CITATION: Theriault v. The Director of the Ontario Disability Support Program, 2023 ONSC 3218
DIVISIONAL COURT FILE NO.: DC-21-0000-2675-0000
DATE: 20230530
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
EDWARDS RSJ, BACKHOUSE J. and STEWART J.
BETWEEN:
JOSEPH DENNIS THERIAULT
Appellant
– and –
THE DIRECTOR OF THE ONTARIO DISABILITY SUPPORT PROGRAM
Respondent
Roger Trudel, for the Appellant
Jason Kirsh, for the Respondent
HEARD: February 16, 2023 in Toronto by video conference
REASONS FOR DECISION
M.L. Edwards, RSJ:
Overview
[1] The Appellant appeals from three decisions of the Social Benefits Tribunal (the “SBT”) upholding the Director’s denial of the Appellant’s request for funding for medical cannabis under the Ontario Disability Support Program (the “ODSP”). The three decisions under appeal are as follows:
(i) an Interim Decision dated December 18, 2019 (the “Stage 1 Decision”) upholding the Director’s decision not to reimburse expenses related to medical cannabis and directing that the matter proceed to a Stage 2 hearing to address the Appellant’s claim that non-funding of medical cannabis under the ODSP is discriminatory under the Human Rights Code (the “Code”).
(ii) a Case Management Ruling dated July 22, 2020 holding that the Tribunal lacks jurisdiction to hear challenges under the Canadian Charter of Rights and Freedoms (the “Charter”); and
(iii) a final Decision dated August 20, 2021 holding that the Appellant’s Code claim had no reasonable prospect of success and, as such, a Stage 2 hearing would not be necessary.
The Facts
Factual Background
[2] The Appellant is a person with disabilities within the meaning of the Code. The Appellant has significant chronic pain impairments affecting various parts of his body and he suffers from psychological impairments including anxiety. In his factum the Appellant states that he has broken almost every bone in his body as a result of a number of motor vehicle accidents and other accidents at home. He compares himself to “Evil Knievel the now famous motorcycle acrobat”. As a result of his injuries the Appellant suggests he needs medical cannabis/marijuana to assist in his pain and suffering. The Appellant seeks funding for the cost of the medical cannabis/marijuana from ODSP.
[3] The Appellant has been prescribed medical cannabis by different health practitioners in different provinces since 2011. Unlike other treatments, medical marijuana has assisted the Appellant with his impairments.
[4] The Appellant moved to Ontario in 2017, where he subsequently became a recipient of social assistance under the ODSP. As someone entitled to ODSP the Appellant is eligible for coverage for certain drugs approved under the Ontario Drug Benefit Program. Medical cannabis is not approved for funding under the Ontario Drug Benefit Program for any resident of Ontario.
[5] Since 2018 the Appellant has been granted the necessary authorization by Health Canada to grow medical marijuana. The Appellant argues that treatment with medical marijuana is expensive and thus he requires funding to cover his costs.
History of the decisions
[6] On April 24, 2018, the Director denied the Appellant’s request for health benefits to cover the costs of medical cannabis to treat his medical issues. This decision was based on the fact that medical cannabis is not a drug approved for funding under the Ontario Drug Benefit Program pursuant to section 44(1)(i) of the ODSP Regulation.
[7] The Appellant then requested (as a mandatory step under the ODSP Act[^1] prior to filing an appeal) an internal review of the April 24, 2018 decision. The Director conducted an internal review and maintained the denial in a letter to the Appellant dated May 31, 2018.
[8] Next, in May 2018, the Appellant filed an Exceptional Access Program application (“EAP application”) for funding of his medical cannabis. EAP denied the request because medical cannabis is not currently funded under the Ontario Drug Program, it is also not covered through EAP, for anybody in Ontario.
[9] After the denial of the internal review, the Appellant then appealed the Director’s decision to the Tribunal. He argued that the Director’s decision was incorrect; that the decision as a person with a disability violated his rights under the Code, and that his Charter rights were being violated.
[10] The Tribunal bifurcated the claim; the Code claim was to be heard at Stage 2 – that is, after the Stage 1 hearing was completed to see if the Director correctly applied the law in denying the Appellant’s request.
[11] On December 1, 2019, the Stage 1 Decision was released: the SBT upheld the Director’s decision to deny coverage for medical cannabis because it is not an available drug under the Regulation; nor is it approved by the Ontario Drug Benefit Program; thus, the Director could not fund it under the ODSP Regulation.
