Q.B. A.D. 1996 No. 2118 J.C.S. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON IN THE MATTER OF AN APPEAL PURSUANT TO SECTION 49.21 OF THE SASKATCHEWAN MEDICAL CARE INSURANCE ACT R.S.S. 1978, c. S-29 FROM SEPTEMBER 24, 1996 ORDER OF THE JOINT MEDICAL PROFESSIONAL REVIEW COMMITTEE and IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW OF SEPTEMBER 24, 1996 ORDER OF THE JOINT MEDICAL PROFESSIONAL REVIEW COMMITTEE BETWEEN: CARLOS HUERTO APPLICANT (APPELLANT) and THE MINISTER OF HEALTH, THE DIRECTOR OF PROFESSIONAL REVIEW AND THE JOINT MEDICAL PROFESSIONAL REVIEW COMMITTEE RESPONDENTS (RESPONDENTS) Brian J. Scherman and David G. Gerecke for Dr. Huerto Murray J. Hinds for the respondents JUDGMENT BAYNTON J. June 2, 1998 Summary of the Issues and the Proceedings [1] Dr. Huerto, a cardiologist, appeals an order madeagainst him by the Joint Medical Professional Review Committee(the "Committee") that he repay $207,821.03 in medical fees hereceived over a fifteen month period from the Medical CareInsurance Branch (the "MCIB"). The appeal is brought under s. 49.21(1) of The Saskatchewan Medical Care Insurance Act, R.S.S. 1978, c. S-29 (the "Act"). The statistics generated by MCIB illustrate that Dr. Huerto's cost per patient is dramatically higher than that of the group mean comprised of his fourteen cardiologist peers. Dr. Huerto challenges the reliability of these statistics as fair and meaningful indicator of comparative patient costs. [2] Dr. Huerto also applies under Part 52 of the Rulesof Court for a judicial review of the proceedings. Two issues are raised for review. The first is whether there is areasonable apprehension of bias raised by the involvement ofthe Director of Professional Review in the hearing conductedby the Committee. The second is whether there is a reasonableapprehension of institutional bias raised by the roles of theDirector and the Committee assigned to them by the Act. The notice of appeal was subsequently amended to include these judicial review issues. [3] Dr. Huerto was previously the subject of competency review ordered by the College of Physicians and Surgeons and was found to be competent to conduct cardiology practice. The Committee in its decision acknowledged that Dr. Huerto is competent cardiologist and that the standards of patient care aspect of his practice is not an issue in these proceedings. What is in issue is the economic aspect of his practice. The Committee is mandated under the Act to determine whether Dr. Huerto's pattern of medical practice is acceptable to it considering that his billings to medicare is out of line with the billings to medicare by the other cardiologists in Saskatchewan. [4] One of the primary questions the Committee had to consider was whether the MCIB comparative billing statistics should be adjusted to take into account that all costs associated with Dr. Huerto's patients are reflected in his medicare billings while this is not the case with the patient costs associated with the other cardiologists. Dr. Huerto does not have hospital privileges so he treats his patients at his own clinic. He has equipped and staffed it so that it is equivalent to coronary care unit in hospital. The other cardiologists treat many of their patients in hospital. The consequence of this distinction is that if all the costs incurred during the hospitalization of patients of the other cardiologists are included in the comparative statistics, Dr. Huerto's patient costs are less than those of the group mean. [5] The legislative objective of the professional review provided for in The Saskatchewan Medical Care Insurance Act is to impose some controls and limits on the liability of the public purse to pay billings by care providers (in this case medical doctors) for services to their patients (in this case cardiac patients). Even though the ultimate goal of the provision of medical services is to provide quality patient care, the depth of the public purse is not unlimited. Unless such care is provided in cost effective manner the demands on the public purse will become unacceptable. Accordingly the economics of providing quality patient care is the primary issue to be determined by professional review. [6] But the statistics generated by MCIB which trigger the professional review reflect only the medicare billings associated with cardiac patients. It is only these costs that show up in the comparative cost per patient statistics. Medicare costs however are but one side of the coin. Hospitalization costs are the other. The public purse must ultimately pay for both medicare and hospitalization costs involved in the care and treatment of cardiac patient. With this in mind, any review to determine if there has been departure from an acceptable pattern of medical practice appears to be fundamentally flawed if it considers only medicare patient costs without corresponding consideration of hospital costs. The problem is that apparently reliable data is not available to enable hospital costs to be included in the comparative statistics generated by MCIB. [7] The hearing appealed from was conducted in stages over period of four months from February to May 1996. The proceedings generated hundreds of pages of transcript, volumes of exhibits, and lengthy written decision. The appeal briefs address each ground of appeal and are also lengthy. have concluded that one ground of the appeal has merit and that the order appealed from should be varied. The judicial review application has no merit. The Specific Grounds of Appeal [8] The appellant has raised numerous grounds of appeal. In view of my conclusions it has been necessary to deal with each of them. They are summarized as follows: 1. The rules of natural justice werebreached in the following ways: a. The Committee failed to provide adequate reasons for its b. The Committee heard and relied on evidence outside the presence of the appellant, and it refused to advise the appellant of such c. The involvement of the Director with the Committee before and during the hearing and in its deliberations raised reasonable apprehension of bias; d. The lack of institutionalindependence of the Committeefrom the Director and MCIBraised a reasonable apprehensionof institutional bias. 2. The Committee made the followingerrors of law:a. By improperly placing the burdenof proof on Dr. Huerto;b. By failing to take into accountall relevant factors in:i. Ignoring the statisticalanalysis presented onbehalf of Dr. Huerto thatwas more reliable than thestatistical analysispresented by MCIB;ii. Considering as beyond itsmandate Dr. Huerto\'ssubmission that he wasproviding cost effectiveservices in keepingpatients out of hospital;c. By using and relying on theknowledge of the members of theCommittee in preference to theuncontroverted expert evidence. 3. The orders made by the Committeeconcerning the various medicalservices were not reasonablysupported by the evidence before it. The Unique Aspects of Dr. Huerto's Pattern of Medical Practice [9] Dr. Huerto has been medical doctor for thirty years and for over half of that time has been authorized to practice cardiology and internal medicine. He taught for time at the College of Medicine in Saskatoon. Since 1989 he has practised primarily as cardiologist from his own clinic in Saskatoon. His practice is unique from that of the other cardiologists in Saskatchewan in three aspects. The first is that he does not have hospital privileges. He has attempted to reduce the limits this places on him by developing clinic with staff and diagnostic equipment that is equivalent to cardiac care unit in the hospital. Many of the tests routinely conducted by other cardiologists on cardiac patients in the hospital are not reflected in MCIB's comparative statistics. All the tests conducted by Dr. Huerto in his clinic are reflected in MCIB's comparative statistics. The significance of this distinction is that the comparative statistics artificially understate the ratio of diagnostic tests done per patient by the group mean. [10] second aspect of Dr. Huerto's practice that is unique is that he orders more diagnostic tests on his patients and does more follow up on them himself than do other cardiologists. Most cardiologists tend to refer patients back to their respective family doctors for follow up. Dr. Huerto maintains that cardiac patients are better served if it is the cardiologist rather than the family doctor who does the follow up. He says that this cannot be done safely or effectively without the results of contemporary testing. He submits that prevention, education and holistic approach is required to effectively treat cardiac patients. He has staffed his clinic with critical care nurses to assist him in