Schooff et al. v. Medical Services Commission (B.C.) et al., (2010) 292 B.C.A.C. 8 (CA)

JudgeSaunders, Frankel and Groberman, JJ.A.
CourtCourt of Appeal (British Columbia)
Case DateJune 24, 2010
JurisdictionBritish Columbia
Citations(2010), 292 B.C.A.C. 8 (CA);2010 BCCA 396

Schooff v. Medical Services Comm. (2010), 292 B.C.A.C. 8 (CA);

    493 W.A.C. 8

MLB headnote and full text

Temp. Cite: [2010] B.C.A.C. TBEd. SE.008

Cambie Surgeries Corporation (appellant/plaintiff) v. Medical Services Commission of British Columbia, Minister of Health Services of British Columbia and Attorney General of British Columbia (respondents/defendants) and Specialist Referral Clinic (Vancouver) Inc. (respondents/defendant by counterclaim)

(CA037741)

Cambie Surgeries Corporation (respondent/plaintiff) v. Medical Services Commission of British Columbia, Minister of Health Services of British Columbia and Attorney General of British Columbia (respondents/defendants) and Specialist Referral Clinic (Vancouver) Inc. (appellant/defendant by counterclaim)

(CA037747; 2010 BCCA 396)

Indexed As: Schooff et al. v. Medical Services Commission (B.C.) et al.

British Columbia Court of Appeal

Saunders, Frankel and Groberman, JJ.A.

September 9, 2010.

Summary:

Two medical clinics commenced an action seeking a declaration that ss. 14, 17 and 18 of the Medicare Protection Act, which prohibited direct and extra billing of patients, were unconstitutional. The Medical Services Commission filed a counterclaim, seeking, inter alia, interim and permanent injunctions under s. 45.1 of the Act to prohibit the clinics from violating ss. 17 and 18. The Commission brought an interlocutory application for a warrant under s. 36 authorizing its inspectors to enter the clinics and inspect medical records or, alternatively, an injunction requiring the clinics to allow the inspectors access to their premises and records and prohibiting the clinics from interfering with the audit process.

The British Columbia Supreme Court, in a decision reported at [2009] B.C.T.C. Uned. 1596, granted the injunctive relief sought. The clinics appealed.

The British Columbia Court of Appeal allowed the appeal, setting aside the injunction.

Courts - Topic 1333

Justices of the peace - Jurisdiction - Search warrants - [See Government Programs - Topic 1992 ].

Government Programs - Topic 1992

Medicare - Claims by doctors - Audits - Two medical clinics commenced an action seeking a declaration that ss. 14, 17 and 18 of the Medicare Protection Act, which prohibited direct and extra billing of patients, were unconstitutional - The Medical Services Commission filed a counterclaim, seeking, inter alia, interim and permanent injunctions under s. 45.1 of the Act to prohibit the clinics from violating ss. 17 and 18 - The Commission brought an interlocutory application for a warrant under s. 36 authorizing its inspectors to enter the clinics and inspect medical records or, alternatively, an injunction requiring the clinics to allow the inspectors access to their premises and records and prohibiting the clinics from interfering with the audit process - A chambers judge granted the injunctive relief sought - The British Columbia Court of Appeal allowed the clinics' appeal, setting aside the injunction on the basis that the statutory remedies were entirely adequate - The court also commented that the chambers judge should not have granted a warrant under s. 36 either - The inclusion of the claim for a warrant in the Commission's counterclaim was not appropriate - The statute contemplated a procedure for applying for a warrant before a justice of the peace and not by way of a claim in a civil suit - Further, there was no demonstrated connection between the litigation and the Commission's right to conduct an audit - If the Commission required a warrant to conduct an audit, it could apply to a justice of the peace - See paragraphs 41 to 46.

