Crosse v. The Manufacturers Life Insurance Company, 2016 HRTO 1143

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Erika Crosse

Applicant

-and-

The Manufacturers Life Insurance Company

Respondent

DECISION

Adjudicator: Mark Hart

Date: August 29, 2016

Citation: 2016 HRTO 1143

Indexed as: Crosse v. The Manufacturers Life Insurance Company

APPEARANCES

Erika Crosse, Applicant

Self-represented

The Manufacturers Life Insurance Company, Respondent

Danielle Young, Counsel

1This is an Application dated August 27, 2015 and completed September 17, 2015 alleging discrimination with respect to services because of gender identity and gender expression contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2By Case Assessment Direction (“CAD”) dated January 3, 2016, this matter was referred to a summary hearing on the Tribunal’s initiative to determine whether the Application should be dismissed on the basis that there is no reasonable prospect that the Application will succeed.

3The summary hearing originally was scheduled to proceed on May 11, 2016, however the summary hearing was adjourned because the applicant was ill and was not in a position to proceed. The summary hearing ultimately proceeded on June 9, 2016, at which time I heard oral submissions from the parties on the issue of reasonable prospect of success.

Background

4At the time the Application was filed, the applicant worked for an employer who had contracted with the respondent to provide long-term disability (“LTD”) benefits. The applicant underwent gender re-assignment surgery in June 2014.

5On September 1, 2014, the applicant submitted an application to the respondent for long-term disability benefits. The respondent requested a completed member’s statement, which was completed and filed by the applicant. An additional doctor’s statement was also provided to the respondent. On September 18, 2014, the respondent wrote to the applicant to advise that her long-term disability claim was considered to have been filed on September 17, 2014 and that a decision on her claim would be made as soon as possible.

6On October 2, 2014, the respondent wrote again to the applicant. In this letter, the respondent referenced two exclusions under the policy: (1) medical or surgical care which is not necessary; and (2) a pre-existing condition that causes disability within the first 12 months of coverage. The letter indicated that the respondent had requested additional information from the applicant’s doctor by November 1, 2014, and advised that a decision would be made once this information had been received.

7On the same date, the respondent also wrote to the applicant’s doctor requesting his clinical chart notes and any specialist’s notes for the period from February 5 to May 6, 2014, and asking him to confirm whether the surgery was medically necessary.

8There was a delay in receiving the requested material from the applicant’s doctor. The doctor’s office requested pre-payment from the respondent prior to submitting the requested material, but no invoice was submitted to the respondent until November 4, 2014. The requested material from the applicant’s doctor was ultimately received by the respondent on November 18, 2014 (although the doctor’s letter is dated October 8, 2014).

9On November 24, 2014, the respondent called the applicant to advise that her claim had been approved, and that an approval letter would be forthcoming. The approval letter was sent to the applicant on November 26, 2014, with a retroactive payment to October 1, 2014, which is when the applicant was eligible for coverage under the policy.

Analysis and decision

10The Application as filed alleges that the applicant was denied LTD benefits for two reasons: (1) because her gender re-assignment surgery was considered by the respondent to be medically unnecessary; and (2) because her disability was considered to be due to a pre-existing condition.

11That clearly is not the case, as the applicant’s LTD claim was approved by the respondent on November 24, 2014 and confirmed by letter dated November 26, 2014, and she was paid benefits retroactively to October 1, 2014, when her coverage under the policy commenced, and she continued to receive LTD benefits for some time thereafter.

12The allegations in the Application are based on the policy exclusions raised by respondent in its letter dated October 2, 2014 in the context of the respondent seeking additional information from the applicant’s doctor.

13In this context, it is the applicant’s position that it was discrimination because of her gender identity and gender expression for the respondent to have sent out the October 2, 2014 letter referring to the policy exclusions and seeking additional medical information from her doctor, such that she experienced a delay of approximately two months in having her claim approved.

14In her oral submissions before me, the applicant primarily takes issue with the respondent questioning whether her gender re-assignment surgery was medically necessary, having gone through a program at the Gender Identity Clinic at the Centre for Addiction and Mental Health (“CAMH”) and having received that facility’s approval for her surgery. The problem with this allegation is that this information was not set out in the doctor’s statements as initially filed with the respondent. The statement completed by the applicant’s surgeon simply stated that the applicant’s disability was due to wound healing delay post sex re-assignment surgery. This was echoed in the statement filed by the applicant’s doctor. It was not until November 18, 2014, when the respondent received the doctor’s subsequent letter dated October 8, 2014, that the respondent was advised that the applicant had been followed by the Gender Identity Clinic at CAMH for several years, and that it had been determined that gender re-assignment surgery was indicated for the applicant and was medically necessary. Approval of the applicant’s claim followed less than a week thereafter.

15In my view, it does not amount to discrimination in violation of the Code simply for an insurer to reference exclusions in the policy that may be relevant, and to seek further information from an attending physician, particularly where such information had not yet been provided. There was clearly a program and an approval process in order for the applicant to be determined eligible for gender re-assignment surgery. Simply asking the applicant’s doctor to confirm that the applicant had received such approval, thereby making the surgery medically necessary, is not discrimination.

16The applicant submits that the respondent could have requested this information from her. By the same token, the applicant could have provided this information and supporting documentation from CAMH to the respondent. But she did not do so, and the respondent chose to request this information from the applicant’s doctor.

17I appreciate the applicant’s perspective, having gone through the CAMH process and received its approval for surgery, that she takes umbrage at any suggestion that her gender re-assignment surgery was not medically necessary. However, there is nothing discriminatory about the respondent as an insurer raising this policy exclusion and seeking confirmation from the applicant’s doctor when this had not yet been provided.

18Accordingly, I find that the allegations raised in the Application have no reasonable prospect of success. As a result, the Application is dismissed.

ORDER

19For the foregoing reasons, the Application is dismissed as having no reasonable prospect of success.