Digests

1018025 Alberta Ltd. v. Canada (Minister of Health)

T-414-03

2004 FC 1107, Gauthier J.

11/8/04

14 pp.

Judicial review of Minister of Health's refusal to consider application for service provider number on merits-- Applicants selling home health care products, including medical equipment--Business comprises sale, servicing of such products in private homes or in long-term care facilities--Respondent created Non-Insured Health Benefits Program (Program) to provide to eligible registered members of First Nations and recognized Inuits and Innus medically necessary health-related goods, services not covered by other health insurance plans--Among other things, these include medical supplies and equipment (MSE)--Items covered by Program vary by province because of differences in extent of coverage of various provincial health insurance programs-- First Canadian Health Management Corporation (FCHMC) administers billing and payment process for Health Canada--In order to participate in program at no cost to eligible beneficiary, supplier must have service provider number, issued after entering into agreement entitled "Pharmacy--Medical Supply and Equipment Provider Agreement" (Agreement) with FCHMC--In course of acquiring business of applicant, new owner applied for service provider number by filing application for registration-- Applicant not previously service provider registered for Program--On February 11, 2003, applicant informed application not accepted because Program managed on regional basis and moratorium on issuance of new service provider numbers in Alberta as result of financial audits revealing several problems with registered service providers in that region--Decision under review that of person who decided to temporarily freeze expansion of program to new MSE suppliers until proper guidelines and revised provider kit put in place--Applicant submitting application of policy improper fettering of discretion--But where no authority to accept or even consider application no issue of fettering discretion--Respondent arguing as policy decision, imposition of moratorium not subject to duty of fairness because none specifically imposed by statute--Qualification of decision as policy decision irrelevant--Content of duty of fairness on Director, Non-Insured Benefits, Alberta region limited and not breached--Decision clearly based on administrative, political concerns--Inasmuch as there is no statutory provision dealing with Program, no specific appeal provision, there was only political remedy--Applicant not beneficiary of Program but third party claiming direct billing privilege to improve business prospect--Although imposition of this moratorium having some economic impact on applicant's business, evidence as to significance of impact speculative--Thus, concept of fairness as such could not force decision maker to review application on merits--Applicant submitting respondent, delegates must exercise powers to further ends of Health Canada policies, needs of beneficiaries of Program--In particular, arguing main goal of Program to improve accessibility of non-insured services to beneficiaries--Therefore, imposition of moratorium that applies without regard to particular needs in area where applicant located abusive--Evidence unequivocal that moratorium imposed because of specific concerns with respect to MSE suppliers--Administrators of the Program in Alberta chose to suspend any further extension of billing privileges to new MSE suppliers rather than, for example, suspending whole Program with respect to MSE which would undoubtedly have seriously affected beneficiaries--Decision predominantly based on relevant consideration-- Establishment of different categories of suppliers differentia-ting pharmacists from MSE suppliers not patently unreasonable--Application dismissed.