



COURT OF APPEAL FOR ONTARIO

CITATION: Misir v. Ontario (Health and Long-Term Care), 2019
    ONCA 36

DATE: 20190123

DOCKET: C65374

Brown, Paciocco and Zarnett JJ.A.

BETWEEN

Marc Misir and Randolph Misir

Applicants (Appellants)

and

Her Majesty the Queen in right of Ontario as
    represented by the Ministry of Health and Long-Term Care

Respondent (Respondent)

Randolph Misir, acting in person, for the appellants

Courtney Harris and Andrea Bolieiro, for the respondent

Heard: January 18, 2019

On appeal from the order of Justice
Victoria
    R.
Chiappetta of the Superior Court of Justice, dated April 9, 2018.

REASONS FOR DECISION

[1]

The appellant Randolph Misir is the father of
    the appellant Marc Misir. They are both Canadian citizens.

[2]

On March 13, 2008, the Ministry of Health and
    Long-Term Care (the Ministry) sent letters to the appellants advising that
    their Ontario Health Insurance Plan (OHIP) coverage was under review, and
    requesting documents to verify, among other things, their Ontario residency,
    which is a requirement for OHIP coverage even if one is a Canadian citizen.
    When the appellants did not respond, their OHIP coverage was cancelled.

[3]

In 2013, the appellants took certain steps
    toward reinstating their OHIP coverage. However, they failed to satisfy the
    Ministrys OHIP Eligibility Review Committee that they met the Ontario
    residency requirements for OHIP coverage, and their coverage remained
    cancelled.

[4]

In 2014, the appellants appealed to the Health
    Services Appeal and Review Board (the HSARB) from the OHIP Eligibility Review
    Committees decision and sought to have their OHIP coverage reinstated. On
    February 18, 2016, the HSARB concluded that the evidence put before it failed
    to meet the appellants onus to show that they met the Ontario physical
    presence and residency requirements for OHIP eligibility, and the appeal was
    dismissed. The appellants did not appeal that decision further.

[5]

The appellants instead launched an application
    in the Superior Court, seeking a declaration that s. 14 of the
Health
    Insurance Act
, R.S.O. 1990, c. H.6 (
HIA

) was constitutionally
    inapplicable in the instant case as it breaches the appellants rights under
    s. 7 of the
Canadian Charter of Rights and Freedoms
. Section 14 of the
HIA
prevents
    persons who are Ontario residents eligible for OHIP coverage from buying
    private health insurance for services OHIP insures. The appellants alleged that
    they had tried to buy, unsuccessfully, private health insurance, and claimed
    insurers refused to sell it to them because they were Canadian citizens, and
    that somehow s. 14 of the
HIA
was responsible
    for that occurring.

[6]

The application judge dismissed the application.
    She held that the HSARB decision had determined the appellants were not
    residents of Ontario in the sense necessary to be entitled to OHIP coverage and
    that decision could not be collaterally attacked. Accordingly s. 14 of the
HIA
did not prevent the appellants from doing anything as it does not
    apply to them. The declaration they sought, that s. 14 infringes the
Charter
,

should not,
    according to the application judge, be granted as the section does not prevent
    the appellants from buying private health insurance. Nor, she held, was there
    evidence that s. 14 is contrary to the principles of fundamental justice.

[7]

Before us, the appellants argued that the point
    is not that s. 14 of the
HIA
, when properly
    interpreted, does not apply to them. Nor is it germane, according to the
    appellants, that there is nothing constitutionally wrong with s. 14 to the
    extent that it prevents persons eligible for OHIP coverage from purchasing
    private health insurance. Instead, they say that the problem is that insurers
    whom they have approached refuse to sell them insurance citing s. 14 as though
    they are eligible for OHIP coverage, while the Ministry takes the position,
    improperly in their view, that they are ineligible, meaning they have no
    coverage at all and cannot obtain any.

[8]

Although we sympathize with the appellants, we
    are not persuaded that there is any reason to interfere with the application judges
    decision. In order to be entitled to the type of relief they claim, the
    appellants would, at the very least, have to show that it is s. 14 of the
HIA
, and not an alleged misinterpretation of it by persons not parties
    to this proceeding, that is affecting them.

We agree with the application
    judge that this has not been shown. If the appellants are being denied private health
    insurance notwithstanding their ineligibility for OHIP coverage as determined
    by the HSARB, their complaint is not against the Ministry; nor does it arise
    from or implicate s. 14 of the
HIA
.
Nor do the circumstances show that s. 14 deprives the appellants of
    anything contrary to the principles of fundamental justice.

[9]

The appellants case is not changed by their
    assertions that the non-residency determinations that have been made that have
    resulted in their OHIP coverage being cancelled were improperly made. First,
    those determinations cannot be collaterally attacked in this proceeding.
    Second, as the respondent has pointed out, should the appellants be able to
    provide confirmation that they meet the OHIP eligibility requirements, they may
    request a new review by the OHIP Eligibility Review Committee. They have not
    done so, but this does not mean they are without a remedy.

[10]

The application judge encouraged the respondent to provide the
    appellants with a letter confirming they are not eligible for OHIP coverage and
    that the
HIA
does not prohibit them from purchasing private health
    insurance, to assist them in dealing with private health insurers. We were
    informed during the hearing that a letter dated April 9, 2018 was provided to
    the appellants, and it is appended as Schedule A to these reasons. Counsel to the
    respondent confirmed the letter applies to both appellants, and in our view it
    can be treated as what the appellants have requested, namely, as a release by
    the Ministry of any complaint that the granting of private health insurance to
    the appellants while they remain ineligible for OHIP coverage would infringe s.
    14 of the
HIA
.

[11]

Accordingly, the appeal is dismissed. This is not a case for costs.

David M.
    Brown J.A.

David M. Paciocco
    J.A.

B. Zarnett
    J.A.




SCHEDULE A