[12] Since the Appellant raised Charter issues (section 7, which was supposed to be heard at Stage 2 hearing), the Tribunal sought submissions regarding its jurisdiction to adjudicate such a claim. On July 22, 2020, the Tribunal released a decision finding it had no jurisdiction to consider and decide a Charter issue because s. 67(2) of the Ontario Works Act[^2] states that the Tribunal shall not inquire into or decide matters concerning the constitutional validity of a provision of an Act or regulation, or the legislative authority for regulation made under the Act.
[13] Before the Code claim was heard on its merits, in January 2021, the Respondent made a written request to have the Appellant’s Code claim summarily dismissed on the basis of no reasonable prospect of success. A summary hearing took place, and a decision was released on August 20, 2021 in which the Tribunal dismissed the Appellant’s appeal because there was no reasonable prospect that the Code claim could succeed. The Tribunal reasoned that the Appellant was unable to show any evidence that disability was a factor in the Respondent’s decision to deny coverage for the cost of medical cannabis; and there was no evidence that the Appellant requested a Code-related accommodation or even required an accommodation. In essence, the Appellant could not establish discrimination under the Code and there was no differential treatment among beneficiaries of the ODSP regarding access to medication. In short cannabis is not covered because it is not part of the covered drugs on the province’s Formulary of approved drugs.
[14] The Appellant requested a reconsideration of the Tribunal’s August 20, 2021 decision to dismiss the Code claim summarily. On October 28, 2021, the Tribunal upheld its Stage 2 decision in a reconsideration decision.
The Applicable Legislation to Someone Entitled to ODSP Seeking Coverage for Prescriptive Drugs
[15] The Ontario Drug Benefit Act, RSO 1990 c. O.10, establishes the Ontario Drug Benefit Program, which funds certain drug products for eligible persons in Ontario. Eligible persons include individuals entitled to receive drug benefits under the ODSP Act. The drugs that are funded through the Ontario Drug Benefit Program are listed on a Formulary established under section 1.2 of the Ontario Drug Benefit Act.
[16] The purpose of the Ontario Drug Benefit Program set forth in the Ontario Drug Benefit Act, s. 0.1 is to provide cost-effective drug coverage to eligible persons in accordance with the best clinical and economic evidence available.
[17] The legislative purpose of the ODSP as stated in s. 1 of the ODSP Act is to: (a) provide income and employment supports to eligible persons with disabilities; (b) recognize that government, communities, families and individuals share responsibility for providing such supports; (c) effectively serve persons with disabilities who need assistance; and (d) be accountable to the taxpayers of Ontario. When an individual becomes eligible for ODSP, they become eligible persons under the Ontario Drug Benefit Program.
[18] To be eligible for income support under the ODSP Act, a person must be a resident of Ontario, qualify financially, be a “person with a disability” as defined under section 4(1) of the ODSP Act or a member of a prescribed class, and provide the information and the verification of information required to determine eligibility.
[19] Recipients of ODSP income support may also be eligible for additional benefits under s. 44(1)1(i) of ODSP Regulation which provides:
44 (1) The following benefits shall be paid with respect to each of the members of a recipient’s benefit unit if the Director is satisfied that he or she meets the criteria for them and income support is being paid on his or her behalf: health benefits
- An amount for health benefits equal to the sum of,
(i) the cost for drugs prescribed for members of the benefit unit by an approved health professional, not including the co-payment that a member of the benefit unit is charged under the Ontario Drug Benefit Act, if those drugs have been approved by the Minister of Health and Long-Term Care and purchased from a dispensary during any month in which the person requiring the drugs is a member of the benefit unit.
[20] The drugs that are funded through the Ontario Drug Benefit Program are listed on a formulary established under s. 1.2 of the Ontario Drug Benefit Act (the “Formulary”). Sections 12 and 12.1 of Ontario Regulation 201/96 (“Regulation 201/96”) under the Ontario Drug Benefit Act lists the conditions that must be met for a drug to be listed on the Formulary and to continue to be listed on the Formulary, respectively. Under s. 12 of Regulation 201/96, in order to be listed on the Formulary, a drug must be approved by Health Canada. Under s. 12.1 of Ontario Regulation 201/96, to continue to be listed on the Formulary, a drug must be authorized for sale under the federal Food and Drugs Act[^3]. Health Canada authorizes a drug product for sale by assigning a Drug Identification Number (“DIN”). Medical cannabis has not been assigned a DIN by Health Canada.
