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Medical Law - Health Insurance Act (HIA). Ontario (Health Insurance Plan) v. K.S.
In Ontario (Health Insurance Plan) v. K.S. (Ont CA, 2025) the Ontario Court of Appeal dismissed an appeal, here from a Divisional Court dismissed appeal, that from an allowed Health Services Appeal and Review Board appeal, and that from a refusal by the General Manager of OHIP to authorize a specific form of gender affirming surgery.
The court considers an issue of fresh law, here where the General Manager unsuccessfully argues HIA s.24(4) appeal authority as justification:(3) The Divisional Court Did Not Err by Declining to Consider a New Issue
[69] The third issue raised by the General Manager is whether the Divisional Court erred in refusing to consider an issue not raised by the General Manager before the Board. The General Manager argued for the first time before the Divisional Court that even if the proposed surgery was specifically listed in the Schedule of Benefits as an insured service, there was no coverage because under s. 28.4(2) of the regulations, the procedure is to be performed outside of Canada and is not a service that is generally accepted by the medical profession in Ontario as appropriate for a person in the same medical circumstances as K.S.[3]
[70] The General Manager frames this as a jurisdictional issue, rather than a question of raising a new issue on appeal. The General Manager submits that the Divisional Court, acting as a statutory appellate court under s. 24(4) of the Act, was required to “exercise all powers of the [Board] to direct the General Manager to take any action which the [Board] may direct the General Manager to take.” Since the Board had no power to direct the General Manager to dispense with s. 28.4(2) of the regulations, it follows that the Divisional Court also had no power to dispense with s. 28.4(2). The General Manager argues that it was the court’s responsibility to correct this error, not the General Manager’s to raise it before the Board.
[71] I disagree with this framing. The Act provides for an appeal from the Board to the Divisional Court. The legislature, in providing for an appeal from an administrative tribunal such as the Board, has “subjected the administrative regime to appellate oversight and indicated that it expects the court to scrutinize such administrative decisions on an appellate basis”, by applying appellate standards of review absent legislative provision to the contrary: Vavilov, at paras. 36-37.
[72] In my view, it is a reasonable extension of this principle that, in scrutinizing the Board’s decisions on an appellate basis and applying the appropriate appellate standards of review, the Divisional Court is entitled to control its own process to ensure respect for the inherent features and limitations of an appeal. Such an appeal is not a hearing de novo, and a fair disposition of it assumes a record that has already been developed with decisions made by the Board on issues raised before it. As is sometimes said, an appeal is a review, not a first view.
[73] Accordingly, it is well recognized that “[g]enerally speaking, an issue cannot be raised for the first time on appeal. Whether to grant leave or not is a discretionary call based on a balancing of the impact on the parties and the interests of justice”: R. v. Salifu, 2023 ONCA 590, 429 C.C.C. (3d) 492, at para. 14. The rationale for the discretion is in part fairness – it is unfair to spring a new argument on a party on appeal when, if the issue had been raised below, the evidence may have been developed, or been evaluated, differently: Kaiman v. Graham, 2009 ONCA 77, 245 O.A.C. 130, at para. 18. The rationale is also in part derived from the nature of the appellate process – an appellate court addressing a new argument would have to do so “deprived of the trial court’s perspective”: R. v. J.F., 2022 SCC 17, [2022] 1 S.C.R. 330, at para. 40.
[74] The discretion to hear a new argument on appeal has been described as one to be exercised only in “exceptional circumstances”: J.F., at para. 40. The burden is on the party seeking to raise a new issue on appeal to satisfy the appellate court that the necessary evidence is before the court as fully as if the issue had been raised below: Kaiman, at para. 18.
[75] The Divisional Court exercised its discretion to refuse to hear the new issue. Doing so was not inconsistent with the Board’s jurisdiction or the jurisdiction of the Divisional Court on appeal. The Board did not order the General Manager to ignore s. 28.4(2) of the regulations. It decided the case before it on the issues raised, and the General Manger did not raise that section of the regulations. The Divisional Court did not exceed its jurisdiction. It simply dismissed the appeal, declining to give effect to the arguments properly raised by the General Manager and – germane to this point – exercising its well-established discretion to decline to hear a new argument.
