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Administrative - Evidence - Expert Evidence. Dixie X-Ray Associates Ltd. v. Ontario (Minister of Health) [admin expert, relaxed requirements]
In Dixie X-Ray Associates Ltd. v. Ontario (Minister of Health) (Ont Divisional Ct, 2025) the Divisional Court allowed an appeal, this from a decision of the HSARB that upheld decisions of the Minister of Health that required the appellant "to reimburse the Minister for payments totalling over $1.1 million for facility fees that Dixie billed to the Minister for radiology services".
Here the court considered the propriety of the tribunal (below) allowing a Crown witness to testify as a "litigant’s employee with expertise" - which is an apparently relaxed administrative category of expert witness (see paras 43-45):[26] At paras. 125-127, the Board stated:The Appeal Board has wide latitude to admit opinion evidence. This flows from section 15 of the Statutory Powers Procedure Act (SPPA) and the case law. While [the Medical Advisor] was not qualified as an independent expert or participant expert, the Appeal Board finds that she did meet the criteria for a third type of witness, that being a litigant’s employee with expertise.
This category of witness was recognized in Kon Construction v. Terranova Developments Ltd., 2015 ABCA 249, 602 A. R. 327 as a potential source of opinion evidence, as referred to by the Ontario Divisional Court in the recent case of Wilkin v. Heath Services Appeal and Review Board, [2023 ONSC 4286,] 2023 CanLII 4286 (Div. Ct.) at paras. 35-36. The Court in Wilkin determined that the Appeal Board appropriately treated a similar Ministry employee who provided her opinion on the interpretation and application of the Schedule of Benefits (the equivalent Schedule to SOFF pertaining to physician fees for insured services) as “a witness with expertise as to the processing of claims”.
[The Medical Advisor] has been a Medical Advisor in the Provider Audit and Adjudication Unit at the Ministry since 2007. Based on this experience, the Appeal Board finds that [the Medical Advisor] is an employee with expertise in the interpretation and application of fee codes in the SOFF and the Appeal Board has considered her opinion in this capacity. In addition, the Appeal Board notes that she has knowledge having practised as a family physician.
[Emphasis added; footnote omitted.] ....
[43] Under s. 21(6) of the IFSA and s. 15 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the “SPPA”), the Board has “wide powers concerning the admission of evidence, including experts”: M.R. v D.E., 2016 ONSC 1542 (Div. Ct.), at para. 21; 392644 Ontario Inc. (c.o.b. Connor Homes) v. Ontario (Child, Youth and Family Services Act, Director), 2021 ONSC 3195 (Div. Ct), at para. 47. While the factors for the admission of expert evidence set out in cases such as R. v Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9 are relevant to the exercise of such powers, SPPA tribunals are not bound by them and their application in tribunal hearings is highly fact dependent: M.R., at para. 21; Connor Homes, at para. 47.
[44] Recognizing its broad powers concerning evidence (including expert evidence), the Board, at para. 125 of the Decision, went on to find that the Medical Advisor, while not an independent expert or participant expert, met the criteria of a litigant’s employee with expertise, as set out in the Alberta Court of Appeal’s decision in Kon. The Minister does not dispute that this aspect of Kon had not been adopted by Ontario courts in the administrative law context prior to the Divisional Court’s 2023 decision in Wilkins. However, the Minister submits that Dixie should have known that it was open to the Board to classify the Medical Advisor as a litigant’s employee with expertise, given that Kon was released in 2015, well prior to the Board hearing.
[45] The Minister also submits that given s. 15 of the SPPA and s. 21(6) of the IFSA, it was open to the Board to rely on the Medical Advisor’s opinion evidence even if the Board had not found her to be a litigant’s employee with expertise, given her experience with respect to the interpretation and applicability of facility fee codes in her role as a Ministry representative. The Minister argues that although the Medical Advisor was not an expert radiologist, the central issue before the Board concerned the interpretation and applicability of facility fee codes. The Minister says that the issue was not whether the medical records demonstrated the use of Doppler in an extremities ultrasound. Rather, the issue was whether separate peripheral vessel assessments were performed and recorded in the medical records each time that an extremities ultrasound was performed and a facility fee code J193 claimed, in order to properly bill the Minister and receive payment.
