Parent B obo Child B v. Ministry of Children and Family Development, 2025 BCHRT 180
Date Issued: July 31, 2025
File: CS-005527
Indexed as: Parent B obo Child B v. Ministry of Children and Family Development, 2025 BCHRT 180
IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
Parent B on behalf of Child B
COMPLAINANT
AND:
His Majesty the King in Right of the Province of British Columbia as represented by the Ministry of Children and Family Development
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Andrew Robb
On her own behalf: Parent B
Counsel for the Respondent: Jaclyn Salter
I INTRODUCTION
[1] The Ministry of Children and Family Development [the Ministry] operates a support program for families of children with disabilities, known as the At Home Program [AHP]. AHP provides funding for, among other things, medical equipment and treatment for children with disabilities. Child B has disabilities and receives support from AHP. But when his mother, Parent B, applied for funding for his orthodontic treatment, the Ministry denied the application, finding that the treatment was not “directly related” to Child B’s disability, which the Ministry says is a requirement under AHP policy. Parent B filed a human rights complaint on behalf of Child B, alleging that this decision discriminated against Child B based on his disability.
[2] The Ministry denies discriminating. It says the medical information provided in support of the application did not establish that Child B was eligible for AHP funding for orthodontic treatment, despite giving Parent B multiple opportunities to provide more information. The Ministry denies that there was a connection between the denial of funding and Child B’s disability, and says that even if there was such a connection, the Ministry’s conduct was justified under the Human Rights Code, because its requirements for funding are reasonable, and it could not make exceptions to those requirements for Child B, without incurring undue hardship.
[3] The Ministry applies to dismiss the complaint. For the reasons set out below, I deny the application. While the Code does not require disability benefit-providers to provide any particular benefit, I am not satisfied that Parent B has no reasonable prospect of proving a connection between the specific nature of Child B’s disability and the decision to deny funding for this orthodontic treatment. Nor am I satisfied that the Ministry is reasonably certain to prove its conduct was justified, since the policy on which it relies does not appear to support the decision to deny funding.
[4] After the Ministry filed this application to dismiss, Parent B submitted two amendments to the complaint. She also submitted two further submissions in response to the Ministry’s final reply submission. For the reasons set out below, the Tribunal will not accept the amendments for filing. If Parent B wants to pursue the allegations set out in the amendments, she must file a new complaint. Regarding Parent B’s further submissions filed after the Ministry’s reply submission, I find that fairness does not require me to consider these submissions, with the exception of one argument in response to an argument that the Ministry made for the first time in its reply submission.
[5] Although the parties did not apply to limit publication of information related to the complaint, I have decided to anonymise the identities of Child B and Parent B, and I refer to them by randomised aliases. Since Child B is a minor child, I presume that his privacy interests outweigh the public interest in knowing his identity. I order that no person shall publish or disclose any information that could identify Child B or Parent B in connection with this complaint.
II BACKGROUND
[6] The Ministry says AHP funding is governed by a policy called the At Home Program Guide [the Guide]. The Ministry provided a copy of the Guide, and it is publicly available on the Ministry’s website. Relevant portions of the Guide say:
a. To be eligible for funding under AHP, a child must have disabilities that create significant difficulties in certain self-care tasks.
b. AHP may fund medically necessary equipment and supplies and certain other services, including orthodontic, dental, and optical coverage. The Guide says the term “medically necessary” applies to equipment and supplies only.
c. To be considered medically necessary, equipment and supplies must be “directly related” to the disability that qualifies the child for AHP, and “available on the market long enough to be considered common, standard equipment.”
d. AHP does not cover all types of medically necessary equipment and supplies. Equipment and supplies that are not specific to the child’s disability are not eligible.
e. When Parent B applied for funding for Child B’s orthodontic treatment, the Guide said AHP may fund orthodontic benefits if they are required due to the child’s disability. After the events described in Child B’s human rights complaint, the Ministry changed the Guide so it states that, for orthodontic expenses to be funded, the child’s disability must be the cause of the need for orthodontic treatment.
[7] There is no dispute that Child B is eligible for some medical benefits under AHP. The Ministry found Child B was eligible for AHP based on disabilities including Behcet’s disease, an inflammation disorder that causes oral ulcers, among other symptoms. The ulcers are painful and can make eating difficult. Parent B says, and the Ministry does not dispute, that there is no cure for Behcet’s disease.
