Achille Ruffolo v. Manulife Financial, 2017 HRTO 1720

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Achille Ruffolo Applicant

-and-

Manulife Financial Respondent

DECISION

Adjudicator: Mary Truemner Date: December 29, 2017 Citation: 2017 HRTO 1720 Indexed as: Ruffolo v. Manulife Financial

APPEARANCES

Achille John Ruffolo, Applicant Self-represented

Manulife Financial, Respondent Gordon Jermane, Counsel

Introduction

1These Applications allege discrimination with respect to services because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”). The Applications allege that the respondent provides bad service to the applicant in paying him and in communicating with him about his disability benefits that the respondent administers. The Applications allege that, by contrast, the respondent provides good services in relation to his annuity, mutual funds and extended health care benefits, also administered by the respondent. The Applications allege that the respondent created a system of providing services for people with disabilities that is inferior to the system for people without disabilities, or at least without disabilities that are known to the respondent. This, the Applications allege, is discrimination.

2In the first Application, File Number 2016-24186-I, the applicant was particularly concerned about the respondent’s alleged habitual mistakes made in calculating the amount of his disability benefits payments, and the resulting delays delivering the correct amounts. In the second Application, File Number 2016-25579-I, the applicant was particularly concerned about the respondent’s alleged failure to respond to his telephone calls, and about the respondent’s alleged delay in admitting that it made a mistake in calculating benefits, and in correcting its mistake.

3In a Case Assessment Direction (“CAD”) dated September 12, 2016, the Tribunal addressed the first Application, File Number 2016-24186-I, and noted that it appeared that the annual increase in monies paid pursuant to the applicant’s disability benefits plan is contractually calculated in a different way than his other products. Consequently, the Tribunal directed that the next step of the proceedings would be a summary hearing to determine whether there is no reasonable prospect that the Application or part of the Application will succeed. In a CAD dated November 16, 2016, the Tribunal addressed the second Application, File Number 2016-25579-I, and also directed that a summary hearing would be scheduled to determine whether there is no reasonable prospect that the second Application or part of the second Application will succeed.

4While there are allegations in both Applications that appear to be related to events that happened more than one year before they were filed, neither CAD gave notice to the parties that the summary hearing would also deal with whether any allegations are out of time.

5The summary hearing was held on April 25, 2017. It addressed whether there was no reasonable prospect of success for either Application, and did not deal with any delay issues.

6This Decision reviews the submissions of the parties and concludes that there is no reasonable prospect of success for the allegations contained in each Application. On that basis, the Tribunal dismisses both Applications.

summary hearing

7Prior to the summary hearing, the parties filed submissions. The documents filed establish that there is some agreement between the parties:

• the applicant purchased different products that the respondent administers.
• the respondent has been calculating the applicant’s disability benefits pursuant to a policy that acts as a contract between the parties (“the Policy”).
• the calculation for the disability benefits involves making an annual Cost of Living Adjustment (“COLA”) that varies each year because it depends upon a Consumer Price Index (“CPI”) factor that varies each year.
• the calculation of the COLA on the applicant’s annuity is different. The COLA is contractually fixed at 2%, and is a simple adjustment on the same fixed date each year, April 19, with no variable dependent upon a fluctuating CPI.

8The parties agreed at the summary hearing that while people without disabilities buy insurance policies as protection in the unfortunate event that they find themselves with disabilities, the only people who qualify to receive disability benefits under those policies are people who have disabilities. The parties also agreed that various people receiving other benefits or payments from other products, unrelated to disabilities, may or may not have disabilities.

9At the summary hearing, the applicant explained that the respondent has a single Code of Ethics concerning its treatment of all customers, no matter what product the customer has purchased. The Code of Ethics demands that the customers be treated respectfully. The respondent sells disability policies to customers when they are not disabled, but, in the event that they become disabled, the respondent must pay out disability benefits. The applicant’s theory, for which he did not point to any evidence in his possession or that may be reasonably available to the applicant, is that the respondent counts on customers who receive disability benefits to be rejected for disability coverage by any other financial institution once they are disabled, because another institution would not sell them the same product upon learning that they have disabilities. Knowing that their customers are stuck with the respondent’s disability benefits, the respondent knows that it can get away with providing bad service related to that product. On the other hand, the applicant argued, customers of the other products can take their business elsewhere, so the respondent is more respectful to those customers in order to keep their business.

10The applicant stated at the summary hearing that to demonstrate that the respondent is discriminating against him, he would testify about his poor treatment by the respondent when it delivers disability-related services inconsistent with its Code of Ethics, compared with the “exemplary” way in which the respondent treats him delivering services related to the other products he purchased. The other products (annuity, mutual funds and extended health care benefits) do not identify customers as people disabilities.