Injunctions - Topic 690

Granting an injunction - Considerations affecting grant - Whether alternative remedy available - Two medical clinics commenced an action seeking a declaration that ss. 14, 17 and 18 of the Medicare Protection Act, which prohibited direct and extra billing of patients, were unconstitutional - The Medical Services Commission filed a counterclaim, seeking, inter alia, interim and permanent injunctions under s. 45.1 of the Act to prohibit the clinics from violating ss. 17 and 18 - The Commission brought an interlocutory application for a warrant under s. 36 authorizing its inspectors to enter the clinics and inspect medical records or, alternatively, an injunction requiring the clinics to allow the inspectors access to their premises and records and prohibiting the clinics from interfering with the audit process - A chambers judge granted the injunctive relief sought - The British Columbia Court of Appeal allowed the clinics' appeal, setting aside the injunction - The chambers judge concluded that the application should be treated as one for a final order, because the claim for an injunction could have been brought as an independent action - However, having made that determination, the judge applied the test for granting an interlocutory injunction - In that regard, she fell into error - As an application for summary determination of one aspect of the Commission's counterclaim, the application was one for final relief, which ought not to have been granted - There was a clear method of enforcement set out in the Act, which provided for inspections and audits and allowed the Commission to seek a warrant - There was no basis here for expecting that the clinics would refuse to allow inspectors access to documents if a warrant was issued - The injunction procedure was unnecessary - See paragraphs 23 to 37.

Injunctions - Topic 751

Granting an injunction - Bars - Availability of other remedies - [See Injunctions - Topic 690 ].

Injunctions - Topic 906

Form and contents - Specification of acts to be done or not done - Two medical clinics commenced an action seeking a declaration that ss. 14, 17 and 18 of the Medicare Protection Act, which prohibited direct and extra billing of patients, were unconstitutional - The Medical Services Commission filed a counterclaim, seeking, inter alia, interim and permanent injunctions under s. 45.1 of the Act to prohibit the clinics from violating ss. 17 and 18 - The Commission brought an interlocutory application for a warrant under s. 36 authorizing its inspectors to enter the clinics and inspect medical records or, alternatively, an injunction requiring the clinics to allow the inspectors access to their premises and records and prohibiting the clinics from interfering with the audit process - A chambers judge granted the injunctive relief sought - The British Columbia Court of Appeal allowed the clinics' appeal, setting aside the injunction on the basis that the statutory remedies were entirely adequate - However, the court also indicated that, had an injunction been appropriate, the scope of the injunction here, in that it prohibited the clinics from "hindering, molesting or interfering with the inspectors", went beyond what was reasonably necessary to effect compliance - The language appeared to have been taken from s. 36(10) of the Act - The court should be cautious in adopting statutory language in an injunction - Statutes were often cast in broad terms - An injunction, however, was to be tailored to the individual case - There was no reason here to expect that the clinics would interfere with the inspectors - The injunction did not need to include a provision prohibiting them from doing so - See paragraphs 38 to 40.

Cases Noticed:

Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791; 335 N.R. 25, refd to. [para. 9].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1; 60 Q.A.C. 241, refd to. [para. 17].

Attorney General v. Harris, [1961] 1 Q.B. 74 (C.A.), refd to. [para. 35].

Alberta (Attorney General) v. Plantation Indoor Plants Ltd. (1982), 34 A.R. 348; 133 D.L.R.(3d) 741 (C.A.), revd. [1985] 1 S.C.R. 366; 58 N.R. 228; 60 A.R. 343, refd to. [para. 35].

Ontario (Attorney General) v. Grabarchuk et al. (1976), 67 D.L.R.(3d) 31 (Ont. Div. Ct.), refd to. [para. 35].

MacMillan Bloedel Ltd. v. Simpson - see MacMillan Bloedel Ltd. v. Greenpeace Canada et al.

MacMillan Bloedel Ltd. v. Greenpeace Canada et al., [1996] 2 S.C.R. 1048; 199 N.R. 279; 79 B.C.A.C. 135; 129 W.A.C. 135, refd to. [para. 36].

Authors and Works Noticed:

Sharpe, Robert J., Injunctions and Specific Performance (2009 Looseleaf Update), § 3.210 [para. 35].

Counsel:

Irwin G. Nathanson, Q.C., and Marvin R.V. Storrow, Q.C., for the appellants;

George H. Copley, Q.C., and Jonathan G. Penner, for the respondents (defendants).

This appeal was heard at Vancouver, British Columbia, on June 24, 2010, by Saunders, Frankel and Groberman, JJ.A., of the British Columbia Court of Appeal. On September 9, 2010, Groberman, J.A., delivered the following reasons for judgment for the court.

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