[21] A drug product may also be funded through the EAP. In order to receive funding under the EAP, a person must be eligible under the Ontario Drug Benefit Act and the person’s physician or nurse practitioner must submit a funding request to the Ministry of Health outlining relevant medical information about the person, a clinical rationale for requesting the unlisted drug product and reasons why drugs listed on the Formulary are not suitable. No right of appeal exists from a decision under the EAP to the Tribunal or to any other body.
[22] Pursuant to section 29(3) of the ODSP Act, the Tribunal does not have jurisdiction to make a decision in an appeal that the Director would not have authority to make.
The Issues to be Determined
Did the Tribunal err in law in holding the Director had no discretion to grant funding for medical cannabis?
Did the Tribunal err in law in holding that the Tribunal lacked jurisdiction to deal with Charter issues?
Did the Tribunal err in holding that the Appellant’s Code claim had no reasonable prospect of success?
Court’s Jurisdiction
[23] Section 31(1) of the Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sched. B provides a statutory right of appeal to this court on a question of law only.
Standard of Review
[24] As noted above Section 31 of the ODSP Act provides that a Tribunal’s decision may be appealed to the Divisional Court on a question of law. On appeals relating to questions of law, the standard of review is as set out in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 37, and Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8, namely the standard of correctness.
Position of the Appellant
[25] The Appellant argues that cannabis should be considered a nutrient, separate from its classification as a drug, and that this should be done to accommodate the Appellant. He relies on a decision in Ball v. Ontario (Community and Social Services), 2010 HRTO 360 in which the Ontario Human Rights Commission allowed the applicant to have a special diet for hypoproteinemia, hypertension and hypercholesteremia in accordance with the Code. Relying on Ball the Appellant argues that the nutrients of cannabis allow for the treatment of his ailments and sufferings and should therefore be funded by the Director; and that failure to do so results in discrimination.
[26] The Appellant argues that because Health Canada already granted him a certificate to grow medical marijuana it should not be necessary to have a DIN for the cannabis that he seeks to have funded under the ODSP.
[27] The Appellant further argues that while the Tribunal may not have jurisdiction to address Charter issues, the Divisional Court should do so.
Position of the Respondent
[28] The Respondent argues three essential point specifically that (1) the Tribunal was correct in holding the Director has no discretion to grant funding for medical cannabis; (2) the Tribunal was correct in holding that it does not have Charter jurisdiction and that resorting to the Charter to interpret the ODSP Regulation is not required; and (3) the Tribunal was correct in holding the Appellant’s Code claim had no reasonable prospect of success.
- There was no error of law in holding the Director had no discretion to grant funding for medical cannabis
[29] The Respondent argues that the Tribunal correctly decided that the Director has no discretion to fund the Applicant’s medical cannabis under s. 44 of the ODSP Regulation, because s. 44(1)(i) only authorizes the Director to fund the cost of drugs if they are approved by the ODBP. Since medical cannabis is not approved for funding, the Director could not approve funding.
[30] The Respondent rejects the Appellant’s claim that since the Appellant is authorized by Health Canada to grow cannabis, he does not need a DIN for the cannabis. The Respondent argues that the Director and the Tribunal only have the powers provided to them under their statutes, and thus they cannot provide a benefit that is not authorized under the ODSP Act and Regulations.
- There was no error of law in holding that the Tribunal lacked Charter jurisdiction or in refusing to hear the Appellant’s Charter arguments
[31] The Respondent submits that the Tribunal correctly decided it did not have jurisdiction to decide Charter claims and it was correct to refuse to hear the Charter argument. The Respondent notes that the Appellant does not raise any specific Charter issues (other than s. 7 in its Form 4) but seeks to use concepts of the Charter to liberally interpret provisions he relies on. The Respondent argues that the Tribunal does not have jurisdiction to apply the Charter and grant s. 52(1) or s. 24(1) remedies.
- There is no error in holding that the Appellant’s Code claim had no reasonable prospect of success.
