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Evidence - Expert - Administrative. 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 the court accepts as a 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.
....
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.
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