[46] The Minister also notes that well in advance of the Board hearing, Dixie received a will-say statement from the Minister, setting out the Medical Advisor’s anticipated evidence at the hearing. The Minister submits that in these circumstances, it was not procedurally unfair for the Board to hear and rely on that evidence in the absence of advance notice of intention to classify the Medical Advisor as a litigant’s employee with expertise. The Minister says that Dixie did not suffer any prejudice since there was no element of surprise concerning the contents of her evidence, including any positions or opinions she expressed: see Canadian Pacific Railway Co. v. Vancouver (City), 2006 SCC 5, [2006] 1 S.C.R. 227, at para. 46.
C. Analysis and conclusion
[47] As set out below, I have concluded that it was procedurally unfair for the Board to find that the Medical Advisor was a litigant’s employee with expertise, without providing Dixie with advance notice and the opportunity to make submissions on that issue and to seek leave to call reply evidence.
[48] In reaching that conclusion, I recognize that there is merit in the Minister’s position that given the Medical Advisor’s experience with interpretation and application of facility fee codes as a Ministry representative, it was open to the Board to rely on her evidence to make the necessary findings to determine whether the Minister erred in ordering reimbursement of the facility fees, whether or not the Board determined the Medical Advisor to be a litigant’s employee with expertise. In fact, apart from the procedural fairness issue, I have no substantive issue with parts of the Decision that Dixie may find problematic.
[49] For example, in para. 117, the Board set out the Medical Advisor’s position as to what the Ministry “would expect the medical report to include” to support a claim for a peripheral vessel assessment pursuant to facility fee J193. Given her background with the Ministry as outlined in paras. 118 and 127, I consider it appropriate for the Board to rely on her evidence to that effect, whether or not she was classified as a litigant’s employee with expertise.
[50] After finding that the Medical Advisor met the criteria for a litigant’s employee with expertise, the Board, at paras. 128-145, went on to consider, among other things, the extent to which medical records supported Dixie’s claim for facility fee J193 for a peripheral vessel assessment when an extremities ultrasound was performed. In the analysis, the Board considered the Medical Advisor’s evidence together with the evidence of Dixie’s radiology witnesses, ultimately reaching the conclusion, at para. 148, that Dixie had failed to establish that the Ministry’s Decisions were not in accordance with the IFSA.
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VIII. Opinion evidence on the ultimate issue
[54] In Raponi v. Olympia Trust Co., 2022 ONSC 4480, at para. 11, Perell J. cautioned against a decision-maker abdicating its adjudicative function in favour of an expert’s testimony:Although experts are [not] prohibited from providing opinion evidence on the ultimate issues, they should not usurp the functions of the trier of fact ... When an expert's opinion approaches an ultimate issue, the trier of fact should exercise special scrutiny and neither a lay or an expert witness may provide an opinion on a pure question of law. [Emphasis added; footnotes omitted.] [55] Relying on Raponi, Dixie submits that the Board made an extricable error of law by failing to exercise special scrutiny when considering the Medical Advisor’s evidence with respect to (or approaching) the ultimate issue.
[56] Dixie argues that in the Decision, the Board allowed the Medical Advisor to opine on the ultimate issues before the tribunal, that is, whether Dixie had performed a peripheral vessel assessment in each instance where it claimed a facility fee for the service, and, if so, whether Dixie had complied with the Schedule and the IFSA in submitting those claims. Dixie says that the Board ultimately deferred to and blindly adopted the Medical Advisor’s testimony, thereby failing to exercise the special level of scrutiny referred to in Raponi. Dixie also argues that the level of caution required is more significant where, as in this case, the decision-maker was a lay tribunal.
[57] I see no merit in those submissions.
[58] Under s. 22(1) of the IFSA, an appeal from a Board decision is on a question of law only. The error that Dixie alleges relates to the application of a legal principle to the facts, which is a question of mixed fact and law. I see no extricable legal error in the Board’s analysis. As well, I am not persuaded that an even higher level of scrutiny should apply to a lay tribunal’s consideration of the evidence, which is not consistent with s. 15 of the SPPA and s. 21(6) of the IHFA.
