ENTITLEMENT TO MEDICAL SERVICES TIED TO RESIDENCY

This is an unusual but important precedent case concerning entitlement to medical services by those who reside part ot the year abroad. The BC Court of Appeal upheld a decision that the couple below did not meet the residency obligation for the purposes of entitlement to provincial medical coverage during the period of time in dispute. It is noteworthy that the decision states that the appellants refused to release their travel records.

This situation is quite common amongst immigrants who obtain citizenship and then decide to return home for lengthy periods of time, and use Canadian medical and social services as an "insurance policy", but without incurring all the obligations concomitant with citizenship.

Many new citizens organize their affairs so they can avoid residency for tax purposes. Others simply leave and move abroad, using Canada as a place to receive medical services or escape to, if the situation in the countries where they reside becomes untenable. This was most pointedly evident during the crisis in Lebanon, which uncovered thousands of previously unaccounted for Canadian citizens who had little or no connection to Canada, and yet expected the government to come to their rescue. The disconnect between Federal and Provincial policies is often exploited to obfuscate the facts and return to Canada as if nothing had happened. It is time for reform and better integration and sharing of information between the Federal and Provincial governments to ensure that those with lengthy absences do not "parachute" into Canada and jump ahead of residents when seeking medical and social services. There should also be better integration between tax record disclosure and residency.

I am sure this case will reverberate and other cases may be similarly handled by the various provincial medical plans.

Geissah v. British Columbia (Medical Services Commission)

Between
Sayed Geissah and Souad Khalaf, Appellants (Petitioners), and
British Columbia Medical Services Commission, Respondent
(Respondent)

[2014] B.C.J. No. 12

2014 BCCA 4

Docket: CA040888

 British Columbia Court of Appeal
Vancouver, British Columbia

M.V. Newbury, S.D. Frankel and N.J. Garson JJ.A.

Heard: December 10, 2013.
Judgment: January 8, 2014.

(13 paras.)

Court Summary:

Appeal by G. and K. from the dismissal of their application for judicial review of a decision of a delegate of the Medical Services Commission finding them ineligible for medical coverage for a period of several years because they did not meet the residency requirements of the Medicare Protection Act

(B.C.). Held: Appeal dismissed.

On the evidence, the delegate could reasonably have found that G. and K. failed to establish their respective eligibility on a balance of probabilities.

Appeal From:

On appeal from: An order of the Supreme Court of British Columbia, dated April 18, 2013 (Geissah v. British Columbia (Health), Vancouver Registry No. S131812)..

Counsel:

Acting on behalf of the Appellants: S. Geissah.

Counsel for the Respondent: R. Butler.

---

Reasons for Judgment

The judgment of the Court was delivered by

1     S.D. FRANKEL J.A.:-- This is an appeal from the order of Mr. Justice Willcock, then a judge of the Supreme Court of British Columbia, dismissing a petition for judicial review of a decision by Robert F. Cronin, a delegate of the Medical Services Commission. That decision held that Sayed Geissah and Souad Khalaf, who are husband and wife, were ineligible for benefits under the provincial Medical Services Plan ("MSP") for approximately eight years. It was based on a finding that they failed to establish that they met the residency requirements of the Medicare Protection Act, R.S.B.C. 1996, c. 286, for the period in issue. To be entitled to MSP benefits a person must be a "resident" as defined in s. 1 of the Act; that is, he or she must: (a) be a citizen of Canada or lawfully admitted to Canada for permanent residence; (b) make his or her home in British Columbia; and (c) be physically present in British Columbia for at least six months in a calendar year, subject to certain exceptions that are not relevant to this appeal.

2     In 2009, the Ministry of Health received a request for information which prompted an investigation into Mr. Geissah's and Ms. Khalaf's entitlement to MSP coverage. The investigation included requesting information from them.

3     On October 17, 2011, a Ministry investigator sent them a letter advising that she would be recommending their coverage be retroactively cancelled as of December 31, 2001, and re-instated as of July 1, 2010, based on a residency date of April 4, 2010. That letter further advised them that if they disputed the cancellation of their coverage, then they could request a hearing before the Medical Services Commission. On October 27, 2011, Mr. Geissah and Ms. Khalaf, by letter, requested such a hearing. The delegate conducted the hearing in July of 2012, by way of written submissions.

4     Pursuant to s. 5(1)(f) of the Medicare Protection Act, the Commission is empowered to:

·       investigate and determine whether a person is a resident and, for this purpose, require the person to provide the commission with evidence, satisfactory to the commission, that residency has been established; 

By virtue of s. 7.4(1)(b) of the Act, the Commission has the power to cancel retroactively the coverage of a person it believes has ceased to be a resident.