11The applicant argued that the respondent should treat the people to whom they pay disability benefits, (all of whom are people with disabilities), the same way as they treat their other customers who receive other monies from other products, (people who may or may not have disabilities). The applicant argued that the respondent provides an inferior service to people if they have disabilities.

Calculating Disability Benefits – File Number 2016-24186-I

12The applicant’s main allegation of bad service with respect to File Number 2016-24186-I, and the respondent’s failure to comply with its Code of Ethics, is that the respondent makes errors in calculating and is often late in paying his disability benefits. He argued that the respondent uses a method to calculate the applicant’s disability benefits that is prone to error. The method allows the respondent to “round up” to its advantage, and it does not comply with the respondent’s contractual obligations under the Policy, which states that the applicant is to have his monthly income benefit payment adjusted for inflation each January 1st by using the January 1st CPI factor. The applicant claimed that the respondent makes no errors, nor is it guilty of late payments with respect to his income from the other products he purchased from the respondent.

13The respondent argued that the applicant is trying to compare apples with oranges. The respondent pointed out, and the applicant agreed, that the applicant’s annuity is the only other product that the applicant has that is adjusted for inflation. The adjustment for the annuity is always calculated on April 19 of every year with no variable affecting it, and no variable to cause any delay of the adjustment calculation. The respondent argued that the applicant’s disability benefits are particularly difficult to administer because the respondent must wait for Statistics Canada to announce the CPI factor on January 1 each year, but Statistics Canada is habitually late. Each year, the CPI factor varies. As a result, the payment of disability benefits delivered to customers in January of each year needs to be recalculated and corrected by the respondent. The respondent must either demand back monies that were overpayments to the customers, or apologize for an underpayment, and provide the customers with additional monies. This leads to misunderstandings between the applicant and the respondent in their communications.

14The applicant agreed that Statistics Canada calculates and then announces the CPI factor at the start of each calendar year, and that Statistics Canada is habitually late. However, the applicant argued that the respondent should be making its calculation without waiting for Statistics Canada’s January announcement. A different and better method based on information released at the end of each preceding year would improve the respondent’s accuracy in calculating payments each January, and improve the respondent’s client services to the applicant, in promptness of payments and in communications.

15The applicant said that he would bring an expert to a hearing to testify that the calculation for the CPI is easy to do. It could be completed in only 30 seconds on any January 1st because Statistics Canada relies on a CPI that is based on a November to November year, and, on December 20 every year, Statistics Canada publishes the information that the respondent would need to make the calculation and comply with its policy to adjust the disability benefit payment on January 1. Essentially, the applicant argued that it was unnecessary for the respondent to wait for Statistics Canada’s announcement of the CPI factor in January.

Other Examples of Alleged Differential Treatment – File Number 2016-25579-I

Anonymous Letter

16The applicant’s second example of alleged bad service in administering his disability benefits stems from his belief that, in 2003, the respondent’s staff forged a letter they claimed was anonymous, and used it to decide the applicant was ineligible for disability benefits. He had to go to a lot of trouble to have the benefits reinstated six months later. He argued that nothing like that ever happened with respect to the monies he received from products administered by the respondent that are not related to disability. He argued this is an ongoing breach by the respondent of its Code of Ethics, and that this is differential treatment which constitutes discrimination.

Inquiries Ignored

17Another example of differential treatment that the applicant alleges is discriminatory was that when the applicant left telephone messages for the respondent’s staff responsible for disability benefits, they rarely returned his messages. He claimed that when he called staff with respect to the other products he purchased from the respondent, he either reached a person or his messages were always returned. Again, he alleged that only in the context of the disability benefits services was there a breach of the respondent’s Code of Ethics. He argued that this was differential treatment and that it was discriminatory.

Unauthorized Sharing of Personal Information

18Another example of differential treatment that the applicant alleges is discriminatory was that the respondent inappropriately shared his personal information with other insurance companies between 1995 and 2003. He argued that the sharing must be characterized as the respondent’s ongoing violation of the respondent’s Code of Ethics. In particular, the applicant pointed to the respondent sharing with Sun Life, in 2003, the fact that he was working. The applicant held a product with Sun Life at the time, and Sun Life stopped payments related to disability as a result of the respondent’s alleged breach of his privacy.

Benefits Stopped without Reason

19The applicant argued that the respondent often discontinued his disability benefits prior to 2003, which he argued was another example of differential treatment and also part of the respondent’s ongoing violation of the respondent’s Code of Ethics. The applicant alleged that the reason the respondent challenged his entitlement was because it falsely accused him of working so as to make him ineligible, and because it accused the applicant of miscalculating his pre-injury income. He argued that the respondent never challenged his entitlement to payments from other products.

analysis

20In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments concerning summary hearings and the approaches to assessing no reasonable prospect of success – one legal, the other factual – at paragraphs 8-10, as follows:

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.