[59] In any case, there is nothing in the Decision to suggest that the Board blindly adopted the Medical Advisor’s testimony. As previously noted, the Board carefully considered the evidence of all the witnesses in reaching its conclusions. Except for the procedural fairness concerns identified above, I do not agree that Dixie has demonstrated any reversible error. . Wilkin v. Health Services Appeal and Review Board
In Wilkin v. Health Services Appeal and Review Board (Div Court, 2023) the Divisional Court considered (and dismissed) a JR against a ruling of the HPARB brought by a doctor who objected to OHIP's calculation of his billing submitted under the Schedule of Benefits for Physician Services, R.R.O. 1990, Reg. 552/92 (“Schedule of Benefits”). The specific issues were OHIP's use of expert evidence on the interpretation and application of the billing codes:[9] Dr. Davidson, on behalf of OHIP, testified as to how OHIP claims are assessed, the interpretation, application, and amendments to the Schedule of Benefits, and described the Ministry of Health’s rationale for disallowing the disputed fee codes in this case.
[10] The Applicant objected to Dr. Davidson giving opinion evidence on whether the claims in this case had been properly assessed. The Board ruled that it should hear the evidence because it would be relevant and helpful. The Board Chair noted that much of the evidence as described did not sound like opinion evidence, but that counsel could object to any opinion evidence. The Chair also observed that the Board was aware that Dr. Davidson was not a lawyer, and that questions of statutory interpretation would be for the Board to determine. Counsel for the Applicant chose not to object during the examination-in-chief of Dr. Davidson. Counsel cross-examined Dr. Davidson and raised a challenge to aspects of that evidence in her final submissions.
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Did the Board Unreasonably Admit the Evidence of Dr. Davidson?
[13] The Applicant acknowledges that Dr. Davidson gave fact evidence that was admissible as to context, the process of claims analysis and settlement, and the decision denying some of the Applicant’s claims for payment under the Schedule of Benefits.
[14] However, counsel for the Applicant submits that this fact evidence was interwoven with impermissible opinion evidence from an expert who, although qualified, was not an unbiased, neutral expert. The Applicant emphasized that Dr. Davidson was employed by the Ministry, was identified as the “client” during the hearing and was involved in an informal review of the fees claimed prior to the hearing before the Board.
[15] To summarize the findings on this question, I find that the Board reasonably received Dr. Davidson’s evidence, as an employee for one of the parties with expertise in the areas of orthopedic surgery and the application of OHIP billing codes to surgical procedures. Further, as the overview of Dr. Davidson’s evidence below shows, much of the evidence she gave was explanatory of OHIP’s process and decision. The Board accurately described this as fact evidence.
[16] The Board applied its own judgment to the central question in dispute: the application of the fee codes to the surgical procedures undertaken by the Applicant. Ultimately, the Board preferred OHIP’s interpretations of the disputed fee codes to those of the Applicant. Although he does not challenge the fact that this was a reasonable and available interpretation that was open to the Board, the Applicant submits that the error in permitting Dr. Davidson to testify meant that the application should be allowed, and a new hearing ordered before the Board.
[17] Specifically, the Applicant submits that the Board erred or acted unreasonably in describing Dr. Davidson as a “participant expert” as that term has been applied under r. 53.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 in civil proceedings and as described in the decision of the Court of Appeal in Westerhof v. Gee Estate, 2015 ONCA 206, 124 O.R. (3d) 721. Although the “participant expert” classification is not apt in the case of Dr. Davidson, this does not make her evidence inadmissible. The Board has wide latitude to admit evidence it finds to be relevant and useful. Further, Dr. Davidson’s evidence was akin to a type of expert evidence which is recognized in the civil context that applies to employees of a party.
Participant Experts in Civil Proceedings
[18] Westerhof recognizes that a broader group of witnesses with expertise may testify in civil claims even though this group would not meet the usual criteria for independent experts retained by a party. This broader group includes “participant experts” who may have been involved in the events underlying the litigation and have relevant expertise and information relative to the issues in dispute: for example, physicians who treat injuries that are relevant to personal injury cases. It also includes “non-party experts” such as statutory accident benefits insurers who form opinions for reasons separate from the litigation.
[19] In both such examples, participant and non-party experts are “not engaged by a party to form their opinions, and they do not form their opinions for the purpose of the litigation”: Westerhof, at para. 82. They are not litigation experts. In civil trials, counsel is not required to follow the provisions of r. 53 prior to tendering evidence from these witnesses such as having the witness prepare an expert report and sign an acknowledgement of the expert’s duty to provide fair, neutral and non-partisan opinion evidence within the scope of their expertise.