[76] A discretionary decision of a lower court is reviewed on a deferential standard. It will only be interfered with where the lower court misdirected itself, came to a decision that is so clearly wrong as to amount to an injustice, or gave no or insufficient weight to relevant considerations: Penner v. Niagara (Regional Police Services), 2013 SCC 19, [2013] 2 S.C.R. 125, at para. 27.
[77] I see no reversible error in the exercise of discretion by the Divisional Court. It was entitled to conclude that the General Manger had not established the type of circumstances that would permit the new issue to be raised.
[78] The General Manager had the opportunity to raise the issue before the Board but did not do so. It did not adequately explain why it was not raised. Nor did the General Manager establish that all the facts necessary to address the new issue on appeal were in the record as if the issue had been raised initially. The General Manager’s submission that the necessary evidence to decide the issue was in the record was based on conflating the “experimental” provision under s. 24(1) and the prerequisite for out-of-country coverage under s. 28.4, an approach the Divisional Court rejected. It would have been unfair to spring a new issue on K.S. at the hearing of the appeal in circumstances in which evidence might have been led or challenged differently below if the issue was raised at the Board.
[79] I would therefore reject this ground of appeal. . Ontario (Health Insurance Plan) v. K.S.
In Ontario (Health Insurance Plan) v. K.S. (Ont CA, 2025) the Ontario Court of Appeal dismissed an appeal, here from a Divisional Court dismissed appeal, that from an allowed Health Services Appeal and Review Board appeal, and that from a refusal by the General Manager of OHIP to authorize a specific form of gender affirming surgery.
In this context, the court illustrates law and appeal procedures for OHIP surgery authorization:[2] Under the Health Insurance Act, R.S.O. 1990, c. H.6 (the “Act”), OHIP insures the cost of insured services incurred by Ontario residents. The Act describes insured services in general terms, leaving specificity to the regulations passed under the Act. The regulations provide that specificity in part through a comprehensive Schedule of Benefits. The interpretation of the Schedule of Benefits, in the context of the regulations and the Act, is central to the determination of the appeal.
[3] Although the regulations provide that services generally accepted in Ontario to be experimental are not insured services, this does not apply to services that are specifically listed as insured services in the Schedule of Benefits. The Schedule of Benefits designates certain “sex-reassignment surgical procedures” as “insured services when prior authorization has been obtained”, prescribes the mode of obtaining authorization, and states that prior authorization may be granted only for “specifically listed services”. One of the services listed is a vaginoplasty, a type of gender affirming surgery.[2]
[4] The respondent, K.S., sought prior authorization and confirmation from the appellant, the General Manager of OHIP, that the cost of a vaginoplasty recommended by her health care team would be covered by OHIP. There was no dispute that she fulfilled all the requirements for authorization, including having assessments from appropriately trained health professionals recommending the surgery. The General Manager denied coverage contending that, because the vaginoplasty would not be accompanied by a penectomy, the proposed procedure is not one specifically listed in the Schedule of Benefits.
[5] The Health Services Appeal and Review Board (the “Board”) allowed K.S.’s appeal from the denial of coverage. In the Board’s view, a vaginoplasty is an insured service because it is a specifically listed service in the Schedule of Benefits whether or not accompanied by a penectomy – another specifically listed procedure that sometimes, but not always, is performed along with a vaginoplasty. Moreover, in light of the determination that it is specifically listed, it did not matter whether the recommended technique was experimental.
[6] The General Manager appealed the Board’s decision to the Divisional Court, contending that the Board erred in its determinations and raising an additional ground not raised before the Board. The Divisional Court dismissed the appeal and refused to entertain the new ground of appeal.
[7] The General Manager now appeals, with leave, to this Court. For the reasons that follow, I would dismiss the appeal.
