Ontario (Human Rights Comm.) v. North American Life Assurance Co. (No. 2)
1992-04-21
Gary Thornton Complainant
North American Life Assurance Company and Clarendon Foundation Respondents
Date of Complaint: February 15, 1990 Date of Decision: April 21, 1992 Before: Ontario Board of Inquiry, W. Gunther Plaut Comm. Decision No.: 443A
Appearances by: Anne M. Molloy and Gerry Heddema, Counsel for the Complainant Naomi Overend, Counsel for the Commission Mary Eberts and Jenifer Aitken, Counsel for the Respondent North American Life Assurance Co. Stephen Bernofsky, Counsel for the Respondent Claredon Foundation
EVIDENCE — admissibility of medical evidence analogous to complainant's disability — HUMAN RIGHTS — nature and purpose of human rights legislation
Summary: This is an interim decision in the matter of a complaint by Gary Thornton against North American Life Assurance Company and the Clarendon Foundation. Mr. Thornton was denied long-term disability benefits and he alleges that the refusal amounts to discrimination on the basis of a disability, namely AIDS.
The respondent company argues that the Ontario Human Rights Commission and the complainant should not be allowed to introduce evidence regarding the impact of the exclusion clause under which Mr. Thornton was denied coverage on persons with disabilities other than AIDS.
However, the Board of Inquiry finds that it must deal with the impact of the exclusion clause on insured persons in a wider context. Consequently, the Board decides to allow the disputed evidence, but agrees to allow the respondent to introduce additional evidence to counter arguments made by the Commission and the complainant if that appears to be appropriate.
[Ed. Note: See also preliminary decisions at 1991 CanLII 13125 (ON HRT), 16 C.H.R.R. D/162, 1992 CanLII 14226 (ON HRT), 17 C.H.R.R. D/476 and 1992 CanLII 14235 (ON HRT), 17 C.H.R.R. D/477 and final decision at 1992 CanLII 14239 (ON HRT), 17 C.H.R.R. D/481.]
Cases Cited
Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143, 10 C.H.R.R. D/5719: 25
Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342: 9
Canada (Treasury Board) v. Robichaud, 1987 CanLII 73 (SCC), [1987] 2 S.C.R. 84, 8 C.H.R.R. D/4326: 14
Canadian National Railway Co. v. Canada (Human Rights Comm.) and Action travail des femmes, 1987 CanLII 109 (SCC), [1987] 1 S.C.R. 1114, 8 C.H.R.R. D/4210: 15, 26
Danson v. Ontario (Attorney General) (1990), 1990 CanLII 93 (SCC), 73 D.L.R. 686 (4th) (S.C.C.): 9
Manitoba Rice Farmers Assn. v. Manitoba (Human Rights Comm.) (1988), 1988 CanLII 7193 (MB CA), 10 C.H.R.R. D/5633 (Man. C.A.): 9
McKay v. Manitoba, 1989 CanLII 26 (SCC), [1989] 2 S.C.R. 357: 10
University Hospital v. Peters (1983), 1983 CanLII 4738 (SK CA), 4 C.H.R.R. D/1464 (Sask. C.A.): 8, 27
Legislation Cited
Canada
Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11, s. 1: 13
Ontario
Human Rights Code, R.S.O. 1990, c. H.19
s. 25: 12, 16
INTERIM DECISION
BACKGROUND
1On September 9, 1991, the Hon. Elaine Ziemba, Minister of Citizenship, appointed me as a board of inquiry to hear the above matter. The complaint was dated February 15, 1990, and amended on October [10] 1991 (Exhibits 1 and 3).
2Mr. Thornton ("complainant") was employed by Clarendon Foundation and had signed forms for eligibility in group benefits with the respondent, North American Life Assurance Company ("NAL"). The group policy number is H-01-041759, and the master application was dated August 24, 1988.
3Mr. Thornton claims that the insurance company discriminated against him by denying him long-term disability payments to which he believes he was entitled. His amended complaint (signed October 10, 1991) states at No. 10:
I am a man with AIDS and I have reason to believe that my right to equal treatment with respect to services has been infringed because of my handicap in contravention of section 1 and 8 of the Human Rights Code, 1981, Statutes of Ontario, 1981, Chapter 53 as amended by 1984, Chapter 58, Section 39 and 1986, Chapter 64, Section 18.
