Dr. Elaine Ma reflects on Divisional Court decision

The Ontario Superior Court of Justice’s Divisional Court decided on Tuesday, Dec. 16, 2025, to partially overturn an OHIP (Ontario Health Insurance Plan) order that Dr. Elaine Ma repay $600,000, which she billed for mass vaccination clinics that inoculated over 27,000 people at the height of the COVID-19 pandemic.

Ma reached out to Kingstonist with written comments expressing her feelings on the matter.

As explained in previous coverage, Ma appeared before the Divisional Court on Tuesday, Dec. 2, 2025. The decision from that hearing, written by Justice J. Matheson and issued on Tuesday, Dec. 16, 2025, found that while Ma technically failed to comply with specific OHIP billing rules, it was unreasonable to ignore the extraordinary circumstances of the COVID-19 public health crisis. The Divisional Court’s decision, issued by Justices J. Matheson, M. Varpio, and S. O’Brien, provides a detailed review of the Health Services Appeal and Review Board’s (HSARB's) original determination and concludes that while Ma may still owe some funds to OHIP, she should not have to pay back the full $600,000 initially sought.

 “The Board’s conclusion that there were no extenuating circumstances under section 17.5 of the [Health Insurance] Act was unreasonable,” Justice Matheson wrote, emphasizing the context of the pandemic and Ma’s good-faith efforts.

“The Divisional Court’s decision released yesterday affirms something that front-line health-care workers have known all along,” Ma said, “COVID-19 was an extenuating circumstance.” 

Ma expressed gratitude to the justices “for their careful, thoughtful analysis and for recognizing the reality in which physicians were practising during an unprecedented public health emergency. 

“During the pandemic, doctors were responding to urgent and repeated government calls to vaccinate the population quickly, creatively, and at scale. The Court explicitly acknowledged that reality — and found it unreasonable for OHIP to insist that the pandemic did not constitute an extenuating circumstance,” she said.

“That recognition matters not only to me, but also to physicians across Ontario who stepped up when their communities needed them most.”

At the same time, Ma shared that she remains “deeply saddened that OHIP chose to argue — repeatedly and forcefully — that COVID-19 did not qualify as an extenuating circumstance. That position was profoundly disconnected from the lived experience of front-line health care, and it has now been rejected by the Court.”

“In light of this decision, and alongside the growing number of recent reports describing adversarial and punitive approaches taken by OHIP toward physicians working hard for their patients, I hope this moment signals the need for broader reflection and reform,” Ma said.

On Tuesday, Dec. 2, 2025 --- ironically, the same day Ma’s case was heard in the Divisional Court --- Ontario Auditor General Shelley Spence released her report on the Ministry of Health’s Oversight of Physician Billing, which found that the Ministry uses an outdated claims system.

At the same time that OHIP and the Ministry of Health have been combating Ma’s billing while never questioning that the work was done, the report concluded, “The Ministry's post-payment audit work has been reactive, relying on tips and complaints instead of data analysis to select physicians for audit.”

Ma also noted that the former General Manager of OHIP, Jeff Hutchison, who has been quoted as saying the pandemic was not an extenuating circumstance, is no longer in that role. 

“I sincerely hope this creates space for a new era — one grounded in collaboration rather than punishment — where OHIP works with physicians to strengthen patient care and the sustainability of Ontario’s health-care system,” Ma said.

Given the Divisional Court’s findings, Ma pointed out, “it would be both reasonable and appropriate for OHIP to stop garnishing my wages immediately and to cease charging interest while this matter returns to the Health Services Appeal and Review Board. Continuing to impose financial penalties in the face of this ruling would be unfair and unnecessary.”

However, she is not naive to the fact that an important question remains as the case proceeds back to HSARB: “What approach will OHIP now choose to take?”

“Will it continue to fight payment for work that was undeniably done in good faith during a public health emergency,” she wondered, “or, under new leadership, will it recognize that continuing down that path undermines trust and makes it harder to foster a constructive relationship with Ontario’s physicians?”

Ma believes that the way OHIP approaches the case now will send a powerful signal about the kind of system it intends to be.

Ma related that much public attention, and much of OHIP’s reasoning, has focused on the role of medical students in her mass vaccination clinics. 

”It is important," she said, "to clarify that while medical students contributed immensely to early clinics from May through fall 2021, they were not present at the mass clinics between December 2021 and January 2022, as they were not in Kingston over the holidays. Those later vaccines — which form a significant portion of the dispute — were administered by paid physicians.”

She also pointed out the sheer scale and inclusiveness of this work: “Forty-nine clinics were run over nine months. Vaccines were administered not only to patients with valid health cards, but also to members of the military, students, refugees, and individuals with expired or missing OHIP cards. No one was turned away — and none of those vaccinations were ever paid for [by the people receiving them].”

Beyond the clinics themselves, there were countless additional hours of work. Ma explained that data entry into COVax took approximately five minutes per dose, and because clinics were conducted outdoors, a significant proportion of records required later correction. 

“I completed those corrections personally, with conservative estimates suggesting roughly 20 per cent of all entries required follow-up,” she said.

A major frustration for Ma has been the government’s absolute refusal to see her work in good faith. 

“At one point, OHIP asked me to calculate the total hours I spent on these clinics and the associated work," she said. "The result was equivalent to a second full-time job for an entire year. I was told that could not possibly be accurate. While those calculations were part of 'without prejudice' discussions and could not be entered as evidence, they were, in fact, correct. The physical act of administering vaccines was the fastest part of the process; the planning, staffing, logistics, supervision, and data correction required enormous time and effort.”

“Finally,” Ma shared, “I want to express my deep gratitude to my family, friends, patients, and community members. Your support — through phone calls, letters, words of encouragement, and understanding when I was less available in my clinic due to repeated trips to Toronto — carried me through an extraordinarily difficult period. I am especially thankful to my physician colleagues who helped cover my practice so that my patients continued to receive care.”

Ma emphasized, “This case has never been about avoiding accountability. It has always been about fairness, context, and recognizing the realities of practising medicine during a once-in-a-century global crisis. I am grateful that the Court has acknowledged that reality, and I hope this decision leads to meaningful reflection and reform — for the sake of physicians, patients, and the future of Ontario’s health-care system.”

Kingstonist contacted the Ministry of Health and the office of the Premier of Ontario for comment, but did not receive a response by the time of publication. Further coverage of this matter will be provided upon response from the government, and/or as Dr. Ma's case returns to the HSARB.