Executive Summary: Key Legal and Evidentiary Issues

• Central question of whether Nova Scotia’s Health Services and Insurance Act and Hospital Insurance Regulations allowed reimbursement for hip surgery performed at a private, out-of-province clinic not approved by the Minister.
• Significance of statutory definitions of “hospital” and the Minister’s approval/reciprocal billing list in determining whether Clearpoint Surgical qualified for insured in-patient services under section 7 of the Regulations.
• Application of the Palmer test to the appellant’s proposed fresh evidence, and the court’s conclusion that it was irrelevant and would not have affected the trial outcome.
• Impact of the Out of Province Travel and Accommodation Assistance Policy’s preapproval requirement on the appellant’s claim for travel and accommodation costs.
• Evaluation of whether the pleadings and damages claim were truly about “fairness of process” or, in substance, a claim of entitlement to reimbursement for the surgery and related expenses.
• Allegations of reasonable apprehension of bias against the trial judge and the appellate court’s finding that adverse rulings and numerous alleged errors did not satisfy the stringent objective test for bias.

Background and medical context

Paul Gerard Buxton, a Nova Scotia resident, was on a waitlist in the province for hip replacement surgery. Faced with delay, he chose to undergo the procedure on October 16, 2020 at Clearpoint Surgical, a private clinic in Ontario. His wife and daughter travelled with him, and he personally paid the costs of the surgery as well as airfare, accommodation, food, taxis and parking. Before booking or undergoing this out-of-province surgery, Mr. Buxton did not contact anyone at the Nova Scotia Department of Health and Wellness or other provincial authorities to determine whether he would be eligible for reimbursement of his surgery expenses or associated costs. After returning to Nova Scotia, he researched the health insurance framework and concluded that he might qualify for reimbursement from Nova Scotia Medical Services Insurance (MSI). He submitted a claim to MSI seeking repayment of the surgery fees and related travel expenses. MSI denied his claim by letter dated December 14, 2020, and that position was later maintained by an undated letter from the Minister of Health and Wellness issued around early June 2021.

The civil action and causes of action advanced

On November 1, 2021, Mr. Buxton commenced an action in the Nova Scotia Supreme Court against the Attorney General of Nova Scotia (on behalf of the Crown), the Minister of Health and Wellness, the Department of Health and Wellness, and MSI Medical Consultant Dr. Valerie Ross. He amended his Statement of Claim on December 22, 2021. In that amended pleading, he alleged misfeasance in public office, breach of trust and negligence by the Minister, the Department and Dr. Ross in connection with the denial of his reimbursement request. Mr. Buxton grounded his case in section 7 of the Hospital Insurance Regulations, arguing that the Minister—who is also referred to as the Health Services and Insurance Commission under section 37 of the Health Services and Insurance Act—had a duty to reimburse a resident for medically necessary in-patient services received at a hospital in another province. He pleaded that the Minister refused to reimburse him for a medically necessary in-patient surgery at a hospital in another province and had prevented him from accessing the reimbursement process contemplated in section 7(1)(d), thereby causing him significant financial harm. The claim alleged that Dr. Ross knew she was acting without legal authority when she refused reimbursement, thereby preventing him from recovering $28,000 that he said he was entitled to receive. The Department was said to have failed to provide accurate information and, by doing so, to have assisted in preventing reimbursement of the $28,000. Mr. Buxton claimed special damages totaling $30,927.45, consisting of $28,000 in hospital expenses (with interest from December 14, 2020) plus $2,927.45 for airfare, airport parking, taxis, accommodation and meals.

The trial decision in the Nova Scotia Supreme Court

The matter proceeded to trial before Justice Pierre Muise on October 31, 2024, with reasons issued on February 6, 2025. The trial judge identified several issues, beginning with whether Mr. Buxton was entitled to any reimbursement for his Ontario surgery. He also considered whether Mr. Buxton had established all of the elements of misfeasance in public office, breach of trust and negligence. Entitlement to reimbursement lay at the core of each cause of action: if the legislation and regulations did not confer a right to payment in the circumstances, then the conduct of the Minister, Department and Dr. Ross in processing or denying the claim could not give rise to damages for denial of benefits that were never legally owing. Although, on appeal, Mr. Buxton later argued that he had never claimed to be entitled to reimbursement and that the real issue was the fairness of the process, the trial judge and the Court of Appeal both noted that his Amended Statement of Claim expressly alleged entitlement to reimbursement and sought specific monetary recovery equal to the unreimbursed surgery and related expenses.

