El Jamal v. Minister of Long-Term Care, 2011 HRTO 1952

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marwan El Jamal

Applicant

-and-

Her Majesty the Queen in right of Ontario as represented by the Minister of Health and Long-Term Care

Respondent

DECISION

Adjudicator: Michelle Flaherty

Date: October 28, 2011

Citation: 2011 HRTO 1952

Indexed as: El Jamal v. Minister of Long-Term Care

appearances

Marwan El Jamal, Applicant ) Muhamed Aslam

Her Majesty the Queen in right of )

Ontario as represented by the Minister ) Mathew Horner, Robert Maisey, Counsel

of Health and Long-Term Care, ) Patrick Ryan, student-at-law

Respomdent )

1This case is about the respondent’s decision not to fund a particular drug product under the Ontario Drug Benefit Program (“Drug Program”). The applicant alleges that given his disability, his medical need, and his inability to pay, the respondent’s failure to reimburse him for the cost Phosphate Novartis constitutes discrimination.

2For the reasons that follow, the Application is dismissed. I appreciate that the applicant had a medical need for Phosphate Novartis and that he was detrimentally affected by the respondent’s decision not to fund the drug for a period of time. However, the applicant has not alleged differential treatment, which is a necessary element of discrimination under the Code. The applicant does not contend that, in refusing him funding, the respondent treated him differently compared to others. In the circumstances, there is no reasonable prospect that the applicant could establish a breach of section 1 of the Code.

THE FACTS

3The Ontario Drug Benefit Act, R.SO. 1990, c. O-10 (“Act”) creates the Ontario Drug Benefit Program (“Drug Program”), which funds certain drug products for eligible individuals. Eligible individuals include, among others, persons eligible to receive drug benefits under certain statutes, including the Ontario Disability Support Program (“ODSP”); residents of long-term care homes; Ontario residents with high prescription drug costs in relation to their household income who do not otherwise qualify; and persons who have attained the age of 65.

4The Drug Program does not cover the cost of all drug products for eligible individuals. The respondent states that the Act aims to provide cost-effective drug product coverage in accordance with its guiding principles and the available clinical and economic evidence. Generally speaking, a drug product is funded where:

a. it appears on the Ontario Drug Benefit Formulary (“Formulary”). The Formulary is developed by the Committee to Evaluate Drugs (“CED”), a committee of experts that reviews applications received from drug manufacturers;

b. it does not appear on the Formulary, but funding has been approved on a case-by-case basis (and for a specified period of time) under the Exceptional Access Program (“EAP”). As of 2008, to be eligible for funding under the EAP, a drug product must have been reviewed by the CED. Prior to 2008, funding was also available under the EAP for drug products that had not been reviewed by the CED; and

c. it has been approved under the Compassionate Review Policy, which generally applies to individuals with rare clinical circumstances and immediately threatening conditions. Under the Compassionate Review Policy, a drug product may be funded whether or not it has been reviewed by the CED. The Compassionate Review Policy was created in April 2009.

5As a recipient of ODSP, the applicant is eligible for benefits under the Drug Program. Beginning in 2005, he sought funding for Phosphate Novartis. There is no dispute that the applicant has a disability or that Phosphate Novartis was prescribed to him by his caregivers. Phosphate Novartis is not listed on the Formulary, nor has it been reviewed by the CED.

6The relevant events can be summarized as follows:

a. The applicant received funding for Phosphate Novartis under the EAP from July 19, 2005 to July 18, 2006; and again from June 26, 2007 to June 25, 2008;

b. He did not receive funding for Phosphate Novartis under the Drug Program from October 17, 2008 to August 2010, although he did receive some assistance through Phosphate Novartis’ manufacturer’s compassionate program. As I have indicated, in 2008, the EAP was amended and drug products that had not been reviewed by the CED were excluded from coverage;

c. Between October 17, 2008 and August 15, 2010, the applicant states that he suffered detrimental health effects because he could not consistently obtain Phosphate Novartis;

d. As of August 2010, the applicant received Drug Program funding for Phosphate Novartis. The respondent decided to resume funding Phosphate Novartis for the applicant and under the EAP as part of a grandfathering program; and

e. the applicant has not applied for funding through the Compassionate Review Policy, which only became available in 2009

7On October 23, 2009, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (“Code”) alleging discrimination on the basis of disability in the provision of goods, services or facilities. The applicant states that the respondent’s failure to fund Phosphate Novartis between June 2008 and August 2010 constitutes discrimination because:

a. he is disabled;

b. he is a vulnerable person;

c. he was unable to afford Phosphate Novartis; and

d. the respondent’s failure to fund the drug product had serious health implications for him.

8The applicant also argues that the respondent’s denial of funding was unfair, arbitrary, and untimely under the Act.

9The respondent denies the allegations of discrimination. It states, among other things, that there is no reasonable prospect that the applicant could show that he was treated differently from others on the basis of his disability.

HISTORY OF PROCEEDINGS

10On February 25, 2011, the Tribunal issued a Case Assessment Direction (“CAD”) directing the applicant to file the following further information:

a. a full explanation of the legal basis on which he alleges discrimination, including how he alleges that he has been discriminated against on the basis of his disability as compared with others without his disability by the failure to fund Phosphate Novartis; and

b. all medical evidence upon which he relies in support of the proposition that the failure to include Phosphate Novartis in the Ontario Drug Benefit Program or to approve his request for discriminates against him on the basis of disability.

