Masiuk v. Ontario (Health and Long-term Care), 2012 HRTO 1437

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kathryn Masiuk

Applicant

-and-

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

Respondent

DECISION

Adjudicator: Mark Handelman

Date: July 24, 2012

Citation: 2012 HRTO 1437

Indexed as: Masiuk v. Ontario (Health and Long-term Care)

APPEARANCES

Kathryn Masiuk, Applicant

Self-represented

Ontario (Health and Long-term Care), Respondent

Sara Weinrib, Counsel

Introduction

1This is an Application filed on January 24, 2012 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to services because of disability. The applicant alleges the respondent discriminated against her by denying coverage of a drug she required to treat a medical condition.

BACKGROUND

2On its own initiative, by Case Assessment Direction (“CAD”) dated April 2nd 2012, the Tribunal directed that “a summary hearing be held to determine whether this Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that it will succeed.”

3A teleconference call was held before me on July 12th, 2012. In addition to written submissions filed, the parties each made oral submissions.

FACTS

4The relevant facts were not in issue:

a. The applicant suffers from atrial fibrillation. Her physician has prescribed her a drug with the brand name Dronedarone. It is the only drug she can take for her condition, according to her physician, because the applicant also suffers from Graves Disease.

b. The respondent operates the Ontario Drug Benefit Program, which pays for drugs for many Ontarians, but the respondent does not pay for Dronedarone, for anyone.

c. All new drugs approved for use by Health Canada and submitted for funding consideration in Ontario are reviewed by the ministry’s expert advisory committee, the Committee to Evaluate Drugs (CED). The CED, for various reasons, recommended against funding Dronedarone and the Ministry accepted that recommendation: it does not fund this drug for anyone.

d. The applicant asked for coverage under the respondent’s “Exceptional Access Program,” but was denied, because the drug is not funded. That decision, according to the respondent’s letter denying coverage of this drug for the applicant (a document attached to her Application to this Tribunal), was based upon a determination that this drug lacked efficacy compared to the drug that is covered to treat atrial fibrillation, which determination (according to the letter) was the conclusion of the only head to head trial comparing Dronedarone to the standard treatment. The letter also noted that Dronedarone cost more than its alternatives.

e. The respondent does not challenge the applicant’s entitlement to have her drugs paid for under the Drug Benefit Program, it simply says this particular drug is not covered.

f. The applicant takes Dronedarone and pays for it herself at a cost of approximately $160 per month.

SUBMISSIONS

5The applicant submits that, as Dronedarone is the only drug she can take for her condition, failure to fund it for her is discriminatory.

6The respondent denies it discriminates against the applicant because it simply does not fund this drug. The respondent further submits that the applicant’s situation is identical to that of the applicant in El Jamal v. Minister of Long-Term Care, 2011 HRTO 1952.

ANALYSIS

7As noted in the April 2, 2012 CAD, details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 and 9:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

8In the present case, the issue is whether, assuming all of the allegations in the Application to be true, the applicant’s allegations may be reasonably considered to amount to a violation under the Code.

9El Jamal is directly on point to this application, the only significant differences being that the applicant in that case could not afford the drug he required and that he did receive the drug for a while, not through coverage by the Ministry but rather through a compassionate program the manufacturer funded.

10Here are the relevant passages from the El Jamal Decision, at paras 19 to 20 and 24 to 26:

I cannot accept the applicant’s argument. The purpose of the (Human Rights) 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.

Rather, 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.

…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.

In 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 person.

…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.

11There was no allegation that the respondent Ministry, in deciding not to fund Dronedarone, treated the applicant differently than any other person. For reasons unrelated to her and set out in para. 5(d) above, the CED recommended that the drug not be funded and the Ministry accepted that recommendation. Its cost is not covered for anyone in Ontario.

12I agree with the reasoning in El Jamal and find that it applies equally to the facts in this case. The applicant has not advanced that she was treated differently than any other person or that she was excluded from coverage of Dronedarone (either individually or as a member of a group) on the basis of a Code-related ground while others received such coverage.

ORDER

13I find that there is no reasonable prospect that the applicant can prove, on a balance of probabilities, that her Code rights were violated by the respondents. The Application is dismissed.