In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

No Legal Basis - The Code of Ethics Cannot Be Characterized as a “Service” to Compare Incomparable Plans

21Even if the facts as alleged by the applicant were true, and I am making no finding in that regard, what the applicant alleges as discrimination cannot reasonably be considered to amount to a violation of the Code. There is no legal basis upon which to find discrimination, and the Tribunal cannot decide general allegations of unfairness unrelated to the Code.

22The applicant’s entire argument is that the Tribunal must compare the service provided to customers of the disability benefits product with the service provided to customers of different products, none of which provide disability benefits. The applicant was insistent that the Supreme Court of Canada’s decision, Battlefords and District Co-operative Ltd. v. Gibbs, 1996 CanLII 187 (SCC), [1996] 3 SCR 566, (“Gibbs”), supports his case. Gibbs involved an income replacement plan that provided better benefits for employees unable to work because of physical disabilities than for employees unable to work because of mental disabilities. The Court held that there was discrimination between individuals with mental disabilities and those with physical disabilities, noting that the purpose of the single insurance plan at play was to provide income replacement for those unable to work because of disability. The Court engaged in a comparative analysis of whether there was discrimination between the claimants with mental disabilities and another covered group, those with physical disabilities, in light of the purpose of the one plan.

23In the applicant’s case, there is not one plan, but several. There are very different plans or products with very different purposes. In my view, Gibbs does not apply to the applicant’s situation.

24Neither Application alleged that the Code of Ethics was the service at issue in the claims of discrimination “with respect to services” under section 1 of the Code. However, at the summary hearing, the applicant clarified and argued that the Code of Ethics is the one service provided by the respondent that is at issue, and must be analyzed as to its purpose, not any other service that is a plan, policy or provision of benefits. He urged me to compare recipients of disability benefits with a comparator group that is not receiving disability benefits, but instead payments stemming from annuities, mutual funds and extended health care benefits. He argued that they must be compared because both groups are to be treated equally respectfully pursuant to the respondent’s Code of Ethics.

25I do not agree with the applicant’s position that the service being provided is the Code of Ethics. The Code of Ethics is simply a guiding principle concerning the manner in which disability benefit payments are to be provided to each customer. The service is not the provision of the Code of Ethics. The service is the provision of payments to the applicant in the event of disability, a service about which the parties agreed the respondent would provide. As such, there can be no reasonable prospect of success for the allegation of discrimination because the Code of Ethics was applied differently for customers of disability benefit payments than for customers of other products. The different schemes for the different products involve different services that have different purposes, with resulting variations in any applications of the Code of Ethics.

26With respect to the applicant’s reliance on Gibbs and the issue of the comparator group analysis, the applicant did not claim that the respondent provided unethical treatment to some people in the group receiving disability benefits and ethical treatment to others in the group. He claimed that the respondent provided the service unethically to all members of the group receiving the service, all of whom were disabled. The applicant’s reliance on Gibbs is therefore misplaced.

27Gibbs would seemingly apply in cases where the respondent differentiated between subgroups receiving the service of payments if the differentiation were based on a Code ground. For example, Gibbs might assist if the respondent were to make prompt disability benefit payments to one gender and late payments to another gender. In such a hypothetical scenario, whether the Code of Ethics demanded prompt and accurate payments or not, the differential treatment might be capable of proof, and a full hearing would be required to determine whether the differential treatment constituted discrimination contrary to the Code. In the applicant’s case, as stated above, there is no differential treatment claimed within the service of providing disability benefit payments, the purpose of which is income security in the event of disability. There is also no possibility of comparison outside the service because his other plans and policies provide different services and have different purposes.

28The comparative analysis urged by the applicant, then, is simply not appropriate. Any errors in benefits calculations, delayed payments, discourteous communications and rigorous testing as to eligibility for disability benefits may not reasonably be considered as Code violations in the context of one product when compared to perfect customer service with respect to an incomparable product. As such, without a legal analysis that might reasonably be considered to amount to a Code violation there is no reasonable prospect of success for either Application.

No Evidence To Link Alleged Events With Disability

29If I am wrong with respect to my finding that the Code of Ethics cannot be characterized as the relevant service provided, and my related finding that the applicant’s comparative analysis must fail, I still find that the Applications have no reasonable prospect of success. Even if the facts as alleged by the applicant were true, and, again, I am making no finding in that regard, the applicant has not pointed to any evidence in his possession, or that may be reasonably available to him, that can establish a link between the events alleged in each Application and discrimination because of disability.

