Court Of Appeal Summaries (April 21 ' 25, 2025)

• Published date: 30 April 2025
• Law Firm: Blaney McMurtry LLP
• Author: Mr John Polyzogopoulos

Good afternoon.
Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of April 21, 2025.

In Ontario (Health Insurance Plan) v. K.S., the Court dismissed the General Manager of OHIP's appeal from a Divisional Court decision confirming that a vaginoplasty without penectomy qualifies as an insured service. The Court held that the procedure was specifically listed in the Schedule of Benefits and thus was not excluded as experimental, rejecting the argument that a penectomy was required for coverage. It also found no error in the Divisional Court's refusal to consider a new ground of appeal that had not been raised before the Health Services Appeal and Review Board.

In Shirodkar v. Coinbase Global, Inc., the Court dismissed an appeal from an order staying a proposed class action alleging securities law violations against several Coinbase entities. The Court upheld the motion judge's findings that Ontario lacked jurisdiction over the foreign Coinbase respondents and that, while Ontario had jurisdiction over Coinbase Canada, Ireland was the more appropriate forum for hearing all of the claims, including against Coinbase Canada, which had no material involvement in the appellant's transactions.

In Integrated Team Solutions PCH Partnership v. Mitsubishi Heavy Industries, Ltd., the Court found that the motion judge did not err in holding that Ontario had jurisdiction to hear the matter, and that a forum selection clause in favour of the Commercial Court in France was not properly proven as forming part of the contract at issue. The forum selection clause therefore could not be relied upon to stay the action.

In Bank of Montreal v. Utility Engineers Corporation, the Court dismissed the appellant's appeal from a summary judgment ordering payment under a personal guarantee. The Court found no error in the motion judge's conclusion that there was no genuine issue requiring a trial, that the Bank owed no special duty to explain the guarantee, and that the appellant's non est factum defence lacked any air of reality. It also rejected claims of procedural unfairness relating to a proposed amended defence and the use of discovery transcripts.

In Lang-Newlands v. Newlands, the Court dealt with a motion concerning the automatic stay pending appeal under rule 63.01 of the Rules of Civil Procedure following the filing of an appeal in a family law matter. The moving party sought to characterize certain post-separation adjustments as spousal support to avoid the stay or, alternatively, to lift the stay or stay other payment obligations. The Court declined to recharacterize the payments but exercised its discretion to lift the stay on the amounts owed by the respondent, citing a serious risk of non-payment and applying a flexible approach appropriate in family law proceedings. The Court also ordered an expedited hearing of the appeal.

In Nutrition Guidance Services Inc. v. Schwartz, the Court upheld the motion judge's finding that a medical building was owned by two brothers and their wives as tenants in common and not in partnership. The Court did, however, reverse the motion judge's decision to dispense with the need for the Appellants' consent to the sale. The Appellants were 75% co-owners and there was no evidence that they would frustrate the sale or unreasonably withhold consent. The matter was referred to an associate judge to preside over a judicial sale, which would entitle both sides to make offers to purchase the property.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

CIVIL DECISIONS

Ontario (Health Insurance Plan) v K.S., 2025 ONCA 306

[Zarnett, Coroza and Favreau JJ.A.]

Counsel:

S. Z. Green, S. Gordian and A. Ralph, for the appellant

J. McIntyre and J. Szabo, for the respondent

G. Ko, F. Nasca and O. Evans, for the intervener Canadian Civil Liberties Association

D. Girlando and H. Rioseco, for the intervener Egale Canada

Keywords: Health Law, Ontario Health Insurance Plan, Coverage, Gender Affirming Surgery, Health Insurance Act, R.S.O. 1990, c. H.6, s. 4(2), s. 10, s. 11(1), s. 12(1), Schedule of Benefits ' Physician Services under the Health Insurance Act (October 1, 2005), Regulation 552, s. 24(1), s. 28.4(2), s. 29(1), Canadian Charter of Rights and Freedoms, Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, Ayr Farmers Mutual Insurance Company v. Wright, 2016 ONCA 789, Bristol-Myers Squibb Co. v. Canada (Attorney General), 2005 SCC 26, Flora v. Ontario Health Insurance Plan, 2008 ONCA 538, Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31, Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, R. v. Salifu, 2023 ONCA 590, Kaiman v. Graham, 2009 ONCA 77, R. v. J.F., 2022 SCC 17, Penner v. Niagara (Regional Police Services), 2013 SCC 19, Elmer A. Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983), E. Coleman et al., (2022) Standards of Care for the Health of Transgender and Gender Diverse People, Version 8, International Journal of Transgender Health, 23:sup1, S1-S259, DOI: 10.1080/26895269.2022.2100644 (World Professional Association for Transgendered Health Standards of Care)

