Butcher v. Ontario (Health and Long Term Care), 2013 HRTO 1327

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Judith Butcher Applicant

-and-

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

DECISION

Adjudicator: Paul Aterman Date: July 30, 2013 Citation: 2013 HRTO 1327 Indexed as: Butcher v. Ontario (Health and Long Term Care)

APPEARANCES

Judith Butcher, Applicant Self-represented

Her Majesty the Queen in Right of Ontario as represented by The Minister of Health and Long Term Care, Respondent Matthew Horner, Counsel

Introduction

1The applicant filed an Application on February 2, 2011, pursuant to section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 ("the Code"), as amended. In it she claims that she has been denied Ontario Health Insurance funding for a medical procedure available to some people within Ontario. Specifically, the applicant asserts that she has been denied reimbursement for the cost of angioplasty for compromised blood flow in the neck veins because of her disability, multiple sclerosis ("MS").

2In Interim Decision 2011 HRTO 1335, consideration of the Application was deferred to await the outcome of an appeal before the Ontario Health Services Appeal and Review Board ("HSARB"). The Application was reactivated following release of the HSARB decision. The respondent then made a request to have the Application dismissed on the grounds that it has no reasonable prospect of success because the HSARB decision appropriately dealt with the substance of the Application and because the applicant is not able to show that the decision to deny funding was discriminatory. A summary hearing was held by teleconference. For the reasons set out below, I conclude that the HSARB decision appropriately dealt with part of the substance of the Application. I also conclude that the Application has no reasonable prospect of success. Accordingly, the respondent's request is granted.

Background

3The applicant was diagnosed with MS in 1996 and has a number of debilitating symptoms as a result. In 2009, an Italian physician, Dr. Paolo Zamboni, published findings of a potential connection between a treatment to unblock compromised blood flow in the veins of the neck (chronic cerebrospinal venous insufficiency ("CCSVI") angioplasty) and the relief of MS symptoms. When the applicant became aware of this information, she began to explore the possibility of undergoing the treatment. She had an ultrasound and it was determined that she met the criteria for a diagnosis of CCSVI.

4The CCSVI angioplasty procedure is not performed in Ontario to treat MS patients. The applicant applied to the respondent for funding of the procedure in Egypt. The respondent refused the request on two grounds: first, that a CCSVI angioplasty for MS patients is considered to be experimental and, second, that it is not generally accepted by the medical profession in Ontario as an appropriate treatment for a person in the same medical circumstances as the applicant. In doing so it relied on the criteria set out in s. 24(1) and s. 28.4(2) respectively of O. Reg. 552/90 under the Health Insurance Act, R.S.O. 1990, c. H.6 which read, in their relevant parts, as follows:

24. (1) The following services rendered by physicians or practitioners are not insured services...

25. Treatment for a medical condition that is generally accepted within Ontario as experimental.

28.4 (2) Services that are rendered outside Canada at a hospital or health facility are prescribed as insured services if,

(a) the service is generally accepted by the medical profession in Ontario as appropriate for a person in the same medical circumstances as the insured person

5The applicant appealed to the HSARB, but the HSARB upheld the respondent's decision.

6The HSARB decision reviews the state of current research into the procedure. The decision notes that some journal articles have concluded that a link between CCSVI angioplasty and relief of MS symptoms has not been established, and that other articles emphasise the need for more data. The decision also notes that randomised clinical trials of the procedure are still in progress.

7The decision then reviews the state of opinion of Ontario physicians. It considers the opinions of physicians filed by both parties and concludes that the weight of physician opinion in Ontario regards the treatment as experimental. Having considered both the current state of research and physician opinion, the HSARB determines that the procedure is generally accepted as experimental in Ontario. On the basis of this finding, it concludes that it is not necessary to address the application of s. 28.4(2)(a) to the facts of the case (the second of the two grounds the respondent relied upon to refuse the applicant's request), and denies the applicant's appeal.

8The HSARB decision states that it is aware that this Application is pending before the Tribunal, and for that reason it does not address the application of the Code to the matter before it.

Submissions

9The applicant made various arguments that the Application should be allowed to proceed. A number of the arguments are criticisms of the HSARB process and decision, as the applicant asserts that it was unfair that she was unrepresented while the respondent had both a lawyer and doctor presenting its case. She maintains that the failure of one of the three HSARB panel members to participate in the final decision was flawed and unexplained.

10The applicant also argues that the Tribunal should hear her Application because other avenues to address this issue are closed to her, due to a predisposition in society to accept the medical establishment's hostility to the use of CCSVI angioplasty. In that regard she maintains that the refusal of a Senate committee to hear from MS patients and certain doctors on this issue, and the refusal of some politicians to support funding of clinical trials are indicative of a general discriminatory bias against the procedure.

