McMahon v. Equitable Life Insurance Company of Canada, 2012 HRTO 2131

Human Rights Tribunal of Ontario

B E T W E E N:

Sean McMahon Applicant

-and-

The Equitable Life Insurance Company of Canada Respondent

DECISION

Adjudicator: Brian Cook

Date: November 13, 2012

Citation: 2012 HRTO 2131

Indexed as: McMahon v. Equitable Life Insurance Company of Canada

APPEARANCES

Sean McMahon, Applicant Self-represented

The Equitable Life Insurance Company of Canada, Respondent Tiffany MacDonald, Counsel

Introduction

1This is an Application filed 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 an insurance contract because of disability. The contract provides that long term disability benefits will be offset by any amount received for a disability pension from the Canada Pension Plan.

2The applicant also alleges that he was subject to harassment because the insurance company's demands for medical proof of his continuing disability were excessive and that he was subject to reprisal when his benefits were temporarily suspended.

3The respondent provides a number of insurance products including group disability insurance plans. The applicant suffered a debilitating stroke in June 2006. He applied for and received benefits through a group insurance plan provided by the respondent.

4After reviewing the Application, the Tribunal determined a summary hearing to determine if the Application should be dismissed as having no reasonable prospect of success. This determination was made based only on the Application. The respondent received a copy of the Application but was not required to file a Response.

5The summary hearing was directed in a Case Assessment Direction dated July 9, 2012. It provided that the issue at the summary hearing would be whether the Application should be dismissed in whole or in part because there may be no reasonable prospect that the Application or part of the Application could succeed. The Case Assessment Direction noted that in addition it appeared that some of the allegations were untimely and that the Tribunal might not have jurisdiction to deal with those allegations.

6The summary hearing process is outlined in Rule 19A of the Tribunal's Rules of Procedure. In a summary hearing, the issue is whether the Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or a part thereof will succeed.

7In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

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.

In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

The Canada Pension Plan disability offset

8A term of the group insurance plan contract in this case is that the insured person must apply for a disability pension from the Canada Pension Plan in order to be granted long term disability benefits through the insurance plan. The Canada Pension Plan disability pension benefits are then offset against the amount paid by the insurance plan.

9The applicant alleges that the offset discriminates against him as a disabled person because it deprives him of the full access to benefits under the Canada Pension Plan that he would otherwise enjoy.

10The respondent notes that when an employer purchases a group insurance plan it may purchase different options. One option relates to the Canada Pension Plan disability pension offset. It is possible to purchase a group insurance plan that does not include this requirement but the premiums are higher, reflecting the increased liability for the insurance plan. The respondent also notes that in this case, the applicant was the president of the company that purchased the insurance plan and that he himself negotiated and signed the group insurance policy, which included the Canada Pension Plan disability pension offset option.

11In my view, there is no reasonable prospect that the applicant could establish that the Canada Pension Plan disability benefit offset provision in the group insurance plan discriminates against him on the basis of disability. Like any insurance coverage, a group plan may contain any number of different options, the cost of which is reflected in the premiums paid. A disability pension from the Canada Pension Plan is typically available for a person who also meets the criteria for entitlement under a group insurance disability policy. The fact that an offset option forms part of the coverage reflects a decision made by the employer that negotiates and purchases the group insurance plan for its employees.

The requests for medical reports

12The applicant agrees that a disability insurance provider is entitled to receive medical reports to confirm that the applicant for benefits meets and continues to be eligible for disability benefits. He alleges, however, that in his case the requests for medical confirmation were excessive and amounted to harassment. The applicant could not say how often or how many times a year he has been asked for medical confirmation. He thought that it could have been as often as once every two months but he was not sure of this. He indicated that the requests for medical confirmation were very stressful for him and resulted in increased blood pressure. He indicated that on one occasion he required emergency medical care for chest pain as a result of the request for medical information.

13The applicant noted that in order to have his doctor fill in a form he must travel from his residence outside of Toronto into the city. As a disabled person this can be difficult and it is not always possible to obtain the report in the time requested by the respondent. The applicant alleges that the respondent frequently harassed him and threatened to terminate his benefits if he did not provide the necessary information. His benefits were in fact suspended on one occasion and when he complained he was told that his benefits were suspended to "get his attention". The applicant alleges that his benefits were suspended in reprisal for his complaints about the harassing nature of the requests for medical information.

