Executive Summary: Key Legal and Evidentiary Issues

• The case is a judicial review of a decision said to bar a dentist, Dr. Pierre Obeid, and his professional corporation from participating as providers under the Canadian Dental Care Plan (the Plan), allegedly based on a prior 2020 delisting decision by Sun Life.

• Sun Life had stopped paying private insurance claims for the applicants in March 2020 due to concerns about misrepresented claim codes; the regulatory College, however, made no finding of professional misconduct, and Dr. Obeid remains licensed to practise dentistry.

• The applicants allege that their exclusion from the Plan is arbitrary and capricious, improperly fetters the Minister of Health’s discretion under the Dental Care Measures Act and the Department of Health Act, is an abuse of process, reflects an improper delegation of authority and abdication of oversight by the Minister to Sun Life, and breaches procedural fairness, including by providing inadequate reasons.

• The Minister brought a motion to strike the notice of application without leave to amend, arguing that the impugned decision does not affect the applicants’ legal rights, impose legal obligations, or directly cause prejudicial effects, and further arguing that Sun Life, as a private corporation, was not acting as a federal board, commission, or other tribunal subject to judicial review.

• The Court held that, taking the facts pleaded in the notice of application as true, it is arguable that exclusion from the Plan adversely affects the applicants’ commercial interests and that their allegations of improper fettering of discretion and improper delegation of authority are not “doomed to fail,” so the application raises a debatable administrative law claim.

• The motion to strike was dismissed; the Minister was granted an extension of time to serve Rule 307 evidence, and the applicants were awarded fixed costs of $1,750, which is substantially less than the partial indemnity costs of $28,870.62 that they had requested.

Background and facts of the case

The applicants are Dr. Pierre Obeid and his professional corporation, Dr. Pierre Obeid Dentistry Professional Corporation, which operates a dental clinic. Up until 2020, the applicants submitted claims to Sun Life Assurance Company of Canada for dental care provided to patients who were privately insured by Sun Life. In March 2020, Sun Life advised that it would no longer pay any private claims for services or products provided by the applicants, based on concerns that claims for services contained misrepresented codes. Sun Life referred its concerns to the regulatory College, but this did not result in any finding of professional misconduct, and Dr. Obeid continues to hold a licence to practise dentistry.

In 2023, the federal government created the Canadian Dental Care Plan. The Plan is described as a federal program designed to improve access to dental care for Canadian residents, covering a portion of the cost of dental care for Canadians below a certain level of income who also lack dental insurance. The Plan is established under the authority of the Dental Care Measures Act, section 508, and section 2 of that Act states that the Plan is established under the Department of Health Act.

Participation in the Plan by dentists is voluntary. In order to participate and bill the Plan for services, dentists must enter into a billing agreement with Sun Life. It is asserted in the notice of application that many of the applicants’ patients are beneficiaries of the Plan.

The applicants claim that they submitted a request to Sun Life to participate in the Plan, and that Sun Life rejected this request on the basis of the 2020 delisting decision. They assert that Sun Life was “purportedly acting under its authority as the Benefits Administrator of the Plan.” The applicants say they appealed the decision in writing, and that Sun Life rejected the appeal in an email stating: “I have received confirmation that Dr. Obeid’s delisting stands insofar as the [Plan] is concerned.”

Allegations and legal issues raised by the applicants

The notice of application alleges multiple administrative law errors in connection with the decision to exclude the applicants from the Plan. Specifically, the applicants allege that the decision is arbitrary and capricious and that it constitutes an improper fettering of the Minister of Health’s discretion under the Dental Care Measures Act and the Department of Health Act. They further allege that the decision is an abuse of process, amounts to an improper delegation of the Minister’s authority to Sun Life, and reflects an improper abdication of the Minister’s oversight role over the Plan.

The applicants also claim a breach of procedural fairness, including that the reasons provided for the decision to exclude them from the Plan are inadequate. Their position is that Sun Life’s role in administering the Plan engages the Minister’s statutory authority, and that the Minister’s discretion in relation to provider participation cannot be delegated or fettered in the way alleged in the notice of application.

The Minister’s motion to strike and the oral hearing issue

The Minister of Health brought a motion to strike the notice of application without leave to amend. The Minister argued that the application does not state a cognizable administrative law claim because the decision to exclude the applicants from the Plan does not affect their legal rights, impose legal obligations, or directly cause prejudicial effects. The Minister also argued that the Court lacks jurisdiction to review the decision because it was made by Sun Life, a private corporation, which was not acting as a federal board, commission, or other tribunal.