Statutory and regulatory framework governing reimbursement

Justice Muise’s reasons, reproduced and endorsed on appeal, turned on the interpretation of the Health Services and Insurance Act, the Hospitals Act and section 7 of the Hospital Insurance Regulations. Section 7, in force at the relevant time, provided that where a Nova Scotia resident received insured in-patient services in a hospital outside the province, the Commission would reimburse the person (or pay the hospital directly) if certain conditions were met. Those conditions included that the services were required because of an accident or sudden illness, or that the receipt of services was approved by the Commission; that the out-of-province hospital was either a federal hospital or a hospital licensed or approved by the governmental hospital licensing authority in that jurisdiction (or approved by the Commission where no such authority existed); and that the Commission was satisfied the person was entitled to receive the services and that they were medically necessary. The definition of “hospital” was crucial. Under the Health Services and Insurance Act, “hospital” means a hospital approved under the Hospitals Act and any other hospital or facility that has been approved as a hospital by the Minister for the purposes of the Act. The Hospitals Act, for its part, defines “hospital” as a building, premises or place approved by the Minister, established and operated for treatment and prevention of sickness, and includes related facilities, buildings, land, equipment, corporate entities and approved programs. Section 74 of the Hospitals Act further authorizes the government to enter into agreements with other governments regarding hospital care and provides that, absent such an agreement, persons for whom another government is responsible are not entitled to hospital services at provincial expense. Read together, these provisions led the court to conclude that “hospital” in section 7 of the Hospital Insurance Regulations referred only to hospitals that had been approved by the Minister for the purposes of the provincial scheme, including those designated for reciprocal billing with other provinces.

Evidence about Clearpoint Surgical and the reciprocal billing scheme

The Director of Insured Services, Harold McCarthy, testified that Nova Scotia maintains a list of hospitals in other provinces that are approved for reciprocal billing. Only public hospitals appear on this list. To assess Mr. Buxton’s claim, he checked the list and found that Clearpoint Surgical was not included. He then contacted a representative of Ontario’s health insurance plan (OHIP), who confirmed that Clearpoint Surgical was licensed under Ontario’s Private Hospitals Act and was privately owned. There was no evidence that Nova Scotia’s Minister had ever approved Clearpoint as a hospital for the purposes of section 7 or otherwise designated it an appropriate reciprocal billing facility. Accordingly, the trial judge found that Clearpoint did not meet the statutory definition of “hospital” for the purposes of the Health Services and Insurance Act and the Hospital Insurance Regulations. On that basis, he held that Mr. Buxton was not eligible for reimbursement under section 7 for the costs of his hip replacement at Clearpoint.

Travel and accommodation policy and the preapproval requirement

The trial judge also analyzed the Out of Province Travel and Accommodation Assistance Policy of the Department of Health and Wellness. That policy requires preapproval to establish entitlement to reimbursement for travel and accommodation expenses incurred when patients seek out-of-province medical care. The court observed that no legislative provision or evidence had been presented to challenge the validity of this preapproval requirement. Mr. Buxton acknowledged that he had not obtained preapproval before arranging his surgery and related travel. As a result, the court concluded that he was not entitled to reimbursement for travel and accommodation expenses associated with his surgery in Ontario, independently of the question whether his surgery itself might otherwise qualify under section 7.

Consequences for the tort and public law claims

Having determined that Clearpoint Surgical was not a Minister-approved hospital under the legislation and that Mr. Buxton therefore had no statutory entitlement to reimbursement for his surgery, and further that he lacked preapproval for travel and accommodation costs, the trial judge found that the core entitlement issue was resolved against him. In light of that conclusion, the remainder of his claims—misfeasance in public office, breach of trust and negligence—could not succeed. The alleged misconduct and failures by the Minister, Department and Dr. Ross could not give rise to damages for withholding benefits that the scheme, properly interpreted, did not provide. The trial judge nevertheless went on to address some of Mr. Buxton’s additional arguments and concluded that the decision to deny him benefits was correct, before dismissing his action and awarding costs against him.

The appeal and reframing of the dispute

Mr. Buxton appealed to the Nova Scotia Court of Appeal, where his matter was heard on December 4, 2025 by Farrar, Bourgeois and Van den Eynden JJ.A. He argued that the trial judge had committed multiple errors, including mischaracterizing his claim as one seeking reimbursement entitlement under section 7 and thereby failing to address what he viewed as the true issue: the fairness of the process in considering his reimbursement request. He further alleged a reasonable apprehension of bias on the part of the trial judge, and he sought to introduce fresh evidence on appeal. The respondents maintained that the trial judge’s decision was correct, emphasizing that the surgery had taken place at a private clinic not approved by the Minister and not on the reciprocal billing list, and that the statutory and policy requirements had clearly not been met. They also filed a Notice of Contention and an Amended Notice of Contention, which the Court ultimately found unnecessary to resolve, though it considered them relevant when setting appeal costs.

