Julian Marshall v. Her Majesty the Queen in Right of Ontario as represented by the Minister of Health and Long-Term Care, 2014 HRTO 1580

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Julian Marshall Applicant

-and-

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

DECISION

Adjudicator: Brian Eyolfson Date: October 27, 2014 Citation: 2014 HRTO 1580 Indexed as: Marshall v. Ontario (Health and Long-Term Care)

APPEARANCES

Julian Marshall, Applicant Self-represented

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

Introduction

1This Application was filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on September 20, 2013, and alleges discrimination with respect to goods, services and facilities on the basis of disability.

2This Decision follows a summary hearing.

The applicant’s allegations

3In his Application, the applicant explains that he is in receipt of Ontario Disability Support Plan (“ODSP”) benefits. He was prescribed two medications and the costs were covered by his benefits. He describes one of the medications as a secondary medication that is necessary for the primary medication.

4The applicant explains further that the manufacturer of the secondary medication ceased production of the medication. As no other company in Canada produced the medication, the applicant’s doctor gave him a prescription to fill in the United States (“U.S.”). After following his doctor’s direction, the applicant tried to obtain compensation for costs incurred in obtaining the medication in the U.S. He alleges that he was denied compensation by the respondent, since the medication was no longer produced in Canada.

5The applicant submits that, because of his disability, he is forced to utilize a course of treatment that would still be paid for, if not for the independent action of the manufacturer of the medication.

The respondent’s position

6The respondent submits that, as a recipient of ODSP benefits, the applicant is eligible for, and receives, its Ontario Drug Benefit Program (“ODBP”) benefits. The respondent explains, however, that it has not reimbursed the applicant for expenses he incurred in obtaining a drug product manufactured and sold outside of Canada. The respondent notes that the applicant seeks reimbursement for the cost of traveling to the U.S. to obtain the drug product from a U.S. pharmacy, and the cost of the drug itself.

7The respondent explains that the drug in question contains an active pharmaceutical ingredient that is not included in any drug product currently manufactured or sold in Canada. Several drug products containing the pharmaceutical ingredient are available in the U.S.; however, these drugs have not been approved for sale in Canada, and have not been recommended for funding under the ODBP through “Ontario’s evidence-based expert review process”.

8The respondent submits that the purpose of the ODBP is to provide cost-effective drug product coverage to eligible persons in accordance with the best clinical and economic evidence available. It submits that the ODBP does not cover the cost of any and all drug products that may provide a benefit to an individual in all circumstances. It also does not cover travel expenses incurred to obtain a drug product.

9The respondent submits that there is no discrimination in restricting the ODBP to cover the costs of those prescription drugs dispensed in Ontario that have been thoroughly reviewed and approved for safety, therapeutic efficacy, and cost-effectiveness. It submits that the mere fact that a drug product which may be of benefit to the applicant is not funded under the ODBP is not evidence of a discriminatory purpose or effect, and that the Code does not require that the ODBP cover every drug product in all circumstances.

10The respondent submits that the applicant makes no allegations that would support a finding that the respondent’s refusal to reimburse his prescription medication and travel expenses creates a distinction on the basis of disability. It submits that, instead, consistent with the purposes of the ODBP, the drug product obtained by the applicant in the U.S is not eligible for funding because it has not been approved by Health Canada for sale in Canada, and has not been reviewed by expert medical consultants retained by Ontario.

SUMMARY HEARING

11Rule 19A.1 of the Tribunal’s Rules of Procedure, states as follows:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

12In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments about summary hearings, at paras. 8-9:

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.

13In a Case Assessment Direction (“CAD”) dated March 20, 2014, 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 the Application, or part of the Application, will succeed.

14The Tribunal explained in the CAD that, to show discrimination, an applicant must prove a link between a respondent’s alleged actions and a Code ground. The Tribunal indicated that, having reviewed the Application, it appeared that the applicant may be unable to prove a link to the ground alleged. The applicant was directed to make argument at the summary hearing as to why the Application should not be dismissed as having no reasonable prospect of success, and to point to the evidence on which the applicant would prove a link between the respondent’s actions and the ground cited.