this regard. This difference in pattern of cardiology practice results in higher ratio of repeat patients of Dr. Huerto than that of the group [11] third aspect of Dr. Huerto's practice that is unique is his extended office hours and the availability of his clinic to his patients at any hour of the day or week. He and his head nurse testified that he is in his clinic 15 hours per day (4:30 a.m. to 7:30 p.m.). The evidence establishes that in many instances, particularly on week-ends, the patients of other cardiologists are referred to the emergency department of hospital. These patients are usually hospitalized and treated in the cardiac care unit, often by another doctor or cardiologist. This difference in pattern of cardiology practice eliminates the significant costs that would otherwise be incurred if Dr. Huerto's patients were hospitalized and tested in the hospital in the same fashion as the patients of other cardiologists. Because these hospitalization costs are not reflected or accounted for in the MCIB statistics for billings by cardiologists, these cost savings respecting Dr. Huerto's patients are not offset against his other higher costs per patient that are reflected in the comparative statistics. The Events Leading to these Proceedings [12] As mentioned previously, the MCIB statistics on medicare billings ("insured services") for the 15-month period September 22, 1992 to December 29, 1993, illustrate marked departure of Dr. Huerto's medicare billings from those of the other cardiologists comprising the group mean. These statistics were referred by the Director of Professional Review (the "Director") to previously appointed Joint Medical Professional Review Committee ("JMPRC") which met on February 11 and 12, 1994 to consider the data package which also included comparative statistics for prior period extending from March 28, 1987 to September 24, 1990. Dr. Huerto was notified on March 30, 1994 by the previous JMPRC that his billing pattern was under review and that the JMPRC had concerns about his billing pattern as compared to the group mean of other specialists in internal medicine and cardiology. The concerns were (a) the high rate of contacts per patient, and (b) the high costs per patient contributed to by high rate of partial and major assessments, diagnostic tests, and first-patient seen surcharges. [13] The previous JMPRC selected twenty of Dr. Huerto's patient files for review. Dr. Huerto made written submissions on each of them after being granted three extensions to do so. The previous JMPRC decided to meet with Dr. Huerto to discuss the files. Dr. Huerto then brought successful application to disqualify the previous JMPRC due to reasonable apprehension of bias respecting the involvement of one of its members in prior proceeding against Dr. Huerto by the College of Physicians and Surgeons. new JMPRC (the Committee whose decision is now the subject of this appeal and judicial review) was formed consisting of eight general practitioners from Regina. No cardiologist was placed on the Committee due to the objection of Dr. Huerto that all cardiologists in Saskatchewan were biased against him. The Committee reviewed the twenty files and also questioned him extensively about thirteen of the files during the hearing. The Committee rendered its decision in September 1996. The appeal and judicial review application did not come on for hearing until this year. [14] The statistical package presented by MCIB for the period in issue show that Dr. Huerto's comparisons to the group mean are as follows: Cost per patient 706% Number of major assessments 250% Number of other assessments 1,174% Rate of consultations 415% Patient load (discrete patients) 30% Initial patient surcharges 660% Dr. Huerto was paid $679,947, group mean $484,946. The difference in payment to Dr. Huerto and the group mean was $272,126. The total amount ordered by the Committee to be repaid by Dr. Huerto was $207,821. [15] In response to the statistical package, Dr. Huerto prepared his own package of statistics and spreadsheets with various adjustments made to compare "apples to apples". Dr. Huerto maintains that unless such adjustments are made to the MCIB statistics, they compare "apples to oranges" and do not accurately or fairly provide realistic assessment of his patient costs reflected in his pattern of billings compared to the cardiologists comprising the group mean. The adjustments made by Dr. Huerto to the statistical comparison take into account the unique aspects of his practice outlined previously. They are an attempt to compare the total costs of Dr. Huerto's patients to the total costs of patients of the other cardiologists comprising the group mean. His statistics show that he compares very favourably to the group mean and that his cost per patient is far below the group mean. [16] In general terms the first set of adjustments "back out" the costs of those kinds of diagnostic tests done by Dr. Huerto in his clinic that would routinely be conducted at hospital on patients of the other cardiologists comprising the group mean and that would accordingly not be reflected in their billings for insured services. As Dr. Huerto has no hospital privileges, any diagnostic tests done by him are done at his clinic and are reflected in his billings for insured services. The second set of adjustments "attribute" to the patients of the other cardiologists comprising the group mean, the costs associated with the hospitalization of such patients during treatment. As Dr. Huerto's clinic is equivalent to coronary care unit in hospital, he treats his patients at his clinic rather than in the hospital. Very few of his patients are referred by him to another cardiologist for treatment in hospital. The cost of treating cardiac patient on an outpatient basis is substantially less than the cost of treatment in the hospital. The third set of adjustments is to "back out" discrete patients (i.e. those actually not seen by the other cardiologists comprising the group mean). The hospitalization adjustment component is the most controversial aspect of the comparative statistics generated by Dr. Huerto. [17] Although not strictly relevant, it is evident that Dr. Huerto's net income is likely less than that of his peers. The costs of operating his clinic include the acquisition and maintenance of expensive diagnostic equipment and the provision of highly trained support staff. These costs are payable by Dr. Huerto out of the billings he receives from MCIB. Dr. Huerto's financial position at the current time is particularly critical in that deductions are being made by MCIB to recover previous repayment order of approximately $385,000 for prior period. Dr. Huerto claims he is left with no personal income once he has paid for the operating costs of his clinic. As well, the costs of certain tests and services rendered to patients by Dr. Huerto are routinely not charged to either MCIB or his patients to avoid complications with MCIB. These include certain precautionary diagnostic tests, certain drugs that can be obtained at no patient expense only in hospital, the provision to his patients of the services of dietician and social worker, and the like. The Testimony Supporting Dr. Huerto's Position [18] Dr. Hughes, specialist in internal medicine and cardiology from Ontario, testified on behalf of Dr. Huerto. Dr. Hughes operates busy cardiology practice and holds executive positions in the Ontario Medical Association and the Ontario Association of Cardiologists. His own billings had previously been reviewed in Ontario due to his variance with the group mean, but the reviewing committee made no order for repayment. It should be pointed out however that Dr. Hughes has far greater patient load than does Dr. Huerto. Dr. Hughes stated that it was far more cost effective to treat cardiac patients on an outpatient basis than to treat them in hospital. He claims this pattern of practice is now becoming the trend. It is how he has conducted his practice in Ontario for some time. He stated that the patients of most cardiologists are still treated in hospital unlike his own patients and those of Dr. Huerto. He observed that each of Dr. Huerto's patients making up the twenty profiles would have been hospitalized at some time had they been treated in the usual fashion by another cardiologist. In his opinion, the follow up of cardiac patients by cardiologist was in most cases preferable to follow up by general practitioner. [19] Dr. Hughes visited Dr. Huerto's clinic to observe its operation. He also reviewed the twenty patient files available to the Committee. He concluded that each of those patients were in need of cardiac care and that Dr. Huerto's