5     In a decision rendered on November 2, 2012, the delegate noted that: (a) Mr. Geissah and Ms. Khalaf immigrated to British Columbia in September of 1994 with their three sons; (b) the family received MSP coverage effective December 1, 1994; (c) around 2002 the sons moved, and now work and live in Egypt, Dubai, and Qatar; and (d) Mr. Geissah and Ms. Khalaf claimed to spend six months each year visiting their sons and grandchildren and the remainder of each year in British Columbia. The delegate also noted Mr. Geissah and Ms. Khalaf had refused to give the Medical Services Commission access to their travel records. Based, in part, on the timing of their MSP claims -- there were no claims in 2004 and 2005, and infrequent claims in 2002, 2003, 2006, 2007, 2008, 2009, and 2010 -- the delegate was not satisfied they had established, on a balance of probabilities, that they had made their home in British Columbia between 2002 and April 2010, or had been physically present in British Columbia for six months out of every calendar year between 2002 and 2010.

6     In his decision, the delegate rejected submissions made by Mr. Geissah and Ms. Khalaf that: (a) there was no contract between them and the Commission or the MSP because their original enrollment form has been destroyed; (b) they had no knowledge of the residency requirement; (c) on the evidence it would be unreasonable to assume they had been out of the country; (d) their travel information was irrelevant; (e) they must be residents because they receive federal Old Age Security; (f) they are deemed residents under the applicable regulations because they are neither tourists nor visitors; and (g) it is not lawful to force them to live in British Columbia for more than six months each year as they cannot afford to do so.

7     In seeking judicial review, Mr. Geissah and Ms. Khalaf relied on many of the submissions they made to the delegate. The chambers judge rejected all of their submissions. Applying the reasonableness standard of review discussed in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, the judge held the decision that Mr. Geissah and Ms. Khalaf had not established an entitlement to benefits was one the delegate could reasonably make on the record before him.

8     In their factum, Mr. Geissah and Ms. Khalaf advance a number of the same arguments they made before the delegate and the chambers judge, some of which overlap. In this Court, their submissions include:

·       (a) 

On the evidentiary record it was unreasonable to conclude they did not meet the residency requirements; 

·       (b) 

The residency requirements are not binding because they were not aware of them; 

·       (c) 

It is unreasonable to expect them to retain useful evidence; 

·       (d) 

The residency requirements did not exist before April 1, 2005; 

·       (e) 

The Medicare Protection Act is no longer in force; 

·       (f) 

The Commission has no authority to ask them to prove residency; 

·       (g) 

There is no contract between them and the Commission or the MSP; 

·       (h) 

The chambers judge did not consider an affidavit filed by Mr. Geissah; 

·       (i) 

It is illegal to force them to reside in Canada when they cannot afford to do so; 

·       (j) 

Their citizenship ceremony granted them the right to live anywhere; 

·       (k) 

The receipt of Old Age Security is determinative of residence; and 

·       (l) 

The government is wasting taxpayer money by investigating this matter. 

9     In terms of relief, Mr. Geissah and Ms. Khalaf seek: (a) an order setting aside the decision finding them ineligible for benefits; (b) unspecified damages flowing from the effects of the decision; and (c) costs.

10     I find no merit in any of the arguments advanced by Mr. Geissah and Ms. Khalaf. The critical question is whether the delegate could properly come to the conclusion that entitlement (i.e., residency) had not been established on a balance of probabilities. As the chambers judge stated correctly, the reasonableness standard applies to that question, i.e., was there some evidence before the delegate on which he could reasonably make the findings he did: see Nagra v. British Columbia (Superintendent of Motor Vehicles), 2010 BCCA 154 at para. 27, 3 B.C.L.R. (5th) 231. In my view, the answer to that question is "yes". Accordingly, I would dismiss this appeal.

11     There are two additional matters on which I wish to comment. The first relates to the concerns expressed by Mr. Geissah that an adverse decision in this matter will affect his and Ms. Khalaf's entitlement to benefits under federal programs such as Old Age Security. He had earlier expressed those concerns to the chambers judge. I agree with the chambers judge that this case decides only that the delegate could reasonably have found, on the record before him, that Mr. Geissah and Ms. Khalaf did not meet the residency requirements for MSP coverage for the period in issue: see paras. 20, 21.

12     The second relates to whether the MSP will seek to recover from Mr. Geissah and Ms. Khalaf the costs of the medical services it paid for during the ineligibility period. Counsel for the Commission, Mr. Butler, advised the Court that his client has taken the decision not to seek recovery.

13     As the Commission does not seek costs, I would make no order in that regard. I would also dispense with the need for Mr. Geissah and Ms. Khalaf to approve the form of the formal order in this matter.

S.D. FRANKEL J.A.
M.V. NEWBURY J.A.:-- I agree.
N.J. GARSON J.A.:-- I agree.