[32] The Respondent argues that the Code claim had no reasonable prospect of success because no one in Ontario receives funding for medical cannabis, and because the Human Rights Tribunal of Ontario has found that the non-funding of medical cannabis under the ODBP does not violate the Code. Further, it submits that there is no breach of the Code for duty to accommodate since the Appellant tendered no evidence to support such a claim.
Analysis
[33] The first two issues that this court must address are easily resolved. In order for the Appellant to succeed in this appeal, and in particular as it relates to the first two issues, he must demonstrate that the Respondent made an error in law. He must clearly establish that the decision of the Tribunal is not correct.
[34] The Tribunal did not err in law in its determination that the Director had no discretion to grant funding for medical cannabis. The governing legislation is Section 44 of the ODSP Regulations. The Director may authorize funding the cost of drugs only if the cost of those drugs has been approved for funding under the ODSP. Medical cannabis very simply put is not approved for funding under the ODSP.
[35] The answer to why medical cannabis is not approved for funding is found in an analysis of what drugs are listed in the formulary established under Section 1.2 of the Ontario Drug Benefit Act. How a drug makes its way onto the formulary is dictated by Section 12.1 of Ontario Regulation 201/96 which provide that “the following conditions must be met in order for a designated listed drug product to continue to be designated as a listed drug product….2) the product must be authorized for sale under the Food and Drugs Act (Canada)….”
[36] A drug is authorized by Health Canada for sale by assigning it a Drug Identification Number or as it is commonly referred to, a DIN. Medical cannabis does not have a DIN and as such it is not covered under the Ontario Drug Benefit Act.
[37] An analogous situation to the one confronting the Appellant can be found in the Ontario Court of Appeal decision in Flora v Ontario Health Insurance Plan,2008 ONCA 538 where the court had to confront an application by Mr. Flora for reimbursement of expenses ($450,000) incurred after it was determined he was not a candidate for a liver transplant.
[38] The expenses were incurred by Mr. Flora at a hospital in London England that provided treatment not covered by OHIP. The Court of Appeal made clear in Flora that OHIP does not promise that residents of Ontario will receive public funding for all medically beneficial treatments. Rather as the Court observed at para 85: “the funding provided by the Act does not extend to all medical treatments or procedures. Only those medical services that the Legislature has determined should be included as “insured services” qualify under the Act for reimbursement by OHIP.”
[39] The Appellant argues that because he has been given the necessary clearance by Health Canada to grow his own medical marijuana it should automatically follow that he must be entitled to coverage through ODSP for the cost of the cannabis he needs to control his pain. This argument while appealing in its simplicity fails to recognize what the Court of Appeal clarified in Flora that not all medical treatment is covered by OHIP and therefore by analogy not all drugs will be funded by ODSP. The only drugs that will be funded are those that have a DIN. Cannabis does not have a DIN and therefore the Director was correct in denying the Appellant’s claim to require ODSP to fund the cost of cannabis.
[40] As it relates to the second issue of whether the Tribunal lacked Charter jurisdiction to hear the Appellant’s Charter arguments, this court must determine when a tribunal may determine a constitutional issue. In R v Conway, 2010 SCC 22 at paras 81-82 the Supreme Court of Canada established a three-part inquiry to determine the constitutional jurisdiction of a tribunal: (1) determine whether the tribunal can decide questions of law; (2) determine whether the power to grant constitutional/Charter remedies generally has, explicitly or by clear implication, been excluded by statute; and (3) determine whether the tribunal has the jurisdiction to grant the particular remedy requested.
[41] There is no dispute that the Tribunal can decide questions of law. The determination of a question of law does not, however, extend to determining the constitutional validity of legislation This is made clear by the application of Section 67(2) of the Ontario Works Act which provides “[t]he Tribunal shall not inquire into or make a decision concerning: (a) the constitutional validity of a provision of an Act or a regulation…” The Legislature has explicitly excluded from the Tribunal’s jurisdiction the power to grant a remedy under S. 52 of the Constitution Act,1982.
[42] The Tribunal was correct in its determination that it had no jurisdiction to grant the Appellant’s request for a Charter remedy. In reaching this conclusion it is worth noting that in this appeal, the Appellant did not advance a Charter claim to seek a remedy invalidating the legislation. Rather the Appellant argued in his factum that “concepts of the Charter” and “Charter provisions” should be used to provide a more liberal interpretation of the ODSP Regulation. The Appellant did not specify which Charter provisions he relied upon. In my view there is no liberal interpretation that can change the requirement that for there to be ODSP funding for cannabis, Health Canada must first assign cannabis a DIN.
