Buxton v. Nova Scotia (Attorney General)

Buxton v. Nova Scotia (Attorney General) Court Supreme Court Date 2025-02-06 Citation 2025 NSSC 85 Docket Ann, No. 510267 Judge/Registrar/Adjudicator Muise, Pierre, L. (Honourable Justice) Document Type Decision Decision Content SUPREME COURT OF Nova Scotia Citation: Buxton v. Nova Scotia (Attorney General), 2025 NSSC 85 Date: 20250206 Docket: Ann, No. 510267 Registry: Annapolis Royal Between: Paul Gerard Buxton Applicant v. The Attorney General of Nova Scotia, representing Her Majesty the Queen in Right of the Province of Nova Scotia; the Minister of Health and Wellness; the Department of Health and Wellness; and the MSI Medical Consultant, Valerie Ross Respondent Judge: The Honourable Justice Muise Heard: October 21, 2024, in Digby Oral Decision: February 6, 2025, in Yarmouth Counsel: Paul Gerard Buxton, Self Represented Jeremy Smith , for the Respondents By the Court: DECISION FOLLOWING TRIAL BACKGROUND [1] Paul Buxton was on a wait list for hip replacement surgery in Nova Scotia. He could expect to have to wait about two years, unless he was called in on short notice due someone else cancelling their surgery. That was, at least in part, due to suspension of some surgeries during the Covid-19 pandemic. Because of a history of, or concern for, aneurysms, requiring a scan every six months, and review or investigation before surgery, he was not a suitable cancellation list patient. His pain worsened and was preventing him from working full-time. It would also hamper his ability to transport his daughter to cancer treatment. He had the procedure completed at Clearpoint Health Surgical Centre in Toronto at a cost of $28,000, where the wait time was only about two weeks. He needed more time than that to procure and provide his medical records. However, he ultimately obtained the surgery on October 16, 2020. [2] At some point following the surgery, according to his evidence, he began looking into whether he might be able to claim reimbursement for the expenses related to his surgery. That included reading, among other things, the information on the Nova Scotia Department of Health and Wellness Website. He then sought reimbursement for the cost of the surgery, as well as travel and accommodations from Nova Scotia Medical Services Insurance (“MSI”). Dr. Valerie Ross, Medical Consultant for MSI, in written correspondence, rejected his claim, stating, among other things, that “requests for out of province surgeries must be submitted in advance by a Nova Scotia specialist.” He wrote Dr. Ross, noting she had not cited the “statutory basis” for her decision, nor advised him of any appeal process, so he saw no option but to apply for judicial review. He later wrote the then Minister of Health and Wellness indicating he intended to take legal action if the matter could not be resolved. After he had given notice of intention to bring an action, the Minister responded with a letter confirming he was ineligible for reimbursement because, among other things, the treatment was available in Nova Scotia and Clearpoint was a private clinic. [3] Mr. Buxton then commenced the within action, alleging misfeasance in public office, breach of trust and negligence by the Minister, the Department and Dr. Ross, based on, among other things, the denial of his claim and failure to provide clear and complete information. [4] The trial of this action was heard October 31, 2024. This is my decision following that trial. As I am rendering it orally, should it be reduced to writing, I reserve the right to edit it for grammar, structure, organization, complete citations, and ease of reading, without changing the result or the reasoning. ISSUES [5] Mr. Buxton requested public interest standing “on the grounds that every Nova Scotian and has a right to know which health services he or she is entitled to receive free of charge, which services they may obtain at their own expense and whether they can rely on information on the Department of Health and Wellness’ website when making decisions that affect their health and finances”. [6] As noted by the Defendants, Mr. Buxton does not require public interest standing as he clearly has a direct personal interest in the issues raised in this trial and in the outcome of the trial. The outcome will be public and serve to inform Nova Scotians of the points raised by Mr. Buxton, to the extent that they are to be addressed in dealing with the tort claims advanced. [7] This very action is “another reasonable and effective way to bring the issue before the Court”, and, as noted, the plaintiff clearly has private interest standing. [8] One caveat to that statement is the following. Mr. Buxton acknowledged in his testimony that he did not rely on anything he read on the Department’s Website in deciding to undergo surgery at Clearpoint. He only started looking into whether he might be able to claim reimbursement after he had already received the surgery and paid for it. Therefore, even if there was inaccurate information on the Website, it did not cause him any loss. A more reasonable and effective way to bring the issue of reliance on inaccurate information on the Website, and any loss occasioned because of it, before the court is through someone who has relied on the information and suffered a loss as a result. [9] For these reasons, this is not a case where public interest standing is required or appropriate. [10] Mr. Buxton also submits that the Defendants are estopped or barred from pleading or