30With respect to the allegation that the respondent referenced an “anonymous letter” to require the applicant to answer to the accusation that he was ineligible for disability benefits, the applicant argued that he would produce forensic evidence that the letter was authored by an employee of the respondent. The applicant argued that he endured hardships meeting the respondent’s demands to prove he was eligible, including delayed payments of disability benefits as a result of the allegedly unfair scrutiny. Even if he might prove such dishonesty on the party of the respondent, and even if it is the case that the respondent never dishonestly used such a letter with respect to the other products, the applicant pointed to no evidence that his annuity or mutual funds required any ongoing eligibility which could have been challenged by the respondent, but was not challenged. The forensic evidence anticipated by the applicant would therefore not establish that recipients of monies flowing from annuities or mutual funds, a group not identified as disabled, are treated differently or better.

31The same is true for his allegation that his disability benefits were stopped from time to time when the applicant did not provide information to confirm his eligibility to receive them. The applicant pointed to no evidence in his possession or that may be reasonably available to him that his annuity or mutual funds required any ongoing eligibility, which could have been similarly challenged by the respondent, but was not challenged.

32Also, any argument that eligibility for extended health care benefits was never challenged, or challenged dishonestly, would not assist the applicant’s claim of discrimination because of disability. I say this because all or most of the customers claiming extended health care benefits would have disabilities, at least temporarily, according to the definition of disability under the Code.

33With respect to the allegation that the respondent inappropriately shared his personal information with other insurance companies between 1995 and 2003, the applicant admitted at the summary hearing that he had authorized some sharing of his personal information, and that authorization was referenced by the respondent when it shared his information. He said, however, that the respondent should have received his revocation of that authorization and not relied upon the authorization to share his information with another insurance company.

34Again leaving aside the delay issue, the applicant pointed to no evidence in his possession or that may be reasonably available to him that the respondent’s files regarding the applicant’s other policies or products contained similar personal information. Nor did he describe any scenario whereby the respondent might also have shared his personal information in the context of those other policies or products, but refrained from doing so. I find that there is no reasonable prospect of success for establishing discrimination on the basis of the respondent’s allegedly inappropriate sharing of personal information, because the applicant has not described circumstances that would be sufficiently similar to compare the respondent’s sharing in the context of disability benefits with the absence of sharing in the context of the other policies or products.

35The applicant also alleged that the respondent failed to appropriately respond to the applicant’s inquiries made to the employees who handled disability benefits, as opposed to other services. The applicant could not point to any evidence in his possession or that may be reasonably available to him to show that the two sets of inquiries were comparable or that there was differential treatment for establishing discrimination under the Code. There could be many reasons for which the respondent’s employees who handled disability benefits might have ignored or delayed responding to the applicant’s inquiries. The reasons range from the number of inquiries the applicant made, to the tone of his inquiry, to the degree of difficulty the employee might anticipate having in researching the answer, to the abilities of the particular employees.

36With respect to the applicant’s allegation that the calculation of his disability benefits is discriminatory because the respondent could use, but does not use, a different and better method to make the calculation, I note that the method derives from the applicant’s Policy itself. The terms of the Policy, with which the applicant agreed at the time of purchasing the Policy, state that the payments under the Policy will be adjusted on the basis of the January 1st CPI factor:

Each January 1st, if the insured Member is insured under the Cost of Living Adjustment Rider and has been receiving Income Benefit payments continuously for 6 months, he/she will have his/her monthly Income Benefit payment adjusted for inflation by using the January 1st Consumer Price Index factor, …

37The wording of the Policy implies waiting for the January 1st CPI factor, by waiting for Statistics Canada to make the announcement in January. Even if the respondent misapplied the terms of the Policy, the Tribunal has stated, in Seberras v. Workplace Safety and Insurance Board, 2012 HRTO 115, that misapplying the rules of a benefits programme is not a violation of the Code.

38Given that the applicant’s annuity is the only other product that the applicant has that requires an inflation adjustment, and given that the simplicity of the annuity adjustment, it cannot be fairly compared with the more complex adjustment required for the disability benefit payments. As such, there can be no reasonable prospect of success for the applicant’s allegation of discrimination related to any delayed or faulty calculations of disability benefits and any failure to comply with the Code of Ethics as compared to calculating payments for other products.

39In conclusion, there is no use in the Tribunal comparing the respondent’s services in delivering or administering their products, unless the schemes are sufficiently comparable. The applicant has not described evidence to show that they are sufficiently comparable, and instead has agreed that very different factors exist to calculate payments for each product, making them incomparable. Therefore, even if the Code of Ethics were a service, I find that there is no reasonable prospect for success for the allegation that the respondent applies the Code of Ethics well for people without disabilities and poorly for people with disabilities.

order

40The Applications are dismissed.