicity about cancer patients being denied funding for potentially life-saving treatments has illustrated the futility of appealing decisions of the Ontario Health Insurance Plan.
Those appeals go to the Health Services Appeal and Review Board (HSARB), a tribunal with all the trappings of a real adjudicative body, but which is effectively just a rubber stamp for OHIP decisions. The tribunal has no jurisdiction to consider compassionate circumstances, and the government seems happy to keep it that way. Even though a tribunal’s purpose is to examine the evidence in an individual situation, HSARB has no power to do so.
The case of Aleksander Shved, a 37- year-old father of two young children, received the most publicity, but there are many others. Mr. Shved sought funding for treatment in the United States with a drug that had been approved by Health Canada but was still under review by Ontario, so OHIP refused the funding. Mr. Shved took the matter to HSARB, which dutifully upheld OHIP’s decision, saying – as is the case – it had no jurisdiction to look at compassionate circumstances, and was bound by a regulation that makes funding contingent on a recommendation to OHIP from the executive officer responsible under the Ontario Drug Benefit Act. That recommendation was refused. 2026 CanLII 78366 (ON HSARB) | Shved v Ontario (Health Insurance Plan) | CanLII
As is typical in such disturbing cases, HSARB shrugged its notional shoulders, said nothing can be done, and acknowledged that it was “frustrating” for Mr. Shved that the tribunal cannot assess the reasons why the funding was not recommended. “Unfortunately for the Applicant’s position, that is the way the Regulation is structured,” the decision states.
Rigid application of the rules – it’s what HSARB does, as Tribunal Watch Ontario has pointed out previously – The Ontario tribunal where claimants have almost no chance of winning – Tribunal Watch Ontario. But the Shved case had more twists to come: Mr. Shved took the matter to the Ontario Superior Court, and in a searing decision, the court criticized the executive officer’s reasoning for refusing to recommend the treatment (in reasons that were revised and expanded in the face of the upcoming court hearing). The court sent the matter back to the executive officer for another look, with one of the three judges saying the court should just order him to approve the recommendation. The majority described the matter as a “life-or-death decision for Mr. Shved.” The decision continues: “His expert physicians have recommended the treatment, which is available in the United States and is under active consideration for use in Ontario. If the decision is to go against Mr. Shved, he is surely entitled to more than largely conclusory reasoning: the cost is not apparently so prohibitive nor the chances of benefit so apparently remote to justify denying Mr. Shved potentially life-saving treatment: if the EO concludes otherwise, he needs to explain that conclusion in more detail.” 2026 ONSC 5336 (CanLII) | Shved v. Executive Officer, Ontario Public Drug Programs | CanLII
But then came another twist: the Ontario government swooped in and changed the regulation to ensure that Mr. Shved and others in his situation would be funded for treatment out of country only if those drugs are already funded within the province but access is temporarily unavailable or delayed.
Mr. Shved’s experience at HSARB is typical. Tribunal Watch Ontario reviewed all 40 of HSARB’s decisions issued in the first 10 months of 2026, and found only one where the applicant won against OHIP, and then only partially. (38 appeals were dismissed, and one case did not involve OHIP, as HSARB has jurisdiction under other statutes.)
Most of HSARB’s decisions 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 sought pre-approval for medical treatment in a foreign country, often due to long wait times in Ontario. Other cases involve eligibility for OHIP insurance in Ontario or appeals by physicians who were denied payment for certain services.
Some of the eligibility decisions this year demonstrate the rigidity of HSARB’s approach. In the case of Agnes Kozma, the applicant was on a temporary visa working at the Hungarian consulate in Toronto. (Temporary foreign workers are eligible for coverage if working for six months or more.) But HSARB agreed with OHIP that she was not eligible, because the consulate was somehow not an “employer in Ontario,” as required under the regulation. 2026 CanLII 12686 (ON HSARB) | Kozma v Ontario (Health Insurance Plan) | CanLII.
One of the more Kafkaesque decisions involved another temporary foreign worker, Zahra Roodsari, who was injured at work and then fired by her employer shortly afterward. Because she was no longer working, HSARB said she was not eligible for coverage: 2026 CanLII 27382 (ON HSARB) | Roodsari v Ontario (Health Insurance Plan) | CanLII
And then there is the case of Shaffira Shah involved a 71-year-old foreign national who has lived in Canada for more than 50 years and who had a health card for 28 years ending in 2018. She had let her temporary residency permit lapse but had reapplied recently. HSARB ruled she was not eligible for coverage saying it “acknowledges the very difficult circumstances facing the Applicant. As noted above, however, neither the Act nor the Regulation includes a provision that would permit OHIP to declare a person to be eligible for health insurance coverage for humanitarian and/or compassionate reasons.” 2026 CanLII 112715 (ON HSARB) | Shah v Ontario (Health Insurance Plan) | CanLII
Many of these cases might have a different result if HSARB had jurisdiction to consider compassionate circumstances. But the government is content to keep HSARB in a jurisdictional straitjacket. One of the applicants that HSARB turned down, 31-year-old Sabrina Aptiz-Grossman, has resorted to a GoFundMe campaign to get her cancer drugs paid for. When her case and Mr. Shved’s came up when the Ontario Legislature began sitting again in late October after a 21-week break, Sylvia Jones, the Health Minister, was defiant.
While calling the situations “heartbreaking,” Ms. Jones told the Legislature that “these are decisions that are made by clinicians, that are made by surgeons, that are made by ethicists and not by politicians.” But these cases involve treatments recommended by doctors. And politicians are the ones who have denied HSARB the discretion to consider individual compassionate circumstances, and it is politicians who have the power to change the legislation. And it is politicians – specifically Ms. Jones – who have intervened to override the court ruling that could have funded treatment for Mr. Shved and others in his situation.
These cases, which can literally involve life and death decisions, need to be decided on the individual circumstances of the case. The medical evidence, the patient’s situation, and social and economic factors, need to be carefully weighed. This is exactly the sort of task that other tribunals are designed to do. A solution here is to give the HSARB the power and discretion to decide each case on its individual merits instead of rubber stamping the bureaucratic decision of the OHIP administrators.