Two Divisional Court decisions related to billing under the Ontario Health Insurance Plan (“OHIP”) provide insight into the consideration of expert evidence by administrative tribunals governed by the Statutory Powers and Procedure Act (“SPPA”), specifically, expert evidence from a “litigant’s employee with expertise.”
Wilkin v. Health Services Appeal and Review Board
The first case, Wilkin v. Health Services Appeal and Review Board,[1] involved an orthopedic surgeon, Dr. Wilkin, who treated a patient who had suffered multiple fractures after a serious fall. OHIP denied some of the claims submitted to OHIP in relation to this treatment. Dr. Wilkin appealed OHIP’s decision to the Health Services Appeal and Review Board (“HSARB”).
Before HSARB, OHIP presented evidence from Dr. Davidson, an orthopedic surgeon and medical advisor for OHIP. Dr. Wilkins objected to some of the evidence provided by Dr. Davidson. Dr. Wilkins did not dispute Dr. Davidson providing factual evidence about the context, the process of claims analysis and settlement, and the decision to deny some of Dr. Wilkins’ claims for payment under the Schedule of Benefits. However, Dr. Wilkins objected to Dr. Davidson providing opinion evidence about whether or not specific codes were payable for the services provided by Dr. Wilkin, and opinion evidence about the legislature’s intent in relation to specific fees under the Schedule of Benefits for Physician Services.
HSARB ruled that it would hear the disputed opinion evidence from Dr. Davidson. HSARB concluded that Dr. Davidson’s role was akin to the role of a “participant expert,” a category of expert evidence on civil matters established by Westerhof v. Gee Estate.[2] This category applies to non-parties who participated in events underlying the claims (for reasons unrelated to the litigation), and who happen to have expertise and information relevant to the issues in dispute in the litigation.
The Divisional Court upheld HSARB’s decision to admit Dr. Davidson’s evidence. The court noted that HSARB had broad discretion to consider expert evidence under the SPPA, broader than admissibility in civil court matters. While administrative tribunals are not bound by principles applicable to the admissibility of expert evidence in civil matters (as set out in R. v. Mohan[3]), they remain relevant to the admission of expert evidence by statutory tribunals.
The Divisional Court agreed with Dr. Wilkin that Dr. Davidson was not properly characterized as a “participant expert.” However, the court noted that Westerhof had identified 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 included, but was not limited to, participant experts. The Divisional Court found that Dr. Davidson fell within another category of expert witness, a “litigant’s employee with expertise,” relying on a 2015 case from the Alberta Court of Appeal that had recognized this category. This case was the first time that this category of expert was adopted by an Ontario court.