4NAL (who had paid complainant short-term disability) disputes the claim, holding that the complainant was treated fairly, that he was not discriminated against in any fashion, and that his type of illness played no role in denying him long-term benefits. This denial was based solely on an exclusion clause, which operates for all who are members of the group plan. The clause in the policy reads as follows:
Long Term Disability
Benefit Provisions.
2.5 Exclusions
If an employee has incurred medical expenses, or received care or treatment by a Physician during the 90 day period prior to the date his insurance becomes effective, no Income Benefit shall be payable for any disability resulting from the same or related cause until:
a) the Employee has not incurred medical expenses, or received care or treatment by a Physician for a period of 90 days; or
b) the Employee has been insured for 12 consecutive months and the disability commences after this period.
MOTION
5The case now having proceeded to the point where respondents will present their evidence-in-chief, counsel for NAL moved on April 13, 1992, and Clarendon Foundation concurred by letter addressed to this Board, that the proposed testimony which complainant wishes to present and which is delineated in Exhibits 27 and 28 (attached to this order*), not be admitted:
This is a motion brought by NAL for an order that the evidence to be adduced in these proceedings be restricted to the issues raised by the complaint.
SUMMARY OF RESPONDENT'S ARGUMENT
61. This Board's jurisdiction is limited to the instant case and consequently, hypothetical illnesses such as endometriosis, fibroid tumours and pregnancy, which are detailed in Exhibits 27 and 28, should not be considered. The function of the Board is to establish whether the rights of this complainant have been infringed in the operation of the exclusion clause.
72. Counsel cited the interim order issued by this Board on Dec. 27, 1991 [Thornton v. North American Life Assurance Co. (No. 1)(1991), 1991 CanLII 13125 (ON HRT), 16 C.H.R.R. D/162], which stated (at p. 5 [D/164, para. 21]):
I have not been appointed to try the insurance industry . . . If my decision will engender consequences in one direction or another, they will arise from our legal system which pays heed to precedent — but this is potentially true for any board of inquiry.
83. Evidence with regard to the above-mentioned diseases would lack the context necessary for these proceedings.
While the Commission and ARCH [Advocacy Research Centre for the Handicapped] propose to adduce expert evidence concerning certain illnesses, and perhaps even the treatment of them, such evidence would be totally without context. The parties and the Board would be left to speculate about the course of any such illness in a particular case, and the claims experience of hypothetical individuals suffering from that disease. Thus, the outcome of the case of Mr. Thornton would depend not only on those concrete, ascertainable adjudicative facts relating to him, but also — if the Commission and ARCH have their way — on a combination of abstract and hypothetical "facts" about hypothetical individuals not before the Board. (Argument No. 25)
In support of this position counsel cited a decision by the Saskatchewan Court of Appeal, Peters v. University Hospital Board(1983), 1983 CanLII 4738 (SK CA), 4 C.H.R.R. D/1464, which limited the Chairman's authority to the complaint before him (at para. 12640 [D/1478]):
The Chairman had no authority to decide anything except Ms. Peters' complaint which was that her rights under the Blind Persons' Rights Act (not the Code) had been violated.
94. This limitation is not met if the motion is denied and the Commission is permitted to extend its evidence to the matters indicated above. These proceedings deal with "adjudicative facts," namely, "Who did what, where, when, how and with what motive or intent . . . Such facts are specific, and must be proved by admissible evidence" (Danson v. Attorney General of Ontario (1990), 1990 CanLII 93 (SCC), 73 D.L.R. 686 (4th) (S.C.C.) at 695. Other decisions cited were Borowski v. Attorney General of Canada, 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342; and Apsit v. Manitoba Human Rights Commission (1988), 1988 CanLII 7193 (MB CA), 10 C.H.R.R. D/5633 (Man. C.A.) at paras. 41236 and 41239.)
10The need for the presentation of concrete facts is stressed by the Supreme Court of Canada, ruling on a Charter issue in McKay v. Manitoba, 1989 CanLII 26 (SCC), [1989] 2 S.C.R. 357 at 361:
The presentation of facts is not, as stated by the respondent, a mere technicality; rather it is essential to a proper consideration of Charter issues.
11In sum, the argument went, in deciding the complaint of Mr. Thornton, this Board should not go beyond its mandate and determine the legal scope of other disabilities, there being no complaint regarding them before it.