treatment of them was appropriate. Although Dr. Huerto utilized multiple testing to compensate for his lack of hospital privileges, the up-to-date information provided by multiple testing is particularly helpful in treating cardiac patients. From his observations he concluded that Dr. Huerto was conducting competent cardiology practice in well equipped and staffed clinic which afforded his patients with level of care comparative to hospital care. Dr. Huerto's pattern of medical practice, including his follow up and multiple testing of cardiac patients, was medically and economically appropriate. Dr. Hughes was strongly of the view that reliable cost of patient care comparisons cannot be made on the basis of medicare billings alone. Hospitalization costs must be factored in as well. [20] Dr. Atkinson, an anaesthesiologist from Ontario who discontinued his practice five years ago to provide consulting services on the economics of health care, testified on Dr. Huerto's behalf. Dr. Atkinson is former Chief of Medical Staff at the Ottawa Civic Hospital, position he held for eight years. He currently holds executive positions with the Ontario Commission on Health Facilities and the Canadian Institute for Health Information. He has recently conducted reviews and made reorganization proposals respecting the hospitals in Edmonton, Saskatoon, and Regina. He testified that the current trend in the provision of medical care is to use hospitals less and to use outpatient facilities more. greater emphasis is also being placed on prevention. He was of the opinion that these trends will save significant costs without triggering any corresponding reduction in the quality of health care. [21] Dr. Atkinson testified that the cost for the hospitalization of patient in Saskatoon is $622 per day. The cost of cardiac patient, based on the national average, is approximately 25% higher, for total estimated cost of $777 per day. Dr. Atkinson is not cardiologist and accordingly he was not able to give an opinion on whether the pattern of medical practice utilized by Dr. Huerto was appropriate. Dr. Atkinson agreed with Dr. Hughes however that the methodology utilized by Dr. Huerto in the statistical package he presented to the Committee was appropriate from patient cost comparison perspective. [22] Dr. Diaz, general practitioner in Saskatoon with experience in critical care, testified that she routinely referred patients to Dr. Huerto with excellent results. She chose him primarily because of his availability on short notice at any hour, and because of the personal interest he took in his patients. She stated that in her experience most patients referred to other cardiologists, especially on week- ends and after hours, were hospitalized for several days for diagnostic tests. Due to the sophistication of Dr. Huerto's clinic, he was able to diagnose and treat almost all of his patients without the necessity of hospitalization. Some of the patients he has taken on used to be hospitalized routinely before they were referred to him but are no longer treated in hospital because of the care they receive at his clinic. Although she has been divorced from Dr. Huerto since 1986, she continues to refer most of her patients to him. [23] Professor Heaslip, an associate professor of nursing at the University of Saskatchewan, testified on behalf of Dr. Huerto. Professor Heaslip is critical care nurse with 25 years of experience. She is former Director of each of the intensive care unit and the coronary care unit at the Royal University Hospital. Through her students she maintains contact with the hospital and staff. She works part time in Dr. Huerto's clinic managing his staff, doing his accounting and managing patients who would otherwise go to the emergency department of hospital and be admitted. She testified that Dr. Huerto's clinic is of standard equivalent to the coronary care unit at the Royal University Hospital. She referred to the opinion letter of Dr. David Johnson, the Director of the adult critical care unit at the Royal University Hospital, to the same effect. Dr. Johnson had previously evaluated Dr. Huerto's clinic, its policies, procedures, and management of patients. [24] In preparation for the hearing, Dr. Heaslip recruited the services of three critical care nurses at the Royal University Hospital to independently review the patient profiles set out in the twenty files reviewed by the Committee. She and the other nurses concluded unanimously that patients with the symptoms exhibited in the profiles were the kind of patients they would see routinely in the emergency department or the coronary care unit at the hospital. They agreed with Dr. Huerto's estimates of the number of times his patients would have been admitted to hospital had his clinic not been available to them. They felt however that he had underestimated the duration of the perspective periods of hospitalization. [25] One of Dr. Huerto's patients testified on his behalf. She stated that since she has been treated by Dr. Huerto, she has stayed out of the hospital and has experienced significant improvement in her health and ability to function normally. [26] Dr. Huerto also testified on his own behalf and gave detailed explanations to questions from the Committee respecting most of the 20 files reviewed by it. [27] All of the evidence presented on behalf of Dr. Huerto was uncontroverted with one possible exception. negative assessment of Dr. Huerto's practice was made by Dr. Sommerville, now deceased, in correspondence with the College of Physicians and Surgeons. Although this correspondence was referred to in the respondents' legal brief, am not certain that it was placed before the Committee. In any event, it has not changed my decision. will go on to review it in the event it was considered by the Committee. The Potential Sommerville Evidence [28] Dr. Sommerville had been appointed by the College to supervise Dr. Huerto's practice for the last four months of the period under review. His role was entirely different than that of the Committee in the review proceedings before me. He was cardiologist however and his opinions would constitute relevant evidence that could be considered by the Committee. But because of his death he could not be witness at the review hearings nor could he be cross-examined by Dr. Huerto on his comments and assessments contained in his correspondence. [29] Dr. Sommerville stated in his correspondence to the College that the patients seen by Dr. Huerto were the same type of patients that are seen by cardiologists on an out- patient basis without the requirement of hospitalization. In his opinion, Dr. Huerto had usurped the role of primary care physician by departing from the normal role of consultant and referral specialist who manages patients in conjunction with the respective family physicians. Dr. Sommerville's opinion was that Dr. Huerto had high incidence of surcharging resulting from patient convenience or demand rather than medical necessity, and that his pattern of medical practice was self-chosen with little clinical judgment being made respecting the necessity for diagnostic tests. He viewed Dr. Huerto's style of practice as highly lucrative one that involved few referrals, frequent follow-ups, low patient load, and different perception of what constituted an emergent situation. The Reasonable Apprehension of Bias Evidence [30] In response to Dr. Huerto's allegations of reasonable apprehension of bias, the chairman of the Committee filed an affidavit setting out the involvement of the Director in the affairs of the Committee. As mentioned previously, the Committee was struck to replace the former JMPRC. As none of the members of the Committee had served on JMPRC before, the Director met with the Committee to explain the procedure utilized by previous committees. After this initial meeting, the Committee sought the guidance of the Director from time to time on matters of procedure but made its own decision on what procedure it would eventually follow. The Director was present throughout the hearing and sat beside the chairman. From time to time the Director asked few questions to clarify and explain matters arising out of the statistical packages presented. He did not however, contrary to what was alleged by Dr. Huerto, take part in any deliberations of the Committee, nor did the Committee consider any information that was not put before it during the hearing and in the presence of Dr. Huerto or his counsel. The Law and Analysis [31] As an appeal under the Act is an appeal on the record, the judicial review application was brought to enable the court to consider evidence which did not form part of the record and avoid the