Davey v. Ontario (Health and Long-Term Care), 2013 HRTO 419

Human Rights Tribunal of Ontario

Between:

Harlon Davey Applicant

-and-

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

Interim Decision

Adjudicator: Jennifer Scott Date: March 13, 2013 Citation: 2013 HRTO 419 Indexed as: Davey v. Ontario (Health and Long-Term Care)

Appearances

Harlon Davey, Applicant Self-represented

Her Majesty the Queen in Right of Ontario as represented by the Minister of Health and Long-Term Care, Respondent Lisa Quan, Student-at-law

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"). The applicant alleges that he was discriminated against because of his disability when he received a lower per diem rate from the respondent Ministry of Health and Long-Term Care (the "Ministry") for his participation on a drug advisory committee compared to the rate provided to the professional members of that committee.

2The Ministry filed a Request for Summary Hearing on October 11, 2012. The Ministry submits the applicant has no recourse to the Code because he is not a Crown employee. It submits further that the Code does not prohibit distinctions on the basis of occupational status or professional qualifications and even if it did, such distinctions are not discriminatory.

3By Case Assessment Direction dated November 15, 2012 (the "CAD"), the Tribunal granted the Ministry's Request for Summary Hearing on the basis that the applicant may be unable to prove a link to the Code ground and the social areas alleged. The summary hearing took place by conference call on March 7, 2013.

4The issue before the Tribunal is whether the Application has a reasonable prospect of success. In determining this issue, the Tribunal will consider one of two questions. Does the allegation of discrimination amount to a Code violation at law; or, can the applicant draw a link between the claim and the alleged prohibited ground of discrimination? The meaning of "reasonable prospect of success" is explained more fully in the case of Dabic v. Windsor Police Service, 2010 HRTO 1994:

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

5The Tribunal does not determine the merits of an application at the summary hearing because no evidence has been heard. Therefore, the question is not whether the applicant has made out a prima facie case, but rather, whether on the facts set out in the Application, the applicant can draw a link between his treatment and a prohibited ground of discrimination or alternatively, whether the applicant's allegations can reasonably amount to a Code violation.

Analysis

6The Ontario Drug Benefit Act, R.S.O. 1990, c.O.10, as amended, governs the administration of Ontario's publicly funded drug plan, the Ontario Drug Benefit (ODB) Program. Under the ODB Program, the Ministry provides drug coverage for seniors, individuals on social assistance, residents of long-term care homes or homes for special care, patients receiving home care and families whose drug costs are high in relation to their income.

7The Committee to Evaluate Drugs (the "CED") is an advisory committee to provide independent, evidence-based advice to the Ministry on drug-related matters. The CED's primary function is to evaluate the therapeutic value and cost-effectiveness of drug products based on the best scientific, clinical and economic evidence available and to make recommendations as to which drugs should be funded under the ODB Program. The CED is composed of sixteen part-time members who are appointed by Orders-In-Council. Fourteen of the appointees are practicing physicians, pharmacists and economists. The other two appointees are lay appointees who are living with a chronic disease, illness, impairment or disability.

8The Terms of Reference and Administrative Guidelines for the CED state the following regarding membership on the CED:

3.1 Composition

The CED is composed of 16 members plus a Chairperson (Chair), appointed by Orders-In-council.

Two of the 16 CED members are "patient-as-person" members. A "patient-as-person member" is a patient selected to be a member of the Committee in his/her capacity as a person with any chronic disease, illness, syndrome, impairment or disability, but who represents the personal meaning of chronic illness rather than the view of any specific interest, group or organization.

These members shall be recognized and considered as equal partners, by properly informing them and considering their real-world perspectives in the evaluation process.

The remaining CED members are all practicing physicians and pharmacists who have expertise in a wide range of specialties, including geriatrics, infectious disease, family medicine, pharmacology, health economics, epidemiology and other disciplines.

9Professional members on the CED are paid $1000 per day. Lay or patient members are paid $355 per day.

10In April 2007, the applicant submitted an application to the Public Appointments Secretariat of the Ministry to become a patient member of the CED. The call for applications specified that candidates must be able to present the "perspective of a person living with a chronic condition and possibly as a beneficiary of a public drug program" and be possessed of community development and/or health policy skills. In his application, the applicant identified himself as a person living with HIV and Hepatitis C Virus.

11The applicant was appointed a member of the CED by Order-In-Council on June 20, 2007. After the Order-In-Council was issued, the applicant signed a Consulting Agreement with the Ministry where he agreed to provide consulting services to the Ministry at a rate of $355 per day. The Consulting Agreement states that nothing in the agreement shall have the effect of creating an employment relationship between the Ministry and the consultant. The applicant's original appointment was for a period of one year and it was renewed for two consecutive three-year terms.

12The Ministry states the applicant was not an employee of the Ministry by virtue of the Public Service of Ontario Act, 2006, S.O. 2006, c.35, Sched.A, as amended, and the consulting agreement. It states further that members of the CED do not possess any of the elements characteristic of the employer-employee relationship, most notably the level of control the employer has over the worker's activities.

13The issue before the Tribunal is not whether the applicant was an employee of the Ministry, but rather, whether the Application is with respect to the applicant's employment. Individuals may be covered under section 5 of the Code even though they are not employees. For example, the Tribunal has found that the work provided by independent contractors may be "employment" within the meaning of section 5 of the Code. See Garofalo v. Cavalier Hair Stylists Shop Inc., 2013 HRTO 170 at para. 169.

14In my view, it is not plain and obvious that the Code does not apply to the relationship between the applicant and the Ministry. If I am wrong about this, the applicant may have recourse to section 3 of the Code, which provides for the right to contract without discrimination.

15The applicant has drawn a link between his treatment and his disability. Under the Terms of Reference and Administrative Guidelines, patient members are persons with disabilities and they are paid a lower per diem rate. The Ministry submits professional members are paid more because they possess greater qualifications and expertise, face increased opportunity costs in taking time away from their practices and foregoing other lucrative work, and because they are more difficult to recruit than patient members. The applicant believes he was doing the same work, making the same contribution and experiencing his own opportunity cost, but was valued less because he is a patient living with a disability. The applicant referred to another drug advisory board that does not have different pay rates for its lay and professional members.

16Because the applicant has established a link between his disability and his lower per diem rate, he has met the threshold test for summary hearing. As such, I cannot conclude the Application has no reasonable prospect of success. There may be a defence to the applicant's allegations of discrimination, however, that defence should be determined on the basis of the evidence called by the Ministry, and not by way of summary hearing. For these reasons, the Tribunal will continue to process the Application. If the parties agree to mediation, they can so advise the Tribunal. If not, the Application will proceed to a hearing and two days will be scheduled.

17I am not seized of this matter.