[43] The third and final issue this court must address is whether the Tribunal erred in law in its determination that the Appellant’s Code claim had no reasonable prospect of success on the basis that even if the facts asserted by the Appellant were true, it did not follow that there was a violation of the Code. Fundamental to this conclusion was the simple fact that no one entitled to ODSP can receive funding for medical cannabis and therefore the Appellant was treated no differently than any other ODSP recipient.
[44] The issue raised by the Appellant is not a novel issue. It is an issue that has already been addressed in a number of decisions of the Human Rights Tribunal of Ontario (“HRTO”). In Kueber v Ontario (Attorney General) 2014 HRTO 769 the applicant, like the Appellant in this case, sought funding for medical marihuana and asserted that the failure of the government Ministry to fund medical marihuana discriminated against her because of her disability. As in this case the Ministry in part argued that medical marihuana was not covered under the ODSP program because it was not a drug approved for sale in Canada under the Federal Food and Drugs Act and Regulations i.e. it did not have a DIN.
[45] In ultimately concluding that there was no Code violation, the HRTO assumed for the purposes of its decision that marihuana was effective in treating the applicant’s pain. However, the HRTO then went on to frame the issue not as one concerning the efficacy of marihuana as a treatment for pain but rather whether there was a Code-related reason for the Ministry’s decision not to fund marihuana under the ODSP Program.
[46] In its decision at para 28 and 29 the HRTO came to the following conclusion- a conclusion that is equally applicable to the appeal before this court:
[28] There 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”.
[29] Unlike 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.”
[47] The same conclusion was reached by the Health Services Appeal and Review Board in E.N.T. v Ontario (Health Insurance Plan), 2018 82192 where the applicant sought funding for a special type of dental implants which she required because of a rare medical condition she suffered from. OHIP advised the applicant that the dental implants were not an insured service under OHIP coverage. The applicant raised a Code violation and argued she was being denied coverage because of her disability. In dismissing the Applicant’s request for the funding of the dental implants it is worth repeating what the Board said at para 55:
In a broad, non-legal sense, OHIP “discriminates” by choosing to fund certain medical and dental procedures and not others. Viewed from that perspective, anyone suffering from a condition that is not covered by OHIP can argue that excluding the treatment required from the Schedule of funded procedures amounts to discrimination. In the Appeal Board’s view, that is defining discrimination too broadly. At the very core of the Health Insurance Act is the government’s ability to decide which procedures it will cover as “insured services” under OHIP and those it will not. To repeat what the Ontario Court of Appeal stated in Flora, above, OHIP funding “does not extend to all medical treatments or procedures. Only those medical services that the legislature has determined should be included as ‘insured services’ qualify under the Act for reimbursement.
[48] In the Appellant’s case he can point to no evidence that because of his medical disability there has been any discrimination in the Director’s decision to deny funding for the medical cannabis he needs to treat his pain. In essence the Appellant is treated like all persons on ODSP. No one is entitled to coverage for medical cannabis. No one is entitled to that coverage because Health Canada has not assigned cannabis a DIN. As in Flora, Kueber and E.N.T. the government has decided what drugs will be covered and which drugs by default will not be covered. ODSP coverage for drug benefits does not extend to all drugs.
[49] For the reasons set forth above the appeal is dismissed. As no costs were sought by the Respondent, there will be no costs awarded.
M.L. Edwards RSJ
Backhouse J.
Stewart J.
Released: May 30, 2023
Theriault v. The Director of the Ontario Disability Support Program, 2023 2023 ONSC 3218
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
EDWARDS RSJ, BACKHOUSE J. and
STEWART J.
BETWEEN:
JOSEPH DENNIS THERIAULT
Appellant
-and-
THE DIRECTOR OF THE ONTARIO DISABILITY SUPPORT PROGRAM
Respondent
REASONS FOR JUDGMENT
Released: May 30, 2023
[^1]: Ontario Disability Support Program Act, 1997, S.O. 1997, c.25, Sched.B (“ODSP Act”).
[^2]: Ontario Works Act, 1997, S.O. 1997, c.25, Sched.A.
[^3]: Food and Drugs Act, RSC, 1985, c.F-27).