issue that arose in Ramsahoi v. Saskatchewan (Minister of Health) et al. (1990), 85 Sask. R. 42 (Q.B.) at pp. 46-47. [32] Osborn J. in Appavoo v. Saskatchewan (Minister of Health) et al. (1995), 1995 CanLII 5625 (SK QB), 127 Sask. R. 34 (Q.B.), at pp. 36-37 reviews the case law and summarizes the nature of statutory appeal from an order of Joint Medical Professional Review Committee: Pursuant to s. 49.21(1) of the Saskatchewan Medical Care Insurance Act, this court has jurisdiction to (a) affirm or vary the Committee's orders appealed from; (b) refer the matter back to the Committee with directions to reconsider it; or (c) quash the Committee's orders and substitute orders that it thinks the Committee ought to have made. The authorities have identified four circumstances in which an appeal of this nature might succeed: (a) if the Committee proceeded without jurisdiction or exceeded its jurisdiction; (b) if it did not observe rules of natural justice; (c) if it made an error of law; and (d) if the evidence does not reasonably support the Committee's findings. See: Ramsahoi v. Saskatchewan (Minister of Health) et al. (1990), 1990 CanLII 7328 (SK QB), 85 Sask. R. 42 (Q.B.); Barber v. Saskatchewan (Minister of Health) et al., (1991), 1991 CanLII 7644 (SK QB), 94 Sask. R. 37 (Q.B.); Malhotra v. The Joint Medical Professional Review Committee, (January 22, 1992, Q.B. No. 981 of 1990, Sask. Q.B., unreported); Huerto v. Saskatchewan (Minister of Health) et al., (1994), 124 Sask. R. 121 (Q.B.). Pursuant to s. 49.21(2) of the Saskatchewan Medical Care Insurance Act, this court is restricted to considering only the record of the proceedings of the Committee. When assessing the four criteria identified above, this court, as an appeal court, must critically examine the evidence and ask whether, taken as whole, it reasonably supports the findings of fact reached by the Committee. [33] The appellant has in effect appealed on each of the four grounds identified by the case law. will deal first with the natural justice grounds raised in the judicial review application and in the notice of appeal. will then go on to deal with the remaining grounds raised by the notice of appeal. a. Natural Justice Issues [34] Section 49.2(10) of the Act provides as follows: (10) In making an order pursuant to this section, [the section applicable to the case before me] the committee shall observe the rules of natural justice. [35] It is trite law that the rules of natural justice impose the duty to act fairly and to provide procedural fairness. [36] The first breach of natural justice alleged is that the Committee failed to provide adequate reasons for its decision. The Committee gave lengthy written decision. Although the reasons contained in the decision may not have been to the satisfaction of the appellant, they are not inadequate as alleged and do not constitute breach of natural justice. The second breach of natural justice alleged is that the Committee heard evidence outside the presence of the appellant and refused to advise the appellant of such evidence. The affidavit filed by the chairman of the Committee refutes these allegations. accept this evidence and conclude that no breach occurred as alleged. [37] The existence of reasonable apprehension of bias is the alleged third breach of natural justice. The natural justice duty to act fairly and to provide procedural fairness cannot be achieved if an adjudicator is biased or if there is reasonable perception that it is biased. Grandprï¿½ J. in Committee for Justice and Liberty et al. v. National Energy Board (1976), 1976 CanLII (SCC), 68 D.L.R. (3d) 716 (S.C.C.) defines what constitutes reasonable perception or apprehension of bias. This test has been consistently endorsed by the Supreme Court in various cases including R. v. S.(R.D.), 1997 CanLII 324 (SCC), [1997] S.C.R. 484 in which the court stated at p. 505: The presence or absence of an apprehension of bias is evaluated through the eyes of the reasonable, informed, practical and realistic person who considers the matter in some detail (Committee for Justice and Liberty, supra.) The person postulated is not "very sensitive or scrupulous" person, but rather right-minded person familiar with the circumstances of the case. [38] Our Court of Appeal has specifically dealt with this principle in connection with the role of committee under the Act. Milne v. Joint Chiropractic Professional Review Committee, 1992 CanLII 8304 (SK CA), [1992] W.W.R. 354 at pp. 360-361, and Huerto v. College of Physicians and Surgeons (Saskatchewan), [1996] W.W.R. 153. The latter case involved the same appellant as the one before me on this appeal. At p. 156, Mr. Justice Cameron stated that the essence of the principle was identified by Mr. Justice Cory in Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), 1992 CanLII 84 (SCC), [1992] S.C.R. 623 at p. 636: The duty to act fairly includes the duty to provide procedural fairness to the parties. That simply cannot exist if an adjudicator is biased. It is, of course, impossible to determine the precise state of mind of an adjudicator who has made an administrative board decision. As result, the courts have taken the position that an unbiased appearance is, in itself, an essential component of procedural fairness. To ensure fairness the conduct of members of administrative tribunals has been measured against standard of reasonable apprehension of bias. The test is whether reasonably informed bystander could reasonably perceive bias on the part of an adjudicator. [39] am satisfied that Dr. Huerto's allegations respecting the involvement of the Director in the deliberations of the Committee are groundless. accept the affidavit evidence of the Chairman of the Committee to the effect that the Director did not influence the deliberations or decision of the Committee. As well, the transcript indicates that the Committee did everything within its power to accommodate the wishes of Dr. Huerto. It also indicates that the Director co-operated fully with Dr. Huerto's counsel by attempting to provide the additional information sought by Dr. Huerto to make adjustments to the statistical data presented by MCIB. Many courtesies were also extended to Dr. Huerto by the Committee. Although several of the questions asked of Dr. Huerto and his witnesses by members of the Committee evidenced sense of frustration on the part of the Committee, many of those questions would not have been required had the witnesses been more concerned with giving evidence and less concerned with advancing Dr. Huerto's position. [40] Neither the Director nor the Committee acted in aprosecutorial fashion. It is obvious that the Committee was attempting to understand Dr. Huerto's submissions and the statistical information that he was presenting. The former JMPRC gave Dr. Huerto several extensions to respond to the statistical information presented by MCIB. As well, the Committee granted him an adjournment when he failed to show up personally at the continuation of the hearing. His failure to attend was discourteous and inexcusable, put his own counsel in an awkward position, and caused considerable inconvenience to the Committee. Another accommodation made by the Committee to Dr. Huerto was that it yielded to his request that no cardiologist be placed on the Committee. As later acknowledged by the Committee, this made its task much more difficult. In the circumstances of this case, no reasonably informed bystander could reasonably perceive bias either on the part of the Director or on the part of the Committee or from the involvement of the Director with the Committee. [41] The existence of reasonable apprehension of institutional bias is the fourth alleged breach of natural justice. Dr. Huerto submits that the provisions of the Act cast the Director in the role of policeman and prosecutor. He asserts that the regulations [s. 13 of The Medical Care Insurance Peer Review Regulations, c. S-29, Reg. 18] permit the Director to attend all meetings of the Committee which in itself is contrary to the rules of natural justice. The legislative role of the Director has been ruled on previously and includes providing assistance to the Committee. Ramsahoi, supra, at p. 53. Dr. Huerto also alleges that the Director can influence the Committee, can meet with it behind closed doors and can provide it with information not discussed at the hearing. Finally Dr. Huerto alleges that the Committee members are intimidated by the Director because if they do not co-operate they may in turn become the subject of review. [42] Dr. Huerto relies on three authorities for his submission: 2747-3174 Quï¿½bec Inc. v. Quebec (Rï¿½gie des permis d'alcool), 1996 CanLII 153 (SCC), [1996] S.C.R. 919 (the "Rï¿½gie decision"), Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] S.C.R. and Ruffo v. Conseil de la Magistrature (1995), 130 D.L.R. (4th) (S.C.C.). Institutional bias involves lack of either institutional independence or institutional impartiality, and the Court must assess the legislative structure and operating procedure of the tribunal with these factors in mind. In the interests of brevity, will not deal with each separately. [43] The review procedure and the respective roles of the Committee and the Director are set out in s. 49.2 of the Act. These statutory provisions have been canvassed and interpreted by this Court in previous cases and need not cover the same ground again. It is sufficient to observe that the majority of the members of review committee must be comprised of the peers of the professional care provider under review, and that those peers cannot be employed by the Government of Saskatchewan. Neither the Minister nor the Director can influence the outcome of matter referred to the Committee. It is the Committee who, in its sole discretion, decides whether or not an investigation is warranted. If it decides that an investigation is not warranted the matter ends. If it decides that an investigation is warranted, it holds hearing and determines whether or not to make any order for repayment. [44] The legislation also provides that it is the Committee that decides on the procedure it will follow and it may consider whatever it deems relevant. The only significant statutory requirement imposed on the conduct and operations of the Committee is that it must observe the rules of natural justice. There is no appeal by the Minister from the decision of the Committee. [45] Although the legislation vests the Committee with the dual roles of investigation and adjudication, it clearly provides that it is the Committee, not the Minister or the Director, who controls the process. In Rï¿½gie, supra, the Court observed that in substantial number of cases the plurality of functions in single administrative agency could raise reasonable apprehension of bias. But Gonthier J. at para. 47 noted that plurality of functions is not necessarily problematic. One exception to the general rule is where the overlap of functions has been authorized by statute, assuming the constitutionality of the statute is not in issue. No challenge respecting the constitutionality of the Act has been made in the case before me. [46] In Ringrose v. College of Physicians and Surgeons of Alberta, 1976 CanLII 172 (SCC), [1976] W.W.R. 712 (S.C.C.) Grandprï¿½ J. at p. 718 stated that no reasonable apprehension of bias is to be entertained when the statute itself prescribes overlapping functions. In Appavoo, supra, at p. 42, Osborn J. (although he did not categorize the issue as institutional bias) did not accept the submission that the overlap of functions on the part of the Committee constituted reasonable apprehension of [47] Finally, it should be noted that each of the Rï¿½gie and Ruffo decisions relied on by Dr. Huerto arose in connection with the civil law in Quebec and involved constitutional challenges. These two cases are distinguishable from the case before me which is more on point with the other cases have cited. The appellant has notestablished that there is a reasonable apprehension of bias ora reasonable apprehension of institutional bias respecting thestatutory roles of the Committee and the Director or thealleged lack of institutional impartiality of the Committee orits alleged lack of institutional independence from theDirector and MCIB. b. Errors of Law Issues [48] The appellant alleges that the Committee committed three errors of law. The first is that the Committee placed the onus of proof on Dr. Huerto. Although some of the comments made by Committee members during the hearing might give rise to this allegation, it must be borne in mind that the statistical package presented by MCIB indicated that Dr. Huerto's pattern of billing constituted dramatic departure from the pattern of billings of the other cardiologists comprising the group mean. In other words this statisticalevidence could be considered by the Committee as a prima faciecase (or a presumption) that Dr. Huerto\'s billings constituteda departure from a pattern of medical practice acceptable tothe Committee. It was then open to the Committee, in the face of this presumptive evidence, to call on Dr. Huerto to address and rebut the presumed departure. If he failed to respond, the Committee was entitled (but not compelled) to rely on the presumptive statistical evidence and conclude that Dr. Huerto had received payment from the minister by reason of departure from pattern of medical practice acceptable to the Committee. On the basis of this finding it could then make the order it deemed appropriate. This by no means shifted theoverall burden of proof to Dr. Huerto nor did it require himto prove that his pattern of medical practice was acceptableto the Committee. [49] On the other hand if Dr. Huerto chose to respond and give an explanation or adduce evidence from other witnesses or sources (as he did in the case before me) then the Committee was required to consider all the evidence as whole in deciding whether it was satisfied that there had been payment by reason of departure from pattern of medical practice acceptable to the Committee. It could not rely solely on the presumption as being determinative of the issue. It appears from the proceedings that the Committee understood that once Dr. Huerto had addressed and adduced evidence respecting the variation illustrated by the MCIB statistics, these statistics were no longer solely determinative. They were simply evidence that had to be considered along with all the other evidence presented. [50] The respondents submit that the principle of onus of proof does not apply to the review proceedings because the Committee is not bound to follow the rules of evidence and in any event the proceedings are of an investigative nature. disagree with this submission. Although counsel were not able to refer me to any authorities on this issue, it is evident that before any tribunal can rule that an occurrence has been established, it must be satisfied on balance of probabilities that the occurrence has been established. The phrase "balance of probabilities" means "more likely than not". To hold otherwise would make nonsense of administrative law and would violate the rules of natural justice. Even though neither the strict rules of evidence nor the adversarial nature of criminal or civil trial are applicable to the review proceedings, the burden of proof principle is basic to the determination of any issue affecting the rights of an individual who is entitled to be heard. The Committee has dual role which involves adjudication as well as investigation. The respondents suggest that the comments set out on pp. and of The Law of Evidence (Toronto: Irwin Law, 1996) by Paciocco and Stuesser, support their position. disagree with their interpretation of these comments. [51] The second error of law alleged by the appellant is that the Committee erred in construing its mandate under the Act and ignored the statistical analysis presented by Dr. Huerto. Throughout the review hearing and this appeal, the appellant made much of purported distinction between the phrases "pattern of medical practice" and "pattern of billing". Unfortunately these two phrases were used interchangeably by members of the Committee during the hearing and in the written decision. In effect, the appellant contends that the Committee erred in law in focusing its consideration on the pattern of Dr. Huerto's billings rather than on the pattern of his medical practice. This distinction however is more matter of semantics than of substance. The phrase "pattern of medical practice" appears only once in s. 49.2(2) which provides as follows: 49.2(2) Where, in respect of insured services provided by physician, it appears to the director that physician has received or may receive from the minister or that physician has caused or may cause the minister to pay to any person, or both, either directly or indirectly, any amount of money by reason of any departure from pattern of medical practice acceptable to the committee, he may refer the matter to the committee. [52] It is important to put this phrase in perspective. Taken literally, this subsection containing the phrase simply sets out the condition that must be met before the Director can refer the matter to the Committee. The words "it appears" indicate that the condition is met if the Director subjectively believes that funds were paid by reason of any departure from pattern