relying upon s. 7 of the Hospital Insurance Regulations, N.S. Reg. 11/58 because they did not refer to it in denying his request for reimbursement, even when he raised it. However, it was raised in the Statement of Defence filed by the Defendants. It is central to this case, as it is the legislative basis upon which Mr. Buxton is submitting he was entitled to reimbursement. Mr. Buxton has not provided any authority to support his estoppel argument. I am not aware of any that does. Therefore, the estoppel issue is not a real issue, and the Defendants may plead and rely upon s. 7. [11] This is not a judicial review. However, the elements of the alleged torts are such that, if the Defendants were correct in their position that Mr. Buxton was not entitled to the reimbursement requested, his tort claims must fail. Even if they were not correct, the elements of the alleged torts are not necessarily made out. [12] Therefore, the issues to be determined in this action are the following: 1. Was Mr. Buxton entitled to any of the reimbursement he requested? 2. Did Mr. Buxton establish all the elements of misfeasance in public office? 3. Did Mr. Buxton establish all the elements of breach of trust? 4. Did Mr. Buxton establish all the elements of negligence? LAW AND ANALYSIS ISSUE 1: WAS MR. BUXTON ENTITLED TO ANY OF THE REIMBURSEMENT HE REQUESTED? [13] Mr. Buxton submits he was entitled to reimbursement for the cost of his surgery because the version of s. 7 of the Hospital Insurance Regulations in effect at the time did not require pre-approval for surgery in another province in Canada and did not specify that it did not apply to private clinics or hospitals. [14] The relevant portions of s. 7, at the time, stated: … [W]here a resident receives insured in-patient services in a hospital, including a federal Hospital, outside Nova Scotia, the Commission shall reimburse him, or the person who on his behalf pays for the services, for the cost of the services, or the Commission shall make payment directly to the hospital for the services, provided that (a) the services are required because of accident or sudden attack of illness or the receipt of the services is approved by the Commission; (b) the out-of-province hospital which supplied the treatment is a federal Hospital or is licensed or approved as a hospital by the governmental hospital licensing authority in whose jurisdiction the hospital is situate; or is approved by the Commission if there is no such authority; …. (d) the Commission is satisfied that the person is entitled to receive the services and that they were medically necessary. [15] There is no dispute that the surgery Mr. Buxton underwent was not “required because of accident or sudden attack of illness”. The question is whether reimbursement of the cost of the surgery could be approved as being medically necessary, which question includes the issue of entitlement. [16] The Regulations are made under the Health Services and Insurance Act, R.S.N.S. 1989, c. 197. [17] S. 2 (d) of the Health Services and Insurance Act defines “hospital” as meaning “a hospital that has been approved under the Hospitals Act and any other hospital or facility that has been approved as a hospital by the Minister for the purposes of this Act”. [18] S. 2 (f) of the Hospitals Act, R.S.N.S. 1989, c. 208, defines “hospital” as meaning: … a building, premise or place approved by the Minister and established and operated for the treatment of persons with sickness, disease or injury and the prevention of sickness or disease, and includes a facility, a maternity hospital, a nurses’ residence and all buildings, land and equipment used for the purposes of the hospital, or means, where the context requires, a body corporate established to own or operate a hospital, or a program approved by the Minister as a hospital pursuant to this Act or any other Act of the Legislature. [19] S. 74 of the Hospitals Act, states: 74 (1) The Governor in Council may enter into and carry out, or may authorize the Minister or a member of the Executive Council to enter into and carry out, an agreement respecting the observation, examination, investigation, treatment, care and maintenance of persons in hospitals with the Government of Canada or with another government or agency or any combination thereof. (2) Unless an agreement has been made under this Section, no person for whom the Government of Canada or a government other than the Government of the Province is responsible shall be entitled to receive observation, examination, investigation, treatment, care or maintenance in a hospital in the Province at the expense of the Province. [20] “Minister” is defined under both Acts as meaning the Minister of Health and Wellness. [21] These applicable definitions of “hospital”, and s. 74 of the Hospitals Act, clearly show the reference to “hospital” in s. 7 of the Regulations is a reference to a hospital that has been approved by the Minister. [22] Harold McCarthy, Director of Insured Services for the Department of Health and Wellness, at the relevant time, testified that there is a list of hospitals in other provinces that are approved for reciprocal billing in Nova Scotia and that neither Clearpoint, nor any other private hospital, is on that list. Only public hospitals are on the list. As he had not found Clearpoint on the list, he checked with a representative of the Ontario OHIP and was informed that Clearpoint was licensed under the Private Hospitals Act of Ontario and privately