OHIP plans to appeal ruling on mass vaccination billings

Ontario’s health insurance authority is seeking permission to appeal a recent Divisional Court decision that partially favoured Kingston physician Dr. Elaine Ma in a dispute over more than $600,000 in COVID-19 vaccination clinic billings.

In a motion filed on Tuesday, Dec. 30, 2025, the General Manager of the Ontario Health Insurance Plan (OHIP) asks the Ontario Court of Appeal for permission to challenge the Divisional Court’s ruling, arguing it misinterpreted a key provision of the Health Insurance Act  ("the Act") and raised issues of broad public importance affecting the administration of OHIP. At issue, OHIP says, is section 17.5 of the Act, which allows OHIP to pay a physician’s claim even if billing requirements were not met, where “extenuating circumstances” exist. The motion will be decided in writing on a date to be set by the court.

Ma organized 48 separate COVID-19 vaccination clinics in Kingston between July 2021 and January 2022. At these clinics, she and other physicians and medical students administered vaccines. OHIP later determined that she was not entitled to bill for those services, and it ordered her to repay $600,962.

According to Ma, OHIP failed to appreciate the time, labour, and expense involved in operating the 48 mass vaccination clinics, including the work required before and after each event. She has said no one from OHIP ever asked for a breakdown of her expenses. Yet there seemed to be some assumption that the clinics were profitable — an assertion she has rejected, noting that some clinics operated at a loss. Ma personally covered the costs of running the clinics, including paying the physicians who assisted. She has also maintained that she completed preparatory work in advance and entered the required data into the provincial system following each clinic.

Ma appealed the OHIP decision to the Health Services Appeal and Review Board (HSARB), a quasi-judicial tribunal established by the Ministry of Health and Long-Term Care which conducts appeals and reviews under twelve different health care statutes. In a decision released in November 2024, HSARB upheld the OHIP ruling.

Ma sought judicial review of the HSARB decision, and on Monday, Dec. 16, 2025, the Divisional Court upheld the HSARB’s findings on billing non-compliance but rejected its interpretation of section 17.5. The court found the provision could apply both before and after payment and ruled it was unreasonable for the Board to conclude that the pandemic did not constitute an extenuating circumstance. 

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 court acknowledged that exceptional conditions had existed, as governments were pressing doctors to vaccinate large numbers of people quickly, and it concluded that it was unreasonable for OHIP to deny that those conditions amounted to extenuating circumstances.

The Divisional Court’s decision, issued by Justices J. Matheson, M. Varpio, and S. O’Brien, provided a detailed review of the HSARB's original determination and concluded that while Ma may still owe some funds to OHIP, she should not have to pay back the full $600,000 initially sought. The court sent the matter back to the Board for reconsideration of the amount required to be repaid, based on written submissions from both sides.

In its motion for leave to appeal, OHIP argues the Divisional Court’s interpretation of section 17.5 is wrong in law and inconsistent with the structure of the Health Insurance Act.

OHIP maintains that the wording of section 17.5 contemplates discretionary payment decisions only before funds are issued, noting that other provisions of the Act expressly address recovery and reimbursement of payments already made. It argues that the court’s broader reading will make physician payment disputes more complex and uncertain.

The General Manager of OHIP also argues that the Divisional Court improperly expanded the HSARB's authority, which OHIP says is limited to determining whether billing requirements were met and which does not include the power to make discretionary payment decisions under section 17.5.

Finally, OHIP contends the court failed to give proper deference to the Board’s decision, substituting its own view on whether the pandemic constituted an extenuating circumstance despite the Board having heard evidence from five witnesses.

The motion argues that the case raises issues of public importance, given the potential impact on how physician billing disputes are assessed and adjudicated and on the administration of OHIP.

If permission to appeal is granted, the case would proceed to a full appeal before the Ontario Court of Appeal, the province's highest court. The Chief Justice of Ontario, the Associate Chief Justice of Ontario, and approximately 30 other judges sit on the Court of Appeal. Most appeals are heard by three judges, although some are heard by five.

Ma’s legal counsel was “not overly surprised” by OHIP’s move to seek an appeal, “given the positions OHIP has taken to date.” They noted that OHIP has 30 days from the date of this motion to file its full motion record with a written argument. Then Ma’s legal team will have 25 days to file their responding materials. There will be no hearing, as the leave to appeal decision is based solely on written materials.  

Kingstonist sought comment from OHIP and the Ontario Ministry of Health on the morning of December 31, 2025, but inquiries received no response.

By: Michelle Dorey Forestell, LJI Reporter, The Kingstonist