The Admission of Expert Evidence before the Board
[20] Section 23(4) of the Health Insurance Act, R.S.O. 1990, c. H.6 grants the Board the powers found in section 15 of the Statutory Powers Procedure Act (“SPPA”). That provision provides that:15 (1) …a tribunal may admit as evidence at a hearing, whether or not given or proven under oath or affirmation or admissible as evidence in a court,
(a) any oral testimony; and
(b) any document or other thing, relevant to the subject-matter of the proceeding and may act on such evidence... The Divisional Court has recognized that this section gives tribunals “wide powers concerning the admission of evidence, including experts”: Connor Homes v. Director, 2021 ONSC 3195 (Div. Ct.), at para. 47; Ontario Racing Commission v. Hudon, 2008 CanLII 68156 (Div. Ct.), at para. 23. In M.R. v D.E., 2016 ONSC 1542, the Divisional Court noted at paragraph 21 that in tribunal proceedings governed by the SPPA, while the principles in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9 remain relevant to the admission of expert evidence, statutory tribunals are not bound by those principles.
Overview of the Evidence of Dr. Davidson
[21] Dr. Davidson testified first about her background and expertise, the nature of her role with OHIP, the claim and adjudication process within OHIP, and communications issued from OHIP to physicians to assist with billing. This can fairly be described as general fact and context evidence. It is not the subject of controversy.
[22] Dr. Davidson testified about the steps she took relative to Dr. Wilkin’s claims for treatment. She became involved after the OHIP assessment when Dr. Wilkin sought review by the Board. At that stage, she reviewed the material and provided a third level of review of the disputed codes OHIP payment decisions and denials. Counsel for the Applicant objected on the basis that Dr. Davidson’s opinion on the point was not admissible. Counsel’s objection was grounded in the submission that Dr. Davidson was not a “participant” expert. Counsel also raised fairness concerns because Dr. Davidson’s role in “adjudicating” the claim had not been disclosed until this stage.
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Discussion
[31] Dr. Davidson’s evidence was relevant and admissible evidence that fell within the discretion of the Board to hear. This flows from s. 15 of the SPPA as well as prior decisions of this court, as discussed above, which recognize that statutory tribunals have discretion including in choosing to admit opinion evidence.
[32] Further, although Dr. Davidson may not have been properly analogous to a “participant expert” as that label has been applied to certain types of witnesses in civil proceedings, this does not mean that evidence from someone in her role, and with her knowledge, would not be admissible on other alternative bases had this been a civil proceeding.
[33] Dr. Davidson was clearly not an independent expert retained to give an opinion in litigation, and the type of expert in civil proceedings to whom r. 53 applies. Nor does her role fit the criteria of a “participant expert”. The defining characteristics of a “participant expert” from Westerhof is a witness with expertise who is involved prior to the litigation and for a purpose unrelated to the litigation but related to the factual events underlying the litigation.
[34] However, Dr. Davidson did meet the criteria for a third type of witness, that being as a litigant’s employee with expertise.
[35] This category of witness was recognized in Kon Construction v. Terranova Developments Ltd., 2015 ABCA 249, 602 A.R. 327 as a potential source of opinion evidence. At paragraph 35, the Court of Appeal for Alberta described three categories of “experts”:(a) independent experts who are retained to provide opinions about issues in the litigation, but were not otherwise involved in the underlying events. This is the category of expert witness contemplated by White Burgess and Mohan.
(b) witnesses with expertise who were involved in the events underlying the litigation, but are not themselves litigants. An example is the family physician in a personal injury case who is called upon to testify about his or her observations of the plaintiff, and the treatment provided; and
(c) litigants (including the officers and employees of corporate litigants) who have expertise, and who were actually involved in the events underlying the litigation. [36] I conclude that the Board did not act unreasonably in admitting Dr. Davidson’s evidence. The reasons reveal that the Board came to its own conclusions, having heard the Applicant’s rationale, followed by OHIP’s decision as described by Dr. Davidson. Dr. Wilkin testified about his rationale for the applicable codes to the medical procedures he performed. Although the Board described Dr. Davidson as a participant expert, in ruling on the objection, the Board directed itself not to treat Dr. Davidson as a legal expert. It instead treated her as a witness with expertise as to the processing of claims and with knowledge of the orthopedic procedures and terms used in this case.
[37] I would also not give effect to the submission that opinion evidence was intertwined with the fact evidence because the summary of evidence shows that most of Dr. Davidson’s evidence was descriptive and factual. The final question was most clearly a question of opinion. The Board reasonably admitted it, having acknowledged the constraints on her evidence and the separation of its role from that of Dr. Davidson.
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