owned. [23] Mr. McCarthy testified that there is an interprovincial health representatives committee which determines the hospitals that are appropriate reciprocal billing facilities, and which may be approved by the Minister. [24] There is no evidence that the Minister ever approved Clearpoint as a hospital for the purposes of reciprocal billing, nor that it is a hospital for the purposes of s. 7 of the Regulations, nor that it was ever determined to be an appropriate reciprocal billing facility. [25] As such, Mr. Buxton was not, and is not, eligible for reimbursement under s. 7 of the Regulations. [26] “Commission” is defined under the Health Services and Insurance Act as meaning the Health Services and Insurance Commission. However, Mr. McCarthy testified that the Commission had never been formed and that references to the Commission are effectively references to the Minister and his delegates. [27] So, at the relevant time, the Minister or his delegates also determined whether they approved the receipt of services by a person having obtained out-of-province medical services, whether that person was entitled to receive them and whether they were medically necessary. [28] However, having determined that Mr. Buxton had not undergone his surgery in a Minister-approved hospital, the Minister knew that he was automatically ineligible and, thus, there was no need to make any determination in relation to the particular services Mr. Buxton received. [29] There is no dispute that the Out of Province Travel and Accommodation Assistance Policy of the Department of Health and Wellness requires preapproval to gain entitlement to reimbursement for travel and accommodations. No legislation, nor evidence, to the contrary has been brought to the court’s attention. I am not aware of any. Mr. Buxton acknowledged he did not obtain preapproval. Therefore, he was not, and is not, entitled to reimbursement for travel and accommodation expenses related to his surgery in Ontario. ISSUE 2: DID MR. BUXTON ESTABLISH ALL THE ELEMENTS OF MISFEASANCE IN PUBLIC OFFICE? [30] R. v. Odhavji, 2003 SCC 69, at paragraph 30, stated: In sum, I believe that the underlying purpose of the tort is to protect each citizen’s reasonable expectation that a public officer will not intentionally injure a member of the public through deliberate and unlawful conduct in the exercise of public functions. [31] Turner-Lienaux v. Nova Scotia (Registrar of Motor Vehicles), 2020 NSSC 292, at paragraph 147, citing the British Columbia Court of Appeal’s summary of Odhavji, stated: The Court reiterated (at para. 324) that the tort has two elements: “(1) deliberate unlawful conduct by a public officer in the exercise of his or her powers (the actus reus); and (2) the awareness (knowledge) that the unlawful conduct is likely to injure the particular plaintiff (the mens rea)”. The Court went on to provide the following commentary (at paras. 326, 327, and 329) regarding the two ways in which the elements can be established (that is, Category A and Category B misfeasance): Category A misfeasance is established when a public officer exercises his or her power for the specific purpose of harming the plaintiff. Three Rivers described it as “targeted malice” that includes conduct done for the ulterior or improper purpose of harming the plaintiff. Proof of the specific intent to harm the plaintiff will be sufficient to establish that the public officer had knowledge his or her conduct was likely to harm the plaintiff… Category B misfeasance is more complex. It does not require a finding of specific intent to harm the plaintiff, but rather an objective determination that the public officer knowingly engaged in a deliberate unlawful act with an awareness that his or her conduct would likely harm the plaintiff or a class of plaintiffs. Knowledge of harm alone is insufficient to establish that the public officer acted in bad faith or dishonestly. Rather, the officer must know that the deliberate conduct is inconsistent with the obligations of the office, including that it exceeds the powers of the office, or omits a legally required act… … The mental element of Category A or Category B misfeasance establishes the “bad faith” or “dishonesty” of the public officer. Accordingly, it requires “clear proof commensurate with the seriousness of the wrong”… Awareness or knowledge that the unlawful act is likely to harm the plaintiff requires at least a subjective recklessness or willful blindness, if not actual knowledge, of the likely consequences of the unlawful act… Subjective recklessness or wilful blindness requires a higher standard of proof than objective foreseeability of harm for negligence. The mental element of the harm thus constrains its ambit from including inadvertent or negligent conduct by a public officer in the discharge of his or her official obligations… [32] Mr. Buxton has not established either element, under either category. [33] I accept that Ms. Ross and Mr. McCarthy both honestly believed Mr. Buxton did not qualify for any of the reimbursement requested and, for reasons already noted, I find that they were correct in that belief. They had no reason to believe their conduct would, or would likely, harm Mr. Buxton. [34] Dr. Ross, in her capacity as Medical Consultant for MSI, was given the Out-of-Province Travel and Accommodation Assistance Policy by the Department which required preapproval. Her statement to Mr. Buxton that “requests for out of province surgeries must be submitted in advance” was