Fresh evidence motion and application of the Palmer test

In his motion to adduce fresh evidence, Mr. Buxton proposed several documents, including a memorandum of a date assignment conference, a letter he wrote to the Attorney General, the Canada Health Act Annual Report 2020–2021, two letters from then-federal Health Minister Diane Marleau, and the decision in Ellingsen v. Nova Scotia (Attorney General), 2024 NSSC 329. The Court of Appeal reviewed the governing test for fresh evidence, referencing the four-part Palmer framework as reaffirmed in Howe v. Nova Scotia Barristers’ Society. That test requires the applicant to show due diligence in attempting to adduce the evidence at trial, relevance of the fresh evidence, its credibility, and that it could reasonably have affected the result; the evidence must also be in admissible form. The court noted that the memorandum formed part of the existing court file and that Ellingsen, as a reported decision, was available as legal authority rather than as evidentiary material. The remaining items were dealt with summarily. In light of the statutory interpretation and factual findings on entitlement, the court concluded that the proffered materials were irrelevant to the dispositive issues and, in any event, would not have affected the result at trial. They therefore failed the Palmer test and were not admitted.

Reaffirmation of the statutory interpretation and entitlement analysis

On the merits, the Court of Appeal scrutinized Mr. Buxton’s assertion that he had never claimed an entitlement to reimbursement. It examined the Amended Statement of Claim and highlighted passages where he alleged that the Minister had refused to reimburse him contrary to section 7, that Dr. Ross had knowingly prevented him from recovering $28,000 he was entitled to receive, and that the Department’s conduct had assisted in preventing reimbursement of $28,000. It also noted the explicit claim for special damages reflecting the alleged reimbursement amounts. On this basis, the court held that entitlement to reimbursement plainly permeated his claim and that the trial judge was correct to frame the core question as whether he was entitled to any reimbursement. The Court of Appeal agreed with the trial judge’s reading of the Health Services and Insurance Act, the Hospitals Act and the Hospital Insurance Regulations. It accepted that the statutory definition of “hospital” was limited to facilities approved by the Minister, that Nova Scotia’s reciprocal billing list contained only such approved public hospitals, and that Clearpoint Surgical, a privately owned clinic licensed under Ontario’s Private Hospitals Act, was not on that list and had never been approved by the Minister for Nova Scotia purposes. It endorsed the conclusion that Mr. Buxton was therefore not eligible for reimbursement under section 7. Regarding travel and accommodation costs, the Court endorsed the finding that preapproval under the Out of Province Travel and Accommodation Assistance Policy was required, that Mr. Buxton had not obtained it, and that he thus had no entitlement to reimbursement for those expenses either.

Reasonable apprehension of bias and the appellate court’s response

Mr. Buxton also alleged that Justice Muise had displayed a reasonable apprehension of bias, pointing to questions about the relevance of certain information and a pattern of adverse rulings that he felt consistently prejudiced his position and favoured the respondents. The Court of Appeal restated the test for bias, relying on its decision in R. v. Nevin and the leading case of Committee for Justice and Liberty v. Canada (National Energy Board). The key question is whether an informed, reasonable person, viewing the matter realistically and practically and considering all the relevant facts, would conclude that it is more likely than not that the judge would not decide fairly. The Court emphasized that there is a heavy onus on the party alleging bias and that an accumulation of decisions or so-called errors adverse to one side does not, without convincing objective indicators, amount to actual or perceived bias. It held that Mr. Buxton was conflating disagreement with the trial outcome and reasoning with genuine evidence of bias. After reviewing the record, the Court concluded that an informed observer would not think Justice Muise was more likely than not to decide unfairly, and the bias ground of appeal was dismissed.

Final disposition, successful parties and monetary outcome

In its concluding remarks, the Nova Scotia Court of Appeal denied Mr. Buxton’s motion to introduce fresh evidence, upheld the trial judge’s interpretation and application of the health insurance legislation and regulations, and rejected the allegation of reasonable apprehension of bias. The court dismissed the appeal and found that the issues raised in the respondents’ Notice of Contention did not require adjudication on the merits. On costs, the respondents requested an amount tied to a percentage of the costs awarded at trial, but the court viewed the filing of the Notice of Contention as unnecessary and as having compelled Mr. Buxton to respond to a superfluous issue. Taking that into account, it exercised its discretion to reduce the requested amount and ordered costs of $4,000, inclusive of disbursements, in favour of the respondents. The successful parties were thus the respondents—the Attorney General of Nova Scotia representing His Majesty the King in Right of the Province of Nova Scotia, the Minister of Health and Wellness, the Department of Health and Wellness, and MSI Medical Consultant Valerie Ross—and the total monetary amount ordered in their favour by the Court of Appeal was $4,000 in costs on the appeal.