



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Geissah v. British Columbia (Medical Services
  Commission),









2014 BCCA 4




Date: 20140108

Docket:  CA040888

Between:

Sayed Geissah and
Souad Khalaf

Appellants

(Petitioners)

And

British Columbia Medical
Services Commission

Respondent

(Respondent)




Before:



The Honourable Madam Justice Newbury

The Honourable Mr. Justice Frankel

The Honourable Madam Justice Garson







On appeal from:  An
  order of the Supreme Court of British Columbia, dated
April 18, 2013 (
Geissah v. British Columbia (Health)
,

Vancouver Registry No. S131812
).






Acting on behalf of the Appellants:



S. Geissah





Counsel for the Respondent:



R. Butler





Place and Date of Hearing:



Vancouver, British
    Columbia

December 10, 2013





Place and Date of Judgment:



Vancouver, British
    Columbia

January 8, 2014






Written Reasons by:





The Honourable Mr. Justice Frankel





Concurred in by:





The Honourable Madam Justice Newbury





The Honourable Madam Justice Garson










Summary:

Appeal by G. and K. from the
dismissal of their application for judicial review of a decision of a delegate
of the Medical Services Commission finding them ineligible for medical coverage
for a period of several years because they did not meet the residency
requirements of the Medicare Protection Act (B.C.).  Held:  Appeal dismissed.

On the evidence, the delegate
could reasonably have found that G. and K. failed to establish their respective
eligibility on a balance of probabilities.

Reasons for Judgment of the
Honourable Mr. Justice Frankel:

[1]

This is an appeal from the order of Mr. Justice Willcock, then a
judge of the Supreme Court of British Columbia, dismissing a petition for
judicial review of a decision by Robert F. Cronin, a delegate of the Medical
Services Commission.  That decision held that Sayed Geissah and Souad Khalaf,
who are husband and wife, were ineligible for benefits under the provincial
Medical Services Plan (MSP) for approximately eight years.  It was based on a
finding that they failed to establish that they met the residency requirements
of the
Medicare Protection Act
, R.S.B.C. 1996, c. 286, for the
period in issue.  To be entitled to MSP benefits a person must be a resident
as defined in s. 1 of the
Act
; that is, he or she must:  (a) be a
citizen of Canada or lawfully admitted to Canada for permanent residence; (b)
make his or her home in British Columbia; and (c) be physically present in
British Columbia for at least six months in a calendar year, subject to certain
exceptions that are not relevant to this appeal.

[2]

In 2009, the Ministry of Health received a request for information which
prompted an investigation into Mr. Geissahs and Ms. Khalafs
entitlement to MSP coverage.  The investigation included requesting information
from them.

[3]

On October 17, 2011, a Ministry investigator sent them a letter advising
that she would be recommending their coverage be retroactively cancelled as of
December 31, 2001, and re-instated as of July 1, 2010, based on a residency
date of April 4, 2010.  That letter further advised them that if they disputed
the cancellation of their coverage, then they could request a hearing before
the Medical Services Commission.  On October 27, 2011, Mr. Geissah and Ms. Khalaf,
by letter, requested such a hearing.  The delegate conducted the hearing in
July of 2012, by way of written submissions.

[4]

Pursuant to s. 5(1)(f) of the
Medicare Protection Act
, the
Commission is empowered to:

investigate and determine
whether a person is a resident and, for this purpose, require the person to
provide the commission with evidence, satisfactory to the commission, that
residency has been established;

By virtue of s. 7.4(1)(b) of the
Act
, the
Commission has the power to cancel retroactively the coverage of a person it
believes has ceased to be a resident.

[5]

In a decision rendered on November 2, 2012, the delegate noted that:  (a) Mr. Geissah
and Ms. Khalaf immigrated to British Columbia in September of 1994 with
their three sons; (b) the family received MSP coverage effective December 1,
1994; (c) around 2002 the sons moved, and now work and live in Egypt, Dubai, and
Qatar; and (d) Mr. Geissah and Ms. Khalaf claimed to spend six months
each year visiting their sons and grandchildren and the remainder of each year
in British Columbia.  The delegate also noted Mr. Geissah and Ms. Khalaf
had refused to give the Medical Services Commission access to their travel
records.  Based, in part, on the timing of their MSP claimsthere were no
claims in 2004 and 2005, and infrequent claims in 2002, 2003, 2006, 2007, 2008,
2009, and 2010the delegate was not satisfied they had established, on a
balance of probabilities, that they had made their home in British Columbia
between 2002 and April 2010, or had been physically present in British Columbia
for six months out of every calendar year between 2002 and 2010.