based on that policy. At the time, she was unaware of the then wording of s. 7 of the Hospital Insurance Regulations. So, there was no bad faith or dishonesty on her part. She was simply ignorant of that legislation which applied to a portion of Mr. Buxton’s claim. [35] In addition, it was proper to refer to the Out-of-Province Travel and Assistance Accommodation Policy because Mr. Buxton was also requesting reimbursement for airfare, accommodations, food, taxis and parking, for himself, his wife and his daughter, in addition to the amounts paid to the private clinic for the surgery. [36] Mr. McCarthy was aware of s. 7 and of the possibility that the cost of an elective surgery (i.e. one not required because of accident or sudden attack of illness) obtained in another province might, following review, be reimbursed even without preapproval, or it might be denied. However, he knew that s. 7 did not apply to surgeries performed in a private clinic or hospital. [37] Prior to the preparation and sending of the letter from the Minister of Health and Wellness to Mr. Buxton, in response to his letter of January 25, 2021, to the Minister, Mr. McCarthy checked the list of Ontario Hospitals with which Nova Scotia has reciprocal payment arrangements and was unable to find Clearpoint Health Surgical Centre in Toronto on the list. Therefore, he then exchanged emails with Alex Gencarilli, at Ontario OHIP, to find out the status of the Clearpoint Centre. He learned that it was licensed under the Ontario Private Hospitals Act and was privately owned. Therefore, he automatically knew Mr. Buxton was not entitled to reimbursement, and it was proper and correct for the Minister’s letter to advise Mr. Buxton that he was ineligible to recover any of the costs associated with his surgery because it was “provided by a private clinic”. [38] There was no need to refer to s. 7 because the Regulations did not apply to services performed in a private clinic. Clearpoint was not included in facilities covered by reciprocal billing agreement. [39] The Minister’s letter also refers to the preconditions for MSI coverage of out-of-province travel and accommodations. That was proper because Mr. Buxton claimed reimbursement for that as well. [40] To the extent that the letter indicates preapproval would be required for surgeries in public hospitals, it was inaccurate at the time, but of little consequence because Mr. Buxton’s surgery was not performed in a public hospital. [41] Mr. Buxton complained that he was sent a copy of the summary of the Policy from the Department’s website instead of the Official Policy itself, which he only received during the disclosure process in the within action. Dr. Ross explained that is what she sent because that is what she worked from. In addition, providing the Official Policy would not have made Mr. Buxton any more entitled to any of the reimbursement. [42] For these reasons, I find no misfeasance relating to the summary dismissal of Mr. Buxton’s claim for reimbursement nor relating to the provision of the Policy or its summary. [43] Therefore, Mr. Buxton has failed to establish misfeasance in Public Office. ISSUE 3: DID MR. BUXTON ESTABLISH ALL THE ELEMENTS OF BREACH OF TRUST? [44] The Defendants submit that Mr. Buxton has not established that any trust existed. Mr. Buxton submits that every civil servant has an implicit trust. [45] However, I need not determine whether a trust existed because, even if it did, as submitted by the Defendants, Mr. Buxton has not established any breach that has been committed. [46] Mr. Buxton applied for reimbursement he was not entitled to receive, and his application was rightly denied. There is no breach of trust in that denial. [47] If they had allowed his application and knowingly paid him reimbursement to which he was not entitled, then arguably they would have committed a breach of trust against the people of Nova Scotia whose monies had been intentionally used for an impermissible purpose. [48] So, Mr. Buxton has not established a breach of trust. ISSUE 4: DID MR. BUXTON ESTABLISH ALL THE ELEMENTS OF NEGLIGENCE? [49] As stated in Sara Blake, Administrative Law in Canada, Seventh Edition (Toronto: LexisNexis Canada, 2022), “[i]n the absence of misfeasance, there is no liability in damages for the negligent exercise of statutory power, for the misinterpretation of statute or for the failure to follow proper procedures”. [50] That comment is based on jurisprudence which includes Holland v. Saskatchewan, 2008 SCC 42. In that case, the alleged fault supporting the negligence claim was a failure of a government authority “to act in accordance with the authorizing acts and regulations”. The Supreme Court of Canada agreed with the Saskatchewan Court of Appeal that “the law does not recognize an action against the government authority for negligent breach of statutory duty by acting outside or contrary to the law”. [51] Mr. Buxton is also alleging that the Defendants did not act in accordance with the applicable regulations. Therefore, as the Supreme Court of Canada in Holland v. Saskatchewan determined, he cannot succeed in a claim for negligence against them. [52] When asked about the standard of care expected of Dr. Ross, he merely replied he was saying she was incorrect in her decision. [53] I have found that the decision to deny reimbursement was correct. Therefore, there was no negligence in any event. CONCLUSION [54] For the foregoing reasons, I dismiss Mr. Buxton’s action in its entirety. Muise , J.