Kueber v. Ontario (Attorney General), 2014 HRTO 769

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Barbara Kueber

Applicant

-and-

Her Majesty the Queen in Right of Ontario as Represented by the Attorney General of Ontario, the Minister of Community and Social Services and the Minister of Health and Long-Term Care

Respondents

DECISION

Adjudicator: Jennifer Scott

Date: May 30, 2014

Citation: 2014 HRTO 769

Indexed as: Kueber v. Ontario (Attorney General)

APPEARANCES

Barbara Kueber, Applicant

Self-represented

Her Majesty the Queen in Right of Ontario as represented by the Attorney General of Ontario, the Minister of Community and Social Services and the Minister of Health and Long-Term Care, Respondents

S. Zachary Green, Counsel

1This case is about the decision of the Minister of Health and Long-Term Care (the “Ministry”) not to fund medical marihuana under the Ontario Drug Benefit Program. The applicant asserts the Ministry’s failure to fund medical marihuana discriminates against her on the basis of her disability.

2The Application proceeded to a hearing on March 4 and 5, 2014. The applicant testified as did Brent Fraser, the Director of Drug Program Services with the Ministry.

the facts

Ontario Drug Benefit Program

3The Ontario Drug Benefit Act, R.S.O. 1990, c. O-10 (the “Act”) creates the Ontario Drug Benefit Program (the “Program”), which funds certain drug products for eligible persons in Ontario. Eligible persons include Ontario residents who are insured under the Health Insurance Act and belong to one of the following groups: individuals age 65 years and over; individuals on social assistance (individuals entitled to receive drug benefits under the Ontario Disability Support Program or Ontario Works); residents of long-term care homes or homes for special care; individuals receiving professional home care services; and families whose drug costs are high in relation to their income and qualify for enrolment under the Trillium Drug Program.

4The Program is designed to provide cost-effective drug product coverage to eligible persons in accordance with the best clinical and economic evidence available, consistent with five guiding principles under the Act:

1. The public drug system aims to meet the needs of Ontarians, as patients, consumers and taxpayers.
2. The public drug system aims to involve consumers and patients in a meaningful way.
3. The public drug system aims to operate transparently to the extent possible for all persons with an interest in the system, including, without being limited to, patients, health care practitioners, consumers, manufacturers, wholesalers and pharmacies.
4. The public drug system aims to consistently achieve value-for-money and ensure the best use of resources at every level of the system.
5. Funding decisions for drugs are to be made on the best clinical and economic evidence available, and will be openly communicated in as timely a manner as possible.

5The demand for drugs in Ontario exceeds the province’s ability to pay for them. The $4.3 billion spent on the Program in 2012/2013 covers 25% of Ontario’s population and a small subset of prescription drugs marketed in Canada.

6A drug product can only be funded under the Program if it has been authorized for sale in Canada by Health Canada, and thoroughly reviewed by expert medical consultants retained by the Ministry, such as the Committee to Evaluate Drugs (“CED”).

7Health Canada authorizes a drug product for sale by assigning a Drug Identification Number (“DIN”). Once a drug has been issued a DIN, it must be reviewed and considered by the CED before it can be funded under the Program. Following a review of a drug product, the CED makes recommendations to the Executive Officer of the Program. The Executive Officer may decide to fund a drug product by listing it as a general benefit or a limited use benefit on the Formulary. A general benefit is funded under the Program for all eligible persons whereas a limited use benefit is only funded to treat eligible persons who have certain clinical conditions.

8There are 3800 drugs listed on the Formulary. Health Canada has approved 10,000 to 15,000 drugs. The Program therefore covers approximately one-third of all drugs approved by Health Canada.

9A drug product may also be funded through the Exceptional Access Program (“EAP”). In order to receive funding under the EAP, an eligible person’s physician must submit a funding request to the Ministry outlining relevant medical information about the eligible person, a clinical rationale for requesting the unlisted drug product and reasons why drugs listed on the Formulary are not suitable.

10The Executive Officer may, through the EAP, fund a drug program that has not received a DIN from Health Canada. Such funding is governed by the Ministry’s Compassionate Review Policy and is approved on a case-by-case basis. The intent of the program is to provide access in situations where the patient is in an immediate life, limb, or organ-threatening situation.

11The Ministry states marihuana is not eligible for funding under the Program because it is not a drug approved for sale in Canada under the federal Food and Drugs Act and Regulations and because there is insufficient scientific evidence of its safety and therapeutic efficacy.

The Applicant

12The applicant has several medical conditions that constitute a disability under the Code.

13The applicant obtained a license for medical marihuana in 2012. In July 2012, the applicant went on social assistance through Ontario Works. While on social assistance, the applicant was eligible for drug coverage under the Program.

14The applicant was unable to obtain funding for medical marihuana because it was not listed on the Formulary. The applicant asserts medical marihuana is the only effective treatment for the pain resulting from her disabilities.

15The applicant did not request funding for medical marihuana through the EAP or the Compassionate Review Policy.

the issue

16Is the Ministry’s failure to fund medical marihuana on the Formulary discriminatory?

analysis

17The applicant argues it is discriminatory to deny funding for the only product that is effective in treating her pain. She believes that if there are no alternative medicines available under the Program, it is discriminatory to deny funding for the only treatment that works.