14The respondent could not confirm the number of times it may have requested medical confirmation from the applicant. The respondent indicated that typically more requests are made in the early stages of a claim. The respondent indicated that in this case the applicant was likely asked for confirmation about once a year.

15Under the terms of the policy, the applicant ceased to be eligible for any benefits when he turned 65 years of age, which occurred in May 2012. The applicant agreed that he had not been asked for any medical confirmation for more than a year prior to May 2012.

16The respondent confirmed that the applicant's benefits were suspended on one occasion. The respondents state that the reason for this was that the applicant had failed to confirm that the status of his application for a disability pension from the Canada Pension Plan. The respondent was unable to reach the applicant through his contact information and the applicant did not respond to correspondence. After the applicant did contact the respondent after his benefits were suspended, there was an overpayment in relation to the applicant's receipt of Canada Pension Plan disability benefits and his insurance benefits were suspended for about two months until the overpayment was recovered.

17The applicant does not dispute that there was an overpayment, but he alleges that the respondent should have contacted him through an insurance agent with whom the applicant has a personal connection and who has been involved in his claim over the years.

18In my view, there is no reasonable prospect that the applicant could establish that his benefits were suspended in reprisal for his having raised complaints of harassment. The applicant has provided no basis for such an allegation and did not identify any evidence or potential evidence of such reprisal. He also did not dispute that there was a complete non-discriminatory explanation for the suspension of his benefits.

19The applicant has not provided any evidence to support his allegation that he was subject to excessive demands for confirmation of medical information and that these demands amounted to harassment or discrimination. He does however allege that his records would establish and corroborate this allegation.

20As discussed at the hearing, and as noted in the July 9, 2012 Case Assessment Direction, the Code requires a person to file an Application within one year of the last incident of discrimination if there is an alleged series of incidents. Section 34 of the Code provides as follows:

34. (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

21The applicant concedes that he was not asked for any medical confirmation at all for at least one year before he turned 65 in May 2012. He filed the Application in June 2012, which was thus more than one year after the last incident of alleged discrimination.

22Under section 34(2) the Tribunal may permit an Application to proceed if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

23The applicant suggested that the reason that he did not file an Application earlier is that it can be difficult for him to undertake things that require concentration because of his disability.

24While I accept that the applicant's disability could impact on his ability to file an Application, I am not satisfied that this provides a good faith explanation for the delay in this case. The applicant has provided no medical confirmation that he was not capable of filing an Application earlier. The applicant indicated that his partner typically assists him with such matters and that she assisted him with the Application when he did file it. Although the applicant could not say how frequently the requests for medical information were made, he does allege that they started in 2006 and continued through to sometime in early 2011 or late 2010. The requests then stopped altogether. In assessing the applicant's explanation for the delay, it is relevant that the alleged harassment allegedly occurred for over four years and that four year period ended approximately two years before he filed the Application.

25In my view, the applicant has not provided a good faith explanation for the delay in filing the Application with respect to the alleged harassment that he claims he was subject to as a result of the respondent's requests for medical confirmation of his continuing disability. On that basis, I find that the Tribunal does not have jurisdiction to deal with this aspect of the Application.

ORDER

26The allegation that the offset of the applicant's disability pension from the Canada Pension Plan was discriminatory is dismissed because there is no reasonable prospect that this aspect of the Application could succeed.

27The allegation that the applicant's insurance benefits were suspended in reprisal for his having raised allegations of harassment is also dismissed because there is no reasonable prospect that this aspect of the Application could succeed.

28The remaining allegation is that the applicant was subject to harassment because of excessive requests for medical information. The Application containing this allegation was not filed within one year of the last request for medical information and so was not filed in accordance with section 34(1) of the Code. The applicant has not provided a good faith explanation for the delay as required by section 34(2) of the Code. As a result the Tribunal does not have jurisdiction to deal with this aspect of the Application and it is dismissed on that basis.