of medical practice that he understands is acceptable to the Committee. Although agree with the appellant that this phrase does as well set out the mandate of the Committee, the legislation does not clearly so provide. Neither ss. (5) that sets out what the Committee can order, nor ss. (8) that sets out what the Committee may take into account in determining whether an order should be made "pursuant to subsection (5) or (7)", refers to or uses the phrase. In determining whether an order should be made, the Committee is not required to take into account anything, even statistical comparison. But it may take into account anything it considers relevant. [53] Subsections (5) to (8) of s. 49.2 are as follows: (5) Where matter has been referred to the committee pursuant to subsection (2), the committee may order that: (a) in the case of insured services for which payment has not been made by the minister, payment should not be made, or should be made at reduced level, for all or any part of the services; (b) in the case of insured services for which payment has been made by the minister, all or part of the amount paid by the minister should be recovered from the physician. (6) Any order made pursuant to clause (5)(b) is to be restricted to period of not more than 19 consecutive months beginning not earlier than 25 months prior to the day the notice is served pursuant to subsection (3) and ending not later than that day. (7) Where the committee makes an order pursuant to subsection (5), it may make further order requiring the physician to pay to the minister an additional amount not exceeding $50,000. (8) In determining whether an order should be made pursuant to subsection (5) or (7), the committee may take into account anything that it considers relevant, including statistical or other comparison between the provision of insured services by the physician whose insured services are being considered and the provision of insured services by other physicians or groups of physicians, but it is not required to examine the provision of any individual insured service that has been provided by the physician. [54] Assuming that ss. (2) does spell out the mandate of the Committee, it must be borne in mind that billings are just as significant component of the pattern of medical practice as is the type of speciality practised, the numbers of patients treated, the quality and appropriateness of the treatment, and the like. The whole object of review hearing pursuant to s. 49.2 is to determine if the billing aspect of the pattern of medical practice is acceptable to the Committee. Section 49.2 is not concerned with the professional competence of physician but with the billings of physician respecting insured services. The appellant seems to imply that so long as he is found to be competent in his provision of medical services, he is immune from the economic consequences that flow from his pattern of medical practice. This artificial distinction flies in the face of the clear objectives of the Act. By way of example, cardiologist who restricted her practice to one patient and constantly monitored and tested that patient by way of preventative treatment, would provide safe and sound pattern of medical practice. But this pattern of medical practice would undoubtedly not be acceptable to committee from cost effective perspective. [55] The appellant submits that the courts have erred in previous cases by upholding committee repayment orders made purely for reasons of economics. Certainly repayment orders made on the basis of economics have been upheld by various cases before this Court. But those cases did not hold that economics was the sole issue or that other considerations were not important. Osborn J. in Appavoo, supra, at p. 37 sets out the features of the insurance plan established under the Act. have reproduced it in full as it addresses many of the submissions raised by the appellant on this issue. The primary object of the Saskatchewan Medical Care Insurance Act is to relieve each of the residents of the province from having to bear, directly and individually, his or her costs of medical care. That purpose is achieved by means of plan of insurance, with the government being constituted as the insurer and the residents as the beneficiaries. Among the important features of this "insurance (1) It assumes the continued existence of an independent medical profession engaged in the private practice of medicine; (2) It preserves the traditional legal relationship between patient and doctor, including the usual fee- for-service method of payment (except that in most cases the insurer rather than the patient pays the fee pursuant to the contractual arrangement between the government and the doctor); and (3) It does not require the patient- beneficiary or the doctor to obtain the insurer's prior approval of either service or the expenditure involved in the diagnosis and treatment of illness. Section 17 provides for the continued independence of doctors from the government, stating: "17(1) It is not the intention or purpose of this Act to establish plan of medical care insurance for the residents of Saskatchewan under which: (a) the general basis for remunerating physicians for insured services provided to beneficiaries would be exclusively or largely fixed sum of money calculated on yearly or other periodic basis; (b) the relationship between the minister and physicians who provide insured services would be that of employer and employee; or (c) the exercise of professional judgment by physicians is in any way diminished. "(2) Nothing in subsection (1) interferes with or prevents physician from exercising free choice as to the method by which he is to be remunerated for insured services provided to beneficiaries." The relevant portions of the contract in place between the government and Dr. Appavoo are as follows: "1. The Saskatchewan Medical Care Insurance Commission, hereinafter called the 'Commission', shall make payment directly to the physician for insured services provided by the physician to beneficiaries with respect to accounts submitted directly to the Commission. "2. Payment for each service shall be made in accordance with: (a) the Commission's Payment Schedule and the Assessment rules contained in that schedule applicable to the service on the date it was provided; and (b) the regulations made under the Saskatchewan Medical Care Insurance Act. "5. The Commission or the physician may request reassessment of an account." Under the contract, then, the Commission undertook to pay Dr. Appavoo for each insured service performed by him in accordance with the Payment Schedule (including the Assessment rules) and the Regulations, subject to either initiating reassessment. [56] It is also important to observe that while s. 17 preserves the integrity of doctor's professional judgment, s. 23 of the Act preserves the integrity of patient's choice of doctor. It provides as 23 Nothing in this Act or in the regulations is intended to interfere with or restrict: (a) the right of beneficiary to select the physician or other person providing insured services from whom he will receive those services; (b) the right of physician, or other person providing services, to accept or refuse to accept patient who is beneficiary; (c) the right of physician, or other person providing services, to make charges for insured services provided to patient who is not beneficiary. [57] Although the appellant's submission on this issue may not have been raised as ground of appeal in the previous cases, the comments by Osborn J. clearly indicate that the courts have not been concerned purely or solely with economics. If that was the only consideration, the review process would be useless exercise and the statistical comparative evidence would not simply be capable of raising presumption but would be conclusive of the issue. [58] With these considerations in mind, I conclude thatthe Committee did not err in law in misconstruingits mandate or by ignoring the statistical analysispresented by Dr. Huerto. The mandate defined by theappellant is much narrower than what is envisaged bythe legislation. The Committee set out to determine whether the substantial payments Dr. Huerto received over and above the mean of his cardiologist peers constituted departure from pattern of medical practice acceptable to it that warranted some form of order for repayment. The use by the Committee of the phrase "pattern of billings", although not the phrase used in the Act, was appropriate in the context in which it was used. The Committee did not ignore the statistical information presented by Dr. Huerto, nor did it conclude that it could not take into consideration his