[8] The meaning and intent of the legislative and regulatory scheme are clear. The vaginoplasty recommended for K.S. is an insured service because vaginoplasty is specifically included in the Schedule of Benefits’ listing of specific sex-reassignment surgical procedures that are insured services, and because K.S. meets the stringent requirements for prior authorization of that surgery. I reject the General Manager’s arguments that the proposed surgery is not an insured service because it will not be accompanied by a penectomy – a different specifically listed procedure that is neither recommended by K.S.’s health professionals nor desired by K.S. The specific listing of vaginoplasty in the Schedule of Benefits as an insured service coupled with the fulfillment of the stringent requirements for prior authorization renders the General Manger’s contention that the procedure is experimental beside the point.
....
B. BACKGROUND
(1) Relevant Legislative and Regulatory Provisions
[10] The General Manager is appointed under the Act to administer OHIP: Act, s. 4(2). OHIP’s purpose is “providing insurance against the costs of insured services”: Act, s. 10.
[11] Every person resident in Ontario is entitled to become an insured person of OHIP upon application: Act, s. 11(1). Every insured person is entitled to payment, to them or on their behalf, for insured services, subject to such conditions as are prescribed by regulations under the Act: s. 12(1).
[12] The Act defines insured services in general terms. It provides that insured services are prescribed services of hospitals and health facilities, prescribed medically necessary services of physicians, and prescribed health care services of prescribed practitioners. Since s. 1 of the Act defines “prescribed” to mean prescribed by the regulations under the Act, the Act leaves the specificity about what constitutes an insured service to the regulations.
[13] Sex-reassignment surgery falls within this general framework. Although subject to the regulations, the Act excludes services that seek to change the sexual orientation or gender identity of a person from the ambit of insured services, the Act specifically provides that sex-reassignment surgery, or any services related to it, do not come within that exclusion.
[14] Sections 11.2(1), (1.1) and (1.2) of the Act provide:(1) The following services are insured services for the purposes of the Act:
1. Prescribed services of hospitals and health facilities rendered under such conditions and limitations as may be prescribed.
2. Prescribed medically necessary services rendered by physicians under such conditions and limitations as may be prescribed.
3. Prescribed health care services rendered by prescribed practitioners under such conditions and limitations as may be prescribed.
(1.1) Despite subsection (1) and subject to the regulations, if any, any services that seek to change the sexual orientation or gender identity of a person are not insured services.
(1.2) The services mentioned in subsection (1.1) do not include:
(a) services that provide acceptance support or understanding of a person’s coping social support or identity exploration or development; and
(b) sex-reassignment services or any services related to sex-reassignment services. [15] Regulation 552 under the Act contains the regulations pertinent to the issues in this matter (for ease of reference, I refer to them as the “regulations”). The regulations make frequent reference, in describing what are and are not insured services, to a Schedule of Benefits. The Schedule of Benefits is defined in section 1(1) of the regulations as a document published by the Ministry of Health and Long-term Care entitled, “Schedule of Benefits — Physician Services under the Health Insurance Act (October 1, 2005)”.
[16] Section 24(1) of the regulations provides that certain services rendered by physicians are not insured services unless they are specifically listed as an insured service in the Schedule of Benefits. Among the services that are not insured unless specifically listed in the Schedule of Benefits are treatments that are generally accepted within Ontario to be experimental:The following services rendered by physicians or practitioners are not insured services and are not part of insured services unless, in the case of services rendered by physicians, they are specifically listed as an insured service or as part of an insured service in the schedule of benefits….
[...]
Treatment for a medical condition that is generally accepted within Ontario as experimental. [Emphasis added.] [17] The Schedule of Benefits specifically addresses, among other services, sex-reassignment surgery. Paragraph 17 of Appendix D of the Schedule of Benefits provides that sex-reassignment surgical procedures listed in that paragraph are insured services when prior authorization has been obtained. It details the requirements that must be met for prior authorization. These requirements include assessments from a physician and other health care professional(s) appropriately trained in the treatment of gender dysphoria under the standards of the World Professional Association for Transgendered Health (WPATH). The assessments must confirm that the insured person has a diagnosis of gender dysphoria, has undergone 12 continuous months of hormone therapy, has lived for 12 continuous months in a gender role congruent with their gender identity, and is recommended for the surgery for which approval is sought. Among the listed sex-reassignment surgical procedures for which approval may be granted are certain “specific services listed” including “External Genital Surgery (clitoral release, glansplasty, metoidioplasty, penile implant, phalloplasty, scrotoplasty, testicular implants, urethroplasty, vaginectomy, penectomy, vaginoplasty)” (emphasis added).