[8] In February 2021, Parent B applied to AHP for funding for orthodontic benefits for Child B. The application showed that Child B’s dentist found Child B had a malocclusion, or misaligned bite, “which may increase the tendency” for oral ulcers. The dentist recommended early orthodontic treatment to reduce the need for future extractions. The application was supported by a letter from Child B’s pediatric rheumatologist, which said that correcting his bite may improve his ulcers.
[9] The Ministry contracts with an orthodontist to advise about applications for orthodontic benefits under AHP. The Ministry’s contract orthodontist reviewed Parent B’s application and found that the proposed orthodontic treatment did not directly relate to Child B’s disabilities, as the malocclusion was not caused by Behcet’s disease. On this basis, the Ministry denied the application. The Ministry advised Parent B that the documentation submitted did not support the application, because “the need for orthodontic treatment does not directly relate to the diagnosis that qualified the child for our program.” In further correspondence, a Ministry representative said funding could only be provided if the disability that qualified Child B for AHP caused the need for orthodontic treatment. In other words, the Ministry denied the application because Child B’s Behcet’s disease, and the oral ulcers that are symptoms of the disease, did not cause the malocclusion.
[10] In response, Parent B told the Ministry the orthodontic treatment was directly related to Child B’s disability “in the opposite way”. She said the documentation from Child B’s dentist and specialist physician showed that improving Child B’s bite would reduce the chance of developing more oral ulcers. In further correspondence, Parent B continued to explain this to a series of administrators and supervisors within the Ministry.
[11] In April 2021, the Ministry’s contract orthodontist reviewed the application for funding again, but rejected it again because the malocclusion was not directly caused by or related to Child B’s Behcet’s disease. The orthodontist’s report said Child B’s diagnoses do not cause malocclusions, and “poor oral hygiene may be related to the oral ulcers and orthodontic treatment itself will both complicate hygiene and irritate soft tissues.” The Ministry again told Parent B that funding for orthodontic treatment could only be provided if the oral ulcers caused the malocclusion. The Ministry said it would review any new medical information that could show the ulcers caused the need for orthodontic treatment, but noted that orthodontics were not standard treatment for Behcet’s disease, which is a requirement for funding under the Guide.
[12] Parent B received support from the provincial Office of the Representative of Children and Youth, which advocated for the Ministry to approve funding for Child B’s orthodontics. However, the Ministry continued to deny the application, saying that the documentation did not show that the need for orthodontic treatment was directly related to Child B’s Behcet’s disease. The Ministry says advocates from the Office of the Representative of Children and Youth recognised that AHP would not normally fund orthodontic treatment in these circumstances, and asked the Ministry to make an exception for Child B, but the Ministry cannot make exceptions to the rules set out in the Guide.
[13] The Ministry says it asked for Parent B’s consent to speak to Child B’s medical professionals directly, to explain the criteria for funding and determine whether the necessary information could be provided, but Parent B refused to give consent. Parent B does not deny this. She says the Ministry’s request to speak to Child B’s medical professionals was a way to avoid collaboration and transparency with her.
[14] Parent B says that due to the Ministry’s refusal to fund orthodontic treatment, Child B did not receive the recommended treatment in time. Consequently, she says, his teeth shifted, and the original treatment plan was no longer viable, so she was forced to pay out of pocket for a more invasive and prolonged form of treatment.
III DECISION
A. Amendments and sur-replies
[15] On April 24, 2025, the same day she filed her response to the Ministry’s application to dismiss, Parent B also submitted an amendment to the complaint [the First Amendment]. The Ministry then filed a reply submission, which addressed the response to the application to dismiss, but did not address the First Amendment. On May 10, 2025, two days after the Ministry filed its reply, Parent B sent a further submission to the Tribunal [the First Sur-reply].
[16] On June 25, 2025, Parent B submitted an additional amendment [the Second Amendment], and an additional submission in response to the Ministry’s reply [the Second Sur-reply]. The Tribunal did not ask the Ministry to respond to the amendments or the further submissions, and the Ministry has not done so.
