Ferguson v. Ontario (Health and Long-Term Care), 2013 HRTO 1526

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jacqueline Ferguson

Applicant

-and-

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

Respondent

A N D B E T W E E N:

Michael Hodgson

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: September 11, 2013 Citation: 2013 HRTO 1526 Indexed as: Ferguson v. Ontario (Health and Long-Term Care)

WRITTEN SUBMISSIONS

Jacqueline Ferguson and Michael Hodgson, Applicants

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 applicants are spouses. They are both persons with disabilities which have impeded their ability to have children without the aid of in-vitro fertilisation (“IVF”). However, they do not qualify for coverage of IVF offered by the Ontario Health Insurance Plan (“OHIP”). In addition, they have borne the cost of genetic testing of embryos (Preimplantation Genetic Diagnosis or “PGD”) prior to attempts at implantation of the embryos under IVF procedure. They allege that OHIP’s refusal to cover the costs of IVF and PGD are discriminatory.

2On February 19, 2013, they filed separate Applications under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), both alleging discrimination with respect to services because of disability and sex. In addition, the female applicant alleges discrimination by virtue of association with a person who is discriminated against, namely her spouse.

3The Code (s. 34) requires an application to be made within a year of the last alleged incident of discrimination or, if a series of incidents is alleged, within a year of the last incident in the series. The Tribunal can make an exception to this rule if it is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay. The respondent argues that both Applications should be dismissed on grounds of delay.

4I agree with respondent. My reasons are set out below.

5Although the applicants filed separate Applications, there is considerable overlap in the facts that support each Application, and the Reply filed in both Applications is identical. The facts necessary to determine the respondent’s request in each case are the same. Because of this, these reasons for the decision apply to both Applications.

background

6Under the Health Insurance Act, R.S.O. 1990, c. H.6 (the “Act”), OHIP provides funding for “medically necessary” insured physician services. The insured services are prescribed by regulations made under the Act. Under s. 24(1) of Regulation 552, R.R.O. 1990, there is a list of services that are excluded from coverage. IVF is an excluded service except in one circumstance. The relevant excerpt of the Regulation excludes:

In vitro fertilization other than the first three treatment cycles of in vitro fertilization that are intended to address infertility due to complete bilateral anatomical fallopian tube blockage that did not result from sterilization.

7The male applicant has cystic fibrosis (CF) and, as is the case with almost all males who have CF, has a bilateral absence of vas deferens. That means that he cannot reproduce without the assistance of IVF.

8In May 2006 the female applicant was diagnosed as having blocked fallopian tubes. As a result the applicants qualified for OHIP coverage for IVF. They underwent treatment. However, later in the treatment the diagnosis of blocked fallopian tubes was revisited. It was determined that the female applicant does not in fact have the condition that would qualify the applicants for OHIP coverage.

9The applicants then underwent four IVF treatments in October 2008, November 2009, November 2010 and May 2011. These treatments were all at their own expense. In addition, because the male applicant has CF and the female is a carrier of the CF gene, they chose to have embryos genetically tested prior to their implantation. This was to make sure that only healthy embryos were implanted. This testing was also not covered by OHIP.

10On January 8, 2013, the applicants went to see the doctor who had assisted them with their previous IVF treatments. I have set out below the relevant excerpts of the letter he wrote about that visit:

I saw this couple in the office today to discuss any future fertility options available for them.

The couple has undergone previous IVFs with PGS (Pre-implantation Genetic Screening).

I have pointed out that Jacqueline still has open fallopian tubes, OHIP will not cover their IVF cycles in spite of the fact that Michael does have an absent collection system.

They are going home to decide if they wish to proceed with IVF. If they wish to go ahead, we will update some of their preliminary tests.

11The respondent argues that the applicants underwent all of their IVF treatments more than a year before filing these Applications. It also argues that their visit to the doctor in January 2013 does not constitute an incident of discrimination because at that time he simply confirmed to them that there had been no change in the law governing coverage of IVF treatment.

12The applicants maintain that their January 2013 visit to the doctor brings them within the scope of the one-year time limit. In support of this argument they cite the decision of the Tribunal in Garrie v. Janus Joan Inc., 2012 HRTO 1955.

analysis

13As the applicants filed their Applications on February 19, 2013, the one-year time frame runs from a year prior to that date. The issue which I have to determine is whether the January 2013 visit to the doctor is the last incident in a series of incidents that would include their IVF treatments in the period from October 2008 to May 2011.