[18] Paragraph 17 of Appendix D of the Schedule of Benefits provides, in relevant part:17. Sex-Reassignment Surgery
Sex-reassignment surgical procedures listed in this section are insured services when prior authorization has been obtained from the MOH.
A request for prior authorization must be completed by a physician or nurse practitioner.
PART A – SUPPORTING DOCUMENTATION NECESSARY FOR A REQUEST FOR PRIOR AUTHORIZATION FOR SURGERY:
A prior authorization request must include supporting assessment(s) that recommend surgery; the assessment must be completed by a provider trained in the assessment, diagnosis, and treatment of gender dysphoria in accordance with the World Professional Association for Transgendered Health (WPATH) Standards of Care that are in place at the time of the recommendation (“appropriately trained provider”).
Supporting assessments recommending surgery may be provided by an appropriately trained:
1. Physician;
2. Nurse Practitioner;
3. Registered Nurse;
4. Psychologist; or
5. Registered social worker.
[...]
PART B – SPECIFIC REQUIREMENTS FOR APPROVAL:
Prior authorization for sex-reassignment surgery will only be provided when the following requirements have been met and only for the specific services listed:
1. External Genital Surgery (clitoral release, glansplasty, metoidioplasty, penile implant, phalloplasty, scrotoplasty, testicular implants, urethroplasty, vaginectomy, penectomy, vaginoplasty).
a. Two supporting assessments from appropriately trained providers confirming that the patient is an appropriate candidate for surgery as follows:
i. One assessment from a physician or nurse practitioner; and
ii. One assessment from a different physician, different nurse practitioner, registered nurse, psychologist, or regulated social worker; and
b. The supporting assessments confirm that the insured person meets all of the following criteria:
i. Has a diagnosis of persistent gender dysphoria;
ii. Has completed twelve (12) continuous months of hormone therapy (unless hormones are contraindicated);
iii. Has completed twelve (12) continuous months of living in a gender role that is congruent with their gender identity; and
iv. Is recommended for surgery. [Emphasis added.] [19] The fact that a service is rendered outside of Ontario does not, in and of itself, take the service outside the scope of insured services that OHIP covers. For example, s. 29(1) of the regulations provides:(1) A service rendered by a physician outside Ontario is an insured service if, at the time the service is rendered,
[...]
(c) the service is referred to in the schedule of benefits and rendered in such circumstances or under such conditions as may be specified in the schedule of benefits. [20] But under s. 28.4(2)(a) of the regulations, services rendered at a hospital or health facility outside Canada may be subject to an additional condition of being generally accepted by the medical profession in Ontario as appropriate for a person in the circumstances of the insured person:(2) Services that are rendered outside Canada at a hospital or health facility are prescribed as insured services if,
(a) the service is generally accepted by the medical profession in Ontario as appropriate for a person in the same medical circumstances as the insured person ... The court considers statutory interpretation of the HIA regulation to this issue at para 49-65.
. Ontario (Health Insurance Plan) v. K.S. [Div Ct appeals]
In Ontario (Health Insurance Plan) v. K.S. (Div Court, 2024) the Divisional Court dismissed an OHIP appeal under Health Insurance Act [s.24(1,4)], where the primary issue was that a "vaginoplasty without penectomy" was "not a listed procedure in the Schedule of Benefits" "and is, therefore, not an insured service."
Here the court sets out the SOR for such appeals:B. Scope and Standard of Review
[9] Any party to a proceeding before the Board may appeal the Board’s decision to the Divisional Court on a question of law, a question of fact or a question of mixed fact and law: Health Insurance Act, ss. 24(1) and 24(4). Because this is a statutory appeal, the appellate standards of review apply: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 37, Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.
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