HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Randolph Demone
Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Minister of Health and Long-Term Care
Respondent
decision
Adjudicator: Janice Sandomirsky
Indexed as: Demone v. Ontario (Health and Long-Term Care)
appearances
Randoph Demone, Applicant ) Self-represented
Her Majesty the Queen in Right of Ontario ) Matthew Horner,
as represented by the Minister of Health ) Counsel
and Long Term Care, Respondent )
1This Application was filed on January 7, 2010, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The applicant alleges that the respondent’s policies governing the funding of prostate-specific antigen (“PSA”) testing in the province constitutes discrimination in the area of goods, services and facilities on the basis of sex and age.
2In a Case Assessment Direction, dated January 13, 2011, the Tribunal directed that the matter be scheduled for a Summary Hearing pursuant to Rule 19A of the Tribunal’s Rules of Procedure. In doing so, the Tribunal noted that the decision in Cochrane v. Ontario (Health and Long-Term Care), 2010 HRTO 1477, (“Cochrane”), essentially addressed the same issue raised by the applicant, except that this Application also raises the ground of age.
3On January 14, 2011, the respondent filed a Request for Summary Hearing, with supporting submissions. In a Case Assessment Direction, dated January 20, 2011, the Tribunal noted that a summary hearing already had been ordered on the Tribunal’s own initiative and the respondent’s Request would be considered part of its submissions on the merits of the summary hearing. The applicant filed submissions and additional documents on March 24, 2011. A teleconference hearing was held on April 15, 2011.
Background
4The respondent funds PSA testing for men in two circumstances: when there is a diagnosis of prostate cancer and the patient is receiving treatment or is being monitored after treatment for the disease (“monitoring”); and when a doctor suspects prostate cancer because of a man’s history and/or the result of a physical examination (“diagnostic”). The respondent does not fund PSA testing as a screening program for prostate cancer in asymptomatic men.
5In Cochrane the applicant challenged the regulation and policies governing funding for PSA testing arguing that, by funding screening programs to detect breast and cervix cancer for women, and not funding PSA screening testing for prostate cancer in men, the respondent (the same respondent as in this Application) discriminated against him on the basis of sex.
6In response to the application in Cochrane, the respondent filed an affidavit from a highly respected expert in cancer prevention and cancer screening. The expert witness reviewed the available medical and epidemiological evidence on the effectiveness of PSA screening for asymptomatic men in reducing prostate cancer mortality rates. The expert advised that guidelines for applying preventative or therapeutic intervention to large numbers of a population depended on extensive random control trials. To date there have been only two such trials involving PSA testing and, those trials, taken together, failed to establish that PSA screening resulted in a reduction in mortality due to prostate cancer.
7The Cochrane decision accepted that the purpose of the respondent’s cancer screening programs is to ensure public funding for tests that are shown to be effective in the amelioration of the hardship suffered by persons with cancer, and in reducing mortality rates. The decision noted the expert evidence identifying the unique characteristics of prostate cancer, which explain the lack of medical or epidemiological evidence supporting PSA screening for asymptomatic men. This evidence was contrasted with the extensive evidence supporting the use of cervix and breast cancer screening tests.
8On the basis of this evidence, the decision in Cochrane concluded that:
It is apparent that it is the effectiveness of the screening test in allowing for successful early treatment and reducing mortality, not the sex of the individual subjected to the test, that is the basis of the decision to fund mammography for screening for breast cancer in women and to not fund PSA test screening for prostate cancer for men. The decision is not based on sex, but on the efficacy of the screening and its consequences.
Analysis
9The issue before the Tribunal in a summary hearing is whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that it will succeed. Rule 19A provides that:
The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect the Application or part of the Application will succeed.
10The respondent submits two reasons in support of its position that this Application has no reasonable prospect of success. First, it argues that the facts alleged in the Application fail to disclose a violation of the Code. Second, that the Tribunal has already considered and dismissed a virtually identical Application. The respondent submits that a further re-litigation of this issue would be inconsistent with principles of judicial economy, consistency, the finality and integrity of the administration of justice, and would amount to an abuse of process.
11In response, the applicant submits that it is not possible to determine the success of the Application at this early stage of the process in light of changing case law and medical studies and emerging new evidence. He argues that each case must be considered on its own evidence and merit. The applicant submitted a number of articles and newspaper reports he collected through internet searches which, in his view, show that the increase in PSA testing results in detection of more prostate cancers.
12The applicant also argues that the government mislead the citizens of Ontario during the 2007 election by promising to fund prostate cancer screening with PSA tests for men over 50 years of age, as it does for women in its breast cancer screening program, and then failing to implement the program.
13After reviewing the materials filed by the parties, and considering their oral submissions, I conclude that there is no reasonable prospect that the Application will succeed. Similar allegations of discrimination were considered in the Cochrane decision, which undertook a thorough analysis of the current medical and scientific evidence, and accepted that decisions about funding for cancer screening tests were based on an analysis of the effectiveness of the screening test in providing for successful early treatment and reducing mortality not the personal characteristics of the individual. The applicant disagrees with the interpretation of the medical evidence in Cochrane and relies on medical commentary to support his view. It is apparent that there has been considerable publication of medical and newspaper articles about cancer screening testing. However, the current medical and epidemiological evidence on the effectiveness of PSA screening for asymptomatic men in reducing prostate cancer mortality rates is the same evidence that was before the Tribunal in Cochrane.
14In addition to the claim of discrimination on the basis of sex that was considered in the Cochrane case, the applicant alleges discrimination on the basis of age. Except for identifying this ground, however, no further facts are alleged to support the claim that the respondent’s funding of PSA tests discriminate on the basis of age. Furthermore, the findings in Cochrane that the policies governing the funding of cancer screening programs are based on the efficacy of the screening, not the sex of the population, would equally apply the addition ground of discrimination alleged in this Application. Without evidence of a causal link to a prohibited ground, the applicant will not succeed in establishing the respondent’s policies governing the funding of PSA test are discriminatory.
15As a result, I find that this Application does not allege any facts or raise any issues that would lead to a different outcome from the one reached in Cochrane. Therefore, the Application has no reasonable chance of success and is dismissed.
Dated at Toronto, this 7^th^ day of June, 2010.
”signed by”________________
Janice Sandomirsky
Member