14In analysing the concept of a series of incidents, the Tribunal stated the following in Garrie, at paras. 38-42:

In our view, while there have been different trends in the Tribunal’s developing application of Visic, supra, a number of non-exhaustive principles emerge, which help to identify the distinction between an incident of discrimination and its continuing effects.

First, as the Divisional Court stated in Visic, supra, to establish that an occurrence is an incident of discrimination (as opposed to merely the continuing effects of an incident), a party must point to acts of alleged discrimination which could be considered as separate contraventions of the Code. At this stage of the inquiry, the focus is on whether the last conduct complained of could, on its own, support a finding of discrimination.

Second, the Tribunal looks to when the allegedly discriminatory decision or act occurred and considers whether this is distinct from the timing of its consequences. This appears to be the step at which many of the subtleties play out. At this stage, the focus of the inquiry should be on whether the incidents in question involve fresh steps taken by the parties, each step giving rise to a separate alleged breach of the Code. This interpretation flows from the court’s language in Visic, supra. It also finds support in the arbitral jurisprudence, which has generally held that, even where the conduct complained of has continuing effects, there is no series of incidents unless the respondent takes a fresh step that could constitute a separate breach of the collective agreement. See Port Colbourne General Hospital (1986), 1986 CanLII 6715 (ON LA), 23 L.A.C. (3d) 323 (Burkett).

Thus, allegations concerning a discrete, non-continuing violation (such as the imposition of discipline or the failure to promote or hire) may have ongoing consequences but, without more, do not amount to a series of incidents within the meaning of the Code because they do not involve any fresh steps taken past the initial alleged incident of discrimination. Similarly, without more, the fact that a respondent maintains a decision it has already taken does not involve a fresh step, nor does it give rise to a separate breach of the Code. See, for example, Longtin, supra.

Third, the Tribunal has also considered when the consequences of the alleged discrimination are manifest for the applicant. For example, in cases where a respondent has terminated an applicant’s employment, the Tribunal has generally applied Visic, supra, to mean that the limitation period runs from the date the employment relationship ends: Longtin, supra. This is because, while a failure to provide a particular payment or benefit may be ongoing beyond the end of the employment relationship, the consequences of severing it are generally manifest as of the date of termination. In such cases, the Tribunal has not interpreted the ongoing failure to provide a benefit or payment upon termination as a series of fresh events. The termination of the employment relationship is the act which is discriminatory rather than the ongoing payments.

15Applying these principles to the facts of these Applications, I conclude that the applicants’ visit to the doctor and the information he communicated to them was not an incident of discrimination.

16First, there is nothing to indicate that the doctor was acting on behalf of the respondent. He was the applicants’ doctor and, in that capacity, was a third party providing medical advice to the applicants. As such, he had no responsibility for determining the eligibility of the applicants for coverage of IVF treatment under OHIP. Accordingly, there is no basis for concluding that respondent engaged in an act of discrimination arising out of the applicants’ visit to their doctor.

17Second, during the visit the doctor simply confirmed that nothing had changed since the applicants had last undergone IVF, namely that the scope of OHIP coverage for IVF remains the same. The consequences of the respondent’s original denial of coverage were ongoing, namely that the applicants remained ineligible for OHIP coverage, but the respondent had not taken any fresh steps since that denial that could be construed as discriminatory.

18Third, the applicants have long been aware of the consequences of the respondent’s decision to deny coverage because they had benefited from coverage initially, but had to pay themselves for the four treatments they underwent from 2008 to 2011. They could have initiated Applications upon being denied coverage or after any of the subsequent treatments they underwent at their own expense, but they did not.

19Having found that the January 2013 visit to the doctor is not the last incident of discrimination within a series of incidents, I conclude that the Applications have not been brought within time. I have also considered whether there is any reason to allow for an exception to the one year rule. However, the applicants have not advanced any arguments that the delay was incurred in good faith. Rather, they simply maintain that there was no delay. In light of this I conclude that there is no reason to allow for an exception to the one year rule. As I have made this determination, it is not necessary for me to also determine whether substantial prejudice would result to any party if the Application were to proceed. See: Esanu v. Georgetown Men’s Non-Contact Hockey League, 2009 HRTO 579 at para.16.

order

20The respondent’s Requests are granted. The Applications are dismissed for delay.