[17] For the reasons set out below, the amendments are not accepted for filing, and I decline to consider the further submissions, with one exception, described below.
[18] I first address the amendments. A complainant who wants to amend their complaint during an outstanding application to dismiss must apply to do so: Tribunal Rules of Practice and Procedure, Rule 24(4)(b). The purpose of this rule is to ensure that a respondent who files an application to dismiss a complaint does not face a moving target: Pausch v. School District No. 34 and others, 2008 BCHRT 154 at paras. 28-29. Respondents are entitled to know the allegations against them to assess whether, or on what basis, to bring their application to dismiss the complaint: Purdy v. Douglas College and others, 2016 BCHRT 117 at paras. 35-37.
[19] At the same time, the Tribunal’s complaint forms are not the equivalent of pleadings in a civil litigation process: White v. Nanaimo Daily News Group Inc. and Klaholz, 2004 BCHRT 350 at para. 23. It is not uncommon, or a violation of the Rules, for a complainant to add new “particulars” of their complaint in response to an application to dismiss.
[20] The First Amendment adds new allegations against the Ministry, not mere particulars of the complaint. It seeks to expand the scope of the complaint by adding all four of Parent B’s children as complainants, and adding the grounds of family status, disability, Indigenous identity, and sex, and adding new allegations about the Ministry’s conduct, unrelated to the allegations in the original complaint. The original complaint focused on a single decision by the Ministry—the decision to deny AHP funding for Child B’s orthodontics. The events referred to in the First Amendment are mostly related to Parent B’s custody dispute with her children’s other parent. She alleges that the Ministry’s failure to support her in this dispute amounts to discrimination. There is nothing in the First Amendment about AHP or Child B’s need for orthodontic treatment.
[21] In the Second Amendment, Parent B says that based on the same facts alleged in the original complaint, she seeks to add herself as a complainant, on the grounds of her own disability and her family status, including her association with Child B. Parent B says the Second Amendment is a response to the Ministry’s argument—in its reply submission—that Parent B’s arguments in response to the application to dismiss focus on the adverse effects that she experienced, rather than those experienced by Child B.
[22] The Second Amendment says that, as a result of the Ministry’s denial of funding for Child B’s orthodontic treatment, Parent B was forced to pay out of pocket for the treatment, and this caused her to experience significant, avoidable stress that interfered with her ability to care for all four of her children. On this basis, she says the same facts alleged in the original complaint support a finding that the Ministry discriminated against her, in addition to Child B.
[23] As with the First Amendment, the Second Amendment adds new allegations of discrimination, not mere particulars of the original complaint. It seeks to add a new complainant and new grounds to the complaint. Although Parent B says the Second Amendment relies on the same facts set out in the complaint, the Second Amendment appears to include new factual allegations, about the impact that the Ministry’s decision had on her other children.
[24] I find it would not be fair to the Ministry to allow the amendments. The Ministry has not had an opportunity to respond to the new allegations in the amendments, which differ from the allegations in the original complaint in terms of the grounds of discrimination alleged and the identities of the complainants. The First Amendment also differs from the original complaint in terms of the relevant time period and the subject matter of the allegations. The allegations in the First Amendment are significantly different from the original complaint, other than having the same respondent.
[25] The purpose of Rule 24(4)(b) is to ensure procedural fairness to respondents. Allowing the amendments at this stage would create a moving target, undermining the Ministry’s ability to assess the scope of the complaint and to decide how to frame their application to dismiss: Pausch at para. 30. Parent B does not address this unfairness in the First or Second Amendments.
[26] In my view, the only way to cure the unfairness to the Ministry that would arise from allowing the amendments would be to suspend the application to dismiss process, and start the complaint process again, almost from scratch. The Ministry would be entitled to file an amended response to the amended complaint, it is likely that the parties would have to disclose additional documents, and the Tribunal would have to reassess its original decision under the Case Path Pilot Practice Direction, before the application to dismiss process could continue. I am not persuaded that this would promote the just and timely resolution of the complaint, and I decline to exercise my discretion to allow the amendments.
[27] For these reasons, the amendments are not accepted for filing, and I do not consider them in this decision. If Parent B wants to pursue a human rights complaint against the Ministry based on the allegations in the amendments, she must file a new complaint.
