Elizabeth Long v. Co-Operators Life Insurance Company, 2011 HRTO 940

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Elizabeth Long

Applicant

-and-

Co-Operators Life Insurance Company

Respondents

INTERIM DECISION

Adjudicator: Ena Chadha

Date: May 16, 2011

Citation: 2011 HRTO 940

Indexed as: Long v. Co-Operators Life Insurance Company

1The applicant filed an Application under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”) on July 13, 2010, alleging discrimination on the basis of disability in the area of goods, services, and facilities. The applicant alleges that the respondent insurer’s long-term disability policy discriminates against her because it relies on a discriminatory pre-existing condition (“PEC”) exclusion which adversely impacts against people with psychiatric disabilities.

2The respondent filed a Response on March 11, 2011 denying the allegations of discrimination. The respondent alleges that the Application should be dismissed on a preliminary basis because 1) the Tribunal does not have the jurisdiction to interpret the medical evidence underlying the question of whether the applicant had a PEC and 2) the alleged facts and issues trigger an exemption under section 22 of the Code.

3The applicant filed a Reply on April 5, 2011. The applicant submits that the Application should not be dismissed. The applicant argues that the Tribunal has jurisdiction over the Application because it raises the issue of whether the PEC policy is discriminatory and therefore it is unnecessary to scrutinize her specific condition in order to consider whether the policy itself is discriminatory. The applicant also argues that the reasonable and bona fide aspects of the Code’s defences and exemptions are not satisfied.

4The applicant filed a Request for Order During Proceedings on April 5, 2011 asking that the Application be amended to include the social area of “employment”. The applicant alleges that impugned insurance policy was part of her health insurance coverage through her employer and, therefore, the facts of the Application also raise the social area of “employment”. The applicant submits that the addition of the social area of “employment” does not alter the substance of the application.

5The respondent opposes the Request to amend the Application to add the social area of employment. The respondent argues that it is not the applicant’s employer and that the insurance policy has nothing whatsoever to do with the applicant’s employment relationship.

DECISION

Request to Dismiss

6The parties contest the scope of the allegations and the defences/exemptions, as well as the applicable legal interpretations. I find that the respondent’s Request effectively seeks that the Tribunal assess the allegations and determine the Code defences/exemptions. In my view it would be premature to engage in such a substantive evaluation at this preliminary stage.

7The respondent’s Request to dismiss is denied without prejudice to the respondent’s right to raise the issues at adjudicative stage of the proceeding.

Request to Amend

8The parties contest the facts and information with respect to the contractual entities involved in the insurance policy, the coverage and the nature of the relationships. This issue may raise questions with respect to the interpretation and administration of the insurance policy and contract and possibly liability. This will likely require an assessment of the facts and evidence, along with an interpretation of the law in the area, in order to determine whether the allegations come within the ambit of the Code’s section 5 “with respect to employment”. As such, the question of whether the Application raises section 5 allegations and within the Code protected social area of employment should not be determined at this preliminary stage. The applicant’s Request to amend will be dealt with at the adjudicative stage of the proceeding.

9Accordingly, the respondent’s request to dismiss is denied and the applicant’s request to amend is deferred to the hearing on the merits. Given that the parties agree to mediation, the Registrar will schedule a mediation in this matter.

10I am not seized of this matter.