11Finally, the applicant maintains that angioplasty is a long-established, accepted and low risk surgical technique that is used on a routine basis in Ontario to treat a range of other conditions. From this she argues that the use of angioplasty cannot be said to be experimental, and thus a refusal to extend its use to address CCSVI in MS patients can only be seen as discriminatory.

12The respondent argues that the HSARB's determination that the procedure is experimental necessarily leads to the conclusion that the subject matter of this Application has been appropriately dealt with in accordance with s. 45.1 of the Code. Citing the Tribunal's decision in Qiu v. Neilson, 2009 HRTO 2187, it maintains that, notwithstanding the HSARB's statement that it declines to address Code-related issues, the HSARB's findings remove the factual and legal foundation for the applicant's argument that a refusal to fund the procedure is discriminatory. Specifically, the respondent argues that the applicant cannot use the Tribunal's process to attack the HSARB's determination that the use of CCSVI angioplasty in MS patients is experimental. The respondent maintains that if that finding stands, then it provides a non-discriminatory explanation for the decision not to fund the applicant's treatment. From this it argues that the applicant's claim of discrimination was appropriately dealt with by HSARB.

13The respondent also argues that, even if s. 45.1 does not apply in this case, the applicant is still unable to point to any evidence that the decision not to fund her treatment was discriminatory. It maintains that the applicant cannot show that she was disadvantaged because of her disability, in that she suffered any form of differential treatment. It argues that the applicant is in the same position as all persons who seek funding for treatments that are experimental, namely that the respondent refuses all such requests without regard for the specific nature of the disability of the person requesting the funding. In the absence of any additional evidence to indicate discriminatory treatment, the decision not to fund the applicant's treatment cannot be regarded as a distinction that is based on disability. For this reason it maintains that the Application has no reasonable prospect of success.

Analysis

Does s. 45.1 apply?

14In s. 45.1 the Code provides that the Tribunal "may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application."

15There are two issues to be determined here, whether the appeal to the HSARB was a proceeding within the meaning of s. 45.1 and, if it was, whether the HSARB appropriately dealt with the substance of this Application.

Was The Appeal To The HSARB A "Proceeding"?

16The HSARB is established by the Ministry of Health and Long-Term Care Appeal and Review Boards Act, 1998, S.O. 1998, c.18 to conduct appeals and reviews under twelve different health care statutes. A review of its governing provisions, including those governing the appointment and assignment of members (Ss. 7, 7.1,8 and 13(2)) and those governing immunity from suit (S.18), indicates that it is constituted as an independent administrative tribunal. Board procedure is outlined in rules (see s. 7.1(6) of the Act and the Consolidated Rules which govern practice before both the HSARB and the Health Professions Appeal and Review Board) that are typical for those of a statutory tribunal. They are designed to adapt general principles of procedural fairness to the particular mandate of the tribunal, and they provide a comprehensive code for the presentation of matters to the HSARB.

17In this case the applicant was afforded notice, an oral hearing, an opportunity to introduce evidence and to make submissions before a panel of the HSARB. The panel rendered a written decision and the applicant had a statutory right to appeal that decision to Divisional Court (s.24(1) of the Health Insurance Act, R.S.O. 1990, c. H.6).

18In Campbell v. Toronto District School Board, 2008 HRTO 62, at para.66 the Tribunal established that, at a minimum, a proceeding includes an adjudicative process established under a statutory regime. In light of the extensive procedural protections governing appeals to the HSARB, and applying Campbell, I conclude that the appeal to the HSARB in this case was a proceeding within the meaning of s. 45.1.

Did The HSARB Appropriately Deal With The Substance Of This Application?

19In arguing that the Tribunal should hear her Application the applicant criticises the HSARB process and voices concerns about what she sees as a bias in society against the use of novel treatments to fight MS. For reasons which I will now set out, these arguments do not provide a basis to conclude that the HSARB did not deal appropriately with the substance of a key part of this Application.

20A number of the applicant's criticisms of the HSARB decision, such as the legal and medical expertise relied on by the respondent at the HSARB hearing and the non-participation of a panel member in the final decision, are assertions that the HSARB process was unfair. The applicant acknowledged at the hearing that she could have exercised her right to appeal the HSARB decision on these grounds, but stated that this would have been too expensive for her to undertake. The applicant may not have liked the HSARB process or the fact that a challenge to the HSARB decision may be costly, but she has not advanced any arguments that would show that these perceived flaws had any impact on her ability to know the case she had to meet before the HSARB. Given the extensive procedural safeguards surrounding the HSARB process, including the existence of a statutory right of appeal, I am not satisfied that the applicant's arguments attacking the procedural fairness of the HSARB process are a basis upon which to conclude that the HSARB did not appropriately deal with the substance of the Application.

