Ontario's public health insurance authority is seeking permission to appeal a Divisional Court decision that could affect how physician billing disputes are handled under the Ontario Health Insurance Plan (OHIP), particularly in cases involving extraordinary circumstances.
In a motion filed Dec. 30, the general manager of OHIP asked the Ontario Court of Appeal for leave to challenge a ruling that partially favored Kingston physician Dr. Elaine Ma in a dispute over more than $600,000 in COVID-19 vaccination clinic billings.
OHIP argued the decision misinterpreted a key provision of the Health Insurance Act and raises issues of public importance for the administration of the provincial insurance system. The motion will be decided in writing on a date to be set by the court.
The issue at hand revolves around Sec. 17.5 of the Health Insurance Act, which allows OHIP to pay a physician’s claim despite non-compliance with billing requirements where “extenuating circumstances” exist. OHIP claimed that this provision applies only before payments are issued and does not govern decisions about whether previously paid funds should be recovered. It further argued that other sections of the law specifically address repayment and reimbursement.
The Divisional Court rejected that interpretation in a decision released early December. While the court upheld findings that Ma failed to comply with certain billing rules, it ruled that section 17.5 could apply both before and after payment. The court also found it unreasonable for the Health Services Appeal and Review Board (HSARB) to conclude that the COVID-19 pandemic did not amount to an extenuating circumstance.
The court sent the matter back to HSARB to reconsider how much, if any, of the $600,962 ordered repaid should be recovered, based on written submissions from both parties. The panel indicated that while some repayment may still be required, the full amount initially sought by OHIP should be reconsidered.
In its motion for leave to appeal, OHIP argued that the Divisional Court’s reading of section 17.5 is inconsistent with the structure of the law and could introduce uncertainty into the province’s physician payment and recovery framework. OHIP also contended that the court expanded HSARB’s authority beyond determining billing compliance and failed to give proper deference to the Board’s decision, which followed evidence from multiple witnesses.
The motion stated that the case has broader implications for how OHIP assesses billing disputes, exercises discretion in payment decisions and administers recovery of funds, particularly during public health emergencies.
The underlying dispute arose from 48 COVID-19 vaccination clinics organized by Ma in Kingston between July 2021 and January 2022. OHIP later determined she was not entitled to bill for the services and ordered repayment of the funds. Ma has argued that the billing rules failed to reflect the operational realities and costs of mass vaccination clinics during the pandemic.
If leave to appeal is granted, the case would proceed to a full appeal before the Ontario Court of Appeal. Decisions on leave are made based on written materials, with no oral hearing.
Ma’s legal counsel said they were “not overly surprised” by OHIP’s decision to seek leave to appeal, “given the positions OHIP has taken to date.” OHIP has 30 days to file its full motion record, after which Ma will have 25 days to respond.
Kingstonist sought comment from OHIP and the Ontario Ministry of Health on Dec. 31, 2025, but received no response.
