MedSleep, which operated sleep clinics in five provinces, received referrals from family doctors of patients with suspected sleeping disorders, who then completed a questionnaire which was reviewed by a physician assigned to the patient by MedSleep (a “sleep physician”). The patient then stayed overnight at a MedSleep clinic for overnight polysomnographic examination, with the results reviewed by the assigned sleep physician, discussed with the patient, and with a report sent back to the referring family doctor.
For its services, MedSleep collected a fee (in BC and Ontario, directly from the provincial health plan). MedSleep also entered into fee-sharing agreements with the sleep physicians, under which it was entitled to a share (e.g., 20%) of the fees that they billed to their provincial health care plan.
In finding that MedSleep and the sleep physicians were making a single compound supply (which in the case of MedSleep was exempted under s. V-II-2, and in the case of the sleep physicians, was exempted under s. V-II-5), Bodie J stated (at para. 76-77):
The patients referred by their family physicians come to MedSleep for consultation with respect to their sleep issues. Without the facilities, equipment, communication services, data collection and data scoring supplied by MedSleep the Sleep Physicians would not be able to perform consultative and interpretative services. Without those services, MedSleep would not be able to deliver the final reports and recommendations required by the referring family physicians. Without each of MedSleep and the Sleep Physicians working together to supply that which they can each supply to the patients referred to MedSleep, the patients could not receive the diagnostics and recommendations they require to resolve their sleep issues.
In this sense, the services supplied by MedSleep and the services supplied by the Sleep Physicians to patients are all interconnected and intertwined. A patient would not be able to usefully acquire the patient intake and communication services, access to facilities and equipment, data collection and scoring services provided by MedSleep on their own and receive the diagnosis and treatment plans they require to properly treat their sleep issues. Similarly, patients would not be able to obtain the data interpretation and consultative services provided by the Sleep Physicians without the services supplied by MedSleep. Accordingly, together MedSleep and the Sleep Physicians combine to provide one single compound supply to patients.