[6]

In his decision, the delegate rejected submissions made by Mr. Geissah
and Ms. Khalaf that:  (a) there was no contract between them and the
Commission or the MSP because their original enrollment form has been
destroyed; (b) they had no knowledge of the residency requirement; (c) on
the evidence it would be unreasonable to assume they had been out of the country;
(d) their travel information was irrelevant; (e) they must be residents because
they receive federal Old Age Security; (f) they are deemed residents under the
applicable regulations because they are neither tourists nor visitors; and (g)
it is not lawful to force them to live in British Columbia for more than six
months each year as they cannot afford to do so.

[7]

In seeking judicial review, Mr. Geissah and Ms. Khalaf relied
on many of the submissions they made to the delegate.  The chambers judge
rejected all of their submissions.  Applying the reasonableness standard of
review discussed in
Dunsmuir v. New Brunswick
, 2008 SCC 9, [2008] 1
S.C.R. 190, the judge held the decision that Mr. Geissah and Ms. Khalaf
had not established an entitlement to benefits was one the delegate could
reasonably make on the record before him.

[8]

In their factum, Mr. Geissah and Ms. Khalaf advance a number
of the same arguments they made before the delegate and the chambers judge,
some of which overlap.  In this Court, their submissions include:

(a)      On the evidentiary record it was unreasonable
to conclude they did not meet the residency requirements;

(b)      The residency requirements are
not binding because they were not aware of them;

(c)      It is unreasonable to expect them
to retain useful evidence;

(d)      The residency requirements did
not exist before April 1, 2005;

(e)      The
Medicare Protection Act
is no longer in force;

(f)       The Commission has no authority
to ask them to prove residency;

(g)      There is no contract between them
and the Commission or the MSP;

(h)      The chambers judge did not
consider an affidavit filed by Mr. Geissah;

(i)       It is illegal to force them to
reside in Canada when they cannot afford to do so;

(j)       Their citizenship ceremony granted
them the right to live anywhere;

(k)      The receipt of Old Age Security
is determinative of residence; and

(l)       The
government is wasting taxpayer money by investigating this matter.

[9]

In terms of relief, Mr. Geissah and Ms. Khalaf seek:  (a) an
order setting aside the decision finding them ineligible for benefits; (b)
unspecified damages flowing from the effects of the decision; and (c) costs.

[10]

I find no merit in any of the arguments advanced by Mr. Geissah and
Ms. Khalaf.  The critical question is whether the delegate could properly come
to the conclusion that entitlement (i.e., residency) had not been established
on a balance of probabilities.  As the chambers judge stated correctly, the
reasonableness standard applies to that question, i.e., was there some evidence
before the delegate on which he could reasonably make the findings he did:  see
Nagra v. British Columbia (Superintendent of Motor Vehicles)
, 2010 BCCA
154 at para. 27, 3 B.C.L.R. (5th) 231.  In my view, the answer to that question
is yes.  Accordingly, I would dismiss this appeal.

[11]

There are two additional matters on which I wish to comment.  The first
relates to the concerns expressed by Mr. Geissah that an adverse decision
in this matter will affect his and Ms. Khalafs entitlement to benefits
under federal programs such as Old Age Security.  He had earlier expressed those
concerns to the chambers judge.  I agree with the chambers judge that this case
decides only that the delegate could reasonably have found, on the record
before him, that Mr. Geissah and Ms. Khalaf did not meet the residency
requirements for MSP coverage for the period in issue:  see paras. 20, 21.

[12]

The second relates to whether the MSP will seek to recover from
Mr. Geissah and Ms. Khalaf the costs of the medical services it paid
for during the ineligibility period.  Counsel for the Commission,
Mr. Butler, advised the Court that his client has taken the decision not
to seek recovery.

[13]

As the Commission does not seek costs, I would make no order in that regard. 
I would also dispense with the need for Mr. Geissah and Ms. Khalaf to
approve the form of the formal order in this matter.

The
Honourable Mr. Justice Frankel

I AGREE:

The Honourable Madam Justice
Newbury

I AGREE:

The Honourable Madam Justice
Garson