The parties’ submissions

15At the summary hearing, the applicant explained that he is in receipt of ODSP benefits because of a medical condition for which he was taking medications, the costs of which were covered. One of the medications he was taking then ceased being covered by his benefits. He then had to go to the U.S. to obtain the medication as it is no longer being made, nor is it available, in Canada. He was not aware of any alternatives, and he is trying to get coverage for the medication.

16The applicant submits that no consideration was given to his condition. He submits that the third party drug company decided that it was no longer going to manufacture the medication, which forced him to go to the U.S. He submits that, really, it is “a third party that is liable”, referring to the drug manufacturer.

17The respondent does not dispute that the applicant has a disability within the meaning of the Code, but submits that the applicant has not demonstrated a link between his disability and the decision not to cover the expense in question. The respondent submits that the applicant’s disability played no role in the respondent’s decision not to reimburse his travel and prescription drug expenses.

18The respondent explains that the ODBP does not cover drugs not authorized for sale in Canada, and not reviewed by the respondent’s expert medical consultants. The program also does not reimburse an individual for travel costs to obtain a drug product, nor does it reimburse for drugs dispensed outside Ontario. The respondent submits that these rules apply to all individuals, and that the program cannot fund every treatment that may have a therapeutic benefit.

19The respondent submits that, when the government provides benefits it must do so in a non-discriminatory manner, but the decision not to reimburse the applicant is in no way related to his disability.

DECISION

20The issue before me is whether the Application has a reasonable prospect of success. I must determine if the applicant has a reasonable prospect of showing that the respondent’s decision not to reimburse him for the costs of obtaining a medication in the U.S. that his doctor prescribed to him resulted in the applicant being treated differently from others, and that the applicant’s disability was a factor in the differential treatment.

21While I appreciate that it has been frustrating for the applicant that a medication he is prescribed is no longer available in Canada, and no longer covered by the ODBP, I find that there is no reasonable prospect that the applicant can establish, on a balance of probabilities, that his rights under the Code were violated by the respondent’s funding decision.

22The Tribunal has previously held, in cases similar to the present, that allegations that the respondent’s refusal to fund particular medications under the ODBP amount to discrimination under the Code have no reasonable prospect of success. For example, in El Jamal v. Minister of Long-Term Care, 2011 HRTO 1952, the Tribunal held, in part, as follows, at paras. 19 - 26:

I cannot accept the applicant’s argument. The purpose of the 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.

Thus, where a benefit plan is alleged to be under inclusive, the Tribunal may consider whether Code-related grounds are factors in the exclusion of a group or individual: see, for example, Ball, supra; Auton (Guardian ad litem of) v. British Columbia (Attorney General), 2004 SCC 78 at para. 42; and Battlefords and District Co-operative Ltd. v. Gibbs, 1996 CanLII 187 (SCC), [1996] 3 S.C.R. 566 at para. 33.

In this case, the applicant’s legal theory is that the respondent ought to fund all drug products for eligible, disabled people. He contends that a failure to do so amounts to discrimination. This is very different from the under inclusive argument mentioned above, where under inclusiveness is alleged to be based on Code-related factors.

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 eligible 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.

See also Masiuk v. Ontario (Health and Long-Term Care), 2012 HRTO 1437, Butcher v. Ontario (Health and Long Term Care), 2013 HRTO 1327 at paras. 29 – 35 and Kueber v. Ontario (Attorney General), 2014 HRTO 769.

23In the present case, the applicant makes no allegation that the respondent treated him differently in any way related to disability within the meaning of the Code, in not reimbursing him for the costs associated with obtaining a particular medication in the U.S. The applicant does not state that the respondent’s decision not to cover the costs he incurred in obtaining a medication in the U.S. has anything to do with his disability. Rather, it appears undisputed that the respondent previously covered the cost of the medication in question (or a similar medication) when it was manufactured in Canada. It also appears undisputed that the medication is no longer manufactured, nor is it available, in Canada, and the respondent no longer covers the cost of the medication for anyone in Ontario.

24The applicant does not argue that he was treated differently than any other person on the basis of his disability, or excluded from coverage in any way related to disability. He has not explained how, in the particular circumstances of this case, the respondent not funding the cost of a medication not available and not approved for sale in Canada, could amount to discrimination against him on the basis of disability within the meaning of the Code.

25In my view, the Application has no reasonable prospect of success.

26The Application is dismissed.