The motion was brought in writing under Rule 369 of the Federal Courts Rules. The applicants objected to the disposition of the motion in writing and requested an oral hearing. They argued, among other things, that the Court would benefit from hearing oral submissions on the jurisprudence, referring in particular to Al Omani v Canada, and that the stakes for them were high because a motion to strike could end the proceeding at an early stage.

The Court held that an oral hearing was not required. It noted that while the moving party may elect to have the motion proceed in writing, the Court retains discretion whether to proceed in writing or orally. The judge referred to existing case law, including Philbert v Canada and Bernard v Canada (Attorney General), and listed relevant considerations such as the nature and complexity of the motion, the nature of the evidence and arguments, whether the Court has questions that would be answered at an oral hearing, whether the motion can be dealt with efficiently and expeditiously in writing, and the risk that an oral hearing would increase costs and delay.

Having reviewed the parties’ written materials, the Court concluded that it did not have questions requiring an oral hearing and that the motion could be fairly determined on the basis of written submissions. The Court emphasized that the right to be “heard” can be satisfied through written submissions alone, provided the Court is satisfied it can decide the motion fairly without the delay and expense of an oral hearing.

Evidence on the motion and the limits on affidavits

The applicants’ Rule 306 evidence consisted of an affidavit of Dr. Obeid affirmed July 4, 2025, which had been served and filed with proof of service. After this, the Minister brought the motion to strike and filed an affidavit affirmed by a legal assistant employed by the Department of Justice. That affidavit referred to the Obeid affidavit but did not attach it; instead, it attached as exhibits various documents, including correspondence between the applicants and Sun Life, pleadings in an action between the applicants and Sun Life in the Ontario Superior Court of Justice, the procurement contract and nine amendments between the Government of Canada and Sun Life relating to claims processing for the Plan, and an “Operational Decisions and Information Escalation Form” between Sun Life and Canada. The applicants, in their responding motion materials, included the July 4, 2025 affidavit of Dr. Obeid.

The Court stated that, as a general rule, affidavits are not admissible in support of motions to strike applications for judicial review. The Minister argued for an exception, saying the exhibits were incorporated by reference into the notice of application or went directly to jurisdiction. The Court rejected this, noting that any contract between the Minister and Sun Life is neither referred to nor relied on in the notice of application. Although the applicants pleaded a relationship between the Minister and Sun Life and alleged improper delegation and abdication of oversight, that did not amount to incorporating the contract by reference.

The judge found that pleading improper delegation did not entitle the Minister to file detailed contractual evidence at the motion-to-strike stage. The Court observed that the Minister’s motion more closely resembled a motion for summary judgment, which the authorities caution against in this context, because it would require a detailed evidentiary record and invite a decision on the merits rather than on the face of the pleadings. The Court also concluded that the fact jurisdiction was in issue did not justify admitting affidavits, because jurisdictional questions do not, by themselves, create an exception to the general rule against affidavit evidence on motions to strike.

Ultimately, the Court held that neither the Minister’s affidavit nor Dr. Obeid’s Rule 306 affidavit was properly before it for the purpose of deciding the motion, and it disregarded the affidavit evidence in determining whether the notice of application should be struck.

The legal test for striking the judicial review

The Court then set out the governing legal standard for motions to strike a judicial review application. It emphasized that the test is a high one: there must be a “show stopper” or “knockout punch,” an obvious, fatal flaw striking at the root of the Court’s power to entertain the application. The application must be “doomed to fail” to be struck at this preliminary stage.

Earlier authorities had described the standard as requiring the proceeding to be “bereft of all possibility of success” or “bereft of merit.” The Court noted two main justifications for this stringent threshold. First, the Federal Court’s jurisdiction to strike a notice of application arises from its plenary power to control and protect its own process and restrain misuse or abuse of that process. Second, judicial review applications are required by the Federal Courts Act to proceed “without delay” and “in a summary way,” and unmeritorious motions that raise issues suitable for determination at the hearing on the merits can frustrate that legislative objective.

In applying this standard, the Court must assume that the facts pleaded in the notice of application are true. A moving party must identify an obvious and fatal flaw on the face of the notice of application. If the basis for dismissal depends on factual material that must be established by affidavit, rather than being apparent from the pleadings alone, the flaw is not considered obvious for purposes of a motion to strike.