submissions respecting hospital costs and related issues. [59] The third error of law alleged by the appellant is that the Committee used and relied on the knowledge of its own members rather than making decision based on the evidence. The law is clear that the members of tribunal can utilize their own expertise to assess the evidence but they cannot use it to supplement the evidence or to substitute their own opinion for the evidence. Huerto v. College of Physicians and Surgeons (Saskatchewan), 1994 CanLII 4900 (SK QB), [1994] W.W.R. 457 (Sask. Q.B.) affirmed 1996 CanLII 4920 (SK CA), [1996] W.W.R. 153 (Sask. C.A.). There is nocredible evidence that the members of the Committee misusedtheir expertise and relied on it rather than determining theissues from the evidence presented. The record discloses that the Committee considered and assessed all the evidence presented and it acknowledged that its members were general practitioners, not cardiologists, making its task more c. The Evidentiary Support for the Orders [60] The final ground of appeal raised by the appellant is that the orders made by the Committee were not reasonably supported by the evidence. Several cases in this Court have clearly defined the scope of this specific ground of appeal. The first was Ramsahoi v. Saskatchewan (Minister of Health) et al., supra. Wedge J. stated at p. 51: It is clear, from reading of the transcript, that the Committee did not accept Dr. Ramsahoi's explanations as to why his billing practices were markedly different from those of his peers. Although judge on appeal is given the power, in s. 49.21(1), to substitute an order it considers that the Committee ought to have made for the order it did make, it must be acknowledged that the Act gives committee of physicians the responsibility of insuring that no other member of its profession is over-billing the Minister of Health. In so doing, these physicians use their medical background and experience in making their assessments of patterns of medical practice. The physicians at the meeting on March 31, had the opportunity of hearing and evaluating Dr. Ramsahoi's explanations. Like any appeal court, should not substitute my assessment of the facts for that of those who heard the evidence, providing that these facts are reasonably supported by that evidence. This is an important consideration in case such as this, where the legislative intent is that the primary responsibility for reassessment lies with committee of professional colleagues. [61] Ramsahoi has been followed in the numerous cases cited by Osborn J. in Appavoo, supra, and in Minhas v. Saskatchewan (Minister of Health) et al. (1992), 102 Sask R. 171. Malhotra v. The Joint Medical Professional Review Committee, (January 22, 1992, Q.B. No. 981 of 1990, Sask. Q.B., unreported) and the Minhas case both refer to what is inherent in the other cases. See also the recent unreported decisions of Zarzeczny J. in Dr. Thomas E.R. Blackwell v. The Joint Medical Professional Review Committee, (April 24, 1998, Q.B. 2069 of 1997, Sask. Q.B., unreported) and Dr. Subramaniam Sothilingam v. The Joint Medical Professional Review Committee, (April 24, 1998, Q.B. 2070 of 1997, Sask. Q.B., unreported) to the same effect. The Court observes that to determine whether the decision of committee is reasonably supported by the evidence, the Court must critically examine the evidence. The appellant contends that the case law has given too much deference to decisions made by Joint Medical Professional Review Committees. But the standard of review set out in the cases is really no less rigorous than that afforded to decision of this Court under appeal. Much of the evidence placed before review committee is highly technical and cannot be reliably assessed without rudimentary understanding of medical disciplines and procedures. Usually the evidence considered by review committee involves conflicting medical opinions and differing views of what constitutes sound professional judgment and responsible billing patterns. [62] The Court is usually placed in the unenviable position of having to consider the validity or credibility of this conflicting opinion evidence. Certainly medically qualified committee is in much better position than court to assess such issues. In fact the legislation implies, as affirmed by the case law, that committee is entitled to use its expertise in assessing the evidence. The Court has no such advantage. If the decision of committee is reasonably supported by one version of the evidence, the Court in my respectful view should give deference to the committee and should not substitute its own view of the evidence. The Court should intervene only if the evidence as whole clearly demonstrates that the decision of the committee is in error because it is not reasonably supported by that evidence. [63] The determination by the Court of whether the decision is "reasonably" supported by the evidence will depend in part on the nature of the evidence presented. The Court, for example, will be more inclined to rely on its own view of the evidence if the evidence is comprised primarily of statistical analyses rather than medical opinions. As well, less deference will be given to committee in cases, such as the one before me, where considerable evidence has been presented on behalf of the medical professional under review. In such case the judicial role of committee becomes more prominent than its investigative role and its own expertise becomes less crucial to its ultimate decision. [64] My decision to this effect in the Barber v. Saskatchewan (Minister of Health) et al. (1991), 94 Sask. R. 37 (Q.B.) case was reinforced as attempted to comprehend the volumes of "evidence" pertaining to the manner in which Dr. Huerto diagnosed and treated the patients comprising the twenty files mentioned previously. But the issues raised in his appeal are quite unique and distinguish it from the previous appeals considered by our Court. There is little conflict in the evidence presented to the Committee and it consisted of far more than simply technical question and answer session by members of the Committee and Dr. Huerto. Numerous witnesses testified at length on behalf of Dr. Huerto, most of whom were experts in various aspects of the medical practice. [65] As outlined previously, Dr. Hughes, cardiologist, gave evidence that not only was Dr. Huerto's medical practice sound from medical perspective, but that it is cost effective. Dr. Atkinson, an expert on health economics, gave evidence that hospital care was major component of health costs and must be taken into account in any meaningful comparison of patterns of billings and patterns of medical practice. The professional evidence of Dr. Diaz and Professor Heaslip support the assumptions made by the two expert witnesses in arriving at their respective opinions. The appellant himself and one of his patients also gave evidence that tended to support the validity of those assumptions. Finally there was the adjusted comparative statistical data compiled and presented by counsel for Dr. Huerto. [66] Unfortunately the written decision of the Committee does not come to grips with this considerable body of evidence. It is clear from the record that this evidence was considered by the Committee but it is not clear why it was rejected. The Committee did not comment on the credibility of the various witnesses but it cannot be presumed that their evidence was considered to be unreliable. Nor does the Committee appear to have relied on the evidence of Dr. Sommerville (if that evidence was before it). It appears from the written decision of the Committee and its questions during the hearing that it rejected the adjustments made by Dr. Huerto to the comparative statistical data presented by MCIB because these adjustments were predicated on assumptions that had not been established. It also appears that the Committee dismissed the evidence of Dr. Huerto's witnesses, particularly that of Dr. Hughes, on the same basis. [67] The subject of the hearing was the acceptability of Dr. Huerto's pattern of medical practice as cardiologist. The only evidence before the Committee that contradicted the evidence presented on behalf of Dr. Huerto was the statistical data presented by MCIB and possibly the letters from Dr. Sommerville to the College. The comments of Halvorson J. in Huerto, supra, illustrate the difficulty in relying on Dr. Sommerville's evidence if Dr. Huerto was not given the opportunity to test it. If the Committee had arranged for cardiologist (from Saskatchewan or elsewhere) to testify at the hearing such evidence may have conflicted with that of Dr. Hughes. In such event the evidence as whole may