Facts:

This appeal considered when a gender affirming surgery qualifies as an insured service that is to be paid for by the Ontario Health Insurance Plan ("OHIP").

Under the Health Insurance Act (the "Act"), OHIP insures the cost of insured services incurred by Ontario residents. The Act describes insured services in general terms, leaving specificity to the regulations passed under the Act. The regulations provide that specificity in part through a comprehensive Schedule of Benefits. The interpretation of the Schedule of Benefits, in the context of the regulations and the Act, was central to the determination of the appeal.

The Schedule of Benefits designates certain "sex-reassignment surgical procedures" as "insured services when prior authorization has been obtained", prescribes the mode of obtaining authorization, and states that prior authorization may be granted only for "specifically listed services". One of the services listed is a vaginoplasty, a type of gender affirming surgery.

The respondent, K.S., sought prior authorization and confirmation from the appellant, the General Manager of OHIP, that the cost of a vaginoplasty recommended by her health care team would be covered by OHIP. There was no dispute that she fulfilled all the requirements for authorization, including having assessments from appropriately trained health professionals recommending the surgery. The General Manager denied coverage contending that, because the vaginoplasty would not be accompanied by a penectomy, the proposed procedure was not one specifically listed in the Schedule of Benefits.

The Health Services Appeal and Review Board (the "Board") allowed K.S.'s appeal from the denial of coverage. In the Board's view, a vaginoplasty is an insured service because it is a specifically listed service in the Schedule of Benefits whether or not accompanied by a penectomy - another specifically listed procedure that sometimes, but not always, is performed along with a vaginoplasty. Moreover, in light of the determination that it is specifically listed, it did not matter whether the recommended technique was experimental.

The General Manager appealed the Board's decision to the Divisional Court, contending that the Board erred in its determinations and raising an additional ground not raised before the Board. The Divisional Court dismissed the appeal and refused to entertain the new ground of appeal.

Issues:

1. Did the Divisional Court err in its holding that the vaginoplasty recommended for K.S. was specifically listed in the Schedule of Benefits?
2. Did the Divisional Court err by failing to find that penile preservation vaginoplasty is excluded because it is experimental?
3. Did the Divisional Court err by declining to consider the new issue raised before it?

Holding:

Appeal dismissed.

Reasoning:

1. Did the Divisional Court err in its holding that the vaginoplasty recommended for K.S. was specifically listed in the Schedule of Benefits?

No. The Court held that the General Manager's argument, that the vaginoplasty recommended for K.S. was not a specifically listed insured service because it did not include a penectomy, was not supportable. The Court noted that the Schedule of Benefits clearly listed "vaginoplasty" as a sex-reassignment surgical procedure eligible for coverage with prior authorization, and that there was no basis to interpret it as requiring a concurrent penectomy. The Court emphasized that both vaginoplasty and penectomy appeared separately in the list, and treating vaginoplasty as dependent on another procedure would undermine the plain language of the regulation.

The Court further noted that the existence of different surgical techniques, including penile preserving vaginoplasty, did not affect the classification of the procedure as a vaginoplasty within the meaning of the Schedule. The Court highlighted that the World Professional Association for Transgendered Health ("WPATH") Standards of Care, which are incorporated by reference in the authorization criteria, recognize vaginoplasty with or without penectomy as a valid option for non-binary individuals. The Court rejected the General Manager's reliance on the procedure's potentially experimental nature, explaining that under section 24(1) of the regulations, once a procedure is specifically listed in the Schedule of Benefits, it is insured regardless of whether it is considered experimental. The Court concluded that the Board and Divisional Court were correct in finding the recommended procedure to be a specifically listed, insured service, and it rejected this ground of...