[28] Next I turn to the First and Second Sur-replies. Generally speaking, the Tribunal’s application process involves three submissions, including an application by one party, a response by the other party, and a reply by the party that filed the application: Rule 28(2). The Tribunal may accept further submissions where fairness requires that a party be given an opportunity to respond to new issues raised in the reply, or to address new information not available when the party filed their original submission: Rules 28(5) and 28(6); Kruger v. Xerox Canada Ltd (No. 2), 2005 BCHRT 24 at para. 17. The overriding consideration is whether fairness requires an opportunity for further submissions: Gichuru v. The Law Society of British Columbia (No. 2), 2006 BCHRT 201, para. 21.
[29] Under Rule 28(5), a party who wants to file a further submission, in response to a reply submission, must immediately notify the Tribunal and the other party of their intention to do so, and must apply within one week of receiving the reply submission. The First Sur-reply was submitted two days after the reply submission was filed, but the Second Sur-reply was not filed until over six weeks later. Parent B’s application to file the Second Sur-reply does not address the Second Sur-reply’s non-compliance with the time limit set out in Rule 28(5).
[30] For the following reasons, I am not satisfied that fairness requires me to consider the First or Second Sur-replies, with the exception of Parent B’s response to the Ministry’s argument about its authority to interpret the Guide.
[31] The First Sur-reply was relatively brief. Much of it reiterates information about Child B’s disability, and arguments about how the disability was connected to the need for orthodontic treatment within the meaning of the Guide, that were already included in the response to the application to dismiss. The First Sur-reply also takes issue with some of the Ministry’s arguments in its reply submission. The Ministry argued that the response to the application to dismiss focused on harms to Parent B, rather than Child B. The First Sur-reply says this misunderstands the lived realities of families caring for children with disabilities, in which a parent or guardian’s well-being is not a distraction from the child’s needs, but a pre-condition for meeting those needs. The First Sur-reply also objects to the Ministry’s argument that it is in the best position to interpret the Guide, since it authored the Guide. Parent B says this raises concerns about bias, conflict of interest, and transparency.
[32] The Second Sur-reply was lengthier, but covered much of the same ground as the First Sur-reply. It says the Ministry’s reply submission included new arguments about AHP, and mischaracterised Parent B’s position. Part of the Second Sur-reply describes the difficulties Parent B faced in getting Child B approved for AHP in the first place, before the application for funding for orthodontic treatment, and the difficulties she faced in requesting other types of support from AHP, separate from the application for funding for orthodontic treatment.
[33] The Second Sur-reply also includes arguments similar to those in the First Sur-reply about the Ministry’s interpretation of the Guide, and expands on Parent B’s arguments about the correct interpretation of the terms “directly related” and “medically necessary”, in the context of the Guide. Like the First Sur-reply, the Second Sur-reply addresses the Ministry’s argument that it is in the best position to interpret the Guide. The Second Sur-reply also refers to other issues including the Ministry’s submission that Parent B’s arguments focus on the harm to Parent B, rather than Child B, the changes to the Guide after Parent B filed this complaint, the applicability of Jordan’s Principle, and Parent B’s general allegations about AHP’s lack of transparency and accessibility. As will be seen in my decision under s. 27(1)(c) of the Code, below, I have not found it necessary to address these issues, in making a decision about the Ministry’s application to dismiss.
[34] Both Sur-replies contain some information and arguments that were, or could have been, in Parent B’s initial response to the application to dismiss. I need not consider the parts of the sur-replies that repeat information in Parent B’s response submission. Parent B says she should be entitled to respond to the Ministry’s arguments in the reply submission, but I find she already had a chance to do so, in her initial response to the application to dismiss. Most of the Ministry’s arguments in the reply submission were in direct response to Parent B’s arguments in her response to the application to dismiss. Fairness does not require that a party should have a second chance to expand on arguments that they already made.
[35] In my view, the only argument in the Ministry’s reply submission that was new, and which Parent B could not reasonably have anticipated, was the Ministry’s argument that it is in the best position to interpret the Guide. The reply submission suggests that the Ministry’s interpretation should receive deference because the Ministry is the Guide’s author. This argument is not in the application to dismiss, even though the original complaint made clear that Parent B objected to the Ministry’s interpretation of the Guide.