SUMMARY OF COUNTER-ARGUMENT
121. The exclusion clause is at the heart of these proceedings. Respondents have been put on notice that it is the intent of the Commission and complainant to show that more than the proper or improper application of clause 2.5 is at stake, and that they hope to demonstrate that the clause itself is discriminatory. If that is the case it should be declared invalid, and is therefore not saved by s. 25 of the Code.1
132. While the clause has a wide impact in that it operates to exclude persons with various disabilities, counsel do not advocate a Charter based consideration of the issues. Rather, the Board should look at available analogies to decide the case and interpret s. 25(24) of the Code in the light of the Charter of Rights and Freedoms [Part 1 of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.) 1982, c. 11], s. 1.
143. In considering the impact of particular employment practices, contracts, etc. the Board is bound to look at the effect which such actions will produce; hence all the evidence must be presented in context and not in isolation from other, broader effects.
This is especially important when the effect of clause 2.5 can be shown to raise a barrier not only to the complainant's claim but to whole groups of people, so that the alleged discrimination against Mr. Thornton is in fact a case of alleged systematic discrimination which affected the complainant. In Robichaud v. Canada (Treasury Board), 1987 CanLII 73 (SCC), [1987] 2 S.C.R. 84 [8 C.H.R.R. D/4326] the Supreme Court said of the Canadian Human Rights Act that it was not in doubt that if the Act was to achieve its purpose [at D/4333, para. 33942],
. . . the Commission must be empowered to strike at the heart of the problem, to prevent its recurrence and to require that steps be taken to enhance the work environment.
154. A Board adjudicating under the Code should keep in mind that the latter addresses itself to public and not merely private concerns, and that its aim is to prevent discrimination. This principle led the Supreme Court of Canada to hold that a human rights code should be given fair, large and liberal interpretations and that the rights enunciated by the law should be given their full recognition and effect (see Canadian Human Rights Commission v. C.N., 1987 CanLII 109 (SCC), [1987] 1 S.C.R. 1114, commonly referred to as Action travail, at 1134 [8 C.H.R.R. D/4210 at D/4224, para. 33238]). For the purpose of Canadian human rights legislation is not to punish offenders but rather to remove discrimination.
16The Commission is a public body which is a party to the case, and the public interest remains of great concern to it. In its view, NAL's expected argument that art. 2.5 of the insurance contract is saved by s. 25(24) of the Code, is based on an erroneous conclusion. Therefore, a board should not overlook the wider issues which a particular case engenders.
17For all these reasons the evidence should be admitted, and only after it has been heard can the Board determine whether it was relevant and what impact it had, if any.
SUMMARY OF RESPONDENT'S REBUTTAL
181. It is true that there is a public purpose to human rights legislation. But the fairness it demands must also extend to the respondent parties.
192. The proposed evidence will not show the real effect it will have on people in the workplace. Evidence would have to be specific as to who would be affected during the first four months of employment and will be disabled for four months afterwards.
203. The proposed list of illnesses the Commission and complainant want to bring to the Board for consideration contains only low risk examples. No medium or high risk examples have been suggested.
214. The Board must also consider what the impact of a negative ruling might be on the insurance company. Suppose the evidence is heard and on the basis of it clause 2.5 is considered discriminatory and ordered struck from the group policy. Would the Board merely strike the clause and order nothing concrete to be put in place, in other words, let the insurance company "try to do better"? What would/should the company then do with regard to any pre-existing conditions? Create a precise list of long-term disabilities that are excludable under certain circumstances? This would lead to a disruption of the whole insurance process. The proposed evidence must be ruled out in the context of this hearing as being prejudicial to the company.
Or would the Board itself, in fashioning a remedy, replace the old clause with a new one? This would hardly be the purpose of the hearing.
225. Finally, there is a procedural consideration. If respondents would have to deal with the subjects projected in Exhibits 27 and 28, it would be incumbent upon them to marshal their own evidence concerning these matters now, as evidence-in-chief, lest they be accused of case splitting. This means that they would have to reschedule their key witnesses and ask for adjournment until they can be secured.
ANALYSIS
23The motion to rule out the proposed evidence is based on a number of considerations which raise the following key issues:
- This Board has been appointed to try this case and nothing beyond it. It should deal only with the application of clause 2.5 and determine whether it prejudiced the complainant.