Analysis of the Minister’s arguments and the Court’s conclusions

On the first major argument, the Minister contended that the notice of application does not state a cognizable administrative law claim because the decision to exclude the applicants from the Plan does not affect their legal rights, impose legal obligations, or directly cause prejudicial effects. The Minister pointed out that the Dental Care Measures Act does not create an entitlement for the applicants or any other provider to participate in the Plan, nor does it set out terms and conditions for provider eligibility.

The Minister relied on Mital v Canada (Health), a case involving a dentist refused enrolment in a Health Canada program benefiting certain First Nations and Inuit persons due to earlier billing irregularities. In that case, it was noted that the dentist had no right to participate in the program and that the program represented more of a business opportunity, with his right to work as a dentist unaffected. However, the Court in the present case found Mital not helpful to the Minister’s position on this motion, observing that the relevant discussion in Mital appeared within an analysis of procedural fairness, and did not stand for the proposition that loss of a business opportunity can never amount to prejudicial effects for the purpose of determining whether a decision is amenable to judicial review.

The Court accepted that the applicants have no statutory right to participate in the Plan, and that it is not apparent how their exclusion could impose a legal obligation on them. However, it noted that exclusion from the Plan has an “adverse effect on their commercial interests,” as asserted in the notice of application, which also pleads that many of their patients are beneficiaries of the Plan. The judge concluded that it could not be said, at this stage, that an argument that the applicants have been prejudiced as a consequence of their exclusion from the Plan is doomed to fail.

On the second major argument, the Minister submitted that the Court lacks jurisdiction to review the decision because Sun Life is not a “federal board, commission, or other tribunal.” The Court reiterated that judicial review is reserved for state action and that it is a public law concept concerned with the legality of decision making by bodies exercising state authority. Private parties cannot use judicial review to resolve purely private disputes, such as conventional breach-of-contract claims. Judicial review is only available where there is an exercise of state authority and where that exercise has a sufficiently public character.

The Minister argued that, applying the factors in Air Canada v Toronto Port Authority, Sun Life’s decision to exclude the applicants from the Plan lacked sufficient public character to be subject to judicial review. The Minister relied heavily on the contractual nature of Sun Life’s role in the Plan and the specific terms of its contract with the federal government. However, as the Court had already determined that the contract and its amendments were not properly before it, those details could not ground dismissal at this stage.

The judge emphasized that the question on a motion to strike is not whether the Minister is ultimately correct on the merits, but whether the notice of application is plainly defective. The applicants have pleaded that there was improper fettering of discretion under the Dental Care Measures Act and the Department of Health Act, and that there was improper delegation of authority. For the purposes of the motion, these assertions are presumed to be true. The Court found that it could not conclude that these allegations are incapable of proof.

Accordingly, the Court held that the Minister had not shown that the application is doomed to fail. The notice of application raises debatable issues about prejudice, public character, and delegation that are better addressed by the application judge on a full record. The motion to strike the notice of application was therefore dismissed.

Procedural directions and costs

As alternative relief, the Minister requested an extension of time to serve Rule 307 evidence. The Court granted this request, ordering that the Minister serve supporting affidavits and documentary exhibits and file proof of service within 30 days of the date of the order. It directed that all subsequent deadlines would be those set out in the Federal Courts Rules.

Sun Life had been served with the parties’ motion materials and sent a letter to the Court on December 4, 2025, stating that it did not intend to file materials with respect to the motion but supported the Minister’s position. The Court noted that there was no motion or informal request by Sun Life for an extension of time to serve Rule 307 evidence, and therefore no order was made in Sun Life’s favour in that regard.

On costs, the Court noted that it has full discretionary power over the amount and allocation of costs under subrule 400(1). The applicants requested partial indemnity costs in the amount of $28,870.62 and filed a bill of costs showing actual fees of $56,282.48, including HST. The requested amount represented a 60% recovery of those fees. The Court observed that these amounts were far beyond what would be recoverable under Tariff B; at the high end of the recently revised Column 3, costs for responding motion materials would be about $1,600.

Although the Minister’s motion was unsuccessful and the applicants were entitled to costs as the successful parties on the motion, the Court concluded that the outcome did not justify costs in the range requested or such a significant departure from the Tariff. It therefore fixed costs at $1,750, payable by the Minister to the applicants “in any event of the cause.”

In summary, the Court’s order dismisses the Minister’s motion to strike, grants the Minister additional time to serve Rule 307 evidence, and awards the applicants fixed motion costs of $1,750, while leaving the merits of the underlying judicial review to be decided at a later stage.