[36] Since the Ministry made the argument about its authority to interpret the Guide for the first time in the reply submission, I find that fairness requires me to consider the parts of the Sur-replies that respond to this argument. I am not satisfied that fairness requires me to consider any other parts of the Sur-replies.
[37] Although the Second Sur-reply was not filed until approximately six weeks after the time limit set out in Rule 28(5) expired, I find it appropriate to consider the arguments in the Second Sur-reply in response to the Ministry’s argument about its authority to interpret the Guide. The non-compliance with the time limit has not caused any delay in the Tribunal’s process. Parent B addressed the same issue in the First Sur-reply, which did comply with the time limit in Rule 28(5). Her submissions about the issue in the Second Sur-reply are directly related to what she said in the First Sur-reply.
B. Section 27(1)(c) – No reasonable prospect of success
[38] The Ministry applies to dismiss the complaint under s. 27(1)(c) of the Code, on the basis that it has no reasonable prospect of success. Section 27(1)(c) is part of the Tribunal’s gate-keeping function. It allows the Tribunal to dismiss complaints which do not warrant the time and expense of a hearing. The onus is on the Ministry to establish the basis for dismissal.
[39] The Tribunal does not make findings of fact under s. 27(1)(c). Instead, the Tribunal looks at the evidence to decide whether “there is no reasonable prospect that findings of fact that would support the complaint could be made on a balance of probabilities after a full hearing of the evidence”: Berezoutskaia v. British Columbia (Human Rights Tribunal), 2006 BCCA 95 at para. 22. The Tribunal must base its decision on the materials filed by the parties, and not on speculation about what evidence may be filed at the hearing: University of British Columbia v. Chan, 2013 BCSC 942 at para. 77.
[40] The threshold to advance a complaint to a hearing is low. In a dismissal application, a complainant does not have to prove their complaint or show the Tribunal all the evidence they may introduce at a hearing. They only have to show that the evidence takes their complaint out of the “realm of conjecture”: Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 at para. 27.
[41] To prove the complaint at a hearing, Parent B will have to prove that Child B has a characteristic protected by the Code, he was adversely impacted in the services provided by the Ministry, and his protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33. If those elements are established, the burden would shift to the Ministry to justify the impact as a bona fide reasonable justification. If the impact is justified, there is no discrimination.
[42] In this application, the Ministry does not deny that Child B has a disability, or that the decision to deny funding for orthodontic treatment had an adverse impact on him. But the Ministry says Parent B has no reasonable prospect of proving a connection between Child B’s disability and the funding decision. In the alternative, the Ministry says it is reasonably certain to establish a bona fide reasonable justification for the decision.
[43] If the Ministry shows it is reasonably certain to prove a defence at the hearing, then the complaint has no reasonable prospect of success: Purdy at para. 50. To justify the denial of funding at a hearing, the Ministry would have to prove it was based on a standard adopted in good faith, for a purpose rationally connected to the function being performed, and the standard is reasonably necessary to the accomplishment of that legitimate purpose. This last element encompasses the Ministry’s duty to accommodate Child B to the point of undue hardship: British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 SCR 868 [Grismer] at para. 20.
[44] The Ministry says it did not deny funding for Child B’s orthodontic treatment because of his disabilities, but because that treatment was not eligible for funding, under the Guide. I understand the argument to be that Parent B has no reasonable prospect of proving Child B’s disability was a factor in the decision to deny funding because the decision was the result of a non-discriminatory application of a neutral rule.
[45] The Ministry cites Auton (Guardian ad litem of) v. British Columbia (Attorney General), 2004 SCC 78, where the Supreme Court of Canada held that s. 15 of the Canadian Charter of Rights and Freedoms does not require governments to provide any particular benefits to people with disabilities, but that once a benefit is provided, it must be provided in a non-discriminatory manner: Auton at para. 41. The Tribunal has applied the same principles under the Code: Hoffman and another v. B.C. (Ministry of Social Development) and another, 2012 BCHRT 187 at para. 80.
