Arbitration Under The Health Insurance Act: Comment On A Recent Supreme Court Of Canada Decision

In a recent decision rendered by the Supreme Court of Canada (Quebec (Attorney General) v. Guérin, 2017 SCC 42), the Supreme Court had to determine whether a medical specialist could submit to arbitration, pursuant to the arbitration regime created by the Health Insurance Act (the "Act"), his contestation of a decision rendered jointly by the Quebec federation of medical specialists1 (the "Federation") and the Ministry of Health and Social Services (the "Ministry") pursuant to a mechanism contractually established by them.

In this case, a radiologist, Dr. Ronald Guérin (the "Applicant"), submitted a dispute to an arbitrator pursuant to the Act, in order to challenge a joint decision rendered by the Federation and the Ministry not to declare his medical imaging laboratories eligible for a digitization fee established pursuant to a radiological diagnostic protocol (the "Protocol") attached as a schedule to the Accord-cadre (Framework Agreement) between the Federation and the Ministry with regard to the application of the Act (the "Framework Agreement").

The arbitrator decided that he did not have jurisdiction to issue the declaration sought by the Applicant and to rule on the eligibility of the Applicant's laboratories for the digitization fee, as the Protocol provides that the Federation and the Ministry have the exclusive authority to recognize or not a laboratory and had thus removed this type of decision from the jurisdiction of the arbitration council. The arbitrator also decided that the Applicant did not have the required standing to submit the dispute in question to arbitration.

Both the Superior Court of Quebec and the majority of the Court of Appeal found that the arbitrator's decision was unreasonable, and that section 54 of the Act allows for a medical specialist to contest joint decisions of the Federation and the Ministry through arbitration.

The case was heard by a coram of seven Supreme Court justices. Justices Wagner and Gascon, writing on behalf of the four-judge majority, allowed the appeal and reinstated the arbitrator's decision. Justices Brown and Rowe arrived to the same conclusion, but for different reasons. Justice Côté dissented, siding with the Superior Court and the majority of the Court of Appeal.

Applicable standard of review and arbitrability of the dispute

Justices Wagner and Gascon, for the majority, were of the opinion that the dispute did not raise an issue of jurisdiction, but rather an issue of...