18The applicant relies on two cases in support of her Application. The first case, Campbell v. Nova Scotia (Community Services), 2010 NSSC 116, is a judicial review of the decision of the Nova Scotia Assistance Appeal Board (the “Board”) denying Ms. Campbell coverage of medical marihuana as a special need under the Employment Support and Income Assistance Regulations, N.S. Reg. 25/2001. The Court found the Board’s decision was unreasonable because the evidence did not support the Board’s finding that medical marihuana was not essential to Ms. Campbell’s health and well-being, the test for determining coverage. The Court held the appropriate remedy was an order requiring the payment of medical marihuana.

19The second case is 201226337 (Re), 2012 CanLII 16282. This case involves the appeal of a decision of the Workplace Health, Safety and Compensation Commission of New Brunswick (the “Commission”) denying payment for dried marihuana to an injured worker. The Appeal Panel overturned the Commission’s denial and held medical marihuana was prescribed to treat symptoms from a compensable accident and was necessary for the appellant’s quality of life.

20The applicant does not understand why medical marihuana can be covered in these cases, but not hers. While I appreciate the applicant’s frustration, these cases do not stand for the proposition that it is discriminatory under the Code to deny funding for medical marihuana where it is not included in the list of drug benefits provided by government. This is the issue before the Tribunal. The two cases relied upon by the applicant deal with the requirement to fund marihuana under other statutory regimes.

21The law is clear that when governments provide benefits, they must do so in a non-discriminatory manner. Where benefits are excluded from benefit plans, the Tribunal will consider whether a Code-related ground is a factor in the exclusion. See El Jamal v. Minister of Long-Term Care, 2011 HRTO 1952 at para. 21. If it is, the denial of such benefits will be found to be discriminatory.

22In Brooks v. Canada Safeway, 1989 CanLII 96 (SCC), [1989] 1 S.C.R. 1219, the Supreme Court of Canada held an insurance plan that compensated employees who were absent from work because of sickness or accident discriminated against women because it excluded pregnancy from coverage for a seventeen-week period. The Court held the purpose of the insurance plan was to compensate employees who were unable to work for health-related reasons. The Court held it was discriminatory to deny women coverage when they were unable to work because of pregnancy, a valid health-related reason.

23Similarly, in Battlefords and District Co-operative Ltd. v. Gibbs, 1996 CanLII 187 (SCC), [1996] 3 S.C.R. 566, the Supreme Court of Canada held it was discriminatory to treat mental disability differently from physical disability in an insurance policy providing employees with income replacement when they were unable to work. Under the insurance policy, if an employee was unable to work because of mental illness, the replacement income terminated after two years unless the employee remained in a mental institution. There was no similar restriction if the employee was unable to work because of a physical disability. The Court held the insurance policy was designed to insure employees against the income-related consequence of becoming disabled and unable to work. The Court held the policy was discriminatory because employees with mental disabilities received less insurance coverage than those with physical disabilities.

24In Gibbs, the Court held the first step in the discrimination analysis is to determine the purpose of the benefit plan. The Court held if benefits are allocated pursuant to the same purpose, yet benefits differ as a result of characteristics that are not relevant to this purpose, discrimination may well exist.

25The respondent argues the purpose of the Program is to provide cost-effective drug coverage to eligible persons in accordance with the best clinical and economic evidence available. This submission is consistent with section 0.1 of the Act, which sets out the principles recognized in the legislation. The applicant did not challenge the respondent’s submission regarding the purpose of the Program. As such, I accept the purpose of the Program is to provide cost-effective drug product coverage based on the best clinical and economic evidence available. The purpose of the Program is not to provide funding for every drug or treatment that may provide a therapeutic benefit to an eligible person.

26The Ministry states medical marihuana is not covered under the Program because it is not a drug approved for sale in Canada under the federal Food and Drugs Act and Regulations, and because there is insufficient scientific evidence of its safety and therapeutic efficacy. The applicant disputes the Ministry’s assertion that marihuana is not a safe and effective treatment.

27I assume for the purposes of this decision that marihuana is effective in treating the applicant’s pain. However, the efficacy of marihuana as a treatment for pain is not the issue before the Tribunal. The question before the Tribunal is whether there is a Code-related reason for the Ministry’s decision not to fund marihuana under the Program.

28There is no evidence before the Tribunal of such a Code-related reason. The purpose of the Program is to provide a cost-effective drug plan to eligible persons. By definition, the plan cannot include every treatment that may have a therapeutic benefit. There is no question that the applicant, as a person with a disability, is denied something that would help her pain, but that cannot be the test. To apply that test would mean the Ministry discriminates against eligible persons when they are denied any disability-related therapy. This is contrary to the very purpose of the Program. It would also defeat the purposes of the Code to apply such a broad definition to discrimination. As the Tribunal stated in El Jamal at paragraph 19, “the purpose of the Code is not to define the appropriate scope of a benefit plan without regard to 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”.

29Unlike in Gibbs and Brooks where employees were denied employment benefits for discriminatory reasons, there is no Code-related reason in this case. Medical marihuana is not covered because it is not a drug approved by Health Canada and because the government disputes its efficacy and safety. The evidence before me suggests, at the very least, that there is a dispute regarding its efficacy and safety notwithstanding the applicant’s own experience. There may also be public policy reasons as to why marihuana is not paid for by the government. Despite the multitude of reasons that may exist for excluding medical marihuana from coverage, there is no evidence that any of them are Code-related. It is for this reason that the Application is dismissed.

order

30The Application is dismissed.