[46] The Ministry says it is entitled to set restrictions and requirements on AHP funding for medical treatment, and it is not discriminatory to require that the issue being treated must be caused by the diagnosis that made the child eligible for AHP. The Ministry says this requirement is not connected to Child B’s disability, because it applies to every child who applies for funding under AHP.
[47] I agree with the Ministry’s submission that the Code does not require the Ministry to provide any particular benefit, but for the following reasons I am not satisfied that Parent B has no reasonable prospect of proving the refusal to fund orthodontic treatment was non-discriminatory. I find Parent B has brought the connection between the specific nature of Child B’s disability and the decision to deny funding for his orthodontic treatment beyond conjecture.
[48] Parent B argues that the Ministry’s decision misinterprets the Guide. She says the Ministry’s finding that the orthodontic treatment sought was not “directly related” to Child B’s Behcet’s disease, and that the disease did not cause the need for orthodontic treatment, is inconsistent with the medical evidence she provided, showing that the treatment would reduce the frequency of oral ulcers.
[49] Even if the decision to deny Child B’s application for funding was incorrect or inconsistent with the Guide, that would not necessarily make it discriminatory. The Tribunal does not review the decisions of disability benefit-providers to determine whether they are correct or fair. The Tribunal has found, in the context of complaints about disability benefits, that a wrong or unfair decision by the benefit-provider is not enough to establish discrimination: Ingram v. Workers’ Compensation Board and others, 2003 BCHRT 57 at para. 20; Dithurbide v. North Central and Sun Life, 2008 BCHRT 384 at para. 70. In order to prove discrimination in this context, a complainant must establish a connection between the error or unfairness and their disability.
[50] Parent B’s argument suggests that there is a connection between the Ministry’s decision not to fund the orthodontic treatment and the specific nature of Child B’s disability. She says the Ministry’s requirement for a causal relationship between Behcet’s disease and the malocclusion is not only a misinterpretation of the Guide, but discriminates against children with disabilities where “causal relationships may be multifactorial but clinical relevance and benefit are clear.” I understand Parent B’s argument to be that the Ministry’s decision was based on a distinction between disabilities that cause a malocclusion and disabilities that are exacerbated by a malocclusion, and this disproportionately excludes children with complex and incurable conditions, like Behcet’s disease.
[51] As I said above, not every denial of funding for a medically recommended benefit is discriminatory, but if the Ministry denies a benefit based on the nature of the applicant’s disability, that could support a connection between the denial and the disability. On the evidence before me, the nature of Behcet’s disease is that there is no cure, so the recommended treatment is to minimise external factors that exacerbate the symptoms. The Ministry’s stated requirement for a causal relationship between the disability and the issue being treated would appear to disproportionately affect children with disabilities of this nature, by excluding them from funding for treatments that prevent exacerbation of their symptoms. Considering the low threshold that applies in an application under s. 27(1)(c) of the Code, I find this is sufficient to bring the connection between the specific nature of Child B’s disability and the denial of funding for his orthodontic treatment beyond conjecture.
[52] I now turn to the Ministry’s justification argument. The Ministry says its decision to deny funding for Child B’s orthodontic treatment was justified under the Grismer analysis. The Ministry says the decision was based on the requirements for funding medical supplies set out in the Guide, and the Guide was adopted in good faith, as a way to determine eligibility for funding so as to allocate the Ministry’s limited resources. The Ministry says allowing any exceptions to the Guide would incur undue hardship by creating unfairness to other families who were denied funding in similar circumstances.
[53] I find the Ministry is not reasonably certain to prove its justification argument, first of all because I am not satisfied that the Ministry is reasonably certain to prove the decision to deny funding was based on the requirements set out in the Guide. As noted above, even if the Ministry’s decision was not supported by the Guide, that would not be enough to make it discriminatory. But in the context of the Ministry’s justification argument, which relies on the Guide as support for the decision, the onus is on the Ministry to establish that it is reasonably certain to prove the decision was consistent with the Guide.
[54] As Parent B points out, at the time she applied for funding, the Guide appeared to say that orthodontic benefits could be funded if they are required due to the child’s disability. As I read it, it does not require a causal relationship between the disability and the medical issue to be treated. The Guide suggests the “medically necessary” standard—which includes the “directly related” language that the Ministry interprets as requiring a causal relationship—applies to medical equipment and supplies only, not to orthodontic, dental, or optical benefits.