24My appointment was indeed specific in that I am to deal with Mr. Thornton's complaint against NAL and to determine whether the company discriminated against him. I was not appointed to try the insurance industry.
25However, if the alleged discrimination is shown to arise from clause 2.5 itself and not merely from its application, I must consider its impact on insured persons in a wider context. For if the clause itself is discriminatory, then the complainant had just cause for his complaint. If it is not, then I shall determine — by a full consideration of all "adjudicative facts" — whether in the application of the clause Mr. Thornton was unfairly treated, and not what would happen to other hypothetical persons.
26According to the Supreme Court of Canada (Andrews v. Law Society of B.C., 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143 at 168 [10 C.H.R.R. D/5719 at D/5742, para. 41751]
Considerations must be given to the content of the law, to its purpose, and its impact upon those to whom it applies, and also upon those whom it excludes from its application. [Emphasis added.]
I am therefore persuaded that, since the clause itself is at issue, I must consider its impact and listen to the proposed evidence concerning it (the Supreme Court of Canada in Action travail, supra, at 1137 [D/4226, para. 33244]:
It is the result or the effect of the action complained of which is significant. If it does, in fact, cause discrimination; if its effect is to impose on one person or group of persons obligations, penalties, or restrictive conditions not imposed on other members of the community, it is discriminatory.
27As for the respondents' argument that the Saskatchewan Court of Appeal in Peters, supra, provides a precedent, I must disagree, for two reasons:
a. The citation which was adduced dealt with the question whether a complaint brought under the Blind Persons' Rights Act could be decided under the Human Rights Code. I find that this provides no analogy to the instant case.
b. I am indeed, as required, addressing Mr. Thornton's complaint which alleges that he was denied his due under a clause which is discriminatory. This is an aspect of his complaint which I am bound to consider.
28I must therefore reject the argument that the presentation of the evidence will move the instant case beyond my jurisdiction. The complaint and the clause will have to be considered in their full context.
- The proposed testimony is not relevant, for it will lack the proper context. It will not show the real effect it will have on the workplace.
29That may or may not be the case. I cannot judge the validity of the argument at this point. If the proposed evidence proves to be less than conclusive and does not provide me with a comprehensive picture — then I will have to draw whatever conclusions will seem appropriate under the circumstances.
- The proposed testimony deals only with low risk cases, and not with the full gamut necessary to frame a sensible insurance policy.
30This is a matter that needs to be raised when s. 25[24] of the Code is introduced and subjected to adversarial argument.
- If Mr. Thornton's complaint is construed narrowly and is confined to the application of clause 2.5, the remedies available to the Board can easily be delineated. But if clause 2.5 were to become the subject of contention, such remedies would be difficult to contemplate.
31That argument anticipates that if my final order justifies the complaint I shall be faced with grave difficulties in framing a remedy. That may indeed be so, but it cannot prevent me, at this stage of the proceedings, from considering the wider impact of clause 2.5. If I should find that the rights of Mr. Thornton have been infringed, s. 41[40] of the Code provides that a board of inquiry may, by order,
41(1) (a) direct the party to do anything that in the opinion of the board, the party ought to do to achieve compliance with this Act, both in respect of the complaint and in respect of future practices . . .
32It is not possible for me to explore potential remedies until the need for them arises and until all the circumstances that lead to their impositions have been fully argued and considered.
- The Code aims at fairness, and this means that the Board must be fair not only to the complainant but to the respondents as well.
33I agree fully. I have therefore given special consideration to the dilemma which respondents may now face regarding their own witnesses and their testimony. Respondents fear that they may be accused of case splitting if, after hearing arguments by Commission and complainant, they may have to marshal additional evidence to counter them. I shall therefore take advantage of the leeway accorded to boards of inquiry in matters of procedure and, should such eventuality arise, permit respondent to bring additional testimony if it appears indicated.
ORDER
34The motion is denied. Commission and complainant may bring testimony as delineated in Exhibits 27 and 28.
35Meanwhile, respondents' testimony-in-chief should proceed as scheduled, and if at a later stage they wish to respond to the issues proposed in Exhibits 27 and 28 and advance further testimony, I shall be prepared to admit it.
NOTE
1 Formerly cited as s. 24. Since the complaint was laid under the old numbering system I shall list the old numbers in brackets whenever indicated.
- Ed. note: Not published here.