11The Tribunal reviewed the submissions and documents filed by the applicant in response to the CAD. In a second CAD, dated May 13, 2011, the Tribunal directed, on its own initiative, that the matter proceed by way of a summary hearing pursuant to Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure. In the CAD, the Tribunal wrote:

In this case, the issue will be whether, assuming the [Applicant’s] allegations to be true, the applicant’s legal theory may be reasonably considered to amount to a violation under the Code.

12The Tribunal held a summary hearing on October 17, 2011, during which it heard oral submissions from both parties.

ANALYSIS

13Section 1 of the Code states:

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.

14To establish a violation of section 1 of the Code, the applicant must show that the respondent’s failure to fund Phosphate Novartis results in the applicant being treated differentially on the basis of his disability.

15The issue before me in determining this summary hearing is whether the Application has a reasonable prospect of success within the meaning of Rule 19A.1. In other words, I must determine whether the applicant has a reasonable prospect of showing that, in refusing funding for Phosphate Novartis, the respondent treated him differently from others and that the applicant’s disability was a factor in this treatment.

16I appreciate that the respondent’s denial of funding was frustrating for the applicant and that it lead to unfortunate health-related difficulties for him. However, for the reasons that follow, I find that there is no reasonable prospect that the applicant can show, on a balance of probabilities, that his Code rights were violated by this denial.

The purpose of the Code

17In essence, the applicant argues that the Code is engaged because he has a disability. He argues that as a disabled and vulnerable person, he ought to be reimbursed for medically-recommended drug products. The applicant states that, by virtue of this, the respondent’s denial of funding resulted in discrimination based on disability within the meaning of the Code.

18As counsel for the applicant acknowledged at the hearing, the implication of the applicant’s argument is that the respondent could not deny funding for any drug product to any eligible person with a disability.

19I cannot accept the applicant’s argument. The purpose of the Code is not to define the appropriate scope of a benefit plan without regard for the underlying purpose of the plan or to require that benefits be made available to individuals simply because they identify with a Code-related factor.

20Rather, the issue for the Tribunal is whether the applicant was treated differently from others (for example, whether he was denied benefits that others received) on the basis of his disability. See, for example, Ball v. Ontario (Community and Social Services), 2010 HRTO 360 at paras. 68-76.

21Thus, where a benefit plan is alleged to be under inclusive, the Tribunal may consider whether Code-related grounds are factors in the exclusion of a group or individual: see, for example, Ball, supra; Auton (Guardian ad litem of) v. British Columbia (Attorney General), 2004 SCC 78 at para. 42; and Battlefords and District Co-operative Ltd. v. Gibbs, 1996 CanLII 187 (SCC), [1996] 3 S.C.R. 566 at para. 33.

22In this case, the applicant’s legal theory is that the respondent ought to fund all drug products for eligible, disabled people. He contends that a failure to do so amounts to discrimination. This is very different from the under inclusive argument mentioned above, where under inclusiveness is alleged to be based on Code-related factors.

23Here, the applicant has not referred to any evidence or expected evidence to establish that the failure to fund Phosphate Novartis, generally, discriminates against him on the basis of his disability as compared with others without his disability. He filed documents to establish that he has a medical need for Phosphate Novartis. He has not, however, contended or provided evidence to show that the failure to fund Phosphate Novartis detrimentally affects persons with particular disabilities differently that it does individuals who do not have these disabilities.

24Importantly, the discrimination analysis is always a comparative one: the Tribunal must consider an applicant’s circumstances in comparison with others who receive the benefit in question: see Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396 at para. 41 Ball, supra, at para. 74. Discrimination will only be established where an applicant shows that he or she was treated differently (for example, denied a benefit that was available to others) and that a Code-related ground was a factor in this differential treatment.

25In this case, the applicant does not allege that others received funding for Phosphate Novartis between June 2008 and August 2010. There is, in fact, no allegation of differential treatment. While it is clear that the applicant is dissatisfied with the respondent’s refusal to fund Phosphate Novartis, he has not advanced that he was treated differently from any other eligible person.

26The applicant also argues that the Drug Plan was administered arbitrarily and unfairly in his case. As it has indicated repeatedly in its jurisprudence, the Tribunal does not have a general power to decide whether the respondent treated the applicant fairly or appropriately. The Tribunal’s powers relate only to alleged discrimination and violations of the Code. In other words, while the applicant has clearly stated that he feels the funding refusal was arbitrary and unfair, to establish that the Application has a reasonable prospect of success, he must also explain how this alleged mistreatment could form the basis of a finding of discrimination.

27It is not clear to me why the applicant’s request for funding was not grandfathered into the EAP program before August 2010. Counsel for the respondent stated that the applicant “fell off the list”. There is no question that this was unfortunate and it is certainly regrettable that the applicant suffered health-related difficulties as a result. However, while the applicant argues that the failure to grandfather his request sooner was unfair and arbitrary, he has not specifically contended that his disability was a factor in this regard. In my view, even assuming that the applicant was not grandfathered into the EAP sooner because he “fell off the list”, there is no reasonable prospect that the applicant can establish that this error amounted to differential treatment on the basis of disability.

28Counsel for the applicant stated that, if the matter were to proceed to a hearing on the merits, he would seek disclosure of the respondent’s decisions under the Compassionate Review Policy. It is not clear to me that this would be of assistance to the applicant in establishing discrimination. The applicant applied for funding under the EAP, not the Compassionate Review Policy. Even if an individual received funding for Phosphate Novartis under the Compassionate Review Policy during the material times, it would not assist the applicant (who did not apply for this funding) in establishing that he was treated differentially.

DECISION

For all of these reasons, the Application is dismissed. I find that there is no reasonable prospect that the Application will succeed. In my view, there is no reasonable prospect that the applicant can prove, on a balance of probabilities, that his Code rights were violated by the respondents.