[55] I have considered the Ministry’s argument, in its reply submission, that it is in the best position to interpret the Guide, as the Guide’s author. While there is no dispute that the Ministry authored the Guide, the Ministry offers no evidence about the considerations that informed its drafting of the relevant parts of the Guide, or the interpretive principles it applies to the Guide. I am not satisfied that just because the Ministry authored the Guide, that means the Ministry is reasonably certain to prove its interpretation of the Guide must prevail.
[56] Even if the Guide does require a causal relationship between a child’s disability and the medical issue for which treatment is sought, the Ministry’s submission that Behcet’s disease did not cause the need for orthodontic treatment is difficult to reconcile with the medical evidence that treatment would reduce the frequency of the ulcers caused by the disease. Of course the need for treatment to correct malocclusions is not specific to people with Behcet’s disease, but the medical evidence suggests Child B had a particularly urgent need for orthodontic treatment because of the disease. In this sense, it appears Child B needed orthodontic treatment because he had Behcet’s disease.
[57] I am also not satisfied the Ministry is reasonably certain to prove the basis for its undue hardship argument, which is that funding the orthodontic treatment would have created unfairness to others who were denied funding for similar reasons, and would have interfered with the Ministry’s ability to provide services to children whose conditions render them eligible for benefits. There is no evidence before me that others have been denied funding for similar reasons. The Ministry says the denial of funding for Child B was consistent with the way AHP interprets the Guide in other cases, but gives no examples of analogous cases.
[58] The Ministry’s evidence is that it has always interpreted the Guide to mean that any medical benefits for which funding is sought must treat the disability which led to the child being qualified for AHP, or an issue that was caused by that disability, and no exceptions can be made, in order to preserve fairness and maintain consistency. But in light of the evidence that orthodontic treatment could have reduced the symptoms of Child B’s disability, I am not satisfied the Ministry is reasonably certain to prove the orthodontic treatment would not treat his disability, or that the Ministry would have had to make an exception to its rules in order to fund the treatment.
[59] The Ministry says it must set limits on eligibility for funding to ensure that as many families as possible receive support, and to ensure it allocates its resources in a sustainable way. There is no dispute that the Ministry has limited resources, or that there are many demands on those resources. But the Ministry does not suggest, or offer any evidence, that funding Child B’s orthodontic treatment would have created undue financial hardship.
[60] The Ministry argues that it discharged its duty to accommodate by offering Parent B opportunities to provide further information about the application for funding, and by offering to connect with Child B’s healthcare providers, to try and get information that could substantiate the connection needed to fund the orthodontic treatment. The Ministry says Parent B thwarted this process by refusing to provide more information, and withholding consent for the Ministry to connect with Child B’s healthcare providers. Parent B says the Ministry already had sufficient information to establish that Child B met the requirements for funding for orthodontic treatment. I am not satisfied the Ministry is reasonably certain to prove the contrary, for the same reasons discussed above: on the materials before me in this application, the Ministry is not reasonably certain to prove the medical evidence was insufficient to meet those requirements.
[61] This is not a situation analogous to an employee who requests accommodation from their employer and then refuses to provide medical information to support the request. Parent B provided medical information that appears to establish the relationship between Child B’s oral ulcers, the malocclusion, and the need for orthodontic treatment. It does not appear that the Ministry requested more information to better understand what restrictions Child B faced, or how it could accommodate those restrictions. On the evidence before me, it appears the Ministry requested more information based on the possibility that Child B’s treatment providers could offer an alternative explanation for the connection between the malocclusion and the Behcet’s disease. In other words, the Ministry was not searching for a way to accommodate Child B, but for a new rationale for the orthodontic treatment.
[62] For these reasons, I find the Ministry is not certain to prove its conduct was justified under the Code.
IV CONCLUSION
[63] I deny the application to dismiss. The complaint will proceed to a hearing.
[64] No person shall publish or disclose any information that could identify Child B or Parent B in connection with this complaint.
[65] The amendments filed April 24, 2025, and June 25, 2025, are not accepted for filing. They do not form part of the complaint.
Andrew Robb
Tribunal Member