21In relation to the applicant's assertions that there is a general bias among politicians and political institutions against the use of CCSVI angioplasty for MS patients, and that an Application to the Tribunal is the only avenue she can pursue to gain funding for her treatment, I am also not satisfied that this is a reason to find that the HSARB did not deal appropriately with the substance of the Application. This argument is an expression of frustration on the part of the applicant at the policy choices made by some politicians. However, it is not an argument that deals with the substance of what the HSARB decided. For this reason it does not provide a basis upon which to determine whether the Tribunal should or should not proceed because of what the HSARB decided.

22The applicant makes a third argument attacking the HSARB decision. She maintains that the HSARB wrongly concluded that a CCSVI angioplasty for MS patients is an experimental treatment. She argues that a CCSVI angioplasty is just one type of angioplasty and the use of angioplasty is commonplace in surgery in Ontario.

23This argument, which she advanced before the HSARB, is also at the core of her assertion in this Application that the respondent's refusal to fund her treatment is discriminatory. She says that because angioplasty is a common procedure and yet a CCSVI angioplasty is not available to MS patients, the respondent's refusal must be motivated, at least in part, by the fact that she has MS. This, she maintains, amounts to discrimination.

24I am of the view that the HSARB appropriately dealt with the question of whether CCSVI angioplasty for MS patients is experimental, and that the applicant cannot re-litigate this determination before the Tribunal. The purpose of s. 45.1 is to avoid unnecessary re-litigation of the same issue or issues before the HRTO and other adjudicative bodies (see Gomez v. Sobeys Milton Retail Support Centre, 2011 HRTO 2297). This entails examining whether the issue in question before the HRTO is the same as the issue before the other adjudicative body and whether the parties in the other proceeding knew the case they had to meet and had an opportunity to meet it.

25Those criteria are met in relation to the HSARB's determination that CCSVI angioplasty for MS patients is experimental. This is clear when the history of these proceedings is examined. The Tribunal deferred consideration of her Application to enable the applicant to proceed with her appeal to the HSARB. She then made her argument before that tribunal that CCSVI angioplasty for MS patients is not experimental. The entire hearing focused on that issue. The applicant argued before the HSARB that CCSVI angioplasty for MS patients is but one form of angioplasty and angioplasty is a common procedure. However, it is evident from the HSARB decision that the issue before it is not whether the general use of angioplasty is experimental, but whether the specific use of CCSVI angioplasty to unblock neck veins in MS patients is experimental. In considering this issue the HSARB weighs the medical evidence before it, decides that the evidence indicates that the benefits of CCSVI angioplasty in MS patients are unproven, and that the procedure is therefore experimental.

26The applicant was afforded an opportunity to participate in the HSARB process. It is clear from the HSARB decision that she knew the case she had to meet. She also had an opportunity to challenge the outcome through a statutory right of appeal to Divisional Court. The question of whether a treatment is experimental for the purposes of determining whether the respondent should fund the treatment is at the core of the HSARB's expertise as a specialized tribunal, and its decision on this point is a final decision, in that it disposed of the appeal before it and the time for the applicant to appeal that decision to the Divisional Court passed.

27In seeking to challenge the HSARB's conclusion through this Application, the applicant is trying to re-litigate the same issue between the same parties, notwithstanding an earlier and final decision on that point. It would be inappropriate for the HRTO to now assume the Divisional Court's role by, in effect, reviewing the correctness of the HSARB's determination that CCSVI angioplasty for MS patients is experimental. In these circumstances, there is no unfairness in deciding that the applicant is bound by the HSARB's decision on this point. Allowing the applicant to re-litigate this question would undermine the important value of finality in litigation. For these reasons I conclude that the HSARB appropriately dealt with a part of this Application, namely the question of whether a CCSVI angioplasty for MS patients is an experimental treatment.

28I emphasize that s. 45.1 only applies to this Application in part because the HSARB decision does not address the issue of whether the refusal to fund an experimental treatment is discriminatory. While the HSARB has the authority to consider the application of the Code (see, for example A.T. v. Ontario (Health Insurance Plan), 2009 CanLII 85072), there is no analysis in the HSARB decision as to whether the application of the Regulations has a discriminatory effect in this case. The HSARB panel expressly acknowledges this at para. 51 of its decision. This then raises the question of whether the Application has a reasonable prospect of success by the applicant showing that the decision not to fund an experimental treatment was discriminatory. This question is dealt with below.