have reasonably supported the Committee's decision. But no such evidence was presented that countered the evidence presented by Dr. Huerto. The only evidence supporting the decision of the Committee was the MCIB statistics. [68] But it was clear from the evidence as whole that the statistical data presented by MCIB was not valid comparison of Dr. Huerto to the mean of his peers. As previously outlined, his practice is significantly different in three respects from that of his cardiologist peers. Those differences have significant impact on his pattern of billings. The statistical data generated by MCIB do not reflect these substantial differences. [69] It appears that the Committee was overwhelmed by the unavailability of statistical information to support Dr. Huerto's position on hospital costs respecting cardiac patients. But the Committee made fatal error if it came to its conclusion based primarily on MCIB's comparative statistics. The overwhelming weight of the evidence presentedto the Committee demonstrated that the MCIB statistics wereflawed as a reliable comparison tool and that the adjustedstatistics presented by Dr. Huerto were more reliable even ifthey were based on estimates rather than substantiated data. [70] My decision should not be interpreted to suggest that review proceedings are invalid unless they take on the appearance of formal trial or court hearing. That is obviously not what is intended by the legislation nor is it the most effective procedure by which to determine if repayment orders should be made. The costs in most cases would be prohibitive. But this case is unique and raises issues never before canvassed at review hearing. The appellant obviously expended substantial effort and expense in preparing and presenting relevant evidence to support his position respecting the issue before the Committee. It may well be that the Committee made the correct decision in the circumstances. But as an appeal judge, my role is to critically assess the evidence to see if it reasonably supports the decision made by the Committee. If it does not, then must intervene. The appellant has established to mysatisfaction that for the most part the decision of theCommittee is not reasonably supported by the evidence. Instead it is contrary to the evidence. [71] Once the appeal court determines that it cannot uphold the decision appealed from, it is permitted by s. 49.21(2) of the Act to (a) quash the order and substitute any order that it considers the Committee ought to have made, (b) refer the matter back to the Committee with directions to reconsider it, or (c) vary the order. Understandably neither party desires that refer the matter back to the Committee as the ultimate costs involved will likely exceed the amount in issue. Nor in the unique circumstances of this case is it necessary or desirable to refer the matter back to the Committee. The evidence contained in the extensive record of the proceedings is relatively uncontradicted and is credible and compelling. It establishes that the MCIB statistics in this particular case were seriously flawed as reliable comparison of billing patterns and cardiac patient costs. No repayment order based on departure from the group mean was warranted. But am not inclined to simply quash the order entirely as the evidence reasonably supports that portion of the order that deals with surcharges. [72] Dr. Huerto in effect admitted that many of thesurcharges had been billed by him because of his erroneousinterpretation of the tariff. Even though he felt he was entitled to payment for his services, these services did not fall within the parameters of the surcharge tariffs. The order of the Committee that Dr. Huerto repay the amount of these surcharges should stand. The decision of the Committeeis accordingly varied to quash all repayment orders made by itexcept for the repayment orders pertaining to the 815A, 817Aand 819A surcharges in the amounts of $5,750.50, $3,273.34,and $5,215.92 respectively totalling $14,239.76. [73] The judicial review application is dismissed and theappeal is allowed and the repayment orders set aside exceptfor the orders respecting surcharges. If the parties are not able to agree on costs, leave is given to bring the costs issue back before me for determination.
Administrative Law - Judicial Review - Bias/Institutional BiasAdministrative Law - Medical Care Insurance - Medical Fees - Repayment - AppealProfessions and Occupations - Physicians and Surgeons - Cardiologist - Medical Fees_____ A cardiologist appealed an order made against him by the Joint Medical Professional Review Committee for repayment of  $207,821.03 in medical fees he received over a fifteen month period from the Medical Care Insurance Branch (MCIB). Alleged errors of law included improperly placing the burden of proof on the doctor; failing to take into account all relevant factors including the doctor's statistical analysis; considering it beyond his mandate to provide cost effective services in keeping patients out of the hospital; by using and relying on the knowledge of the Committee in preference to the expert evidence; the orders made concerning various medical services were not reasonably supported by the evidence. The numerous grounds of appeal also included breach of the rules of natural justice by reason of a lack of institutional independence. The application under Part 52 of the Rules of Court for a judicial review was brought to determine whether there was a reasonable apprehension of bias raised by the statutory roles of the Committee and Director or lack of institutional impartiality of the Committee or its lack of independence from the Director or MCIB. _____ HELD: The judicial review application was dismissed. The appeal was allowed and the repayment orders were set aside except for the orders respecting surcharges. 1)Natural justice issues: A reasonable apprehension of bias or institutional bias were not proven. The Committee provided adequate written reasons for its decision. The chairman refuted the allegations that the Committee heard and relied on evidence outside the presence the appellant about which he was not advised. Neither the Director nor the Committee acted in a prosecutorial fashion. Examples included the adjournment granted when the appellant failed to attend and the concession to his request that no cardiologist be placed on the Committee. 2)Errors of law issues: The statistical evidence could be considered by the Committee as a prima facie case. It was then open for it to call on the doctor to rebut the presumed departure from an acceptable pattern of medical practice. This did not shift the overall burden of proof to the doctor nor did it require him to prove his pattern of medical practice was acceptable to the Committee. The Committee did not err in law in misconstruing its mandate or by ignoring the statistical analysis presented by the appellant whose definition of the mandate was much narrower than envisaged by the legislation. It was not agreed that the Committee is not bound to follow the rules of evidence and the proceedings were of an investigative nature. The phrase 'balance of probabilities' means 'more likely than not'. To hold otherwise would make nonsense of administrative law and would violate the rules of natural justice. The distinction between the pattern of the doctor's billings and the pattern of his medical practice was more a matter of semantics than substance. If economics were the only consideration the review process would be a useless exercise and the statistical comparative evidence would be conclusive of the issue. There was no credible evidence that the members of  the Committee misused their expertise and relied on it rather than determining the issues from the evidence presented. 3)The appellant established that for the most part the decision of the Committee was not reasonably supported by but was contrary to the evidence. The MCIB statistics were flawed as a reliable comparison tool and the appellant's adjusted statistics were more reliable even if based on estimates rather than substantiated data. The appellant's medical practice was unique in three respects. He did not have hospital privileges and  had staff and diagnostic equipment equivalent to a cardiac care unit in the hospital; he ordered more diagnostic tests and did more follow up than other cardiologists and had extended office hours. 4)The decision of the Committee was varied to quash all repayment orders except for $14,239.76. The appellant admitted that many of the surcharges had been billed because of his erroneous interpretation of the tariff.  5)Leave was granted to bring the issue of costs back for determination if necessary.