Knowledge Centre

The appellant, Dr. Hefnawi, was enrolled in the Medical Services Plan (“MSP”). In 2010, he was audited by the Billing Integrity Program (“BIP”). The Medical Services Commission (the “Commission”) sought recovery of funds for fraudulent or mispresented patient billing and gave notice of its intention to cancel the appellants enrolment as a practitioner under the Medicare Protection Act, RSBC 1996, c. 286 (“MPA”).

October 16, 2018

Administrative law – Decisions reviewed – Ministry of Health Billing Integrity Program – Judicial review – Appeals – Natural Justice – Procedural requirements and fairness – Evidence – Physicians and surgeons – Disciplinary proceedings – Billing matters – Records

Hefnawi v Health Care Practitioners Special Committee for Audit Hearings, [2018] B.C.J. No. 2932, 2018 BCSC 1311, British Columbia Supreme Court, August 3, 2018, Basran J.

In the first hearing the appellant was found to have breached several sections of the MPA. The Panel ordered repayment to the Commission and cancelled enrollment in the MSP. The Supreme Court quashed the decision of the Panel because it refused to consider Dr. Hefnawi’s affidavit in reaching its decision. The matter was returned to the Special Committee and a second hearing was conducted by a new panel.

Prior to the second hearing, counsel for the appellant advised that the appellant was unavailable for the hearing. The appellant’s adjournment application was dismissed. Although the appellant was available to clarify questions, the Panel did not take the opportunity to hear from the appellant. The BIP sought to admit 17 affidavits obtained from former patients and their caregivers. The appellant requested the affiant appear for cross-examination. The BIP applied to the Panel chair seeking an order that it not be required to produce the affiants. The chair decided that the BIP had no obligation to make the affiants available for cross-examination.

On appeal to the Supreme Court, the Court concluded that the appellant was entitled to a high level of procedural fairness as the penalty sought and cancellation of enrollment were serious consequences. The hearing before the Panel was also quasi-judicial in nature.

The Court found that the duty of procedural fairness was breached by the Panel in two respects. First, the Panel breached the duty of procedural fairness by scheduling the hearing at a time they knew the appellant would be unable to attend and by failing to grant an adjournment in a fair and reasonable manner.

Second, the Panel breached their duty of procedural fairness by not ordering the cross-examination of the affiants who provided the 17 affidavits. This evidence was considered central to the issues in this matter.

In the result, the Court ordered a third hearing and observed that there was unlikely to be any further opportunity to take action against the appellant if he was denied procedural fairness.

This case was digested by Jackson C. Doyle, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Jackson C. Doyle at [email protected].

To stay current with the new case law and emerging legal issues in this area, subscribe here.

Tags

Important Notice: The information contained in this Article is intended for general information purposes only and does not create a lawyer-client relationship. It is not intended as legal advice from Harper Grey LLP or the individual author(s), nor intended as a substitute for legal advice on any specific subject matter. Detailed legal counsel should be sought prior to undertaking any legal matter. The information contained in this Article is current to the last update and may change. Last Update: January 16, 2024.

Related

Charleen Sibanda attends 2024 Black Business Summit hosted by the Black Entrepreneurs & Businesses of Canada Society (BEBC)
Charleen Sibanda attends 2024 Black Business Summit hosted by the Black Entrepreneurs & Businesses of Canada Society (BEBC) Charleen Sibanda attends 2024 Black Business Summit hosted by the Black Entrepreneurs & Businesses of Canada Society (BEBC)
Harper Grey welcomes four new associates
Harper Grey welcomes four new associates
Abigail Turner recognized as a Litigation Star by Benchmark Canada® 2024 in two areas of expertise
Abigail Turner recognized as a Litigation Star by Benchmark Canada® 2024 in two areas of expertise Abigail Turner recognized as a Litigation Star by Benchmark Canada® 2024 in two areas of expertise
Bruno Desparts to present at Ma Pratique hosted by Association des juristes d’expression française de la Colombie-Britannique
Bruno Desparts to present at Ma Pratique hosted by Association des juristes d’expression française de la Colombie-Britannique Bruno Desparts to present at Ma Pratique hosted by Association des juristes d’expression française de la Colombie-Britannique
Lesley Russell lends her Expertise in Recent Presentation focused on Estate Planning
Lesley Russell lends her Expertise in Recent Presentation focused on Estate Planning Lesley Russell lends her Expertise in Recent Presentation focused on Estate Planning
Christopher Rusnak, KC recognized as a Litigation Star by Benchmark Canada® 2024 in three areas of expertise
Christopher Rusnak, KC recognized as a Litigation Star by Benchmark Canada® 2024 in three areas of expertise Christopher Rusnak, KC recognized as a Litigation Star by Benchmark Canada® 2024 in three areas of expertise
Retail Case Update: A Follow Up on the Impact of Failure to Immediately Disclose Settlement Agreements
Retail Case Update: A Follow Up on the Impact of Failure to Immediately Disclose Settlement Agreements Retail Case Update: A Follow Up on the Impact of Failure to Immediately Disclose Settlement Agreements Retail Case Update: A Follow Up on the Impact of Failure to Immediately Disclose Settlement Agreements
David Pilley recognized as a Litigation Star by Benchmark Canada ® 2024 in two areas of expertise
David Pilley recognized as a Litigation Star by Benchmark Canada ® 2024 in two areas of expertise David Pilley recognized as a Litigation Star by Benchmark Canada ® 2024 in two areas of expertise
Harper Grey sponsors 2024 Allard Law Alumni Achievement Awards
Harper Grey sponsors 2024 Allard Law Alumni Achievement Awards
Abigail Turner participates as judge in external Advisory Panel for 2024 Canadian Law Awards
Abigail Turner participates as judge in external Advisory Panel for 2024 Canadian Law Awards Abigail Turner participates as judge in external Advisory Panel for 2024 Canadian Law Awards
Three Harper Grey lawyers selected by Benchmark Canada® 2024 as Litigation Stars in the area of General Commercial Litigation
Three Harper Grey lawyers selected by Benchmark Canada® 2024 as Litigation Stars in the area of General Commercial Litigation
Kimberly Jakeman, KC recognized as a Litigation Star by Benchmark Canada® 2024 in two areas of expertise
Kimberly Jakeman, KC recognized as a Litigation Star by Benchmark Canada® 2024 in two areas of expertise Kimberly Jakeman, KC recognized as a Litigation Star by Benchmark Canada® 2024 in two areas of expertise
Five Harper Grey lawyers selected by Benchmark Canada® 2024 as Litigation Stars in the area of Health Law
Five Harper Grey lawyers selected by Benchmark Canada® 2024 as Litigation Stars in the area of Health Law
Nigel Trevethan recognized as Insurance Litigator of the Year by Benchmark Litigation® Canada for third consecutive year
Nigel Trevethan recognized as Insurance Litigator of the Year by Benchmark Litigation® Canada for third consecutive year Nigel Trevethan recognized as Insurance Litigator of the Year by Benchmark Litigation® Canada for third consecutive year
Michael Hewitt recognized as a Litigation Star by Benchmark Canada® 2024 in two areas of expertise
Michael Hewitt recognized as a Litigation Star by Benchmark Canada® 2024 in two areas of expertise Michael Hewitt recognized as a Litigation Star by Benchmark Canada® 2024 in two areas of expertise
arrow icon

Subscribe