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Judicial Review - SOR - 'Reasonableness' Exceptions - Where Both JR and Appeal Advanced. Dr. Fialkov v. Health Services Appeal and Review Board
In Dr. Fialkov v. Health Services Appeal and Review Board (Div Court, 2023) the Divisional Court considered what may have been a doctor's challenge to the OHIP extra-billing prohibition. In these quotes the court considers the SOR when both an appeal and a JR are advanced over the same tribunal ruling:Jurisdiction and Standard of Review
[13] This Court has jurisdiction to hear the appeal pursuant to s. 22(1) of the IHFA. The appeal is limited to questions of law.
[14] This Court has jurisdiction to hear the application for judicial review pursuant to ss. 2(1) and 6(1) of the Judicial Review Procedure Act[4] (“JRPA”).
[15] The parties agree on the usual applicable standards of review. The standard of review for the appeal, limited to questions of law, is correctness. The standard of review for the application for judicial review is reasonableness.[5] However, the doctor contends that it makes no sense to have two standards of review when both the appeal and the application for judicial review turn on interpreting the same provision. Therefore, he submits that the standard of review for the judicial review should also be correctness.
[16] The Ministry correctly points out that there is no authority for the doctor’s position. With respect to the Board’s interpretation of the statutory provision at issue, if the appeal is dismissed because the Board’s interpretation is found to be correct then the judicial review application cannot succeed on this basis. However, the Board also made a factual determination that the rhinoplasty was necessary to obtain an adequate airway. On the judicial review application, this factual determination must be reviewed on a standard of reasonableness.
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