Anne M. Molloy

The complainant, who was diagnosed as HIV-positive shortly after commencing employment, was denied long-term disability benefits due to a pre-existing condition exclusion clause in the employer's group insurance policy.

The clause excluded coverage for disabilities arising from conditions for which the employee received medical care during the 90-day probationary period.

The Board of Inquiry found that while the clause was prima facie discriminatory, it was saved by section 25(3)(a) of the Human Rights Code as a reasonable and bona fide distinction based on a pre-existing handicap that substantially increases risk.

The Board applied the Supreme Court's test from Zurich Insurance, concluding the clause was a sound and accepted insurance practice for small groups to prevent adverse selection, and that no practical alternative existed.

The complainant brought a motion requesting that the respondent produce internal financial documents and records on which it relied to summarize its experience with long-term disability plans.

The respondent opposed the motion, arguing the information was proprietary and the request was a belated attempt at discovery.

The Board of Inquiry dismissed the motion, finding that the request was speculative and would cause unwarranted delay in a proceeding that had already lasted ten months.

The Board noted it would determine what weight to give the respondent's summary evidence in its final decision.

In an interim decision, the Board of Inquiry granted a motion on consent to add First North American Insurance Company as a respondent to the human rights complaint.

The added party was a wholly owned subsidiary of the respondent North American Life Assurance Company and was the actual contracting party with the complainant for the group benefits policy at issue.

The respondent insurance company brought a motion to restrict the evidence in a human rights complaint to the specific illness of the complainant (AIDS), arguing that evidence regarding the impact of an exclusion clause on persons with other disabilities was irrelevant and hypothetical.

The Board of Inquiry dismissed the motion, ruling that because the exclusion clause itself was alleged to be discriminatory, evidence of its broader impact was necessary and admissible to determine its validity.

The respondent Ministry of Education brought an application for particulars regarding a human rights complaint initiated by the Ontario Human Rights Commission.

The respondent sought the names of the individuals who requested the Commission to initiate the complaint.

The Board of Inquiry dismissed the application, finding that the identity of the persons who requested the complaint is not a material fact necessary for the respondent to prepare for the hearing, as the Commission itself is the complainant and the respondent had been provided with the substantial facts of the allegations.