Does The Application Have A Reasonable Prospect Of Success?

29In Dabic v. Windsor Police Service, 2010 HRTO 1994 at para. 9 the Tribunal noted that in a summary hearing there must be a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the events described in the Application and the alleged prohibited ground of discrimination.

30To show discrimination, the applicant must be able to point to a disadvantage she suffered that is linked to her disability. In Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593, the Court of Appeal defined discrimination in this way:

In the human rights context, in most instances, it will be evident that a prima facie case of discrimination has been established based solely on the claimant's evidence showing a distinction based on a prohibited ground that creates a disadvantage (in the sense of withholding a benefit available to others or imposing a burden not imposed on others). An inference of stereotyping or of perpetuating disadvantage or prejudice will generally arise based on that evidence alone. (para. 90)

31In this case the applicant is requesting that the Ontario Health Insurance Plan ("OHIP") fund a health care benefit. As the Tribunal notes in El Jamal v. Minister of Long-Term Care, 2011 HRTO 1952, the Code does not require that the respondent fund every health care service that would benefit an individual. At para. 24 the Tribunal states:

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.

32Expanding upon this reasoning, the Tribunal in Brodeur v. Ontario (Health and Long-Term Care), 2013 HRTO 1229 notes that to establish discrimination in the provision of OHIP benefits, an applicant needs to show that she or he is excluded from benefits that fall within the purpose of the OHIP program because of Code-protected characteristics. The Tribunal states at paras. 24-26:

Guidance as to the definition of the purpose of the OHIP health-care system is found in the case law. It is not necessary to exhaustively define that purpose in this case. It is clear that to fall within that purpose, health care services must be medically necessary and if services are not medically necessary, they do not fall within the purpose of OHIP. I draw that conclusion from two cases: Auton and Shulman.

In Auton (Guardian ad litem of) v. British Columbia (Attorney General), 2004 SCC 78, the Supreme Court of Canada addressed the purposes of health care funding in Canada and British Columbia. It summarized its conclusions as follows, at para. 35:

In summary, the legislative scheme does not promise that any Canadian will receive funding for all medically required treatment. All that is conferred is core funding for services provided by medical practitioners, with funding for non-core services left to the Province's discretion. [emphasis added]

The Ontario Divisional Court reached a similar conclusion about services in Ontario. The Court noted that the purpose of OHIP is to fund "medically necessary physician services, in-patient and out-patient services provided by public hospitals" [emphasis added] and those provided by "some other professionals such as dentists, podiatrists, osteopaths, physiotherapists and optometrists": Shulman v. College of Audiologists and Speech Language Pathologists of Ontario, [2001] O.J. No. 5057 at para. 2. In Shulman, as in Auton, the Court emphasized that substantive equality does not require that all health services be covered by the respondent. It is clear from Shulman and Auton that, at least, services must be "medically necessary" to fall within the purpose of OHIP: see para. 40 of Shulman.

33Certain services are determined not to be "medically necessary", and are enumerated in the list of exclusions found in Ss.24-26.1 of O.Reg 552/90, including treatments that are generally accepted within Ontario as experimental. Given the HSARB's determination that CCSVI angioplasty for MS patients is experimental, the question to be determined is whether the applicant, as an MS patient seeking funding for an experimental treatment, was treated any differently from any other patient seeking funding for an experimental treatment.

34During the hearing I asked the applicant how she would be able to show that her condition led to her being disadvantaged when compared with other persons who apply to the respondent for funding of a treatment that is experimental. In response to this she emphasized that angioplasty is not experimental, and that a refusal to fund her angioplasty was based on the fact that she has MS. However, in my view this argument amounts to an attempt to re-characterize the issue and to re-litigate what the HSARB has decided. The HSARB has found the treatment to be experimental and, for the reasons noted above, this finding cannot be revisited.

35Beyond this the applicant could not point to any evidence that could suggest that she was being treated any differently than any other person applying for funding of an experimental treatment. There is nothing to indicate that the respondent applies differing standards to persons applying for funding of treatments that are considered experimental, based upon what kind of disabilities those persons have. In the absence of such evidence there is no ground for concluding that the respondent's decision was discriminatory. Accordingly, there is no reasonable prospect that the applicant can show on a balance of probabilities that her Code rights were violated by the respondent's decision.

Order

36The Application is dismissed as it has no reasonable prospect of success.