Basic v. Ontario (Health and Long-Term Care), 2010 HRTO 2007

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Zvonimir Basic

Applicant

-and-

Her Majesty the Queen in right of Ontario as represented by

the Minister of Health and Long-Term Care

Respondent

decision

Adjudicator: Keith Brennenstuhl

Date: September 30, 2010

Citation: 2010 HRTO 2007

Indexed as: Basic v. Ontario (Health and Long-Term Care)

APPEARANCES

Zvonimir Basic, Applicant ) Self-represented

Her Majesty the Queen in Right of ) Matthew Horner and

Ontario as represented by the Minister ) David Duggins, Counsel

of Health and Long-Term Care, Respondent )

1This is an Application filed July 31, 2009, under section 34 of the Human Rights Code, R.S.O, c. H.19, as amended (the “Code”). The Application alleges that the applicant was subjected to discrimination in relation to services on the basis of disability contrary to s.1 of the Code.

BACKGROUND

2The Ontario Drug Benefit Act, R.S.O. c. O.10, as amended (“ODP”), establishes a public drug program designed to provide drug coverage to eligible persons in Ontario.

3Since moving to Ontario from British Columbia in May 2008, the applicant has been the recipient of support benefits under the Ontario Disability Support Program, and as such is eligible to receive drug coverage under the ODP.

4The applicant has chronic pain in both his right and left legs. He submits that his pain is managed with the use of various prescription drugs including the drug Demerol, also known by its generic names, meperidine or pethidine. The applicant claims to have a great deal of difficulty in standing and relies on a motorized scooter for mobility. He currently manages his chronic pain with the drug Percocet. He maintains that he can walk, albeit with a cane, when he is on Demerol but that he is unable to do so when he is on Percocet.

5Demerol is an opiate-derived pain medication. In 1998 the ODP administration undertook a review of Demerol. At that time, it was recommended that the reimbursement for Demerol be limited to a two-week supply for acute pain. The recommendation was based on evidence that Demerol was considered unsafe due to toxicity associated with long-term use. Side effects associated with the long-term use of Demerol were noted where there had been repeated doses of more than 250 mg per day such as tremors, muscle twitches, dilated pupils, hyperactive reflexes and seizures. The recommendation was adopted by the respondent in 2000 and since then, long-term Demerol use has not been covered by the ODP program. Parenthetically, I would note the evidence before me discloses that Demerol does not have FDA approval for use in the treatment of chronic pain in the United States.

6The applicant seeks reimbursement for the cost of Demerol on a long-term basis in doses of up 500-600 mg per day. The applicant argues that the policy of not funding Demerol for long-term use discriminates against him on the basis of disability.

ANALYSIS and DECISION

7Section 1 of the Code reads:

Every person has the right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed sex, sexual orientation, age, marital status, family status or disability.

It is undisputed that the reimbursement of the cost of drugs under the ODP is a service within the meaning of section 1 of the Code. However, to establish a violation of section 1 of the Code, the applicant has to establish that the respondent’s failure to fund the long-term use of Demerol treats him differently on the basis of his disability. I find that the applicant has failed to meet this onus.

8Ontario funds over 3,300 drugs for eligible persons through the ODP. Eligible persons are:

1. persons who receive benefits under the Family Benefits Act, Ontario Disability Support Program, 1997, and the Ontario Works Act, 1997;

2. residents of long-term care homes;

3. persons who have attained the age of 65;

4. persons eligible for a pension under the Old Age Security Act (Canada); and

5. Ontario residents with high prescription drug costs in relation to their household income who do not otherwise qualify.

9Save for one exception, none of these persons receives funding for Demerol for long-term use to manage pain. In 2000, when implementing the Demerol funding policy the decision was taken to except individuals who had been on Demerol for more than a year prior to 2000 and who had experienced allergy to two other narcotics (e.g. Percocet and Tylenol #3). In these circumstances, reimbursement for long-term use of Demerol would be permitted under the ODP program. One individual in Ontario meets this exception.

10The applicant testified that his need for pain management drugs only arose several years after 2000, and acknowledged that he does not qualify for Demerol funding under the grandparenting exception. However, he argues that it is nevertheless unfair that one individual is able to access funding for long-term Demerol use for pain management under the OPD program while he is denied that benefit.

11A similar issue was raised at the Supreme Court of Canada in Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504. In Martin, the Nova Scotia’s Workers’ Compensation legislation was changed to prevent a person with chronic pain from claiming any benefits. The appellants brought a Charter challenge under section 15(1) alleging discrimination. One comparison which the appellants sought to use was between those workers with chronic pain who had received benefits before the legislation was changed as compared to the appellants, who were denied as a result of the change. In rejecting this comparison the Court explained that:

I do not think this approach advances the appellants’ argument. As the Court of Appeal indicated, the distinction between this group and the appellants would be the date of their injury and the status of their case before the Board, rather than the nature of their disability. Thus, in any case, the second branch of the test would not be met.

12In my view any difference between the grandparented individual and the applicant is not a distinction on the basis of disability or any other ground of discrimination prohibited under section 1 of the Code. The difference in treatment between the grandparented individual and the applicant is based on the fact the applicant was not in receipt of the benefit in 2000 and does not fall within the other criteria for the exception. This distinction is based on date and previous entitlement and not on the basis of disability. In my view, such a distinction cannot support a Code claim.

13The purpose of the ODP scheme is to provide coverage for certain drugs to low income persons. The respondent has determined that reimbursement for Demerol will not be provided for long-term chronic pain but that other pain medications to manage that condition will be reimbursed. There is no evidence that this results in discrimination between the applicant and persons with other disabilities.

14The respondent advised that a second individual in Ontario may have been grandparented in 2003 for funding for long-term Demerol use for pain management. The respondent admits this situation is an anomaly and that it is not certain whether it continues. There is no evidence that since 2003 any other person eligible for the ODP program has received coverage for long-term Demerol use or that any distinction was made on the basis of disability. This was the policy in effect in the spring of 2009 when the applicant sought coverage for the long-term use of Demerol and was refused. Again, I am satisfied the date the applicant applied for the benefit and not his disability was the underlying reason for the respondent’s refusal to provide the benefit.

15Although not raised in his Application, the applicant appears to also allege that without Demerol his ambulatory abilities are diminished. The applicant has provided no evidence whatsoever, medical or otherwise, to substantiate this argument. In the circumstances I am not satisfied the applicant has met the evidentiary burden to support this argument and need not consider whether, if such evidence were shown, it could lead to a finding of discrimination under the Code.

16The Application is dismissed.